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Mental Health Bill [HL]

I declare an interest as an employee of Age Concern England. I also take the opportunity to welcome the noble Lord, Lord Hunt, back to his former position as Minister for Health. I can think of nobody better to be in that position, not least because we have the tantalising prospect of discussing patient involvement and patient forums in the near future. I know that those are subjects very close to the noble Lord’s heart. Before following up on a number of the points made by the noble Earl, Lord Howe, about why we should have principles on the face of this Bill, it is important to address one other, more fundamental, question. What is the purpose of mental health legislation? I ask because just before Christmas the noble Baroness, Lady Royall of Blaisdon, kindly arranged for noble Lords who are interested in this Bill to meet some of the people responsible forits drafting. One of those people made a quite extraordinary statement. He said that the purpose of mental health legislation was to give practitioners the tools that they need to make people better. That is a partial truth and, because it is a very partial truth, quite a dangerous statement. As the noble Earl, Lord Howe, pointed out, this is a subject with a long-standing history of sensitivity around such matters as compulsory treatment and the detention of individuals. The purpose of mental health legislation is to set the ethical framework and agreed standards, held by society to be true, for people who are perhaps among the most vulnerable of its number. As such, it entails questions of autonomy, safety, liberty, the role of the state, science and clinical judgment. The role of mental health legislation is to provide the framework by which clinicians and their activities are judged. Given that the architects of the Bill have chosen to project it in such a limited and partial way, it is our view on these Benches thatthere is, perhaps, a greater need than ever to have on the face of the Bill a statement of principlesthat encapsulate the framework within which practitioners, patients and other individuals will seek to make what we all recognise to be extremely difficult judgments on a daily basis. The noble Earl, Lord Howe, has talked about the importance of Article 5 of the European Convention on Human Rights—the right to liberty and security of the person—as the key piece of European legislation into which ours must fit. Ever since 1999, the Government have received advice about the ethical nature of any future mental health Act. In 1999, the Richardson committee stated that any new Act should be based on principles of autonomy and non-discrimination. Importantly, that report was accepted by the Health Select Committee. As the noble Earl, Lord Howe, also said, there are immediate parallels to which the Committee may look. The Mental Health (Care and Treatment) (Scotland) Act 2003 begins with a statement of principles to which practitioners must have regard. More than that, the Government’s draft Bill of 2004, which was the subject of the work of the Joint Scrutiny Committee, included at its beginning three principles—that patients should be involved in decision-making, that decisions should be made fairly and openly, and that interference to patients in providing medical treatment and restrictions imposed on them during treatment should be kept to a minimum to protect their health and safety and that of others. So the Government themselves, in 2004, could see a case for having principles included in the legislation. In the run-up to this Bill, there has been a fair degree of discussion about whether principles should be included in the Bill, as one would expect. The argument that has most frequently been deployed by Ministers is that principles may lose their authority or appropriateness over time, and if they are on the face of the legislation rather than in a code of practice they become more difficult to change. I do not accept that argument. Principles should be enduring. But even if they change—and sometimes they do—they are usually changes of such importance that they should be debated by Parliament. Over the past 30 years, the attitude of society and of the psychiatric profession to homosexuals, for example, has changed. Homosexuality is no longer defined as a mental disorder. Rightly, that change was the subject of widespread discussion in society and Parliament. I do not believe that any of the principles we put forward in this amendment would be any less durable. Nor should any change to them be of such minor importance that it should not come before Parliament. Why should principles be on the face of the Bill? The key issue is safety. If we have principles that set the parameters within which all clinical judgments are made, patients and practitioners will have more faith in the safety of those decisions. As a consequence, people will be more likely to avail themselves of treatment. Throughout discussion of the Bill, we will return time and again to the issue of safety and what will help or hinder practitioners as they seek to reach those who are dangerous and reluctant to come forward for what remain stigmatising services. We have the benefit of having been through so many drafts on this Bill that we have a lot of material with which to work. Commenting on the draft 2002 Bill, the Joint Committee on Human Rights said that the capacity of a code of practice to give sufficient protection to the human rights of patients