Committee stage in the Lords
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- My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill. Moved accordingly, and, on Question, Motion agreed to. House in Committee accordingly. [The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gould of Potternewton) in the Chair.] Schedule 6 [Mental Capacity Act 2005: new Schedule A1]:
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Baroness MurphyCrossbench- Quote
- moved Amendment No. 62:
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Baroness BarkerLiberal Democrat- Quote
- In the absence of the noble Lords, Lord Rix and Lord Adebowale, I wish to speak to the amendment for three reasons. First, we began to discuss the Bournewood provisions two weeks ago. Since then, at the end of last week, there has been a court case in which there was a finding against Surrey County Council that may turn out to be very important. I am sure that the Minister will decline my invitation to pass an opinion on it, but I think that there is already fairly widespread agreement that it amounts to a significant change in the definition of “deprivation of liberty”. In view of that judgment, will the Minister’s department consider issuing new guidance on the matter of deprivation of liberty? If so, it is entirely valid that we should discuss the amendment moved by the noble Baroness. Secondly, how did the department come to its figure of one year? How long is the average stay in a residential home of someone who is likely to come under the provisions? I accept that people who are likely to be deprived of their liberty in residential homes often have significantly different characteristics from those detained under the Mental Health Act in that many of them have Alzheimer’s and many of them are very frail. I hesitate to say this in the presence of someone as eminent as the noble Baroness, Lady Murphy, but it is not unknown—in fact it is fairly frequent—for older people’s cognitive abilities to be impaired for simple physical reasons. They may get infections, for example, and become confused, but these are only temporary states of confusion and can change. In that circumstance, a maximum period of a year, which could easily become a default if there were not the resources to go round, is too long. In replying to these points, can the Minister give an assurance that people who are likely to be in a temporary state of incapacity are not being unduly detained for long periods?
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Earl HoweConservative- Quote
- I support the amendment. The Minister will know that there are many opportunities for review of an authorisation. It can be instigated by a carer, a care home or a hospital where a change in someone’s situation is noticed, and that, I take it, is why an automatic review at 12 months is considered by the Government to be a kind of long-stop measure that will affect relatively few people. I note the kind of examples that have been quoted, particularly the one just mentioned by the noble Baroness, Lady Barker, but there will also be cases where an individual or their carer may not have the confidence or the knowledge of the system to feel able to instigate a review of their authorisation, and for those people as well 12 months seems far too long to wait for a review of their situation, if one presupposes that it is not in the best interests of the person concerned to be deprived of liberty.
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The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)Labour- Quote
- I say to the noble Earl, “Very good”. I thank the noble Baroness, Lady Murphy, for moving the amendment. On behalf of everyone in the Committee, I say how much we miss the noble Lord, Lord Rix, this evening. As I understand it, he is still in hospital.
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- Baroness MurphyCrossbench
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- The noble Lord, Lord Rix, has been discharged from hospital and is now resting at home. He hopes to return after Recess.
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- Baroness Ashton of UphollandLabour
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- I am extremely pleased to hear that. I hope he is therefore able to make his speech tomorrow night, as I have to replace him if he is not. I fear he will not, though. We wish him well in any event, and I am grateful to the noble Baroness. Important issues have been raised. The noble Baroness began with her concern about the number of people who may be deprived of their liberty. I do not have to remind the Committee of the importance of the Mental Capacity Act 2005 or of these provisions. Noble Lords know well the provisions’ history and that the purpose of the Act is to make sure that we enhance the quality of care and support for individuals. Included in that is a recognition that, in certain circumstances, what we have described as “deprivation of liberty” may be appropriate in order to keep them safe, enhance their care and look after them effectively and properly. It is on that basis that we have to address these provisions. Regarding the numbers, we have talked to psychiatrists who care for people with learning disabilities or dementia and to lawyers who are working in the field. We think that there would be about 1,000 to 5,000 authorisation cases each year. In the first year, we estimate, about 21,000 people will be assessed and about 5,000-plus authorisations will follow from that. That is an estimate by economists in the Department of Health, and it is based on the number of people who lack capacity and who need special protection. We have also looked at figures in one local authority to see how many of their clients may need an assessment. We hope and expect that, as more homes and hospitals become familiar with the meaning of “deprivation of liberty” and how to avoid it, the annual number of assessments will fall to about 5,000 by 2014-15, which will lead to about 1,250 authorisations. As I indicated, those are estimates based on information that we have, but I hope that they give noble Lords an indication of the kind of figures that, we think, we are describing. I accept, however, that we are moving into a field where those estimates, good as they may be, will none the less need to be tested. Those are the assumptions that have been made.
