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Mental Health Bill [HL]

I, too, welcome back the noble Lord, Lord Hunt of Kings Heath. He and I, like several others in this House, go back a long way. Like my noble friend Lord Carlile, I very much hope that he will not disappoint on this occasion. He does not usually. I should declare some interests. I am an honorary fellow of the Royal College of Psychiatrists, which has been much quoted this afternoon. I was chief executive of the King’s Fund, a member of the Mental Health Alliance, which has been writing to members of your Lordships’ House regularly over the past few months and, indeed, years. I am also an adviser to the trustees of the Sainsbury Centre for Mental Health, which, too, has been much quoted this afternoon. Like the noble Baroness, Lady Murphy, I believe that the Mental Health Alliance is one of the great things to have happened in this third time round with the mental health legislation. The Mental Health Alliance—an alliance of some rather unlikely bedfellows—got together seven years ago and has become truly a force for good; it is a good forum in which strong, powerful and intelligent thought is given to these issues and great debates are held. Like the noble Lord, Lord Bragg, I think that the question to the Minister is: ““Why not put this on the face of the Bill?””. Part of the mental health legislation is so compulsorily restrictive that the principles by which the state, if you like, takes unto itself the ability to restrict the freedoms of various often very vulnerable members of society should be clearly stated where everyone can see them and is likely to see them. Like the noble Lord, Lord Walton, I have received an enormous number of letters, as I am sure we all have, from a whole variety of organisations. But perhaps the most extraordinary thing has been not the enormous number of those letters, which I think we might have expected, but the number of letters that many of us have had from complete strangers—not people whom we already know—asking us to take this aspect very seriously. They want principles that service users or patients can see and understand to be put on the face of the Bill. They are saying that not because they are theoretically interested, but because they are the parents, siblings or children of people who have severe mental illness episodically; they know that it is important for those people to see what the principles are and to test the way in which they are treated against those principles. Like the noble Lord, Lord Adebowale, I think that we should take this matter extremely seriously. I very much hope that the noble Lord, Lord Hunt, will accept the amendment, even if he takes it away to have a think about it and comes back with a marginally different version. Let me deal with the doubt about whether principles should be included on the face of a Bill because they change. Yes, we change. Human beings view things in different ways over a quarter of a century—and it is roughly every quarter of a century that we have a look at mental health legislation. Our perceptions change. However, as my noble friend Lady Barker said, if they change, we have a chance to debate the issues in this House. Homosexuality is a good example. I suspect that in the next few years we will change our perceptions—to the good, I hope—on the issues that are being raised now about the treatment of black and minority ethnic communities in our mental health services. And, yes, we will use this principle to drive our perceptions further. You can say that perceptions may change and that we may have to debate things again, but that does not invalidate putting principles on the face of a Bill. You derive everything else from those principles. As we examine the rest of this legislation closely over the next few weeks and months, we need to do so through the net of the principles that I hope will be established. The issues raised in the principles in the amendment are important. For example, the welfare of the child is paramount in them. That is key, but it is not to be found in the principles in the code of practice that the Government have provided, on the basis, I think, that the treatment of children and young people is separate from the treatment of adults under this legislation. Any of us who have had any experience of mental health services—I once chaired a mental health trust—know that there are borderlines here. Young people of 16 and 17 years of age often find themselves in adult wards being treated by people who are not expert child and adolescent mental health service professionals but normally work with adults. If we do not have a principle in the Bill about the treatment of children, I believe that people will not take the welfare of children seriously. I consider that to be a key issue in our present mental health services, where many young people between the ages of 16 and 18 are still to be found in our adult wards using adult services. Secondly, there is the question of reciprocity, which also is not mentioned in the code of practice. When the state deprives people of their freedom, it must do something in return. One would expect high-quality treatment, care and protection, and the idea of reciprocity not appearing in the Bill worries me. I also want to talk about Scotland. Those whom I have talked to working in the mental health services in Scotland say that thus far the Scottish legislation seems to be working quite well. It seems extraordinary that we do not learn from that and say that, if that is the case and if principles appear in the Scottish legislation, perhaps we should also have principles in our legislation. I want to quote a Scottish service user: "““The principles … make crystal clear the need to respect us and treat us as fellow humans deserving of dignity and respect, entitled to participate and have a say in what happens to us at all points in our treatment ... Nowadays, I see my psychiatrist as someone I trust rather than fear or feel suspicious of; in the past, I felt the opposite””." However, the key reason that it is important that the Minister accepts the amendment is that, as the noble Lord, Lord Rix, pointed out, the Government accepted that principles should be in the 2004 draft Bill. Therefore, having accepted that in principle, it should be possible to deal with the practical objections raised by the noble Lord, Lord Warner, and others. If we cannot deal with practical difficulties, I do not think much of us as legislators. The Government claim that it would be difficult to graft principles on to the existing Act but, despite everything that we have heard this afternoon, I cannot see why that should be so. The noble Lord, Lord Warner, said that it would be difficult for the parliamentary draftsmen, but—dare I say it as someone who is related to an odd lawyer or two?