How the Mental Health Bill has been amended by the House of Lords

By Tim Spencer-Lane

The Mental Health Bill, which seeks to reform the Mental Health Act 1983 (MHA) to strengthen the voice of the patient and ensure that that detention is only used when necessary, received its third reading in the House of Lords on 23 April 2025.

Having now been passed by the Lords, the bill is at the halfway stage of its passage through Parliament. This article summarises the main changes made to the bill by peers and the key debates during its passage through the Lords.

Opposition amendments to the bill

Several amendments were made to the bill despite being opposed by the government. These amendments were tabled and supported by both opposition and crossbench peers (who are non-party political). The changes cover the following four areas.

The role of the police in detentions

The police have specific powers under sections 135 and 136 of the MHA to detain people with a mental disorder, both with and without a warrant.

An amendment was tabled by Lord Kamall (Conservative) to introduce a new category of “authorised person” who can carry out detentions under the MHA to offer a “better inter-agency response”.

An “authorised person” means a medical practitioner, approved mental health professional (AMHP), mental health nurse or doctor, or other prescribed person, who has been “trained and equipped to carry out detentions under [the MHA] and who would not be put at unnecessary risk by carrying out those functions”.

These changes have been championed by the police and the former prime minister, Lady May (Conservative), and are intended is to reduce police presence at mental health incidents, building on the Right Care, Right Person national partnership agreement. Under this, the police will only attend mental health-related incidents to investigate a crime or to protect people from an immediate risk of serious harm or risk to their life.

The government minister, Baroness Merron (Labour), argued that due to drafting deficiencies, the effect of the amendment would be to give the police additional detention powers, contrary to its intentions.

Also, the minister argued that extending detention powers currently held by the police to other professionals would “represent a major shift in roles and responsibilities for health and care professionals” and would place “significant additional pressures on the NHS and potentially lead to staff, patient and public safety issues”.

The amendment was passed by 223 to 157 votes.

Interestingly, Lord Kamall pointed to the 2014 joint Home Office and Department of Health review of police powers under the MHA, which showed that 68% of respondents agreed some or all of  the sections 135 and 136 powers should be extended to healthcare professionals; paramedics, in particular, supported the change.

However, both the AMHP Leads Network and British Association of Social Workers (BASw) have come out strongly against the changes: for example, the AMHP Leads Network said “the proposal is deeply troubling and will have disastrous unintended consequences for both individuals in crisis and those responding to mental health emergencies”.

It added that the amendment risked “placing health and social care staff in unsafe situations that they are neither trained nor equipped to handle, ultimately undermining their ability to build trust and provide the necessary support to those in crisis”.

Community treatment orders (CTOs)

There has been a divide amongst peers over whether community treatment orders (CTOs) should be abolished altogether or whether they should be restricted in their use. By the report stage (the penultimate stage of the bill’s passage through the Lords), however, peers were in agreement on the second option.

Lord Scriven (Liberal Democrats) tabled an amendment to deal with what he described as “the major flaw” of CTOs, namely, their “potentially indefinite nature”. CTOs were referred to as “a revolving door which some people find impossible to get out of”.

The amendment, therefore, sought to limit the duration of CTOs to 12 months and provide that they can only be extended with the agreement of a second psychiatrist and following consultation with the patient and others.

However, Baroness Merron argued that the amendment was unnecessary because the bill provides for tightened criteria for the continuation of a CTO beyond six months, and there would be a new requirement for the patient’s community clinician, who must be an approved clinician, to oversee their care as a community patient.

The amendment was passed by 272 to 157 votes.

The nominated person in relation to children

The bill replaces the nearest relative with a new statutory role, the nominated person (NP). The NP can be selected by the patient at any time when they have capacity or competence to do so. If the patient lacks capacity or competence to nominate, and has not made a nomination, an AMHP may appoint an NP for the patient.

In broad terms, the government’s policy is to give AMHP’s flexibility when making this appointment, assisted by guidance in the code of practice.

Many peers, however, are concerned that, in relation to children, AMHPs should not be given discretion where a court order regarding parental responsibility is in place. For example, Baroness Berridge (Conservative) argued that AMHPs “are not equipped to delve into complex family issues that have already been determined by the family court”.

She, therefore, tabled an amendment to require that when an AMHP appoints a NP for a child lacking competence, they must appoint (in the following order) a local authority (if the child is subject to a care order), a special guardian, someone named in a child arrangements order or anyone with parental responsibility.

