Report stage in the Lords
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- My Lords, I beg to move that the Bill be now further considered on Report. Moved accordingly, and, on Question, Motion agreed to. Clause 39 [Mental Capacity Act 2005: deprivation of liberty]:
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Baroness BarkerLiberal Democrat- Quote
- moved Amendment No. 73:
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The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)Labour- Quote
- My Lords, I am grateful to the noble Baroness for being extremely succinct and for representing the noble Lord, Lord Carlile, in her usually efficient and effective manner. I shall address precisely the points that she has raised. I say at the outset that the policy is that everyone should be assessed by a doctor and at least one other professional. The draft regulations are framed so as to require the doctor involved to have special experience in the diagnosis and treatment of mental disorder. One element in what the noble Lord, Lord Carlile, is seeking is that that would include, for example, the expertise to identify when physical causes were impacting on a person’s mental presentation, which might lead to the sort of temporary incapacity that the noble Lord wanted us to refer to, as the noble Baroness did on his behalf. I am confident that the safeguards that we have will cover temporary incapacity. While the person lacks capacity, they will be able to be covered by the Bournewood safeguards. The assessors will have the ability to diagnose mental disorder and to recognise when a person’s lack of capacity is likely to be temporary. It is critical that we give people the right training and ensure that they have the right qualifications and experience. However, because we are setting the period of authorisation on a case-by-case basis, we can ensure that the authorisation is able to be short. The review must be triggered by the home or hospital if there is a change; for example, if the person regains capacity or is clearly moving in that direction. Of course, the representative can also trigger a review if all else fails. I shall always keep the code under review and will look again to ensure that it identifies that as fully as possible. But I hope that I have assured the noble Baroness about the safeguards and that I have given her the explanation that she is looking for.
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- Baroness BarkerLiberal Democrat
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- My Lords, I thank the noble Baroness very much. I am sure that my noble friend Lord Carlile will find that reassuring, as indeed will the noble Baroness, Lady Knight of Collingtree, who has been vociferous in her concerns on this matter. I thank the noble Baroness for that clarification and beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 74:
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 75A:
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful to the noble Baroness for raising the issue again. I agree that it is very important that relatives and friends take the trouble and time to ensure they are content with the packages of care provided in care homes, wanting them to be of the highest possible standard. From her experience of chairing a health authority, the noble Baroness will know how important it is that those who may be extremely vulnerable get the highest quality of care. We are fortunate in the quality of care that many of our elderly people enjoy. Nonetheless, we must be extremely vigilant. As the noble Baroness would expect, I looked very carefully at the Joint Committee on Human Rights report published on 4 February. There is a bit of confusion in the report on which I need to get back to the committee. It refers to Article 6, which concerns the right to fair trial. As the noble Baroness will know, that is not linked to the process of means testing to determine the extent to which someone contributes to the cost of their care in a care home. Access to justice, to a court, to challenge a deprivation of liberty authorisation is provided for with non-means tested legal aid available for the purpose. I just wanted to put that on the record. The NHS body or local authority that authorises the deprivation of liberty may well also be involved in commissioning care arrangements, but it will not always be so. As the noble Baroness said, where private arrangements have been made between family and a care home, the situation will be different. We do not consider, having provided additional safeguards to protect human rights of people who are unable to consent to arrangements for their care, that that is a reason of itself to alter the arrangements to apply commissioning and funding of health and social care for individuals. NHS care and treatment is free at the point of delivery, but major implications of providing free care and treatment would arise in relation to care homes. People receiving those new safeguards will largely be those with severe learning difficulties or older people with severe dementia or similar problems. Many such people will be living in residential care settings and any financial contribution that they make is determined by the national policy of means testing. For some individuals, the need to ensure their safety may have led to greater restrictions in their best interest which amount to what has been described as a deprivation of liberty. But I emphasise—I want to say this very clearly—that if a person is in a care home and subject to a standard authorisation to deprive them of their liberty, that can be only because an independent assessor has said that it is necessary in their best interests to keep them safe. That is a critical part of why the provisions are so important in the context of the Mental Capacity Act. It is part of their care package to ensure that they are safe and well cared for that an element of deprivation of liberty must take place, but the safeguards to protect human rights are now built into the Bournewood provisions. Because of that, we do not believe that that should lead to changes in how their care is commissioned and funded. We think that it would provide unacceptable inequities between those care home residents who are deprived of liberty and those who are not. In many cases, deprivation of liberty does not result in someone being unable to do many things. It may be a deprivation of liberty only in certain circumstances: for example, when they need to eat or in the evening, if they are prone to wander. That is a very different set of circumstances from that which might prevail under mental health legislation. For those reasons, although I completely understand why the noble Baroness has brought it back, I am not inclined to accept the amendment. I know that the noble Baroness accepts that the provision is part of providing high quality care for the individuals concerned. I hope that she will withdraw the amendment.
