Report stage in the Lords
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Earl HoweConservative- Quote
- moved Amendment No. 1:
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- 15:08
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- Speaker
Baroness BarkerLiberal Democrat- Quote
- My Lords, in Committee I raised the question of what mental health legislation is for. I return to that matter today. It goes to the heart of why we need principles in the Bill. Like the noble Earl, Lord Howe, I have been involved in detailed discussions since Committee about whether it is possible or desirable to include principles in the Bill. I have gone away from every meeting trying to answer the question of what difference it would make in practice. The answer came to me after I listened to two people. The first person was Professor Appleby, the Government’s mental health adviser. On 30 January, in a meeting with a number of all-parliamentary groups, he talked about the role of mental health legislation. He said that it is possible to take one of two approaches: either you believe that mental health legislation is about enshrining rights and responsibilities—in which case practitioners are looking over their shoulders all the time to make sure that what they are doing is correct—or you believe that there should be a limited role for the law and that practitioners should be allowed to carry on and get on with the job of making people better. Those were perhaps overstated positions but they clarified for me the role of mental health legislation. It is about setting out, using the best knowledge available to us, what we believe is the ethical basis of legislation. This legislation governs the only form of treatment that can be given to a person compulsorily against their wishes—the only detention outwith the criminal justice system. The second person who gave me some clarity on the matter was the Minister. In our discussions in Committee he talked about the 1983 Act. He said that it already contains overriding principles, “albeit that they are inherent in its provisions and not separately spelled out”.—[Official Report, 8/01/07; col. 47.] He went on to list six, one of which is the principle of least restriction. Twenty-three years on, arguments are still raging about whether that principle is enshrined in that legislation, and, if so, to what parts of mental health practice it applies. It is no wonder that practitioners look over their shoulders. There is a lack of clarity about the law. I have listened very carefully, not least to the noble Lord, Lord Soley, who in Committee talked very convincingly about dealing as an MP with very difficult cases of people with a mental illness causing extreme problems for other people. However, I have concluded, for the reasons I gave, that unless we have not only a clear statement of principles in the legislation but also clarity about how the legislation and the code of practice work together, we will condemn practitioners and people subject to this law to continuing confusion. That, I believe, would be wrong when we have the chance before us to shed light on the matter. My second point is, again, one that I raised in Committee. If we accept that there should be principles, what should they be? The noble Earl, Lord Howe, has explained why this time around the amendment, which stands in both our names, has been changed to accommodate some of the problems that parliamentary counsel outlined. I accept that we had to change the provisions, just as those of us who worked on the Mental Capacity Act did when we were trying to achieve the same ends. Parliamentary counsel explained that we could not use the standard equalities and diversity format that one would use elsewhere. I want to return to the principles in the code of practice and to take issue with how some are written. The participation principle in the code of practice talks about care or treatment being provided in such a way as to promote patient participation, self-determination and personal responsibility to the greatest practicable degree. It is not clear exactly what that means. In the “respect for others” principle, the code talks about people being treated with respect and the respect for wishes and feelings so far as they are known. At a later stage we will talk about the efforts which should be made to record a patient’s wishes and feelings and how practitioners need to take account of them. The principle of minimum restriction in the code of practice is ambiguous. It talks about restriction and keeping the use of compulsory powers to the minimum necessary—“the minimum necessary” to do what? I hope that the Minister will accept that there is a case not only for including some principles in the Bill but also for an explicit statement about how they will interact with principles in the code of practice. As the noble Earl, Lord Howe, said, the reason for that is not pedantry. It is perhaps one of the most important decisions we can take. The aim is to end up with legislation that not only appeals in that it has a principled nature but in practice offers security and clarity to those who will be subject to it and those who have to operate it, whose professional reputation rests on it. I believe that we have come to, if not a perfect compromise, a way forward and I very much hope that the Minister will accept that. As we have said, we have an opportunity that comes but very rarely to Parliament to make legislation that will affect the lives of many vulnerable people. I hope that in doing so, we will pass legislation that is fit for purpose.