in the decision-making process was unclear, and that it should be clarified by putting principles on the face of the legislation. As the noble Earl, Lord Howe, said, we also have other examples near to hand. We have principles in the Children Act 2004 and the Mental Capacity Act 2005—cornerstones to everybody who has to implement those pieces of legislation that specify what the legislation seeks to achieve and what considerations should be fundamental and underlie any actions. We have not yet heard why people who are subject to compulsory mental health legislation deserve less. Which principles should be included? The Joint Scrutiny Committee spent a great deal of time considering this issue. We decided that the principles in the Scottish Act would be consistent with good practice nationally and internationally. We thought they should serve as the basis for legislation in this country. The principles laid out in this amendment exactly reflect the legislative situation as it is being implemented in Scotland. There are principles in the code of practice. I do not know if noble Lords have had a chance to study them in any detail, but they should. There is similarity yet also a great difference in emphasis between the list of principles which the Government subscribe to—we assume, because of their presence in the code of practice—and those in our amendment. I draw noble Lords’ attention to two in particular. First, the Government talk about a participation principle—that care and treatment should be provided in such a way as to promote a patient’s participation, self-determination and personal responsibility to the greatest practicable degree. It is questionable whether giving personal responsibility to people is a principle of mental health care, as it is a principle more generally extended throughout healthcare. I am not clear why the Government should believe that this principle should have to be applied to people who are mentally ill. Secondly, the non-discrimination principle bears a striking resemblance to what, in the world outside, one would call the equal opportunities framework—the principle that is in the amendment. Remarkably, the code of practice does not include disability. Why do the Government not believe that disability should be included as a basis on which people should notbe treated less favourably under mental health legislation? There are other principles in the amendment relating to children which are not in the code of practice. It is difficult to change and to challenge principles when they are in a code of practice. There is not an easy means for us to do so. Nor is it easy to determine, from reading the code of practice—a lengthy document—exactly what weight, if any, principles have in relation to the rest of the proposals. What happens when there is a conflict? Some of the principles are indeed conflicting. Those issues were grappled with at length by noble Lords involved inthe Mental Capacity Act 2005. We had extensive discussions about principles, and about the circumstances in which principles such as best interest should be over-ridden. In this legislation, given its importance, it is necessary that we have the same framework. The Government have already said that it would be difficult, perhaps impossible, to include principles on the face of this Bill because it is an amendment of the Mental Health Act 1983. Which parts of the 1983 Act would be incompatible with the list of principles in the amendment? I struggle to find parts of that Bill that could be enacted in a discriminatory way and would be in conflict with these principles, which as I say reflect to a large extent international good practice. One of the main reasons for including principlesis to give guidance and confidence, not only to practitioners and to patients but to tribunals, to lawyers who have to implement the legislation, andto users. The noble Earl, Lord Howe, set out that case at length. The Government may believe that it would be wrong to restate principles that are set out in other legislation, but it is not an argument that I find compelling. The Children Act’s paramountcy principle is repeated in various different pieces of legislation that relate to children. Therefore, I do not see why we should not have the principles included in this legislation. I leave it to others to go through in some detail the reasons for the different principles that are set out in the amendment. However, there is one in particular that needs to be singled out—the principle of reciprocity. If people are to be subjected to compulsory treatment under mental health legislation, it must be an absolute point of principle that there is reciprocity and that services are available to them. I do not believe that in this day and age we could condemn people to be subject to compulsory treatment and then not make services available to them. This is one of those pieces of legislation on major social topics that comes around once in a generation. Noble Lords have participated in many of those debates in the past; I refer to debates such as thoseon the adoption Bill. This is our opportunity, and perhaps the only one that we will get for the foreseeable future, to set out in terms what we believe is now, in this country, an acceptable way in which to treat people who have a mental illness. It is important that we do so as clearly as we can—and for the avoidance of any doubt about what we believe the purpose of this legislation to be, it is necessary that we accept an amendment of this nature.