For the government, Baroness Merron acknowledged that in the “vast majority of cases” someone with parental responsibility should be appointed as the NP. But she did not agree that a person with residual parental responsibility – for example, a parent in circumstances where another individual has been granted a special guardianship order – should always be blocked from being the NP; for example, where a special guardianship order is in place, the parent might struggle with their own health issues but could still be an effective NP.

The amendment was passed by 218 to 143 votes.

Patient debriefing duty

Earl Howe (Conservative) put forward an amendment to give mental health patients “an automatic opportunity to avail of a debriefing process after leaving hospital”.

Every patient discharged from a mental healthcare setting would be given the opportunity to “rate, comment on and provide constructive feedback on the treatment they had received while in hospital”. This would be carried out via an interview by an independent mental health advocate (IMHA) within 30 days of discharge. Earl Howe argued that such a duty would not only benefit any future treatment that the patient may receive and help to hold institutions accountable but ”constitute part of the healing process for that patient”.

For the government, Baroness Merron argued there are already systems in place for capturing and actioning service user feedback under the patient and carer race equality framework and the Care Quality Commission (CQC) monitoring role, which involved interviews with thousands of patients. She also pointed to the resource implications of placing additional burdens on IMHAs.

The amendment was passed by 209 to 143 votes.

Unsuccessful amendments

Despite losing the above four votes, the government managed to avoid defeat on the following three divisions:

• First, Baroness Tyler (Liberal Democrats) tabled an amendment to establish a statutory mental health commissioner to promote mental health, tackle inequalities and advocate for patient rights. The government argued this was duplicative of the role of existing organisations, most notably the CQC. The amendment was defeated by 129 to 49 votes.
• Second, Baroness Hollins (crossbench) tabled an amendment to introduce an independent review process for patients with learning disabilities or autistic patients placed in long-term segregation under the MHA. This amendment was defeated by 106 to 51 votes.
• Third, Lord Stevens (crossbench) tabled an amendment to require that, each financial year, mental health spending by the government in England under the MHA does not decrease. This amendment was defeated by 112 to 19 votes

Government amendments

A number of amendments were tabled by the government at report stage. These were all agreed by the House of Lords without a vote.

Placements for children and young people

This amendment was a response to concerns from peers that children are too often placed inappropriately on adult wards or at distance from the family home.

Currently, under regulation 18 of the Care Quality Commission (Registration) Regulations 2009, registered providers must notify the CQC if a patient under the age of 18 is placed in an adult psychiatric unit for more than 48 hours.

Under the amendment, a duty is placed on the secretary of state to review whether the requirement to notify should be extended to other cases when a patient under 18 is admitted for treatment and whether the current 48-hour timeframe remains appropriate.

The secretary of state is required to publish and lay a report in Parliament on the conclusions of that review within two years of the bill being passed.

The nominated person

Under another government amendment, a duty is placed on AMHPs to appoint a local authority as the NP in all cases where a child aged under 18, in relation to whom the local authority has parental responsibility, lacks capacity or competence to make a nomination. Previously, the bill only required this for children aged under 16.

This amendment was a response to concerns from peers (noted above) that parents who have residual parental responsibility under a care order in relation to 16- and 17-year-olds, might still be appointed as the NP.  In addition, the minister, Baroness Merron, committed to establishing an “expert taskforce” to support the development of the code of practice on the NP process for children and young people. The taskforce will include Baroness Berridge (Conservative) and Baroness Butler-Sloss (crossbench).

Also, the requirement has been removed for the NP’s signature to be witnessed and for the various statements and signatures to be contained in the same instrument. This amendment was a response to concerns from AMHPs that these requirements could result in delays to having a NP in place, which could undermine the safeguard.

For the government, Baroness Blake (Labour), explained that, in most cases, the witness would still be expected to meet with the NP in person, but the amendment allows for the signature to be done remotely if appropriate.

Remote assessments

Provision has been made for the expansion in the use of remote assessments.

The bill originally expressly permitted remote assessment by the second opinion appointed doctor (SOAD) only for urgent compulsory electroconvulsive therapy (ECT).

These amendments set out that remote interview and examination are permitted for all SOAD functions. According to Baroness Blake, remote interview and examination will be used “only when deemed appropriate”. If not, these functions should be conducted in person.

Urgent ECT

Powers have been introduced to enable ECT to be given without a SOAD certificate. This situation will arise where the hospital has made a request to the regulator for a SOAD for urgent ECT, but the regulator considers there are exceptional circumstances that mean there will be a delay in appointing the SOAD.