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Lord SoleyLabour- Quote
- My Lords, first, I acknowledge the comments made by the noble Earl, Lord Howe. He has made a significant improvement on the original amendment, which I welcome. I do not know whether the Government plan to accept it or not. I still have some concerns. They are twofold. First, if you ask a person exercising authority under the Mental Health Act to take into account the Race Relations Act, the Sex Discrimination Act, the Equality Act and so on, you are putting in their mind when they take a decision to discharge or admit that they may face a legal consequence under one of the linked Acts if they get that decision wrong. That is a problem. I do not think that most professionals in most areas read the full Act other than once or twice in their lifetime, so guidance is more important. At times in both this House and the House of Commons, we set ourselves a double bind. We call for less legislation, but we put things in Acts that require people to jump through even more hoops in order to take a decision. We must be aware of that balance. To my mind, the key Act here is the Race Relations Act. In our previous debate, every one of us acknowledged that there is a major problem in the psychiatric area generally with the excessive treatment of people from ethnic minority communities. We must ask, first: do we deal with that by inserting a reference to the Race Relations Act in the Bill? Secondly, if doctors, nurses and others have that in the forefront of their mind, what effect will it have on their decision-making? It might result in them facing legal action. That is a problem for them. I have felt for many years—I do not think that this will be deeply disputed—that part of the reason why we have an excessive number of ethnic minorities in psychiatric institutions is a lack of doctors from ethnic minorities, something that the medical profession needs to put right and pay more attention to. The other factor, which is deeply unquantifiable, is the extent to which the pressure on ethnic minority individuals in the community as a result of their being from an ethnic minority and perhaps experiencing extremes of racial hostility, may trigger or accentuate a medical condition that would not otherwise be picked up, or even be a problem. We need to focus on that area, rather than just saying that the doctor, nurse or whoever must be aware of the Race Relations Act. There is still a problem with that. I would not lose too much sleep if the Government accepted the amendment in its current form, but I would be worried that in time we might find ourselves arguing that this should not have gone into the Act because it imposed a duty on professionals that was unreal and that perhaps tempted them not to take actions that they would otherwise take. It is a very real dilemma, and I have no criticism of the intentions of the other two speakers or of the other noble Lords who have added their names to the amendment. Indeed, I believe that we all share those intentions. It is, as always in legislation, a question of whether you deliver those intentions or whether you inadvertently put other barriers and hurdles in the way that cause a problem.
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Lord Carlile of BerriewCrossbench- Quote
- My Lords, this debate and the whole debate on principles are about legal clarity. If the courts have legal clarity, they can enforce laws made by Parliament. If they do not have legal clarity, I am afraid that we will get laws made by judges, because they will be left to interpret opaque determinations by Parliament. The rule in Pepper v Hart enables courts to look particularly at ministerial statements made in debates such as this. Pepper v Hart discussions are a poor substitute for clear and enforceable law. The Minister will know that there is no area in which judges are more inclined to make or reinterpret law than in the area of judicial review. I urge him, when he responds to the debate, to take the view that the more clarity that emerges from this Parliament, the less likely it will be that judges, who can sometimes be naïve in their interpretation of that often hilarious concept—the intention of Parliament—will try to interpret what we have decided in a way that is far departed from our true intention, if we understand that intention. I am sure we all agree in this House that it is essential that some people should be detained compulsorily. However, those who are so detained can face long detentions, sometimes for the whole of their natural lives. Those of us who have visited hospitals such as Rampton, Broadmoor, and St Andrews in the private sector, have seen very high quality care provided for mentally disordered people in those institutions. But it needs to be very high quality, because such institutions are accommodating them for a very long time. Furthermore, in many cases, they are accommodating people who do not understand why they are detained compulsorily or who are unwilling to be detained for as long as they come to be. I am sure we would all agree that it is essential that those who are detained should have a right to challenge that detention, which both they and the courts should understand with certainty. It is essential that the basis—the principles—on which they are detained are understood. In 1999, which is seven and a bit years ago now, the expert