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Mental Health Bill [HL]

I thank noble Lords for their warm welcome, which is much appreciated. I pay tribute to my noble friend Lord Warner for his absolutely magnificent work as a health Minister over, I think, three-and-a-half years. I have a certain amount of form in this area as on 20 December 2000 I made a statement on behalf of the Government about our plans for this legislation. Since then, there have been two draft Bills and much discussion and development of ideas. I am glad that we are now in a position to move forward. At the time of that statement in 2000, I said that good quality care and treatment is the key to making sure that most people with mental health problems never need fall within the scope of mental health legislation and I talked about the Government’s plans for improving services. One can never be complacent, but I am glad to say that since then there has been improved access to effective treatment and care, standards have been raised, and services are quicker and more convenient. Of course, there is still much more to be done. It also has to be recognised that however much we do to improve services, there will always be a need for mental health legislation to protect a person with serious mental health problems from harming themselves or others. We are seeking to update that legislation, not only to ensure it meets the objective of protection, but to make sure that the legislation is in line with modern service provision and promotes patient safeguards. I will respond to the telling comments made about ethical standards. Of course detention in hospital and compulsory treatment raises difficult ethical issues; it is right that we debate those fully. We must make sure that we get this legislation right. We should also accept that patients will rarely be happy about being brought under compulsion, and we have an opportunity here to ensure that when compulsion is used it is done in ways that best serve the needs of patients and provide for the proper safeguarding of their rights. We are committed to providing good quality and accessible services and we will continue to encourage patients to seek help where they believe they need it. Despite this, there will always be occasions when compulsion will be needed—a fact we believe our community, including the users of mental health services, acknowledges. Clearly, I am new to this debate and noble Lords who have spoken are very experienced and expert in this field. I just want to assure them that I see my role as listening to the debates in Committee. I want to find as constructive a way forward as possible and will do everything that I can to make sure that that happens. Noble Lords were very kind to me and then suggested that I could confirm the view they have of me by accepting Amendment No. 1. Alas, not for the first time, I shall disappoint. However, I have listened carefully to the debate and have a sense of where noble Lords are coming from. I also understand full well the importance of ethical standards and fully understand that a principled approach to the implementation of mental health legislation is vital. However, the Government see some practical difficulties in accepting the amendment as it stands or accepting it with minor modifications. I say to the noble Lord, Lord Carlile, that putting the principles in the Bill is not a constitutional problem, rather we are concerned about the practical impact of those principles. We consider that the right and best way to approach the principles is to apply them in the codes of practice. I say to my noble friend Lord Bragg that this approach is not defensive and technical, but is concerned to make the legislation as clear as possible. Putting the principles in the Bill might well lead to a lack of clarity and a lack of understanding by practitioners who have to operate day in and day out. Noble Lords, and many people outside this House, have referred to the Mental Health (Care and Treatment) (Scotland) Act 2003 as a good example of principles in an Act. The noble Lord, Lord Carlile, reminded us about the recommendations of his committee and I pay tribute to the work that he and other members of that committee undertook. It is certainly the case that in the Government’s response to the committee’s report we agreed that principles should be in the Bill as long as they could be drafted in a way that allowed for due protection of an individual’s rights and autonomy while also facilitating practitioners and others to take decisions to minimise harm. But there is a difference between then and now: the Scottish Act and the draft 2004 Bill were replacement legislation, but the Bill before us is not. It is an amending Bill in response to many comments received from stakeholders. It amends a well established and legally tested Act of Parliament—the 1983 Act—which embodies a finely balanced system matching individual rights against the need to take action to prevent harm. The 1983 Act already contains overriding principles, albeit that they are inherent in its provisions and not separately spelled out. None the less, they are there, and I shall attempt to summarise them. First, the common law protects the personal freedom of the individual, which may not be curtailed except in circumstances sanctioned by law. Secondly, the law may provide for the compulsory detention in hospital of those who suffer from mental disorder when