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Mental Health Bill [HL]

I apologise for my absence from the first few minutes of this debate. It may assist the Committee if, as chair of the Joint Committee that considered the previous draft Mental Health Bill, I make some comments about this amendment, which I support. However, before I start, I welcome the return of the noble Lord, Lord Hunt of Kings Heath, to the Front Bench dealing with health matters. He and I go back a long way. We were dealing with health matters together long before either of us was a Member of this House. I have great respect for his judgment and I hope that I will not be disappointed later this afternoon. To echo the words of the noble Lord, Lord Rix, I also mourn the passing of Lord Carter. Denis Carter made an invaluable, consistent and persuasive contribution to the Joint Committee’s deliberations. He is missed by a great many of us in this House. He was a good friend to many of us. When he comes to respond to this debate, I invite the Minister to confirm that the inclusion of principles in this Bill, and therefore in the amended Mental Health Act 1983, is in order. I understand that it is within the Long Title of the Bill and perfectly in order. Therefore, I hope that we will not hear any more of the purported explanation that it is not possible to introduce principles in this Bill becauseit amends the Mental Health Act 1983. The constitutional position is irrefutable. It is possible to amend the 1983 Act in this way. We have heard the argument that it would be difficult for parliamentary draftsmen to draft anything in time to achieve the purpose of the amendment, even if the amendment is imperfect. That is palpable nonsense. I happen to deal a great deal with terrorism legislation, which is a very difficult area. However, most of it is drafted overnight by parliamentary counsel. Several noble Lords in this House are ex-Ministers who have been Cabinet Members or Ministers at a senior level. Ministers frequently instruct parliamentary counsel to draft much more complex legislation than this literally overnight for the next meeting of a Standing Committee. If the amendment is imperfect, it is not far from the mark, and I apprehend that a couple of parliamentary counsel could probably finish it ““between lunch and tea””, to coin a phrase. My next point is a general one about mental health and mental illness. No doubt others in this House have also been in the position of having to face an entry into acute mental health issues concerning those near or dear to us. In my case, it fell far short of compulsory treatment, I am happy to say. For every family and every patient who enters into these issues, it is a very frightening experience. It is like walking into a completely dark cave with, if you are lucky, the slightest suspicion of light at the other side. The particular problem with mental illness is that many if not most of the people who walk into that cave are highly intelligent. They are capable of understanding the principles surrounding their treatment. They do not all live in a permanent fantasy world. Most of them have long lucid periods in which they understand exactly what is going on. They are aware that they are ill but when they are sectioned they ask the clinicians—such as my noble friend Lord Alderdice, in Belfast—who go to their homes late at night, what their rights are, why they are being detained and what will happen to them. A stark illustration of that was given by the noble Lord, Lord Winston, in his very helpful speech, which put these issues into a human context. We are talking about intelligent people who must trust the medical services they come into contact with, particularly if those services are compulsory. The dark cave must seem an even gloomier place, if that is possible, when the treatment is compulsory in the sort of circumstances described by the noble Lord, Lord Winston. Principles in the statute enable the person concerned and those who have his or her best interests at heart to challenge their detention. We talk in this legislation about the liberty of the subject, and of detaining subjects who, in many cases, have committed no crime. They are simply severely ill and a threat perhaps to themselves and others. I recognise that the courts are of course able to take account of codes of practice. Yet the influence of a code of practice upon a court, on a take-account basis, is quite different from the influence upon a court of principles in the statute. For the service user, for professionals applying the service and for the court determining the liberty of the subject, the literal imprimatur of inclusion on the statute is most important. It may be said that this opens the floodgatesof judicial review. That is sometimes said by Governments when they want to avoid putting some principle or other in a Bill. Let us not forget that judicial review requires the permission of the court to proceed to a hearing. In areas such as this, the