committee chaired by Professor Genevra Richardson, now of King’s College London, not only recommended that principles should be set out in the mental health Bill that it was considering—the first version of a three-edition attempt to reform the law—but set out those principles in its report. The Mental Health (Care and Treatment) (Scotland) Act 2003 set out in legislative form the principles that underline all decisions about compulsory detention in Scotland. Some pretty insulting discussions have taken place in this House about the size of Scotland and differences between Scotland and England, but I understand that there is no difference between Scotland and England and Wales in terms of the removal of freedom from citizens of the United Kingdom. I am puzzled at how the Government can justify a difference between citizens of the United Kingdom living in Scotland who are detained and citizens of the United Kingdom living in England and Wales who are detained, and I remain to be persuaded that there is any sound basis for it. In March 2005, the joint scrutiny committee, supported by evidence from the Joint Committee on Human Rights and numerous others, reported that it was essential for principles to be in the Bill. Whatever the Minister says today, the Government have had over seven years to consider this. During those years they have indulged in a form of intellectual hokey-cokey that is perplexing to those of us who try to take a serious and consistent view of the issue of principles, and the Minister will be aware that when the Government responded to the joint scrutiny committee, they indicated that they were well disposed to including at least some principles in the Bill. The joint scrutiny committee set out the principles we believed should be included, and although the Government did not indicate that they accepted them all, they certainly did not make it clear in their response that they thought that no principles should be included or that they should be minimalist. Surely a strong argument can be made for consistency on this issue between different pieces of legislation. The Children Act 1989 and the Mental Capacity Act 2005 include principles, and the purpose of those principles in these complex Acts is clear. As the committee said, they make clear to everyone implementing the legislation what they are trying to achieve and what considerations should guide their actions. I suggest that those principles and that form of clarity should be jettisoned only for sound and compelling reasons. I am reluctantly prepared to support this amendment because I regard it as minimalist; it is better than nothing, but it is nothing like what the joint scrutiny committee wanted. I shall listen with great care to the Minister, but I urge him not to try to persuade the House that nothing is something, because we will not be persuaded. As the former chair of the joint scrutiny committee, I for one am absolutely determined that if the Government do not make a meaningful concession in this regard, we will return to this issue in the future.
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Lord Patel of BradfordNon-affiliated- Quote
- My Lords, I should like to make a short contribution to the debate. The Minister has argued that we cannot have principles in the Bill for practical reasons as it may lead to a “lack of clarity” and a “lack of understanding” by practitioners. It would seem that this conflict arises only in the current Bill because the Government previously accepted the value of including principles in the 2004 Bill and, as many noble Lords have pointed out, they included guiding principles in the Mental Capacity Act 2005. But, leaving that aside, I shall address the one area which the Minister did not address—non-discrimination. I wish to say something about just one aspect of it in respect of race equality. First, I have a real problem with the idea that practitioners would be confused by a principle of non-discrimination. Having looked through the current Act, I cannot find mention anywhere of the idea of discriminating on the basis of ethnicity, race or any other area; so I fail to see where conflict would arise. Secondly, we have all spoken at great length about the inequalities faced by certain ethnic groups in our mental health system. Regrettably, we are still failing to do enough to rectify or alleviate the situation. The principle of non-discrimination regarding race equality in this Bill would be, I would argue, only one small step towards reassuring the black and minority ethnic communities and those delivering services that we are serious about addressing these failings in our mental health provision. Finally, if it is true, as the noble Baroness, Lady Barker, stated in her opening comments when we first debated the Bill, that this is actually a Home Office Bill masquerading as a health Bill, and it is the Home Office which is really opposed to having principles on the face of the Bill—I urge the Minister to remind his colleagues that more than a quarter of the prison population are from black and minority ethnic backgrounds, that stop and search figures for black and Asian young people continue to rise, and that disproportionate numbers of black people are referred to mental health services via the criminal justice system rather than primary care services—perhaps the Home Office should have principles on the face of its own legislation.