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- Baroness BarkerLiberal Democrat
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- My Lords, I thank the noble Baroness for that full answer. As I anticipated, she has not changed her mind. Neither have I, but it was important for us to put our views on record, not least because I believe that this will be a matter to which courts will turn their attention. For that reason, it has been a helpful exchange of views. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 76:
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- Baroness BarkerLiberal Democrat
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- My Lords, when I was little, if I had said to anyone that I would one day be a Member of your Lordships' House, they might have thought that I had delusions of grandeur. If I had told them that I would one day be understudy to the noble Lord, Lord Rix, I think that they would have called the doctors. Today, it is my privilege to be the noble Lord’s understudy. I will try to do him justice. I pay enormous tribute to him. Although he has not been part of our debates, he has worked so hard behind the scenes to plug away at these issues, which are most important. I join the noble Baroness in sending the best wishes of the whole House to him. I thank the noble Baroness, as the noble Lord would, if he were here, because she has fully addressed the concerns that we raised with her earlier. What she has done is right. Those of us who had the privilege to take part in deliberations on the Mental Capacity Bill thought about and discussed long and hard the role and involvement of relatives in many decisions on behalf of people who do not have capacity. Often, rightly, we decided that relatives should not play a role. This time, we are absolutely right to say that they should and to exercise that tremendous safeguard for people who are enormously vulnerable because they are deprived of their liberty, as happened in the case that went to the European Court. The noble Baroness rightly identified all the things that matter to them, such as having access to information and the requirement that once a deprivation has been noted, it must be registered in a number of places. On my behalf and that of the noble Lord, Lord Rix, I thank the noble Baroness very much for that. On Question, amendment agreed to.
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 76A:
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- Baroness Ashton of UphollandLabour
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- My Lords, it is always worth having another go to see if I can be bent if not broken into looking at a point again. The noble Baroness will know that I have met representatives from a number of organisations who raised this issue with me. I thank them for their time and consideration in coming in to talk to me about it. I am not going to go as far as the noble Baroness wants, but I hope that in what I am able to say, she will be given enough comfort perhaps to offer me half a thank-you on behalf of herself and the noble Lord, Lord Rix. I agree completely with the principle lying behind all the noble Baroness has said: we want to deprive people of their liberty only for the shortest time possible. My first point is that that will be made perfectly clear in the code and training materials; it is absolutely essential. That is why we are setting the authorisation period on a case-by-case basis on the best interests assessor’s recommendation, which will be based on the person’s best interests in the particular circumstances and the likelihood of change. I will add material to the code stating that authorisation should be recommended for 12 months only if the assessor was confident that there is unlikely to be a change in the person’s circumstances within that period. There will be people—noble Lords will be able to think of them—about whom we can be sure that that is the case. The noble Baroness has expressed concern that people should not reach for the ultimate ability to go to 12 months when a shorter period would be better. The point was also made by the noble Earl, Lord Howe, in Committee. The review and Court of Protection safeguards mean that if the deprivation of liberty is no longer needed, it can and will be ended. We will make sure that information and support is provided for families and carers to ensure that they can be effective in helping their loved ones to make use of these safeguards, and we shall discuss that support later this evening. I am therefore confident at this stage that we are putting in place everything required to deliver our aim of making sure that the deprivation of liberty does not continue longer than it has to. There will be no default to 12 months, so I do not support reducing the maximum period specified in the Bill because I do not want to have unnecessary assessments taking place. They would merely divert resources from frontline care. The noble Earl, Lord Howe, said in Committee said that we could not have it both ways. I could not say that the case would not arise for all that many people and then argue that it is a resource problem. The truth is that however many cases arise—I hope that there will be few, but there will be some—it is nevertheless still a resource issue, although I agree that it is not a huge one. I also do not want people or their families disturbed and unsettled in circumstances where it is