Official Report: Minutes of Evidence

The Chairperson (Mr McGuigan): From the Department, I welcome Heather Stevens, director of mental health; Debbie Sharpe, head of the mental health strategy delivery unit; and Brian Cassidy, also from the mental health strategy delivery unit. I will hand over to you for opening remarks, and then we will take questions, if there are any.

Ms Heather Stevens (Department of Health): Thank you very much, Chair and members, for the opportunity to brief you today on the UK Government's Mental Health Bill and its proposed modification of the Human Rights Act 1998. My colleagues who are with me today work with me closely on all matters legislative.

By way of background, the UK Government's Mental Health Bill was introduced to Parliament on 6 November 2024. It aims to modernise the Mental Health Act 1983 for England and Wales. That legislation is the equivalent of the Mental Health (Northern Ireland) Order 1986. It aims to do that by enhancing patient autonomy and patient rights and also by providing greater transparency. It does a number of things. For example, it tightens detention criteria, provides for more frequent reviews and also removes prisons and police stations as "places of safety". Just to reiterate, this is an England and Wales piece of legislation in the main; those provisions will not apply to Northern Ireland.

The amendment under consideration was tabled on 3 June and takes forward a commitment made in the Lords to address issues in relation to the unequal application of the Human Rights Act for some mental health patients. It addresses a gap in that Act's protection for mental health patients, following a High Court ruling in a 2024 case called Sammut v Next Steps Mental Healthcare Ltd. The purpose of the amendment is to ensure that providers delivering specific mental health services, when arranged or funded by public health bodies, are subject to Human Rights Act obligations.

The amendment seeks to modify — it is described as a non-textual modification of the Human Rights Act, which is a reserved matter, and so, subject to the Assembly's approval with respect to Northern Ireland, it would have UK-wide application. It designates private providers as exercising a public function when they are providing aftercare services once a patient is no longer detained under mental health legislation or voluntary inpatient treatment or assessment for mental health disorders. Under this amendment, private providers will be taken to be exercising functions of a public nature for the purposes of section 6(3)(b) of the Human Rights Act when they are carrying out those functions and when those functions are paid for by a public body.

I should say that private providers are already taken to be exercising a function of a public nature for the purposes of the Human Rights Act if they are caring for patients detained under mental health legislation or providing care for mental health patients, for example, in a care home. It is important to make the point that, currently, we have no private providers in Northern Ireland that provide mental health inpatient treatment to patients. It is about future-proofing the position so that, should that change at some point in Northern Ireland, the same Human Rights Act protections as are available to mental health patients in the same situation in the other jurisdictions would be available here. We also consider that the amendment supports the Bamford principles by enhancing patients' rights and dignity. It is about holding providers to account under the Human Rights Act. Critically, it ensures uniformity of application, preventing regional disparities. There might be some public criticism were the Assembly not to extend such a protection to citizens in Northern Ireland. It is also important to highlight the fact that the Act and the amendment do nothing else to alter Northern Ireland's mental health framework. That will stay as it is.

Why can Northern Ireland not make the change itself? As I mentioned, the proposed amendment modifies the Human Rights Act. That, in itself, as part of the devolution settlement, is considered to be a reserved matter, so it is outside the Assembly's legislative competence. However, because the amendment affects the devolved issues of health and social care, a legislative consent motion (LCM) is required. The Assembly has the power to decide whether or not the amendment extends to Northern Ireland. That is within its power, but it does not have the power to make that modification to the Human Rights Act itself. If it is not done on this occasion through this amendment to this Bill, there is no other vehicle by which that can be done.

In light of all that, on 10 June, the First Minister and deputy First Minister agreed that a legislative consent memorandum should be laid in the Assembly to facilitate this extension of the Human Rights Act. The next parliamentary opportunity in Westminster to move the amendment will be at Report Stage in the Commons, which, subject to parliamentary timetabling, is scheduled to be in the autumn of this year. We and the Department of Health and Social Care (DHSC) have been very mindful of the need to allow time for the Assembly to consider and decide on the application of the amendment and for that decision to have been made before the amendment is formally moved.

On consultation, our Department has collaborated with DHSC on the amendment's scope in order to ensure that it reflects Northern Ireland's position and to make absolutely sure that it does not change our legal and mental health framework. It is important to note that no other Northern Ireland concerns have been raised as part of the debate. The consultation, as you would expect, has largely been undertaken by DHSC. It was raised originally by Government peers with broad support. Officials have reached out to the Northern Ireland Human Rights Commission for its views and await its response. Members should recall that the aim of the legislation is to protect and enhance human rights rather than restrict them.

I turn to the financial, human rights and equality implications. DHSC has confirmed that the Bill is compatible with the European Convention on Human Rights, and the UK Government's working assumption is that it will not require additional funding or be considered to be a new burden on public bodies. In fact, there is an expectation that the impact of the amendment on private providers in the UK that provide services on behalf of public authorities will be minimal, as guidance already sets out the expectation that they comply with human rights. There is already the expectation that providers in the UK act in line with the Human Rights Act.

