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Perhaps I may put some brief questions to the Minister on the detail; if he cannot reply today, I would appreciate it if he could do so in writing later. Can he confirm that when the principles in the code are drawn up, the language used will reflect the intention and the underlying sense of each paragraph in subsection (2B)? We do not want to see any watering down of the principles when they are translated into the code; for example, the “wishes and feelings” of patients should include the past and present wishes and feelings, as the amendment specifies, and should not be taken to mean something more general or nebulous. “Minimising restrictions on liberty” should encompass the inclusion of a preference for informal care over compulsory care unless compulsion is absolutely necessary in the circumstances of the case. It should include also the idea of least restriction, once a person has been compulsorily detained.
- “involvement of patients in planning, developing and delivering care and treatment appropriate to them”,
but we need to be sure that, when it is incorporated into the code, it conveys what I hope the Government intend: that the individual patient should, as a matter of course, be consulted on the care and treatment that is right for him and his opinions should be respected.
The “avoidance of unlawful discrimination” should not be taken simply as prohibition of an obvious, negative kind, but rather as a positive rallying call for respect and equal treatment of all patients, no matter what their characteristics or background may be. This principle is about banishing the culture of stereotyping in mental health care and about promoting in its place a culture of respect and confidence.
Proposed paragraph (e) refers to the “effectiveness of treatment”. This idea is somewhat condensed. I would like to think—and perhaps the Minister could comment—that it opened up the concept of maximum benefit to the patient, which our original amendment specified. In so far as there is an interaction between this principle and the principle of respect for the patient’s wishes and feelings, the concept of maximum benefit would appear to be covered.
One of the principles that we had hoped to be included, but that is not there, is the need to consider the full range of options available in the patient’s case,
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The amendment refers also to the Secretary of State’s duty to,
I am sure that none of us here would deny her that responsibility in the general exercise of her functions. However, one could envisage circumstances whereby the need to make efficient use of resources could be used as a reason for diluting or even negating the practical force of the main principles. That would be highly undesirable. Can the Minister explain what is intended by the “efficient use of resources” in that context?
I hope that the Minister can also confirm that the principles foreshadowed and signposted by this amendment will be the only ones to be contained in the code and that no extraneous ones will creep in. Does he accept that the amendment confers a special status on to the principles set out in the code such that any departure from them would be unlawful and therefore, in practice, unthinkable?
As this may be the last opportunity to do so, I end by expressing my appreciation for the courtesy and helpfulness of the Minister throughout the passage of the Bill. He has never been less than utterly straightforward and equable, even when, regrettably, we had to disagree. I thank him for that. If he will allow me to say so, I cannot help being fearful that the same spirit of open and constructive engagement may not be carried over into the debates in another place. Last week the Minister’s right honourable friend Rosie Winterton made several public pronouncements about the effect of the amendments carried by your Lordships’ House that were, to be frank, grossly misleading. I stop short of saying that they were wilfully misleading because I have no grounds for going that far, but the Minister was certainly ill briefed. This is not the moment to issue a line-by-line rebuttal of what she said, but I hope that it will be in order for me to do that by way of a letter before the Bill has its Second Reading in the Commons.
Lord Soley: My Lords, I congratulate my noble friend on his amendment. I think it is basically right, but he will be aware that I have always taken the view that principles in a Bill are not a good idea. We always need to remember that courts of law are required to interpret Acts of Parliament and if you end up balancing clauses with principles, you open the door to some interesting legal squabbles which, in my experience, are usually very expensive for the taxpayer. That brings me to the warning point on this. I like the way it has
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If we ask people to balance a code with the requirements of the Act, there is a danger of reopening that door, which has in recent years been closed. That does not in any way imply that people should not be able to go to the courts if they feel that aspects of the Act have not been fully and properly dealt with, and that their rights have not been acknowledged. But it is a warning that this can be an expensive way of meeting that need.
We have all known for many years the over-representation of certain ethnic-minority groups within patients having compulsory treatment. There are at least three areas that we need to address. One is the recognition that social and economic factors, not least racism itself, put extra pressures on some groups within the ethnic-minority community to the extent that they either exacerbate or trigger a mental illness. That is a wider social issue.
Secondly, certain sections of the ethnic-minority groups are seriously under-represented in the professions themselves. Perhaps we could put on the record again that it is high time that some of these professional groups took a leaf out of the Army’s book. When it realised what a serious problem it had, it began to go around schools, clubs and other organisations in ethnic-minority areas to make a far greater effort to recruit and educate people about opportunities, whether in psychiatric nursing or medicine. The professions to some extent have responsibility here.
The third factor, which I hope will not be taken out of context, has to be addressed by the Government. It is hard to believe that there is not an element of institutional racism in this context. The concerns that have rightly worried those on all Benches may be dealt with more effectively by addressing those areas than by drawing up codes, which are useful but whose effectiveness should not be overestimated.