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Lord RamsbothamCrossbench- Quote
- My Lords, I welcome the amendment in principle, but I share the concern of the noble Lord, Lord Carlile of Berriew, that the principles it contains do not go as far as those which we discussed in such marvellous detail on Second Reading and in Committee. I am speaking particularly on behalf of one other minority—those in custody. I have not discussed the movement that has happened since the Committee stage between the Minister and the noble Earl, Lord Howe, but I have taken soundings from those who are responsible for the delivery of mental health services to those in custody. They are all very concerned that codes of practice do not tend to apply, whereas principles may. The reason why principles are so important is that the Government made great play of the fact that those in custody should receive exact equality of treatment with those outside. Unless that equality is enshrined in principle, I can see all sorts of reasons and excuses why that should not apply. Therefore, although the amendment goes so far, I hope that there is still time to make certain that those in custody and their needs are enshrined in principle somewhere in the Bill. The well of psychiatric morbidity in our custody system is something this country needs to take care of and should, frankly, be ashamed of.
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Lord AdebowaleCrossbench- Quote
- My Lords, I declare an interest as chief executive of Turning Point social care, which provides a large number of mental health services in England and Wales. I will speak briefly but, I hope, strongly in support of the amendment. The noble Lord, Lord Carlile, has already mentioned the Scottish position, and I want to bring home, in case we hear again that principles will confuse practitioners, the reality of having principles on the face of the Bill, as applies in Scotland. I quote from Dr Mark Taylor, a consultant psychiatrist in Glasgow, who has worked on a number of tribunals, both before and after the new Act. He was seconded to the Scottish Executive to help with mental health Act training. He believes that, “it would be helpful for all parties to have principles”. The principles promote best practice. For example, a lawyer can question a psychiatrist as to whether he has adhered to the principles as far as he can, and this in turn encourages the psychiatrist to consider in advance of a tribunal any issues raised by the principles. I will refer to an example of how the principles of “present and past wishes” and feelings translate into practice in Scotland. When Alex was admitted under compulsory powers, he was acutely unwell but had a degree of insight about his previous experience of mental health care. Taking note of the principle, the clinician specifically asked him about which treatments he felt had been particularly helpful or unhelpful in the past. As the clinician used this information as the basis for his care plan, Alex was far more inclined to co-operate with his subsequent treatment. Because of the inclusion of principles, trust underpins the whole operation of the Scottish Act. Principles would help to foster trust in the mental health system in England and Wales. Two people using Turning Point’s mental health crisis services illustrate the lack of trust in the current system. They had no hesitation in telling me: “Because of my experience in hospital, I do not tell any of my workers when I am feeling unwell. I don’t ask for help in case I am sectioned. Being sectioned is intrusive rather than supportive”. In short, the more service users have confidence in the system and in the people working with them, the more likely they are to be engaged in their treatment, leading to better outcomes for them and for society as a whole. Trust is especially important, as we have heard from many noble Lords, for those from BME backgrounds. For example, for African and Caribbean communities, discrimination and mistrust mean that contact with mental health services is more likely to be coercive, as we have heard from the noble Lord, Lord Patel of Bradford, and involve the police, making it more difficult to develop therapeutic clinical relationships with patients. Those poor clinical relations lead to less compliance with treatment and poor outcomes, leading to increased use of coercion and increased distrust. It is a vicious circle. We need a step change in the way in which mental health services are perceived. If this Government are serious about increasing confidence and engagement—I believe they are—principles cannot be left to the code of practice. They must be given the weight, visibility and priority that can come only with inclusion in the Bill.
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Lord AlderdiceLiberal Democrat- Quote
- My Lords, those who would be implementing this legislation are healthcare workers. They are not prison officers, policemen or lawyers. They are not used to the idea that their work involves compulsion, coercion and detention. This is a singular episode from their point of view. Therefore, some guidance is required in the Bill as to how their work should proceed in this unusual coercive, detained context. To put it briefly, I take what the Minister said in the previous debate that a smaller number of principles could produce clarity. Healthcare workers do refer to the Act on a Friday night when they are trying to address these matters; they do not get involved with a huge code of practice. A brief series of principles that lays out clearly how the compulsion, detention and coercion are to be conducted, in a way that is not à la the prison or the police cell but is in a caring context, would add considerably to the comfort of patients and indeed of their carers.
