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Mental Health Bill [HL]

My noble friend Lady Murphy mentioned rogues and vagabonds, which reminds me that today is the 30th anniversary of my very last performance at the Whitehall Theatre, in a play called ““Fringe Benefits””. Today we are not talking about fringe benefits but about something that goes absolutely to the heart of the Bill, and which will decisively influence how it is used. Therefore, I am very pleased that the noble Lord, Lord Hunt, can be welcomed to his new ministerial brief with a debate on such a key issue. Principles are important, and they deserve to be on the face of the Bill because they make it clear to practitioners, tribunals and, importantly, service users and their families and carers what standards are expected from mental health law. This argument was accepted by the Government in relation to the Mental Capacity Act. I served on the Joint Committee that scrutinised that legislation when it was in draft form as the Mental Incapacity Bill, under the chairmanship of the late Lord Carter, whose sad loss last month will be keenly felt in this House, in particular by those of us with an interest in disability issues. Lord Carter always took a great interest in disability, influenced in part by his own family’s experience. He was a great ally in improving a number of recent pieces of legislation on disabled people. He and I were the only people to serve on all three of the Joint Committees that scrutinised the draft Disability Discrimination Bill, the draft Mental Incapacity Bill and the draft Mental Health Bill, Lord Carter very ably chairing two out of the three. I am certain that we shall miss him in the months and years to come. One of our key recommendations in respect of what is now the Mental Capacity Act 2005 was that guiding principles should be on the face of that legislation. We were influenced in this, as noble Lords have heard, by the evidence on the usefulness of principles in the Children Act 1989 and the Adoption and Children Act 2002. The Government accepted that recommendation, and the Mental Capacity Act now contains at the beginning a very helpful statement of principles. When I served on the Joint Committee that scrutinised the previous version of the Bill, one of our recommendations was that principles should appear in this legislation. We said then that, "““putting principles on the face of a major piece of complex legislation serves a clear purpose, in that it helps to make clear to everyone implementing the Act, what the legislation is trying to achieve and what considerations should guide their actions””." It is fair to say that the Government were not sympathetic to very many of our recommendations, but they have agreed with us on this, and in their response to our report they accepted that principles ought to be set out in the Bill. I am not quite sure why the Government have now changed their mind. I understand that they believe that it would be difficult to put new principles into an existing Act, but surely that is only the case if such principles are inconsistent with the legislation in question. In this case, we are making wholesale amendments to the Mental Health Act 1983, which presents an ideal opportunity both to set out a clear statement of principles and to iron out any consequent inconsistencies. It is hard for me to imagine circumstances in which treating patients less favourably than non-patients might be in line with best practice, but I am not a practitioner, and I may need to be set right on that and on all of the principles in Amendment No. 1. However, it seems to me that if the Mental Health Act as it now stands is inconsistent with the principle of patient participation, then it is the Act and not the principle that is at fault. Again, if the Mental Health Act as it now stands is inconsistent with the principle of non-discrimination, "““on the grounds of age, gender, sexual orientation, race, colour … language, religion or national, ethnic or social origin””," it is the Act and not the principle that is at fault. The same goes for all the important principles set out in the amendment. It is fortunate indeed, then, that this Bill gives us the opportunity now to amend the 1983 Act both to include principles and to ensure that it meets those principles. Perhaps the Minister could let us know precisely which parts of the Bill violate those principles and then bring forward amendments to change it accordingly. Alternatively, perhaps he could let us know precisely which of these principles he thinks should be violated in the discharge of mental health legislation.