3.30 pm
Baroness Carnegy of Lour: My Lords, does the Minister consider that the principles in the amendment apply to what is now Clause 37, entitled “Cross-border arrangements”? In Committee, I asked the Minister a question and he was kind enough to write to me at some length on the matter. He confirmed that the implications of Clause 37 are that if a Scot, say, is detained in Edinburgh against his will on the grounds that his decision-making ability is impaired by his mental illness, and if that patient’s family are in London, he could not be moved south to be near them because the law in England would be different. He could no longer be detained there on the grounds that he is detained in Scotland; that is, his
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The Minister amended the Bill, which I appreciated very much, to make it possible for a patient who is detained in Scotland on grounds that do not exist in England to go on a short visit south of the Border—this could also apply to those coming north to Scotland from south of the Border—if they were escorted in safety; if they by chance escaped, they could be recaptured. I very much appreciated that but the Minister was not able to meet the main point, which is that if someone is detained on one side of the Border on a ground that does not exist on the other, he cannot be moved in safety to be detained at the other end.
The amendment states that there should be respect for patients’ “wishes and feelings” and that their “wellbeing and safety” should be taken into account. These things do not apply in this case. The Minister may argue that that is one of the reasons why he does not want to put this principle in the Bill, but it is such a major principle that not doing so would be a great pity. I wonder whether care should be taken in the Scots Parliament and at Westminster to make issues that affect people’s liberty and rights the same north and south of the Border. I know that Scotland legislated first and that the Government here do not wish to follow them in this regard; they have every right not to do so. However, that creates a very awkward situation for a few people who will be disadvantaged. Is the Minister happy with the principles in light of Clause 37?
Lord Ramsbotham: My Lords, I echo the words of the noble Earl, Lord Howe, in thanking the Minister for the courtesy and care that he has taken to keep us informed on all the things he has been thinking about during the Bill’s passage. I welcome the fact that we now have fundamental principles in the Bill. At every stage, I have made the point that there is one minority who have not been mentioned in the principles so far; that is, those in custody. I reminded the House several times that the Government used the word “equivalence” about their treatment. While there is no mention of that word in the Bill’s principles, and it does not look as if there will be much chance of getting it put in, will the Minister assure us that in the code of practice, “equivalence” will be mentioned as a reminder to all those responsible for delivering services to those in custody that that is the standard that they must not only aspire to but maintain?
Baroness Barker: My Lords, I thank the Minister very much for his efforts over the past few weeks to enable me, the noble Earl, Lord Howe, and others to meet the Bill team and parliamentary counsel. I have never had the experience of meeting parliamentary counsel before and it was extraordinarily helpful that we did so, not least because members of the legal profession are often wont to say things by omission rather than put things expressly in terms. It was very
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This amendment is a compromise and, as such, it is unlikely to satisfy anyone. There are things that we would have wished to see in it and there are things that we would rather were not there, but, like the noble Earl, Lord Howe, I accept that this may be as good as we will get. Others—in which I include my noble friend Lord Carlile, who is unable to be here today because he is unwell—are less than happy. They have carefully read the wording of the amendment and are firmly of the view that it offers no legal protection whatever.
The noble Earl, Lord Howe, has already referred to the remarkable speech made by Rosie Winterton on 1 March. As one would expect, I disagree with much of it, but on one point we are in agreement. She said that mental health legislation is an extremely difficult and sensitive issue. So it is, and that is why I do not apologise for asking the noble Lord a series of questions to which I, too, require answers.
People making decisions under this provision are to,
As I mention that, I notice that the noble Lord, Lord Campbell of Alloway, is in his place. Today, it is our duty to probe the Minister on exactly what those words mean. In particular, do the Government not intend there to be a right to disapply the principles in certain circumstances? I ask that because that was a provision of the 2004 Bill. I am sure that the Minister will be only too well aware that that proposal was firmly rejected by the joint scrutiny committee, so it would be very helpful today if he could answer that point.
The Minister will recognise that the amendment gives a status to the principles in the code. Does that mean that they cannot be departed from? If they can be departed from, can he tell us how and in what circumstances?
Does the Minister agree that minimising restrictions of liberty means that voluntary treatments should be preferred over compulsory ones? That argument has run throughout our deliberations and I should welcome a statement from him on it.
Like the noble Earl, Lord Howe, I should like confirmation that the principle of “efficient use of resources” cannot be used to deny or frustrate the application of the other principles. That leads me to one further point.
We have in front of us a list. That, in itself, is extraordinary: lawyers hate lists, as we are told all the time. Can the Minister confirm that there is no order of precedence in this list and that there is no interplay between the different principles, but that they all have an equal weighting and an equal value? I ask that in order to address the point made by the noble Lord, Lord Soley, about determining the exact words of the code of practice and the relationship between the two. I disagree with him—that will be no surprise to him after the past three months of deliberation. I do not
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That leads me to another point. The amendment amends Section 118 of the Mental Health Act 1983. Under that section, amendments to change the code come under a negative procedure. Does the Minister agree that this matter is of such importance and has been given such detailed attention in your Lordships’ House that any review should be by the affirmative procedure? Will he please explain how the Secretary of State will arrive at a judgment about whether action should be taken under the code of practice? Will there need to be evidence, and will such decisions by the Secretary of State be subject to judicial review?