quite clear that there will be no change, but I accept that providing a period of 12 months with no ability to change it does create an issue if I am proved to have been inaccurate in my assessment, or indeed if a period of six months was not correct, or that over time it is considered that we ought to be able to settle on another period. So I will ensure that when the Bill goes to another place, a power is taken in England and Wales to reduce—and only to reduce, not to increase—the maximum period at a future date if monitoring of the operation of the safeguards convinces the Government that this is necessary. The monitoring body will report to the Secretary of State and will include these statistics. That will be published and made available in the Libraries of both Houses, so the specific information gathered by the body looking at this issue will be put in the public domain. If that information leads to the conclusion that we need to amend the period of 12 months down to a lower figure in order to address anything that may have arisen, the power will be in place to do so. I hope that I have achieved by another route what the noble Baroness is seeking and that she feels able to withdraw her amendment.
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- Baroness BarkerLiberal Democrat
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- My Lords, that is a most helpful answer from the noble Baroness. I understand why she does not want to make the changes to the legislation that we have proposed. However, I accept the offer she has made. It will go a long way towards meeting our concerns. I thank her 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. 76B:
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- Baroness Ashton of UphollandLabour
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- My Lords, I hope that I can make the noble Baroness half happy. Let me start with when someone is being assessed. We have made sure that there is a professional appointment who is independent of the provider and the decision-maker about their care. His role is to establish and report on what is in their best interests. We call them the best interests assessor, the job title fits the job and that is what they have to do. They are required by law to take into account the views of all the people listed within the amendment. They have to have the skills to communicate with those people and to help them input their views. I said in Committee that I would strengthen the guidance and the draft code of practice on involving friends, family and carers, and I will do it; I will cover the need to keep them informed so that they know how to get involved in that process and the need to support them to play their part including, for example, addressing language and communication needs that may exist. I do not want to go so far as saying that we need the support of an IMCA at that point, unless there is no one available to consult. We want the best interests assessor to approach interviews with friends and family from the viewpoint of the best interests of the person who may be deprived of their liberty, which may not always be the same as the interests of the family. It will be in many cases but it will not always be. That is as it should be. Introducing an IMCA to help and support the family could shift the balance, and what we are interested in at that moment is the best interests of the person being assessed. The families tell us often that what they really need is information. We want to make sure that families understand and are provided with information about the safeguards, about how to be involved and who to speak to in their case, and we will be working with service users and families to make sure that we get that right. Once an authorisation is granted, the role of the best interests assessor falls away and we are extremely sympathetic to the point that was made in Committee and has been made by organisations that I have met—that a family member or friend who is acting as a representative could not have a level playing field of having access to quality advocacy support. We are going to do something about that: as my noble friend Lady Royall said, we are looking at advocacy more generally and coming back to it in another place. I would like to add that into that mix because in a sense it is about the same issue, but we will do so and make sure that we have advocacy support available to families and friends during an authorisation and beyond in the way that the noble Baroness would expect. I hope that on the basis that the cup is half full she will withdraw her amendment.
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- Baroness BarkerLiberal Democrat
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- Yes, my Lords, I am getting fuller all the time. I thank the noble Baroness. She has understood the difficulty that we are trying to get at: that people who are now charged with making sometimes all the decisions about a person’s welfare need our support in order to do so. I heard what she said and I look forward to reading about that.
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- Baroness Ashton of UphollandLabour
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- My Lords, I know that the noble Baroness, Lady Neuberger, who is sitting next to the noble Baroness, Lady Barker, and is about to leave us, has a birthday today. On behalf of the House I wish her a happy birthday.