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- Baroness BarkerLiberal Democrat
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- Is the Minister able to tell us which local authority she was referring to? As she will know, residential and nursing home care provision differs radically between different authorities.
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- Baroness Ashton of UphollandLabour
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- I do not have the information on that, but I will either get it or write to the noble Baroness. She is right: I have assumed for the purposes of this exercise that the Department of Health has looked at a number of local authorities and chosen one that, it thinks, is a representative area. I take on board the point that she raises about the difference in the type of care, numbers and so on, based on different populations, if nothing else. That is where we start from. The noble Baroness, Lady Barker, asked three questions. She knows that I cannot talk about the current court case, as it is sub judice. However, it highlights the need for us to be doing what we are doing here and what we are proposing to add to the Mental Capacity Act. The Bournewood provisions will give clarity about what may lawfully be done to protect a vulnerable person who is not able to make decisions about their care. I believe strongly that this is needed by service users’ families and those who are providing and commissioning care. I cannot speak about the case, as it is still before the courts and we should not prejudge the outcome. However, we have always anticipated that the code of practice would be revised and reviewed in the light of case law. If there is anything to learn from the judgment, we will look at it. The noble Baroness was right to raise the issue. I have been told that the local authority in question is Hampshire. The noble Baroness may consult her colleagues and come back to me if she feels that it is unrepresentative; I can think of a particular colleague whom she might consult.
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- Baroness BarkerLiberal Democrat
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- Hampshire is a large county with established residential and nursing care provision. It also has quite a number of very old older people, so I am happy to accept that it is a good authority to use.
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Baroness for that endorsement. I hope that she recognises that it is an appropriate basis on which to operate, with all the caveats that I have mentioned. The noble Baroness asked about the magic number of one year. It is not really a magic number. As the noble Earl, Lord Howe, and the noble Baronesses, Lady Murphy and Lady Barker, have said, it is our anticipation that, for many people, any form of deprivation of liberty, either because of infection, as the noble Baroness, Lady Barker, indicated, or because of other circumstances, will be for a short period of time. We have built in effective safeguards to trigger a review of that decision at appropriate points by the individual, those representing them or the care home. It is important that, as we train and deliver the process, people understand that that is what they should do. A lot of this is not necessarily in the Bill but in the good practice that will follow from it. A year seemed appropriate to us; it is a well known length of time, it is defined and it is clear. It is also a recognition that we are not looking to reassess too frequently people whose condition is ongoing but are trying to deal with them appropriately. A number of organisations have raised concerns that it will be a case of, “When in doubt, go for 12 months because 12 months is the maximum period available”. As I have indicated, a lot of that depends on the training, the code of practice and the approach that people take. I do not anticipate that we will see that happen except where absolutely necessary. Best interests assessors are critical to that process; their role is to ensure that that is done only where appropriate. The noble Baroness referred to a default period of a year covering people in a temporary state of confusion. That is categorically not what we anticipate. It is important to approach this from that point of view. The noble Earl, Lord Howe, raised an issue that runs through a number of the amendments before us regarding family members’ knowledge of the system. I hope that we will return to that theme when debating later groups of amendments and discuss how we make sure that those representing the individual, whether family members or others, can understand and get the information that they need to support the person appropriately. I think that we have the balance right. A maximum period of one year feels right to me. It is on the condition that this is not a default position and should be used only where appropriate. We anticipate seeing many cases where people’s deprivation of liberty will be for substantially shorter periods. As I have indicated, a lot of this depends on the code of practice, guidance and training that we offer. We intend to make sure that it is crystal clear. I hope that, on that basis, the noble Baroness will feel able to withdraw the amendment.