I have some further points to make. I rebut firmly one charge made by Rosie Winterton in her speech on 1 March, using arguments and phrases that we have heard a lot in the past few months—principally from the Government’s mental health adviser. She said of your Lordships’ House that we had not put the public at the heart of our deliberations. That is completely and utterly wrong. Even a cursory neutral reading of the proceedings of our debates would show that they have been lengthy, well informed and not without a great deal of argument. They have always been predicated on the understanding that mental health legislation exists to protect patients and the public, and that there will always be a need for compulsory treatment within such measures. Your Lordships’ House is entitled to reject utterly and completely that accusation, which is false and without basis.
We have considered all the information and evidence before us—including that put forward by the Government—to put together legislation that we believe will lead to services that mental health patients will not fear, and from which they will not run. In so doing, we will make this country safer because we will not leave people who are very ill outwith the social services to become more ill and a danger to themselves and others. That has been our central consideration on the Bill.
I too thank the Minister and the noble Baroness, Lady Royall, who in very difficult circumstances and with unhelpful noises off have sought to approach the matter in the spirit of your Lordships’ House by being unendingly courteous and helpful to those of us who have worked on the Bill—at no mean cost to themselves. We would not have managed to improve the Bill as we have done had they not been in charge of it, so I congratulate them.
When the Bill came to the House on Second Reading it was welcomed by many noble Lords who, at the same time, called it deficient, depressing and fundamentally flawed. It is still flawed, but it is a much better Bill than the one that we received. I hope that when it goes to another place, Members, in the spirit of this House, will pass legislation that is strengthened rather than weakened, and which will make this country a safer place for the people who are mentally ill and for all those who care for them.
Lord Williamson of Horton: My Lords, I thank the Minister for his explanation of the amendment. When I saw it, my first thought was to adjourn to the Tea
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3.45 pm
Baroness Murphy: My Lords, I was not going to speak to this amendment until goaded into it by the noble Lord, Lord Soley, who rather implied that he would prefer an unprincipled Bill. I welcome the amendment, despite it being only half the measure I had hoped for. I had hoped we would have it right there on the front page of the Mental Capacity Act. Having failed to get that, however, this is a spot-on compromise.
During the passage of the Bill, the tone of the Government’s negotiation has moved more towards giving life to the principles we would like to see enacted, and convincing us that they share them. I hope that that spirit will continue in discussions in the other place, given the concerns raised in the past week that some of our amendments may not be further supported there.
Lord Alderdice: My Lords, the Minister has rightly been recognised for his commitment to the Bill and his work with all of your Lordships to improve what came to your Lordships’ House. It was not, in that sense, his Bill; he inherited it. He has worked hard with us, as has his colleague, to make things better.
I still find myself a little heavy hearted about the Bill, however. A few days ago, a substantial document dropped through my letter-box with a covering letter from Professor Roy McClelland, who is now chairing the Bamford review of mental health and learning disability services in Northern Ireland. That document was a volume of legislative proposals for Northern Ireland. From the beginning, it set out that mental health legislation should be based on fundamental principles, particularly those of the protection of the human rights of the whole community, but particularly those who were to be held and treated under compulsion.
That review, in the Northern Ireland context, brought together a wider range of people, patients, carers, professionals and officials than had ever been done. It mirrored what we have heard when NGOs, carers, people involved in healthcare and patients and their families have expressed their views: they want the legislation to be based on fundamental principles. The Minister will undoubtedly say that it is. Well, perhaps, but reading through this I had the impression that if the officials who had put the material together had been advising the Almighty when he was looking down on Sinai, Moses might have come down with
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I ask myself why the Government have been so adamant that the principles should not be in the Bill, clear and irrefutable. It is said that it is for legal reasons. Lawyers make good servants but bad masters. When I listen to what my noble friend Lord Carlile has said—and I am sorry that he is unable to be with us today—I am affirmed in my view that there is something rather more to it. In this, the noble Lord, Lord Soley, has, as ever, been deeply helpful to the House. He has pointed up the real reasons why the principles cannot be put in the Bill. One reason is that a fundamental principle is an attention to the concern of constituency MPs about the problem of the complaints they receive about difficult people. That is one of the fundamental principles that underlie the Bill. Secondly, one of the reasons for putting these matters in a code of practice in a slightly indefinite way is that it makes them non-justiciable if someone challenges them—here the Minister may be able to put my mind at rest and tell me that I am wrong. The noble Lord, Lord Soley, said that we do not want them challenged because it is very expensive for the NHS. It is, and it is just as expensive for any poor patient, family or carer to confront the courts, but they do not have the resources. One of the things this House is here to do is to protect those who do not have resources or power against those who do, and sometimes that is government. If that is why these matters are not in the Bill, it is not satisfactory and does not give me great comfort.
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