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Mental Health Bill [HL]

moved Amendment No. 1: 1: Before Clause 1, insert the following new Clause— ““Guiding Principles: incorporation in 1983 Act (1) Part 1 of the 1983 Act (Application of Act) is amended as follows. (2) Before section 1 (Application of Act: ““mental disorder””) insert— ““Guiding principles A1 Application of Act: ““guiding principles”” (1) In discharging a function by virtue of this Act a person shall have regard to— (a) the importance of the patient participating as fully as is possible in the discharge of the function; (b) the importance of providing such information and support to the patient as is necessary to enable the patient to participate in accordance with paragraph (a) above; (c) the present and past wishes and feelings of the patient which are relevant to the discharge of the function; (d) the views of any carer of the patient, or other person who is involved in a professional capacity, and which are relevant to the discharge of the function; (e) the full range of options which are available in the patient’s case; (f) the need to ensure that, unless it is justified in the circumstances, the patient is not treated in any way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation; (g) the need to ensure that patients are not discriminated against, either directly or indirectly, on the grounds of age, gender, sexual orientation, race, colour, disability, language, religion or national, ethnic or social origin; (h) the importance of maximising the benefit to the patient from the discharge of the function; (i) the need to ensure that when either informal or compulsory care and treatment of a child aged under 18 years is considered, the welfare of the child is the paramount consideration; and (j) the need to ensure that compulsory treatment or detention of a patient under this Act should be matched by a reciprocal duty to provide treatment and support of a likely health benefit to that patient. (2) After having regard to the matters mentioned in subsection (1) above the person shall discharge the function in the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances, including a preference for informed care and treatment when circumstances permit.”””” The noble Earl said: It is a pleasure for me to begin these Committee proceedings by issuing a very warm welcome to the noble Lord, Lord Hunt of Kings Heath, whom I congratulate on behalf of all noble Lords on his appointment as Minister of State at the Department of Health. We wish him well there—it is familiar territory to him—and I am sure that it will not take him long to make his mark there once again. For us on this side of the Committee, it suddenly feels like old times. We begin our Committee debates with an extremely important amendment which, I venture to suggest, will come as no surprise to the Minister. It would insert a set of key principles into the Mental Health Act 1983. Why this idea is so important can be explained very simply. The Mental Health Act and this amending Bill are not in any sense run-of-the-mill measures. They have two features about them which place them in a class apart from most other legislation: the powers granted to the state and its employees to coerce individuals who are not criminals into being detained and treated, and the fact that those individuals are, almost by definition, some of the most vulnerable of our citizens. The ethical standards governing that key interaction, between state and individual, are not some sort of subsidiary add-on; they are integral to the basic acceptability of the legislation. The principles defining those ethical standards deserve a place at the heart of the Act because it is only in that way that Parliament can signal to practitioners, patients and the legal profession how it wants the Act to be interpreted and implemented. Interpretation and implementation need to be in all our minds from the outset. The Bill is full of tensions. We will deal with those tensions, I am sure, repeatedly. The most glaring tension is that between patient autonomy on the one hand and public safety on the other, but there is another tension pulling in a third direction: the need to make certain that mental health services remain trusted by service users. To achieve that, we have to ensure not just that coercive powers are used only as a last resort, but also that the ways in which those powers are used are not excessive in any given set of circumstances. By placing these very sensitive measures within a framework of overarching principles, the Bill will be more effective in protecting patients and the public. Why? Because if you makeit crystal clear to everybody that the rules of compulsion are underpinned by values, and that because of those values there are times when compulsion is appropriate and times when it is not, you will have legislation that is much clearer and much more likely to command universal respect. During the past few years of discussion on the two draft Bills there has been much debate about the relationship between the Mental Health Act and the European Convention on Human Rights, not least Article 5(1) which deals with the deprivation of liberty. Since the Human Rights Act was passed in 1998, there has been a succession of legal challenges to the Mental Health Act. It is argued by many people that the absence of a set of principles on the face of the Mental Health Act leaves it wide open to such challenges. I believe that that view is right and that we have a golden opportunity to remedy the lacuna now. So what principles should the Act enshrine? None of them is unfamiliar but all, I suggest, are crucial. If we look at healthcare more generally, the importance of involving service users as far as possible in their own care is perhaps the most obvious way in which the practice of medicine has evolved over the past10 or 20 years. It should apply in mental healthcare as it does anywhere else. Indeed it should apply with particular emphasis because when the context of care is one in which compulsory powers may at some point be used, it is all the more important that service users should be involved with their own assessment and care. It is only by doing that that users are likely to have confidence in those looking after them. The patient voice is a key plank of the Mental Capacity Act, and so it should be here. We need to promotethe idea of patient empowerment. Patients are empowered by being given information and the freedom to make choices for themselves which those around them will respect. That is so even when a patient is subject to compulsion. There is no reason why he should not retain as much autonomy as possible, consistent with his own safety and that of others. Service users should be able to express their views and say what they want and not be criticised for doing so. The amendment speaks of the respectful treatment of carers and of patients; it speaks of equal treatment of all groups in society. Here, not surprisingly, individuals from black and ethnic-minority communities are uppermost in my mind. I amsorry to say that respect and equal treatment arenot commodities in abundant supply in mental healthcare. Others in this debate will, I am sure, speak with particular authority on that issue, but if we allow ourselves not to address it with absolute seriousness in the context of the Bill, we shall be guilty of failing to get to grips with the stigma and discrimination which hang around mental illness like a yoke. The inclusion of principles in the legislation is a visible recognition by Parliament that stigma, discrimination and racial stereotyping need to be banished. I believe that the amendment will help promote, in their place, a culture of respect and confidence; very importantly, it will also guide the courts. When a patient is treated, it should be after consideration of a full range of options for that treatment, and after a conscious decision that treating him will be better than not treating him—the first ““do no harm”” principle. We need to make a statement about child welfare in the context of treatment for mental illness. The Minister may argue that the paramountcy principle is already enshrined in the Children Act 2004, but I firmly believe that we should be explicit about it here. The needs of children are very specific. The provisions on children are dealt with separately under the Act. When we come to debate community treatment orders, we will see that separate provisions for children are included. We then come to the principle of reciprocity. Where society imposes an obligation on an individual to comply with a programme of treatment and care, it should impose a parallel obligation on health and social care authorities to provide appropriate services. The mental health community feels very strongly about that principle, and I share its view. The final part of the amendment covers the key issue I referred to earlier: that compulsory treatment should apply only after all alternatives have been exhausted or ruled out. We must never forget what coercion feels like for the person subjected to it. It is deeply traumatic and humiliating, and frequently serves to engender terror of mental health services from that moment on. It also, almost inevitably, results in severe social disadvantages, not the least of which are employment and housing. Nobody should belittle the magnitude of what is done in the name of the state to administer compulsory detention and treatment to an individual. That is why the principle of least restriction needs to be articulated with absolute clarity. I like to hope that the Minister will not be unsympathetic to the amendment. If he is in any way hesitant, I put it to him that a clause of this nature, setting the scene on a Bill, is not without precedent in recent legislation. It is worth reminding ourselves of one other thing: while we all agree that our mental health services need to deal fairly and effectively with those who pose a danger to themselves or others, this Bill will affect very many thousands of people who will never harm anyone. We owe it to those people, as much as to any others, to frame the Mental Health Act within a set of clear standards and values. Only in that way will we have an Act that achieves what the Government themselves aspire to: to give all patients, whatever the nature of their illness, the treatment they need. I beg to move.