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- Baroness MurphyCrossbench
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- I thank the Minister for that careful reply. She has in part addressed at least some of my concerns that the period will go on too long. I shall reflect on the response and come back if there are further concerns. Meanwhile, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 63 to 65 not moved.]
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- Earl HoweConservative
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- moved Amendment No. 65A:
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- Baroness Ashton of UphollandLabour
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- I gather that available in the Printed Paper Office are the draft regulations relevant to the appointment of the relevant person’s representatives as well as draft regulations for the eligibility and selection of the deprivation of liberty assessors and a statement of intent regarding the other deprivation of liberty regulation-making powers. I draw that to your Lordships’ attention not because it will affect the quality of debate in the Chamber this evening but because it would be useful if noble Lords could reflect on what we propose in the draft regulations and let me know if there are issues that they wish to raise. The noble Earl raises an important point, and I am checking to ensure that the Bill is correctly drafted. We have sought to say that the crucial person at the beginning of the assessment process should be the best interests assessor, who is appointed with the specific function of ascertaining what is in the best interests of the individual concerned and, in so doing, to take into account a range of views, especially from family and friends.
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- Earl HoweConservative
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- I thank the Minister for explaining the Government’s position. Of course I take note of it. I am particularly grateful for the elucidation that the Minister offered on the Bill’s drafting. Clearly, I shall need to consider what she has said, which I shall do before the next stage. In the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 66:
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Baroness. The amendments take us back to our previous discussion about the ability of those representing the individual to access the quality of information and advocacy support that I indicated we need to think about, not in the context of the Bill but to level up the playing field more generally. We recognise the importance of the role that independent mental capacity advocates will play and the critical nature of family members or carers. They can be independent of the care home or the hospital where the individual is being looked after. We do not want to appoint where there is clearly somebody who is able to act in support of the individual. We do not want family members or carers to feel that their role and function is being usurped by professionals. However fantastic those professionals might be, families may find that difficult. One of the features of the Mental Capacity Bill before it became an Act was the number of representations that we received from family organisations concerned that in what we were doing we should not forget them, be they the parents of young people who had long-term learning disabilities or those who cared for elderly people and wished to play a key part in their lives. We have been quite careful to try to differentiate between those who clearly have somebody who can act on their behalf with the right support, and who will look after the best interests and the needs of the individual very carefully from a position of being their friend or loved one—bearing in mind everything that I have said previously about making sure that they know how to do that effectively—and those who might need independent support because they are not in that position. We should not mix them up in a way that would prevent family members acting in the best interests of those individuals. That is the right and appropriate way forward. We want to make sure that those representatives are told how to ask for reviews and how to go to the Court of Protection if they felt it necessary, and that support and advice are available to them. We consider that, once we have the person’s representative in place, we do not need the independent mental capacity advocate, whose role should cease because the representative has taken over that function as appropriate. They should be invited and enabled to do so with the right kind of support. We believe that we have got the balance right between independent professional advice and support in particular cases and at particular moments, and enabling family members, with the right level of support, to act on behalf of their loved ones. When the noble Baroness reflects on the matter, she will perhaps see that we have sought to get that balance right. However, as I indicated, I accept that it is very important to ensure that the representatives can act in an individual’s best interests because they have the information and support that they need.
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- Baroness BarkerLiberal Democrat
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- I thank the Minister for her full reply. I will have to go away and consider it, because we are talking about a unique situation in which the interests of the care home or authority, the family members and the individual are involved. I am not clear about exactly by whom and by what process it is established that a decision is in the best interests of the person when that may be inconsistent with one or two of the other interests. I will study with great care what the Minister said, but perhaps I may ask her similarly to consider my point again. If she can offer further clarification, perhaps in writing, I would very much appreciate it. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 66A not moved.]