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- Baroness BarkerLiberal Democrat
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- My Lords, I thank the noble Baroness for being my advocate. I will watch with interest the proceedings in another place 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. 76C:
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- Baroness Ashton of UphollandLabour
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- My Lords, let us begin from the principle that, if an application is made for an authorisation of deprivation of liberty and it is not granted, the deprivation of liberty should not take place, as it would be unlawful. We consider it extremely unlikely that any managing authority would recognise and comply with a duty to request an authorisation of a potential deprivation of liberty and then go ahead with an unlawful deprivation of liberty if the authorisation was not granted, particularly—this is an important safeguard—as the outcome would be known by the commissioner of the care, by the friends, by the family, by the person concerned and by any IMCA who was involved. The first two sub-paragraphs of the amendment do the same as the current paragraph 58. My difficulty comes with what follows in sub-paragraphs (3) and (4), because it does not work. They assume that if the authorisation has been turned down the reason is that the proposed care is not in the person’s best interests, but that might not be the case; for example, the assessor might have concluded that the care being suggested would not of itself be a deprivation of liberty, in which case authorisation could not be granted and would not be needed. They might decide that the use of the Mental Health Act needs to be considered. They might decide that the person does not have a mental disorder or that the person has the capacity to consent. The sub-paragraphs assume and indeed require that the person will continue to be cared for by the managing authority that made the application, but that may not be in the person’s best interests. If authorisation is not granted, decisions will need to be made about how to avoid the deprivation of liberty. The assessor’s report will inform the decision, but there are likely to be a number of options. The person may need to be in a different care home or in hospital. The person may remain in the same place but the care plan may need to be reviewed or a proposed restriction not instituted. The person may remain in their own home. The commissioning and the care planning decisions will have to be taken in the person’s best interests, as we have already discussed, with the views of families, carers and friends taken into account. Our difficulty is that we are dealing with many varied circumstances. I have tried briefly to illustrate some of them. Undoubtedly, cases and circumstances will arise that I have not outlined and we cannot foresee, and the difficulty is that we cannot define in statute what should happen in every case. That is why we have taken the choice to address the issue of what should happen when authorisation is turned down in the code of practice. I will read a little bit: “The managing authority is responsible for ensuring that they do not deprive a person of their liberty without an authorisation. The commissioners of care are responsible for ensuring that the care package is commissioned in compliance with the Bournewood safeguards. The action they will need to consider if a request for an authorisation is turned down will depend on the reason why the authorisation has not been given”. We then give examples, some of which I have indicated. The monitoring of the safeguards that we will establish will be a further protection against unlawful deprivation of liberty. We also state in the code that the supervisory body should consider alerting the monitoring body if it is concerned that unlawful deprivation of liberty will not be avoided. On the basis that there are so many different circumstances and that the code, which has statutory effect, will tackle that effectively, we believe that there is nothing between the noble Baroness’s objectives and mine, but that we need to tackle this issue in the way that I have suggested. I hope that she will feel able to withdraw her amendment.
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- Baroness BarkerLiberal Democrat
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- Again, my Lords, I thank the Minister for her answer. It has been helpful to have this exchange, not least because it throws up the variety of circumstances to which this legislation applies. I suggest that the care of older people differs from that of younger people with learning disabilities. When the Minister was going through her examples, I was not sure exactly how the assessments could be made. There would have to have been a level of concern in order for a question of authorisation to have been raised, only for there to be the result that a person should either move to another care home—and how would they do that?—or remain where they were. That said, I understand what she says about the need to retain some flexibility, and therefore at this stage I will not press the matter, having raised it. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 77:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 78:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 79:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 80:
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 80B:
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- Baroness Ashton of UphollandLabour