—they are lawyers and they should be able to deal with it. Not only that but, if they cannot do it in a single wet afternoon—although my noble friend Lord Carlile thinks that they could do it between lunch and tea—perhaps there should be several wet afternoons, or weeks or months of wet afternoons, until they can do it. It seems to me that that objection simply does not stand. We have to carry on looking at the issue until we can get it right. People from all round the Chamber have said that they want to see principles in the Bill. They have been saying that for a variety of reasons, heartfelt and passionately. They want to see them because they would set some ethical standards, and arguably raise ethical standards, in our treatment of vulnerable people with mental illness. They would give guidance and confidence to tribunals and lawyers and would guide practitioners. As someone who used to chair a mental health trust, I know that psychiatrists and psychiatric nurses look at the legislation and not only at the code of practice. I have frequently seen them do it: they do it when they are in doubt or when they think that the code of practice might be going out of date or might not be entirely adequate. The principles would also give enormous confidence to people who think that they might be subject to the Bill and who are worried that it might in some way be used against them. It would generally give confidence to service users, as one service user has said of the Scottish Act. The Royal College of Psychiatrists is right to say that the principles would provide clarity and transparency of mental health services for all concerned about when and for whom compulsion is required and when it is not appropriate. As my noble friend Lord Carlile has said, the expert committee, chaired by Genevra Richardson wanted it. It said that, "““legislation is most effective when it reflects the values and ethics of those concerned with its implementation and thereby attracts their agreement and co-operation””." The noble Earl, Lord Howe, has argued that the European Convention on Human Rights is called into play here and that the absence of principles in the Bill would leave the legislation open to legal challenges. The Joint Committee on the Bill said that placing them in a code of practice that can be overridden in emergencies is not sufficient. The Mental Health Act commissioner, Chinyere Inyama, has argued that the absence of the principles in the current Act led to drift. Perhaps that is why there have been so many challenges under the Human Rights Act 1998. As many others around the Committee have said, principles are included in the Children Act, the Adoption Act, the Mental Capacity Act and, of course, the Scottish mental health Act, so why not here? The Government have said that principles restating rights and duties in other legislation should not necessarily appear on the face of the Bill. That must be wrong, because how can it be right for the Adoption (Scotland) Act but not right here? The principles should be stated and cross-referenced. Given the nature of the legislation, they need to be seen. First and foremost, I am a rabbi so I shall make a rabbinic point. The principles are a little like the 10 Commandments: one does not need to keep repeating them. It is not that people do not know them—they do—but they are principles and the rest can be derived from them, so one puts them in to remind people. The principles need to be right at the beginning of the Bill as an aide memoire, to give moral authority, which I believe that people need in this kind of legislation. I have a couple of points to make on individual principles. Clearly, the issue of participation is obvious. From all around the Committee, we have heard that people want greater participation by people who have mental illnesses and who often have them episodically. That needs to be strengthened in the code of practice. The issue of carers is relatively new as regards quarter-century reviews of mental health legislation. In the evidence submitted to us before today's debate, it was very clear that the views of carers need to be taken into consideration much more. The national confidential inquiry into suicides and homicides emphasised that the consultation on working with carers was a key part of working differently with people who have mental illness. The expert committee said the same. On patients' wishes, the principles in the code of practice simply do not go far enough. They do not encapsulate paragraph (c) of the amendment, the paragraph for which the noble Lord, Lord Warner, did not care: "““the present and past wishes and feelings of the patient which are relevant to the discharge of the function””." He argues that that principle is not one that is easy to translate into a set of principles in the Bill. I beg to disagree with him. Of course, it is a principle in the Mental Capacity Act and, therefore, translates very neatly into this Bill. I argue that it is very important to take patients’ wishes into account. On race, equality and diversity, the noble Lord, Lord Adebowale, made a strong case. Breaking the Circles of Fear, published by the Sainsbury Centre for Mental Health, made absolutely clear how terrified of the services many black patients are. That is exacerbated by the fact that, increasingly, some of the mental health professionals become frightened of patients from the black and minority ethnic communities. That exacerbates the fear, and the process goes round in circles. The evidence is clear that the incidence of black patients—particularly men—being detained under the Mental Health Act is between 25 and 38 per cent greater than among other groups. Non-discrimination must therefore be in the Bill to give those communities confidence. Assuming that practitioners will remember non-discrimination and take it into account, day after day in a busy practice, without it being in the Bill is at least unwise and arguably unsafe. The noble Lord, Lord Ramsbotham, is of course right to say that prisoners are the third special category, along with children and people from minority ethnic communities. He is right because such an enormous proportion of the prison population has either a mental illness or personality disorder or both. Again, principle (f), which makes it clear that they can have treatment no less favourable than any other patient, is absolutely vital. I hope that the Government will listen to everything said around the Committee. One thing that has worried me particularly, however, is the omission of the disability framework from the principles. The Disability Rights Commission has said: "““In relation to non-discrimination principles, we believe it is not merely desirable but necessary to restate and reinforce key principles which feature in other legislation. The existing public sector duties to promote disability and race equality, for example, need practical reinforcement in a legislative framework in which people may be deprived of their liberty and where prejudicial and discriminatory judgments can so easily come into play. Including principles which support the autonomy and human rights of mental health patients, we believe, would be an effective way of the Department of Health being able to demonstrate that it is meeting its duty to promote disability equality under Section 49 of the Disability Discrimination Act””." That case is made. There must be a statement of principles including disability. I remind the Minister of the NHS Plan which came into force about five and a half years ago. There was a statement of principles right at the beginning of NHS Plan: a Plan for Investment, a Plan for Reform—a sort of Ten Commandments, dare I say it, for the NHS—which had massive sign-up from all around the NHS: patient groups, royal colleges and all sorts of advisory groups. It gave the NHS Plan the feeling that people really wanted to make it work. The same must be true here. If we can get the sign-up, with principles that everybody has agreed are the right way forward, it will be much easier to make the legislation work. The final argument was made by my noble friend Lady Barker. It is about making patients feel safer. Possible service users and present patients would feel safer if principles enshrining their protection were actually in the Bill. That is important for them, but it is just as important for public safety. They are much more likely to then seek help than if they feel that the principles are in a code of practice that could be overridden. If they do not feel safe, and that they might be subject to compulsion when they do not feel it is right, they will not seek help. If people who need help do not seek it, we are in trouble.