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 67:
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- Baroness MurphyCrossbench
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- I support this amendment. There is a tendency to think of these proposals as another imminent job creation scheme for doctors. That is exactly how people addressed the second-opinion appointed doctor issue in 1983; it was not welcomed by many. In fact, however, it has been a tremendous safeguard in the Mental Health Act, and has led to senior doctors, who were previously godlike, understanding that they must think long and hard about the best interests of the patient when they are providing care for someone without capacity, as in this case, or who is resisting treatment. It has led to a tremendously different culture and feel in how we support those with mental health problems. In spite of the amendment requiring resources, which I do not deny, it would give equivalent safeguards and support good practice already in effect in many institutions caring for those with profound learning disabilities and dementia. It would be a positive move.
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- Baroness Ashton of UphollandLabour
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- As the noble Baroness, Lady Barker, said, we debated many of these issues at great length. In preparing for this group of amendments, I went back to the original Act—the noble Baroness may be surprised to learn that I had forgotten bits of it. I listened with great interest to the noble Baroness, Lady Murphy, who has great experience on these issues.
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- Baroness BarkerLiberal Democrat
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- I thank the noble Baroness for her answer. I am not wholly convinced by it for two key reasons. First, we are talking about serious medical treatment and it would stretch belief somewhat to think that an independent medical capacity advocate would have sufficient medical knowledge in such cases to make a judgment. They may be able to make judgments on whether such a treatment might be likely to be consistent with a person’s past and present express wishes and feelings, but that sort of decision is of a separate order. The other basis on which I disagree with the noble Baroness is that we are talking about people who are being deprived of their liberty and for whom there would be lesser safeguards than they would have if they were detained under the Mental Health Act. Therefore, I am not wholly convinced by her argument, on the basis either of equivalence or on the capacity of the people who will be making that decision. I understand what the Minister says about the intent of the Mental Capacity Act, but I am not convinced that it is sufficiently robust to deal with very serious medical issues—issues on which carers and family members may well wish to be consulted. It seems to me that stretching that consultation to people such as independent mental capacity advocates, rather than to those with medical qualifications, is not a sufficient safeguard for people who are deprived of their liberty. Nevertheless, I heard what the Minister said. I will take the matter away and perhaps she will reflect on my statements, too, and maybe we can discuss this further at a different time. Therefore, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Schedule 6 agreed to. Schedule 7 [Mental Capacity Act 2005: new Schedule 1A]: [Amendment No. 68 not moved.] Schedule 7 agreed to. Schedule 8 [Amendments relating to new section 4A of, & Schedule A1 to, Mental Capacity Act 2005]: [Amendments Nos. 69 to 71 not moved.] Schedule 8 agreed to. Clause 39 agreed to.
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 71A:
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- Baroness Ashton of UphollandLabour
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- I am very grateful for this piece of opportunism from the noble Baroness, Lady Barker, and from the infamous Pauline—I shall put her on the record in Hansard. I reassure your Lordships that deputies who have been appointed in a professional capacity purely for the purposes of property and affairs would not, under the Mental Capacity Act, have the authority of the court to take decisions which lie outside the scope of “property and affairs”. These deputies will not have the authority to help or represent a person where decisions are being considered concerning serious medical treatment, care moves or adult protection. Therefore, if no other family or friends are able to support and represent the person without capacity in making decisions on these issues, the person will be entitled to an independent mental capacity advocate. We have put this explicitly in the code of practice. Officials are in discussion with the Public Guardian Office about providing clear guidance in the form of a handbook for deputies, as well as a newsletter that is sent to all receivers who will become the new property and finance deputies when the Act is implemented. I am also considering whether I need to go further to clarify the issue differently. Perhaps the noble Baroness will not mind if I take it away and return to it at a later stage to ensure that we have captured the point, but there is nothing between us on this issue.