In such cases, the SOAD’s function can be carried out by the approved clinician. This is only permitted in cases where ECT is immediately necessary to save the patient’s life. There is also a duty on the regulator to report annually on the use of this power.

These amendments were introduced following concerns raised by the House of Lords’ delegated powers and regulatory reform committee about the use of a ‘Henry VIII power’ to make regulations about the circumstances in which the SOAD can be dispensed. A Henry VIII power is a provision that allows amendment, repeal or other alteration of the effect of an Act of Parliament through regulations, which tends to involve less parliamentary scrutiny than is the case with primary legislation. The amendments remove that power.

There was also a technical amendment to clarify that urgent ECT can be provided without a SOAD’s certificate where the patient is consenting or where the patient lacks capacity to consent but the treatment does not conflict with an advance decision or the decision of an attorney, a deputy or the Court of Protection.

The Human Rights Act ‘gap’

In the months leading up to the publication of the bill, the High Court decision in Sammut v Next Steps Mental Healthcare Ltd [2024] EWHC 2265 (KB) was published. This decision confirmed that private care providers commissioned by local authorities and the NHS to deliver services under section 117 of the MHA are not public authorities for the purposes of the Human Rights Act 1998.

During debates, Baroness Keeley (Labour) raised concerns about the ongoing gap in protection for those receiving care from the private sector and tabled an amendment to extend the protection of the Human Rights Act to include all section 117 service users, informal patients and those being deprived of their liberty in any setting.

The amendment was strongly supported by ‘legal’ members of the Lords – Lord Pannick (crossbench), Baroness Chakrabarti (Labour) and Baroness Butler-Sloss (crossbench).

In response, minister Baroness Blake agreed to return to this issue when the bill goes to the House of Commons and stated: “We need to keep working on this, recognising the gap that my noble friend and others have raised in this place, but committing to taking it forward as part of the legislative process”. The amendment was withdrawn.

Other government commitments

The government made additional commitments to take forward other issues. These commitments were made as concessions to peers who have raised specific issues or even to stave off defeats.

The bill excludes people with learning disability or autism from detention under section 3 of the MHA, unless they have a co-occurring “psychiatric disorder”. Peers have raised concerns that there will be a commensurate rise in the use of the Mental Capacity Act 2005 (MCA)to deprive such people of their liberty.

Baroness Merron (Labour), for the government, therefore, committed to monitoring the number of people with a learning disability and autistic people who are detained under the MCA, and will “include a line on this in standard publications”. If there is an increase in numbers and the MCA is being used inappropriately, “[the government] will ensure that appropriate action is taken,” she added.

Some peers were concerned that the plans to implement the Bill were uncertain and too dependent on future funding decisions. Baroness Merron therefore committed that, within a year of the bill becoming law, and each year subsequently, the government will lay a written ministerial statement in both Houses of Parliament, setting out what has been done to implement the legislation.

Earl Howe (Conservatives) called for stricter safeguards to the provision of artificial nutrition and hydration to patients detained under the MHA, such as people with eating disorders. In response, Baroness Merron (Labour) said that the government will engage with stakeholders on whether revisions to regulations should provide extra safeguards in such cases.

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 MHA.

Some peers raised concerns that the ACD duties in the bill are too “weak”. Baroness Merron has therefore agreed that the government will explore how the duties can be strengthened and bring forward amendments in the House of Commons. The Minister also said that the regulations will include a legal requirement that care and treatment plans must include a plan to make an ACD where appropriate.

The bill introduces a statutory 28-day time limit for prison transfers, within which agencies must seek to ensure individuals who meet the criteria for detention under the MHA are transferred to hospital for treatment. Peers such as Lord Bradley (Labour) highlighted the need to ensure that transfers between prison and secure hospital take place in a timely manner.

In response to this, the Ministry of Justice minister, Lord Timpson (Labour), confirmed the establishment of a health and justice strategic advisory group, to bring together key partners with responsibility for the various parts of the transfer process. This group will be chaired by a national clinical director, who will report regularly to ministers and be responsible for agreeing a joint work plan to support implementation of the statutory time limit.

Next steps

The bill will now go to the House of Commons for consideration. It is likely that most, if not all, of the opposition amendments will be removed in the Commons where the government has a clear majority (unlike in the House of Lords).

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. It is likely that the bill will receive Royal Assent, and thereby pass into law, at some point before Parliament’s summer recess on 22 July.

Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health and legal editor of Community Care Inform.