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- My Lords, I shall have another go at convincing the noble Baroness that the provisions already contain the safeguards that she, reasonably, seeks in her amendment. I know that the noble Baroness does not mean this, but “deprivation of liberty” concerns only that and is not about authorising any course of treatment. I know that she would agree with me on that. The provision of treatment takes us right back into the Mental Capacity Act itself. The provision of treatment to a person deprived of their liberty has to be in accordance with the arrangements and safeguards in that legislation. There is no justification to adapt those for people deprived of their liberty. Decision-making about serious medical treatment for these people should be handled as with a group of people who do not have the capacity to consent, not differently. Where the primary reason for deprivation of liberty is to allow treatment to take place, the benefits of being treated would be considered as part of the best-interests assessment. We have to do the best-interests assessment to determine that they can be deprived of their liberty. If serious medical treatment is the reason for depriving someone of their liberty, the best-interests assessor would have to consider that as part of their assessment. This is in addition to, and does not replace, the requirement to comply with the rest of the Mental Capacity Act. The requirements in the Mental Capacity Act governing decision-making when a person is not able to consent are robust and practical. We had a lot of scrutiny on this during the passage of the Mental Capacity Act. Where serious medical treatment is proposed, there will be a need, in accordance with the best interests provision in the Act, to consult anyone named by the person, engaged in caring for them or interested in their welfare. Any donee of lasting power of attorney or deputy appointed by the court would have to be consulted. If there is nobody of that nature whom it would be appropriate to consult, an independent mental capacity advocate would be appointed to represent the person’s interests. Any of these people has the right to seek a second medical opinion regarding serious medical treatment, in the same way that a person could have done had they had capacity. The noble Baroness asked whether the IMCAs would do that. I went to the IMCA pilot schemes to see whether it was happening. I can confirm, having looked at it, that IMCAs obtain second opinions where they consider it necessary. The practice that is already under way demonstrates that, where they believe it is appropriate, they do. In addition, you can make an application to the Court of Protection if there is a dispute that the proposed treatment would be in the person’s best interests. The requirements in the Mental Capacity Act lead to greater involvement in decision-making by the person concerned, ensure that what is decided is genuinely in the person’s best interests and that, as far as it can be, the decision made is similar to the one the person would have made if they had had capacity. We have the capacity for second opinions to be obtained by all the people I have mentioned. With the safeguards in the Act, you can only act in the best interests of the person concerned. If the deprivation of liberty were for the purpose of serious medical treatment, then the best-interests assessor would have to determine that it was in the best interests. If all else fails, the Court of Protection can intervene where people believe that serious medical treatment is not in their best interests. I think that my package of safeguards meets what is of genuine concern to the noble Baroness. I hope that she will be able to withdraw her amendment.
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- Baroness BarkerLiberal Democrat
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- My Lords, I knew that my winning streak would come to an end at some point; I am rather sad that it has ended here, as this is a serious matter. I listened to what the noble Baroness said about the provisions only authorising deprivation of liberty and not treatment. My argument is that, if a person lacks capacity and is deprived of their liberty, there is a greater need to ensure that they are not subjected to wrong or inappropriate treatment. There is a need to provide greater protection than would apply to somebody who did not lack capacity and who, as the noble Baroness said, had the right to ask for a second medical opinion. That people deprived of their liberty should have to rely on an IMCA to obtain a second opinion is insufficient protection. I noted what the noble Baroness said about the IMCA pilots. Can she reassure me that, as the IMCA scheme rolls out, the matter will be kept under supervision? I have a sneaking concern that perhaps the pilots took place in an area where there was a well established tradition of advocacy and there were well trained advocates who understood what they could and could not do. That may not be the case all over; nor may homeowners be as supportive of advocates as they should be.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am happy to reassure the noble Baroness. One of the great advantages of pilots is that we can learn all the lessons necessary. I would want to look carefully at the circumstances in which those opinions were sought. If the noble Baroness is right, and these are particularly well trained advocates, we need to ensure that everybody else involved is equally well trained.