courts are extremely conscientious to ensure that leave provisions are applied fully. On the issue of whether practitioners pay attention to the statute and the codes of practice, I agree entirely with my noble friend Lord Alderdice. As a criminal barrister, I have a lot of experience of reading reports by and calling evidence from forensic psychiatrists who speak of the mental state of somebody who has been referred to them. I have seen Sections 37 and 41 of the Mental Health Act 1983 referred to on hundreds of occasions—and parsed in detail by the practitioners on not a few—to determine whether their patient falls within the provisions. It is rare to read in such a medical report or hear in such evidence reference to codes of practice. A number of considerations persuaded me and the committee that principles should be in the Bill. I want to list a few of these because they are persuasive—indeed, formidable. We were persuaded by the Richardson committee in 1999, chaired by Professor Ginevra Richardson at King’s College, London, which said that principles should be contained in the Bill. We were persuaded by the Mental Health (Care and Treatment) (Scotland) Act 2003, which has already been mentioned. It has principles on its face. I was at a meeting earlier today—kindly and helpfully arranged by the noble Baroness, Lady Royall of Blaisdon—at which a number of psychiatrists were present. The question was asked: if Scotland can have principles, why cannot we, too? The answer frankly astonished in its risibility—if that is the noun to go with the adjective ““risible””. We were told that it would work in Scotland because, "““it is a small place, a village””." I do not know what our Scottish friends will make of that—and I can see one or two feisty ones in the Committee now. But I reject it, especially because quite a few people live in Scotland who do not come from the village—who go to Scotland and then, unfortunately, become patients. Having the principles in the Bill would provide exactly the certainty that the Scottish Parliament found when it introduced this legislation. We were persuaded by the Mental Health Alliance, which proposed that principles should be contained in the Bill. We were persuaded by the Minister of State, Rosie Winterton, who said in evidence to the committee that she was not opposed in principle to having principles in the Bill. As the noble Lord, Lord Rix, reminded us, in the Government’s response to the committee’s report, she accepted that principles should be included in the Bill. Nothing has changed in reality. I suggest that the burden is firmly on the Government to show beyond any doubt, if they can, why there is now a persuasive and convincing case for principles not to be included in the Bill. We were persuaded, too, by the British Psychological Society; No Force UK; the Sainsbury Centre for Mental Health, which has done an immense amount of research in this area; Depression Alliance Cymru; Mind, of which the noble Lord, Lord Bragg, is the president, as he said earlier; Mencap; the Council on Tribunals, to which I shall come in a moment; Professor Thorneycroft; and Rowena Daw from the Mental Health Alliance. They all, "““emphasised the very powerful and important signal value of having clear and explicit guiding principles on the face of the Bill which set out the ethical standards that apply when a person is deprived of his liberty and autonomy under the Act””." There is an absolute paramountcy in producing ethical legislation on this subject, and including principles in the Bill is a prime ethical consideration. We were persuaded, too, by the Joint Committee on Human Rights which, in its 25th report in November 2002, recommended that principles be clarified in the legislation. I referred to the Council on Tribunals, whose words are worth reflecting on. It said: "““Since the Code of Practice will not bind the Mental Health Tribunal, it would greatly assist the Tribunal in carrying out its judicial functions under the Act if a clear statement of the guiding principles were specified in the legislation itself””." We were persuaded by the Mental Health Act Commission, the Bar Council and, as has already been mentioned, the contents of the Children Act 1989 and the Mental Capacity Act 2005, a close cousin of that legislation, both of which have principles included. I must say that I am also persuaded by everything that I have heard in the Chamber this afternoon. There is a near unanimity on this issue, and I believe that it would be inexplicable to the community at large if the Minister were not to make at the very least a signal concession. With great respect to the noble Lord, Lord Warner—whom, in welcoming the noble Lord, Lord Hunt, we miss from the Front Bench on this Bill—we do not want a compromise. It is not good enough—we want principles included in the Bill. They may be slightly different from what has been proposed, but that is the commitment that we request, and I suggest that it is a perfectly reasonable request.