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Mental Health Bill [HL]

I identify myself with the sincere and widespread welcome to the noble Lord, Lord Hunt of Kings Heath, on his return. We all know that his experience and skill will ensure that he picks up this rather heavy baton on the run and is able to continue on with us. I was very moved by the comments of the noble Lord, Lord Winston, who described a situation very familiar to me, as a consultant psychiatrist quite often on call in Belfast, of the difficulties that arise when one has to confront the pink forms that the noble Baroness, Lady Murphy, referred to on another occasion. What he describes are the practicalities of working out the legislation that has been properly put in place. He has not described the principle. He adverted to the principle of care and concern, and to autonomy, understanding and so on. That can be written into a piece of legislation. What could not be written in was the requirement that the noble Lord, Lord Winston, should turn up. That is not something one can put in. That was a piece of practice that was occasioned by understanding and the principled approach. That is where there seems to be some confusion. For me—perhaps some might think it a rather quaint notion—principles are things that you donot change very often; rather less than once in every 25 years in my view. Principles are the kinds of things that are fundamental, that you stick with, the kinds of things one is perfectly happy to put in a piece of legislation which might last for a generation. Practice is a different matter. That is the sort of thing that may have to change in various circumstances, as has been described to us in this particular anecdote. It may have to change quite regularly and frequently. The principle does not change but how one applies it has to change if the principle itself is to be sustained and maintained. The principle is something transcendent with longevity. So when I turn to the code of practice—it is not a code of principles—and the principles that are in it, I find that it states that the status of the principles is the same as the status ofthe code as a whole. The principles outlined here are not transcendent but are simply in with all the rest of the stuff in the code—a code of practice, that is, not a code of principles. The whole point of principles is that they stand over and above everything else, and one can judge what happens afterwards on the basis of the fundamental principles. As the noble Lord, Lord Rix, says, a list of principles would have a decisive influence on the way in which the Bill is used. It has been said by the noble Lord, Lord Warner, that staff do not read the legislation that is passed here; they read the codes of practice. I hope that I am not letting myself or my psychiatrist colleagues down when I say that my experience is that we do consult the legislation, and we consult it all the time to make sure that we are absolutely right with it. How reassuring and encouraging it would be if, right at the beginning of the legislation, was a set of principles upon which we could depend for our interpretation of all the complicated and technical details that happen thereafter. At nine or 10 o’clock on a Friday night, when a practitioner is under pressure from other healthcare practitioners, is dealing with a disturbed patient and a family in difficulties, and there are frequently very few beds available even when the decision to take the patient is made, a set of principles at the start that enables the practitioner to think in the right direction is a great protection and relief. The fact that those principles do not change too frequently is extremely helpful. It means that through your professional life you know where you stand, along with the patient, the carers and those who provide services over a prolonged period. They know the fundamental principles upon which they should base their professional behaviour, their caring commitment and the provision of services, as a health service should do. The idea that principles should be changed every now and again in a code of practice without parliamentary scrutiny seems to be the wrong way round. The principles should survive; they should be included right at the start and should guide Her Majesty's Government and your Lordships’ House as we consider the rest of the Bill. It is a fundamental principle of our parliamentary process that subsequent Acts can amend previous ones, so if these principles are not in conformity with some parts of the 1983 Act we should expect that Act to be amended because we are talking about principles that go beyond what it was based on. It has been suggested that there is a real problem of compatibility. I have a problem with that, because it means that the code of practice would not be compatible with the 1983 legislation because it sets down the principles. Or does it have some kind of subsidiary statutory position which means that it does not stack up? If so, that strengthens the argument for having the principles in the Bill where nobody can be in any doubt which is primary legislation. The code of practice cannot be primary if the Government are suggesting there is a problem of compatibility. We have talked about guidance to those who are involved at every level from the passage of the legislation and the provision of services to the operation of the Act and the code of practice. Then there are the notions of longevity—that principles should outlast the current fashion—and of transcendence, with principles above the rest. There is a very good reason why those are important. The Bill is about the problems of disordered and deluded thinking. When I was training, my old trainer warned me against a particular form of disturbed thinking. Furor sanandi, or the madness to heal, is the belief, sometimes found in practitioners—and legislators and providers of services—that they so know the truth of what should be done that they have the right, and indeed the responsibility, to force it on people to make sure that they get better whether they like it or not. The principles will be a protection against furor sanandi.