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- Baroness BarkerLiberal Democrat
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- I thank the noble Baroness for that reply. I hope that in her consideration she will take into account the fact that there may be family members who are involved in care but who do not feel that they have the expertise to manage financial matters. Complex financial matters may be in the hands of a professional, or even a solicitor, yet they still may be involved. We must make absolutely sure that they are not put out of the picture by professionals. I look forward to further clarification and I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 72:
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- Earl HoweConservative
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- As the noble Baroness, Lady Barker, observed, we have reached one of the most significant amendments in the Committee’s proceedings. I endorse and agree with all she said. I shall re-emphasise a couple of points. A great deal hangs on the code of practice in what we have been debating. If we are to know or be confident that the human rights of patients are to be safeguarded by clinicians and other professionals in the correct and conscientious way that we all believe in and if patients and their carers are to know and be confident about the manner in which they can expect to be treated under the law, the code occupies centre stage in our view of how the provisions of the Bill will play out. The problem with the code is that it is semi-detached from the primary legislation. That semi-detachment allows too great a scope for clinicians to depart from it in ways of their own choosing. The Minister may say, correctly, that there is helpful case law in this area, which has established that the current code is more than mere advice and that the people to whom it is addressed must have regard to it. However, we have heard from the Minister throughout the Committee proceedings when resisting the amendments that the code of practice rather than the Bill is the right place for certain issues—sometimes very significant issues—to be covered. If that is so, and if so much rests on the effective operation of the code, we need surely to look at ways to make explicit reference in the Bill to the code’s standing and importance. As it is, the code relating to the 1983 Act is not specifically referred to in the legislation; nor is it issued under Section 7 of the Local Authority Social Services Act. As the noble Baroness rightly said, either of those things would have given it so-called higher status. It is interesting that in the Munjaz case of 2003-05 the Court of Appeal and the House of Lords came to different conclusions about the code's status. That fact speaks volumes about the confusion that exists. So, without an amendment of the kind proposed, there will be no benchmark against which a patient can reliably measure the standard of care he receives under the Act. Hospitals will not necessarily act consistently with each other and we will find rules and policy being formulated in individual trusts in different ways. I hope that the Minister will be receptive to the amendment, or, if not to the amendment, then at least to the purpose of it.
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- Baroness MurphyCrossbench
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- I rise to add my voice in support of the amendment and that of the noble Lord, Lord Rix, who cannot be here. It is something that he feels strongly about. We have said time and again how important the code of practice is. This would be an opportunity to strengthen it further.
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Lord Hunt of Kings HeathLabour- Quote
- This has been a short though very interesting debate. As both the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, have suggested, it is appropriate that we end our deliberations in Committee coming back to much the same debate that has taken place. I want to come on to this question of the balance between what should be in the Act of Parliament and what should be in the code. I do not recognise the term “semi-detached” in terms of the relation between the code and the legislation. I pay tribute to those responsible for the 1983 legislation. I would argue that the very construct of that legislation allows for some flexibility in terms of what is in the code of practice so that instead of continually coming back to amend primary legislation—we know how infrequent is the passage of mental health legislation—you have a code of practice which can be changed from time to time, but which is consistent and underpinned by the legislation. So I do not see it as being semi-detached. I see it as an endorsement of the way the legislation has been framed. I fully accept that we have had this debate. Noble Lords from all around the Chamber have sought to ensure, because of their genuine concerns about service provision, particularly in the circumstances of mental health legislation, that the services provided in the NHS are up to the standard that we and they all wish to see. I can see the temptation to amend legislation to try to ensure that that happens. Noble Lords know that I do not agree with that approach. I think that the Bill is essentially about legal processes for compulsory powers; it is not about service provision. I think that there is a genuine problem of seeking to give patients rights to certain health services that are not given to other patients of the health service. We have a duty under the NHS Act 1977, which requires the Secretary of State in England to continue the promotion of a comprehensive health service designed to secure improvement in the physical and mental health of the people and the prevention, diagnosis and treatment of illness, with a duty to provide or secure the effective provision of services in accordance with that Act. I ask noble Lords to consider the implications of simply taking mental health services or perhaps, on another day, palliative care or cancer services. You cannot, in my judgment, use legislation to determine the actual services to be provided throughout the NHS. Due to that and the importance of, as I have said, underpinning the legislation, we have the code of practice. Although noble Lords have referred to what they describe as uncertainty in case law—and there may be disagreements between the Appeal Court and the High Court—I think that we have to have regard to the decision of the judicial