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Lord TurnbergLabour- Quote
- My Lords, I apologise for not having spoken in Committee but I was unavoidably elsewhere. I will just say one or two words of support for the principle of having principles on the face of the Bill. It would be invaluable to have them there, for all the reasons that have been rehearsed here, both today and previously. However, I have one or two concerns about these particular principles. My first concern relates to the phrase, “present and past wishes and feelings of the patient”. Of course, the feelings of patients are vitally important. My difficulty is how to define those on the face of the Bill. I wonder whether the words “and feelings” are helpful. My other concern relates to the referral to the other Acts. Presumably the other Acts are all in force. I am unclear whether it is essential to have referrals to those Acts in the Bill because, presumably, someone would be acting illegally if they contravened, for example, the Sex Discrimination Act irrespective of whether or not it is mentioned in this Bill. I wonder whether those Acts should be there. I hope my noble friend will take into account the strength of feeling around the House.
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Baroness Carnegy of LourConservative- Quote
- My Lords, I am sorry that the amendment is not as detailed as the one we discussed in Committee. I thought that the Government’s argument against that amendment was extremely weak. We were told that because of the way in which the Bill amends the 1983 Act, it was very difficult for the draftsman to know whether all the principles would be in the list. That was a pathetic argument. If the draftsman could not ensure that we should not be pursuing this legislation. But now we have a much simpler amendment which, from the way people have been talking, is less satisfactory than the previous amendment but better than nothing. I was not sure about the argument of the noble Lord, Lord Soley, that because four other Acts are mentioned in the amendment it might make practitioners more liable to prosecution under those Acts. But such law exists and if for some reason people went astray they could be prosecuted under those Acts anyway. So it would not make any difference; it is just a way of identifying principles of discrimination. The point made by the noble Lord, Lord Carlile, about the principles on the face of the Scottish Act is very important. Should we be legislating in the United Kingdom about the liberty of people with mental illness on grounds of different principles on different sides of the Border? I shall say something later about what the Minister said when he described the differences in another aspect of the Bill as one of the beauties of devolution. It is not a beauty of devolution if one’s liberty is threatened on different grounds on two sides of a border in the same nation. That is a very unfortunate aspect of the Bill. However, the Government seem determined to do this. I detect from the debate that they prefer this amendment to the one in Committee and perhaps they will see their way clear to putting principles, which according to their lights are appropriate, in the Bill. I support my noble friend.
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- My Lords, as in Committee stage, we have had a very good debate on the question of principles and I hope to offer noble Lords a constructive way forward. There is no disagreement between the Government and noble Lords who have spoken today. Like the noble Earl, Lord Howe, we wish to see a clear statement of values, as he described it. Nor is there any argument about the need for as much clarity as possible both within the legislation and the code of practice. We could have a theological debate about the thousands of practitioners out there and the extent to which they consult the legislation and the code but it is clear that, collectively, we have to ensure that practitioners understand both the legislation and the guidance. That understanding goes together. The Government’s concern all along has been with the way that the amendments have been put forward. Although it appears to be straightforward to add a number of principles to the Bill, unless these things are drafted as carefully as possible, far from giving clarity, there could be confusion among practitioners. That is why we have been working hard to see whether we can find a way through that accommodates the clear wish of noble Lords and practitioners to understand fully the principles that inform the way this legislation will be dealt with and practised, at the same time as ensuring that we clarify and not confuse. There is no argument that the principles that underpin a Bill that amends an established Act, which enables people to be deprived of their liberty, are of critical importance. Deprivation of liberty is a serious issue and we must deprive people of their liberty only when it is essential to do so. We have to achieve the right balance of powers to intervene to prevent harm and to safeguard an individual's rights. However, in the light of comment on the Bill over the past weekend, I want to emphasise that the intention is not to lock up more people or to keep people unnecessarily under compulsory powers once they have been detained in hospital. The Bill is about ensuring that people who need treatment, because they have a mental disorder that is so serious that they are a danger to themselves or others, get the help