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- Baroness BarkerLiberal Democrat
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- My Lords, I thank the noble Baroness for that. There is a transitional period to be gone through. The noble Baroness talked about the Court of Protection, which has not until now had to make decisions about people’s welfare. It has primarily made decisions about goods and property. She will understand, then, where some of my concern comes from. We are on either side of a fine line. I would prefer that people deprived of liberty had the extra protection afforded to them in my amendment. Clearly, the noble Baroness disagrees. We will continue to keep this matter under scrutiny as the Act is rolled out. I hope that, if we find there is a problem, we can return to it at some stage very quickly. In the mean time I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- moved Amendment No. 81:
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- moved Amendments Nos. 82 to 84:
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 85:
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Lord Patel of BradfordNon-affiliated- Quote
- My Lords, I have already alluded to the Department of Health’s quite unsatisfactory approach to the mental health code of practice in our debate on Amendment No. 71A. Therefore, I will make only a brief contribution to this debate. Many times in our debates the Minister has responded to calls for statutory measures by telling us of the advantages, particularly in terms of flexibility, of the code of practice. The legendary flexibility of the code is sometimes seen to be just that—a legend. We have had three editions in 20 years, and the Mental Health Act Commission currently produces a guidance note for services outlining the parts of the book that practitioners should annotate to stay on the right side of the past six years’ worth of case law. More importantly, the code is being promoted by the Government in these debates as a way not only to make services work better but to ensure that they work to what might be regarded as minimum standards of practice and legality under human rights law. We are asked to accept this role for the code, while it is also made explicit that it has no statutory force and may be departed from when any service believes that it has a cogent reason to do so. I echo the sentiments of the noble Baroness, Lady Barker, on cogent reasons and the explanation for that. Your Lordships may be surprised to learn that I am quite sympathetic to the argument that the code is the most appropriate means of striking a balance between the need for certainty and predictability in law, and the flexibility that may be required over time or may be required to deal with just those sorts of difficult cases that would make bad law. The code needs to be supported to take this role on board. Departures from it should be exceptional, not routine, and should be justified and recorded. The amendment sets out a modest and reasonable means to make the code work better, and I entirely support it.
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Lord Hunt of Kings HeathLabour- Quote
- My Lords, we come, almost at the end of our deliberations on Report, to a most important matter. As the noble Baroness, Lady Barker, and the noble Lord, Lord Patel, have stated, the inter-relationship between the Act and the code is critical in terms of confidence about how the legislation will be carried out in practice, and the advice and guidance that is given to practitioners in exercising what are often difficult judgments. We need to acknowledge that, legislate as we do, practitioners in the field need clarity, as we have all agreed. Equally, it is important that professionals have the confidence to exercise their professional judgment and discretion within the parameters of the Act, but with sufficient flexibility too. In a sense, the code enables us to have that discretion and professional judgment but within the clear parameters set down by the legislation. I pay tribute, as I have done before, to the architects of the 1983 legislation. The noble Lord, Lord Patel, referred to the three occasions on which the code has been amended since the 1983 Act came into being. He may say that it should have happened more often, but it clearly shows that the code is not set in stone. We have a mechanism for making adjustments to it in the light of experience. There is also clear parliamentary scrutiny of the code and any changes to be made to it. Before responding to a number of points that were made, perhaps I may correct a statement that I made in Committee on 29 January in relation to the code of practice. It may be found at col. 115 of Hansard. In setting out the facts of the judgment in R (on the application of Munjaz) v Mersey Care National Health Service Trust 2005, I stated that the judgment set out the circumstances which could provide cogent reasons for not following the guidance in the code. While I stand by the correctness of what I said, I now understand that the reasons are given in the interpretation of the judgment in the 10th edition of Richard Jones’ Mental Health Act Manual, published by Thomson Sweet & Maxwell. I apologise for this misattribution, and wish to put the record straight. The amendment would spell out the status of the Mental Health Act code of practice in the legislation. My problem with it is that it would also raise its status far closer to that of directions. It also provides that the reasons for any departure from the code must be recorded. The amendment would have the effect of overturning the position established by the House of Lords in the case of Munjaz and would effectively reinstate the Court of Appeal’s overruled view on the matter: that the code must be followed and may be departed from only in relation to an individual patient. I accept that noble Lords, in proposing the amendment, wish to ensure that patients are treated effectively and consistently in accordance with the guidance in the code, but this amendment is not the right way of achieving it. We are considering this matter carefully and will continue to do so. We understand the advantages of placing the status of the code in legislation. That is why, as part of the promised amendment on principles, I will bring forward at Third Reading a provision setting out the status of the code, but I must make