committee in the Munjaz case in 2005. It said that it was not sufficient to “have regard to” the code in the sense of being able to deviate from it as a person sees fit. Rather, the people to whom it is addressed must follow its guidance except where they have a cogent reason to depart from it. It went on to say: “Such a departure may either be in relation to an individual patient or by way of policy, whichever is appropriate and justified in the circumstances”. Perhaps I should spell that out a little bit further. The court held that the code does not have the binding effect that a statutory provision or a statutory instrument would have. The code is guidance not instruction. However, the court went on to hold that the, “guidance in the code should be given great weight. Although it is not instruction, the code is much more than mere advice, which addressees are free to follow or not as they choose”. In other words, it is more than something to which those to whom it is addressed must “have regard to”. The court went on to find that the code contains guidance that should be considered with great care and should be followed unless, as I have already said, there are cogent reasons for not doing so. This sets a high standard which is not easily satisfied. The reasons must be spelt out clearly, logically and convincingly in the court. The court, in reviewing any departures from the code, should scrutinise the reasons given for the departure with the intensity required by the importance and sensitivity of the subject matter. The court went on to set out the sort of circumstances that could provide cogent reasons for not following the guidance in the code. These included a determination by the High Court that a particular aspect of the code was not legally accurate; that a requirement of the code had been made redundant by subsequent case law legislation; that legal advice had cast a significant doubt on the legal correctness of the guidance; that following the guidance would have involved breaching the patient’s rights under the ECHR; or that a judgment was made that a particular aspect of the guidance should not be followed for a safety or another cogent reason relating to the care and treatment of patients. This was the situation in the Munjaz case. The advice that I have received is that this judgment upholds and establishes what noble Lords would want the status of the code to be.
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- Earl HoweConservative
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- I am sure that the Committee will be very grateful to the Minister for making that correction. I make a plea for letters written to Members of the Committee to be copied to other Members, because that has not always been happening.
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- Lord Hunt of Kings HeathLabour
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- I am sorry to hear that. I have signed an awful lot of letters. I will ensure that all of them are circulated to all Members of the Committee who have taken part in our debates. I am sorry if that has not worked out so far.
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- Baroness BarkerLiberal Democrat
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- I thank the noble Earl for his intervention. Different Ministers employ different practices with letters. It takes some time to get used to that. For myself and, I think, the noble Earl, it is always helpful to see all the letters that have gone to individual Members.
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- Lord Hunt of Kings HeathLabour
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- In my defence, I think that it is four and a half years since I took a Bill through your Lordships' House, so the Committee will have to forgive my learning process here.
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- Baroness BarkerLiberal Democrat
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- That just goes to show that practice varies. I thank noble Lords who have taken part in this debate. It is extremely important. I apologise for detaining the Chamber at this hour, but we must debate the matter. I listened with great care to what the Minister said. I think that he accused us of using the word semi-detached. I am not sure that that is a phrase that I would use. The important point that noble Lords were trying to convey is that by bringing forward a Bill which, by their own admission, is short and does not deal with a great deal of detail, the Government have chosen to leave substantial and important matters to the code of practice. Perhaps the Minister will concede that when a Bill is based not on principles but a code of practice in it, there is at the very least room for conflicting views on implementation. I also hope that the Minister will accept that noble Lords on this side of the Chamber in no way want to compromise the flexibility open to practitioners. That is why one of our suggestions is that there should be some flexibility—that is, that some parts of the code should be stated to have statutory force but others may not. There are precedents for that. The code of practice under Section 3 of the Disability Discrimination Act does precisely that. At the end of four and a half days of debate, I thank the Minister for making a clear statement that the Bill essentially sets out the legal processes for compulsion, not for services. That is why the code of practice is so important. It is different from other codes of practice attached to other legislation, because it deals with human rights concerns: matters such as seclusion and restraint. The Joint Committee on Human Rights has called for the code of practice to have statutory force for that reason. The Minister talked about there being frequent changes to the code of practice. My information is that the code of practice has in fact been changed only once.
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- Lord Hunt of Kings HeathLabour
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- Just to correct that, I was referring to the fact that we have flexibility within the primary legislation to allow us to make changes. I think that the noble Baroness is right about the number of times that that has happened, but that does not mean to say that future changes cannot be made. I was simply seeking to point out that the people who drafted the 1983 Act got it right by providing the framework that allows us more flexibility than if we had to change primary legislation.