and protection that they need in the right environment. We want to reduce the incidence of patients with a mental disorder losing touch with mental health services after being discharged from hospital, getting ill and reaching a crisis. It is clear that the principles that we have debated today and in Committee would provide reassurance about our intentions with the legislation. In Committee, I explained some of the problems that we have with including principles in the Bill. I know that the noble Baroness, Lady Carnegy, criticised the government response, but in my winding up speech I said that it was not about the niceties of parliamentary draftsmen. Because of the way that these amendments would appear in the Act, there is a danger that, instead of the clarification that she seeks, considerable confusion and uncertainty could be caused for practitioners. The noble Lord, Lord Carlile, mentioned, as he did in Committee, the Mental Capacity Act and the Scottish Act. Much water has flowed under the bridge over the past eight or nine years but the Government have decided to produce an amending Bill not a comprehensive new Bill covering all mental health legislation. Consequences flow from that. One is that it is not easy to simply graft the principles that have been suggested on to the existing 1983 Act. I accept that the noble Earl, Lord Howe, and his fellow proposers have made every effort to respond to the points that I made in Committee two or three weeks ago. Their amendment would require all those discharging any function under the Act to have regard to each of the three principles and then exercise the function in the least restrictive manner—but even those principles, when placed in legislation, would raise some issues. The current Act makes specific and detailed provision for a multitude of different situations. Principles may already be given specific effect in the relevant part of the Act or may not in fact be relevant to every situation or, as my noble friend Lord Turnberg said, may conflict with each other or with the specific provisions of the Act. What weight is the decision-maker to give to the different criteria in that case? Is there a potential for him to be challenged because he has, for example, not complied with the patient’s wishes? Will patients who would otherwise be detained for treatment be released with consequent risk to public safety and their own because the decision maker thinks that the patient’s wishes and the need for minimum restriction must take precedence over the risk of harm to themselves and others?
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- Lord Carlile of BerriewCrossbench
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- My Lords, I apologise for interrupting the noble Lord but I hope that he will further clarify the issues that I raised about certainty in the courts. Is it the noble Lord’s understanding that the legislative device—I use that word in a neutral sense—that he suggests will mean that courts reviewing decisions will regard the principles in the code of practice as having equivalent status to similar principles in the Act?
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Lord Hunt of Kings HeathLabour- Quote
- My Lords, that is not what I am saying. The role of the code of practice is to guide practitioners in the implementation of the legislation. I do not believe that what I have suggested would in any way inhibit the clarity of the message that will need to go to practitioners. Putting the principles of the code in the Bill will meet the objectives expressed by noble Lords.
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- Earl HoweConservative
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- My Lords, this has been an extremely good debate. I begin by thanking the Minister for his constructive approach to the powerful speeches made from all quarters of the House. My noble friend Lady Carnegy and the noble Lords, Lord Carlile and Lord Ramsbotham, expressed disappointment that the principles set out in the Committee amendment were not all carried over into the amendment before us. I readily concede that today’s amendment represents a compromise. That is not what I originally sought but I am enough of a realist to know that you cannot get everything that you seek first time around. However, in accepting the Minister’s offer to look at a government amendment at Third Reading, I hope that he will consider all the headings in the Committee amendment, which are of great importance individually, I say again. He will recall that that amendment was based very closely on the Scottish legislation, where apparently there is no problem about possible conflict between the Act and the principles. It is not appropriate for me to say more than that. I will, however, thank the Minister again for having looked at this issue so carefully. I reserve judgment about the government amendment until I have seen it. The point raised by the noble Lord, Lord Carlile, is extremely material in this context. However, from the Minister’s description, I think that the formula he suggested will at least meet one objective: the point made by the noble Lord, Lord Adebowale, who brought home to us the importance of trust in the system on the part of those on the receiving end of compulsory detention. I look forward to further discussions with the Minister between now and the next stage of the Bill. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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