it clear that it will not be the restrictive status proposed in the amendment. Rather, it will be a status consistent with the judgment of the Appellate Committee of this House in Munjaz. This is already implicit in the Act. As I said to noble Lords in Committee, we will strengthen the introduction to the code. I readily accept that the current introduction and the draft introduction do not give sufficient guidance and clarity to professionals on the status of the code of practice. Therefore, in addition to introducing an amendment on the status of the code to be put in the Bill, we will clearly need to look carefully at the drafting of the code of practice in relation to its status. I am happy to share that with noble Lords who have taken part in this debate so that we may have the benefit of their advice and wisdom. It is clear that people must understand what the code means in practice and that the people to whom it is addressed must have regard to it. This was confirmed by the Appellate Committee of your Lordships' House. The committee said that it was not sufficient merely to have regard to the code, in the sense of being able to deviate from it as a person sees fit, but, rather, that the people to whom it is addressed must follow its guidance except where they have cogent reasons to depart from it. The dictionary definition of “cogent” is “convincing and compelling”. I am not sure how much further I can go on that. It is pretty clear that one has to have a jolly good reason for departing from it. The requirement that cogent reasons must be shown for any departure sets a high standard which is not easily satisfied. A court, in reviewing any departures from the code, should scrutinise the reasons given for the departure with the intensity which the importance and sensitivity of the subject matter require. The problem with the amendment is that it would raise the status of the code beyond what is either necessary or sensible. It would have the effect of limiting the flexibility of practitioners to develop local policies to reflect the needs of particular groups of patients. It might run the risk of ossifying professional practice and make it harder for patients to know how they are likely to be treated. I accept that a delicate balance has to be struck between the principles enunciated in the Bill and the Act and the discretion that needs to be given to practitioners in the code of practice. I think that we would all agree that professionals need discretion, but they need to be discreet within the principles enunciated in the Act and in the code of practice. Equally, we do not want to reach a position in which professionals are left in too much of a straitjacket when using their professional discretion. I do not pretend that this is easy or that these matters are easy for a professional on the ground. These are difficult matters and it is a difficult judgment, but we happen to believe—and we believe that this is confirmed by the decision of your Lordships' House in the Appellate Committee—that we have the balance right. I also believe that it is very important to recognise the comments made by the noble and learned Lord, Lord Hope, when he discussed the question of whether Ashworth was free to depart from the code as a matter of policy, and not just in relation to individual patients or groups of patients. The noble and learned Lord could see no reason why it should not be able to do so, “provided of course that it can demonstrate that it had a good reason for doing so”. He also referred to the, “obvious danger that, if the Code could be departed from in the case of individual patients or groups of patients where no written guidance was available, decisions to do this would be open to attack as being arbitrary because their consequences were unregulated and unpredictable”.
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- Baroness BarkerLiberal Democrat
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- My Lords, I thank the Minister for his reply. It is not surprising that ever since 1983 the House has been discussing this question and Members on either side of the House—or whichever side they happen to be on at the time—simply disagree. That said, it is helpful that the Minister has alluded to the fact that we wait to see with the amendment. It is a matter of supreme importance, given all that has been said by noble Lords all the way through our discussions—and not simply those who wish to defend the rights of patients but those who wish to see the issue clarified for practitioners, who are often highly exposed to criticism about their failures, especially with regard to cases when there has been a tragedy. Practitioners are having their work scrutinised and their failures put under the microscope. For those reasons, it is important that there is consistency and clarity between primary legislation and the code of practice. They were very different documents in draft. I take the point that the code of practice will be substantially revised in light of the discussions that we have in this House and another place, and that this part in particular—that is, the relationship of the principles in the code of practice to the rest of the measures—will definitely be revised. There is a distance between us. We do not at the moment have a clear way forward, but we may at Third Reading. However, at this point I thank the Minister for his answer and I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Schedule 9 [Transitional provisions and savings]:
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- Lord Hunt of Kings HeathLabour
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- moved Amendment No. 86:
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- Baroness BarkerLiberal Democrat
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- moved Amendments Nos. 87 to 89:
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- Lord Hunt of Kings HeathLabour
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- moved Amendments Nos. 90 to 94:
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- Lord Hunt of Kings HeathLabour
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- moved Amendment No. 95:
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- Lord Hunt of Kings HeathLabour
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- moved Amendments Nos. 96 and 97:
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