it is necessary for their protection or that of others—which is what the Mental Health Act primarily does. Thirdly, compulsory interventions must be for clinical reasons. Fourthly, compulsory interventions must be justified in all the circumstances—to give the most obvious example, detention for treatment under Section 3 is permissible only when other ways ensuring patients get the treatment they need would not suffice. Fifthly, in order to determine that compulsory interventions are justified in the terms of the Act, other options have to be considered. Sixthly, the detained person has the right to have the lawfulness of his detention reviewed by an independent judicial body that has the power to discharge him if it finds his detention is unlawful. I say to the noble Lord, Lord Rix, and to other noble Lords that our concern is not so much about a conflict between those principles and those in the amendment, or about the time of parliamentary counsel; our concern is that grafting new principles on to such an established and tested piece of legislation does not offer the clarity that proponents of this amendment are seeking. Of course, practitioners need guidance on how to operate the Act, and we agree that guidance should include explicit principles to which they should have regard. That is why principles are contained in the current code of practice for England and Wales and why we propose to revise and extend them in the illustrative revised code that we have issued alongside the Bill. Like the 10 principles proposed in this amendment, people are required to have regard to the code, including its principles, which means that, as the courts have stated, they can depart from them only if they have cogent reasons, and they may be called on to justify their reasons if they do so. The difference between having the principles in the code and having them in the Act is the clarity of their relationship with the detailed provisions of the Act. If the principles are in the code, it is clear that the statute comes first. The principles do not change the statute, but guide people on how to approach its implementation. If the principles are in the Act, they must be assumed to have an effect equal in status and therefore somehow add to the existing detailed provisions, which would, I suggest, make interpretation much more complex. Let me give examples of some of the issues that would be problematic. My noble friends Lord Warner and Lord Soley referred to some of them. If wetake the amendment introducing a principle of maximising the benefit to the patient from the discharge of the functions, at the level of generality, no one would disagree. However, its very purpose means that the Act needs to strike a balance between the needs of individuals and the rights of others to be protected from the risks posed by their mental disorders. That balance is inherent in the legislation as it stands, and putting this principle in the Act, especially with no counter-balancing provision about assessment of risk or harm to others, might have to be presumed to change that balance somehow. The noble Baronesses, Lady Barker and Lady Neuberger, raised the issue of the reciprocal right. The reciprocal right to treatment and support principle introduces a further obligation to anticipate health outcomes. It seems to us that the effect would be to restore many of the disadvantages of the so-called treatability test, to which we will be coming in due course. There are many cases in which it is entirely right that a detained patient should be treated in a comparable way to a non-detained patient. The fact of detention should not, for example, make any difference to the quality of healthcare received, nor should the patient be treated with any less consideration or respect. But we must think about what the principle would mean when applied to, for example, the criteria for detention. The criteria are in the Act and are the justification for treating the patient differently. We could debate whether that is less favourable treatment, and I can imagine that many people might think that it is. It is certainly true that it inevitably prevents patients doing certain things and making certain choices that other people would be able to make if they were admitted to hospital voluntarily. Yet this principle, which noble Lords would have as part of the Act itself, relates to treatment that can be justified in the circumstances, so it appears to call for justification over and above the criteria that already determine when an application for detention can be made. Yet it is not clear what the justification would be or why there should need to be any further justification. If noble Lords feel that the criteria should be changed, the way to do it is to propose amendments to the criteria and not to create uncertainty by putting principles in the Act whose relationship to the criteria is unclear. The very purpose of the Act is to provide a lawful framework for the application of compulsion where it is necessary for the prevention of harm. It is to enable patients to be treated under constraints which would be unnecessary were it not for the risks of harm posed by their disorder. To put this principle in the Act risks frustrating that purpose. Likewise, while consulting carers is a good thing—subject to the specific circumstances of the case—the effect of making it a principle in the Act would not merely be to make it explicit. Decisions often