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- Baroness BarkerLiberal Democrat
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- If my information is correct, the procedures for change are set out in Section 118 of the 1983 Act.
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- Lord Hunt of Kings HeathLabour
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- Yes.
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- Baroness BarkerLiberal Democrat
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- Given that the code of practice deals with matters such as seclusion and restraint and that the right of departure from the code applies to categories of patients—such as those in Ashworth, for example, when considering the period of review of their cases—we are dealing with matters of great importance. The Minister quoted at length from the Munjaz case, but I want to point out to noble Lords that the judgment of the Judicial Committee of your Lordships’ House was by three to two. I could quote from the dissenting speech of the noble and learned Lord, Lord Steyn, who said of the majority view that it was, “a lowering of the protection offered by the law to mentally disordered patients and a set-back for a modern and just mental health law”.
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- Lord Hunt of Kings HeathLabour
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- With respect, the law is clear and the judgment has been made. It may be by three to two, but that is the decision of the highest court in the land. There can be no doubt about it.
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- Baroness BarkerLiberal Democrat
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- Indeed, but the point we on this side of the Committee are seeking to make is that the scope which it gives to individual hospitals to depart from the code in their policies is so wide that it does not offer sufficient protection to patients. That is why we think that the judgment in the Court of Appeal offered better protection and safeguards to patients, and why there ought to be a clearer statement about the status of the code of practice, or the status of parts of it. The Minister spoke of shifting the balance of protection. The Bill as it amends the 1983 Act shifts the balance away from patients and undermines their safeguards, many of which are set out in the code of practice. The Minister began his response by suggesting that noble Lords on this side of the Committee were wrong to seek to offer rights and protections to one group of patients over another. I go back to the beginning of our debates, to the very first amendment we considered in Committee. This is the only form of healthcare which can be given to people under compulsion. It is the only form of healthcare that they cannot refuse and which can be given in detention outside the judicial system. That is qualitatively different, and it is a difference we have reflected all the way through the four and a half days of our debate. That is why I believe the arguments put forward by the noble Lord are less than convincing. Clearly this is not a matter on which we will arrive at a decision tonight, but I ask the Minister to reflect on what we have said about the need for flexibility, on the fact that some parts of the code could be given statutory force, and in particular on what has been said about seclusion and restraint. Those matters are especially important in terms of human rights. I am not going to convince the Minister now, but we have had a helpful exchange of views. This has not been the usual practice in the way we talk about such matters; it is of a higher order and of greater importance than that. I hope that he will consider this further before the next stage.
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- Lord Hunt of Kings HeathLabour
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- Of course we will debate the code again on Report, and I will reflect on this debate. I hope that the noble Baroness, too, will reflect on some of the comments I have made about what I think is very clear about the status of the code, particularly the benefit of the degree of flexibility given to individual clinicians. My worry is that if we were to go down the route suggested, it would be quite damaging to individual clinicians in the exercise of their responsibilities. One point I should have made in my original response is that it will be important for us to look at the wording in the code as it applies on page 7. From my initial reading, I think it needs to better reflect the judgment we have been talking about. I shall be happy to take that matter away also. We are consulting on the draft and whether it could be made more explicit about the impact of the 2005 judgment on individual professionals. We are also looking at how we can ensure that practitioners and patients are as aware as possible of the code and its status. I hope that will help.
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- Baroness BarkerLiberal Democrat
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- I thank the Minister; that was helpful. We will go away and give due consideration to each other’s views but I believe it is unlikely that we will reach agreement on this matter. The noble Lord referred to giving notice to practitioners; I am seeking to ensure that there is adequate protection for patients and that they understand their rights. We come at this matter from completely different points of view. However, the hour is late and I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clauses 40 and 41 agreed to. Schedule 9 agreed to. Clauses 42 and 43 agreed to. Schedule 10 [Repeals and revocations]: [Amendment No. 73 not moved.] Schedule 10 agreed to. Clauses 44 to 47 agreed to. House resumed: Bill reported with amendments. House adjourned at 10.03 pm.
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