The Bill's explanatory notes give an indication of the financial implications in England and Wales, should it become law. Locally, there are no anticipated financial requirements associated with the proposed new provisions. Of course, should we have private providers in that space at some future point, potential compliance and legal liability costs for health and social care trusts may arise, although specific financial impacts cannot be quantified at this stage. The amendment promotes equality by ensuring consistent human rights protections for all mental health patients, including those in private care settings, and the DHSC's impact assessment has identified no significant regulatory impact. The amendment just clarifies the Human Rights Act application, with no additional burdens on private providers beyond compliance with that Act.

The amendment also applies only to registered providers. They are already subject to regulation, which, in Northern Ireland's case, is done through the Regulation and Quality Improvement Authority (RQIA). Registration through the RQIA already requires an element of compliance, although the requirement may not be as explicit as that provided in the Bill.

No specific impact is anticipated on employment, charities, social economy enterprises or the voluntary sector in Northern Ireland. We anticipate that monitoring will occur through existing mental health service frameworks, with feedback from the trusts and service users. No specific rural impact has been identified or is expected. We are not aware of any data on whether private provision would be more likely to take place in urban or rural areas. Any obligations around data sharing or protection would be set out as part of the arrangement between the public authority and the private provider, and that is not within the scope of this legislation.

That is all that I want to say, Chair, other than to say that, although we are briefing the Committee today on this specific amendment, we are monitoring the Mental Health Bill's progress through its parliamentary stages to assess whether there is anything else in its scope that we might want to consider for Northern Ireland in future that would be within the devolved competence of the Assembly and included in a mental health Bill.

The Chairperson (Mr McGuigan): Thank you. That was very thorough. Essentially, we have no private mental health providers doing this work, so, as you say, it is about future-proofing it until such time as we do. May I ask about private mental health providers? Can you give me an example? Are councils providers?

Ms Stevens: No. A council is broadly defined as a public body. This would be a private-sector provider, in the same way that you get independent care providers. We do not have independent mental health providers who receive mental health patients as inpatients.

The Chairperson (Mr McGuigan): OK. Very good. Fair enough: that clears that up.

My other issue is around timing. Obviously the Committee has a process, and the Assembly has a process. My understanding is that the last stage of the amending process at Westminster happens during the summer. Given that, can you confirm the date of the debate in September? Is there still time for the Assembly to approve or not approve the LCM?

Ms Stevens: The Assembly will need to approve the LCM before Report Stage. We are still waiting for confirmation of when that stage will happen, but it is likely to be in the autumn. It will not be over the summer.

The Chairperson (Mr McGuigan): OK.

Ms Debbie Sharpe (Department of Health): We were very keen to push that back to DHSC colleagues to make sure that due process could be followed within the Northern Ireland Assembly's time limits.

Ms Stevens: The amendment has arisen late in your term, and you already have a busy programme of work, so that is not an unreasonable ask.

The Chairperson (Mr McGuigan): It has come to us late because the amendment was tabled late in Westminster. It is nothing to do with the Department.

Ms Stevens: The amendment was tabled on 3 June, and we made a submission to Ministers on 4 June seeking an urgent decision.

The Chairperson (Mr McGuigan): That was a pretty quick turnaround. OK. Thank you.

Mr Donnelly: I just want to confirm what Philip asked. The services are inpatient mental health services in a building run by an organisation that delivers services in an inpatient setting.

Ms Stevens: Yes.

Mr Donnelly: It is not about a counsellor having a private counselling operation. That is not included. Private doctors offering mental health services will not be included.

Ms Sharpe: No. It is inpatient services and aftercare services after someone has been detained. It is very specific, because of that particular case. In England and Wales, it was identified that it would cover perhaps 1% of those. It is very niche because of that case flagging up a particular gap. That is not to say that other gaps might not be identified at some future point, in which case —

The Chairperson (Mr McGuigan): You will come back to us.

Ms Sharpe: — a further amendment would need to be made. This is specific to the situation in that case.

Mr Donnelly: I have a few other quick questions around that. I think you have already alluded to this: how will the Department ensure effective monitoring and compliance?

Ms Stevens: At the moment, there is no compliance, because we do not have providers operating in that space. If there were, it would be done through the standard strategic planning and performance group and health and social care trust process, which service users input into. That is how it will be done. That is the same way that monitoring of the trusts' services are done. This would be contracted out by a trust, so they would report on that in the same way that they report on any other service that they contract out.

Mr Donnelly: So patients and families will therefore have the ability to give feedback and to feed into that.

Ms Stevens: We very much envisage that being the case.

Mr Donnelly: That is no problem. Thank you very much.

The Chairperson (Mr McGuigan): OK. Thank you very much, Heather, Debbie and Brian. That has been useful.

Ms Stevens: Thank you.