have to be taken in circumstances where consultation with carers may not be practical; for example, where emergency treatment is required. Does making it a principle in the Bill mean, for example, that taking account of carers’ views would become, in effect, an additional criterion for such treatment, beyond the fact that treatment is immediately necessary to save the patient’s life or one of the other purposes set out in Section 62? If so,it is hard to see how that would be desirable. Overall, this principle would seem to risk placing a disproportionate burden on practitioners that could even be to a patient’s detriment. As noble friends have said, the proposed principles also have the potential to conflict with each other. There are circumstances where it may be inappropriate for some reason to consult carers, perhaps because of the views of patients, which would have to be taken into account under the previous proposed principle in the amendment. Similarly, the maximum benefit principle and the least restriction duty may conflict. Compulsory treatment may speed up a patient’s recovery but involve more restriction than could perhaps be said to be necessary if the risk posed by the patient’s disorder could, in theory, be managed equally well by detaining the patient for a long time with only the minimum care and treatment. Yet, in that case, the amendment would seem to suggest that least restriction must be preferred, because unless the action needed to provide maximum benefit were ““necessary”” rather than, let us say, highly desirable, the least restriction duty would trump the maximum benefit principle. The Act is, in large part, about clinical and professional judgments. By its very nature, it has to be so. The presumptions of circumstances for which this legislation must cater are surely too varied to be amenable to primary legislation. There is surely an argument for leaving practitioners with sufficient discretion to deploy their professional judgment proportionately with the patient’s needs and the assessed risk in every case, not tie them down with over-prescriptive legislative requirements. I have listened carefully to noble Lords’ passionate speeches. Their intention seems clearly to be to ensure that practitioners, as well as patients and the public, understand and have access to a clearly defined set of principles to promote best practice, and no one could argue against it. However, that is the beauty of the code of practice. Noble Lords have rather dismissed the benefit of flexibility. Twenty five years has been quoted as the average amount of time between different mental health Bills. Circumstances change. Even if we were to adopt principles which, it seemed to us, as the noble Lord, Lord Alderdice, suggested, would last many lifetimes, none of us could say with confidence that we could establish all those principles today. Life and society move on. That is the beauty of the code of practice. My understanding is that it has been changed from time to time. There is ample opportunity for scrutiny by Parliament of the code of practice. Various comments were made about various aspects of the code of practice. I very much accept the point about disability rights. We have produced an illustrative code of practice. The very point of producing this code of practice for discussion and consultation is to be informed by what is in it. If, in the course of time, the code of practice proves to be missing something, and if, as the Act is implemented, it becomes clear that something needs to be added, one can make changes as quickly as possible. However, who of us who have listened to the endless debates on mental health legislation would have confidence that we could simply and quickly change the primary legislation? I urge noble Lords to consider strongly the benefits of an approach through the code of practice, subject to what will be extensive consultation and informed by the debates in your Lordships' House on this Bill. Few noble Lords mentioned Amendment No. 59, but I ought perhaps to say a few words on it before summing up. It would apply principles proposed for the Mental Health Act 1983 by Amendment No. 1 to all decisions and actions taken under the Mental Capacity Act 2005. The amendment was proposed to illustrate that principles were contained in the Mental Capacity Act. I understand that, but I hope that I have explained that we see a difference between a Bill which seeks to amend an existing Act and the circumstances of the Mental Capacity Act. If Amendment No. 59 were agreed to, there would be a great problem in dealing with the two sets of principles as set out in the amendments. People who lack capacity to make their own decisions, whether it be in the context of their personal welfare, property or affairs, or of the new Bournewood safeguards to be established by this Bill, should be fully supported to participate in decision-making about their care. Similarly, no one would argue against the fact that a person’s present and past wishes and feelings should be considered if decisions must be made on their behalf; that the views of those, such as carers, with an interest in the person’s welfare should be taken into account; or that there should be no discrimination. However, Sections 1 to 4 of the Mental Capacity Act already establish these principles. I am not sure how it helps to add the further 10 principles, designed for a different purpose; it would simply confuse.