Clause 10
Mental Health Bill [Lords]
5:15 pm
David Kidney (PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs; Stafford, Labour)
It is a pleasure to serve on a Committee chaired with your usual sure and firm touch, Lady Winterton.
This is a probing amendment. Clause 10 amends section 118 of the 1983 Act to insert new requirements into the existing arrangements for a code of practice. It requires the Secretary of State to include in the code a statement of principles that she thinks should inform decisions made under the Act.
The clause contains a list of issues that need to be addressed in the preparation of the statement of principles. Amendment No. 54, which is linked with amendments Nos. 41, 66 and 55, would amend that list as I shall describe. Amendment No. 41, tabled by Conservative members of the Committee, would add another consideration to the list—the impact on black and minority ethnic patients. Amendment No. 66, tabled by my hon. Friend the Member for Bridgend, would add to that list the rights of victims. Amendment No. 55, tabled by Conservative Members, would omit the proposed new subsection (2C) on the efficient use of resources and the equitable distribution of services.
The draft code contains the proposed principles; on the whole it is a good list, which is well set out and makes sense. However, amendment No. 54 picks up on two differences between the draft code’s principles and the list in clause 10: first, a difference in terminology and, secondly, what I would say is an omission inclause 10.
On the difference in terminology, the draft code refers to an assessment of risk, whereas clause 10 refers to the protection of the public. The purpose of my amendment is to include in clause 10 assessment of risk instead of protection of the public to make the two consistent. I prefer the description “assessment of risk” rather than protection of the public for a number of reasons. First, it would make it clear beyond peradventure that criticism of the Bill on grounds of saying that it is about social control as an aim is ill judged. Ensuring that we do not leave protection of the public standing on its own as a separate item in clause 10 would help to make that clear. Secondly, such a description would make it clear that the patient should be the focus of the assessment carried out by the medical practitioners. The patient and the treating doctors want to limit the danger of harm to others—for example, relatives, carers and strangers—as well as to the patient. Thirdly, such an approach would make it clear that it is the risk assessment that then weighs up the various considerations. The amendment therefore suggests that the change should be to the clause 10 list, to say that assessment of risk is a matter to be taken into consideration. It is already in the statement of principles of the draft code that there should be an assessment of risk, and there is a very good section afterwards that explains how the assessment should be made to weigh up the relevant risks better than at present.
The second part of the amendment would correct the omission to which I referred earlier and add to the list in clause 10 the word “transparency”. It is in the draft code’s principles—a good short statement that transparency is important—but it does not appear in the clause 10 list. It is an important consideration, not an add-on or a catch-all. Transparency is much more than simply alerting people to their rights; it is about explaining to them the procedures that will be carried out—what will happen and why—the decisions that need to be made and what will be the consequences. All that is part of transparency, not just communication.
Clause 10 was a Government amendment in the other place, which was accepted by the Opposition parties. In the House of Lords debates, there was concern about the status of the code. Proposed new subsection (2D) says that all those who have responsibilities under the Act
“shall have regard to the code.”
The explanatory notes tell us that that gives statutory effect to the decision of the House of Lords, as the final court of appeal, in the case of R. v. Ashworth. That basically said that people making decisions should have regard to statute law and try to apply it in most circumstances, but that practitioners can depart from it with good reason. Opponents of that last point say that it is a weakness, which is why many people make strong demands about principles being stated in primary legislation, not just in a code of practice.
If it were possible to find a way to enable the Bill to reassure us with a ringing declaration of the rights and principles under it, that might well take away some of the concerns that have led to amendments on treatability, exclusions and so on. It might be possible to devise a solution different from the current one, to give the extra guidance to practitioners that some have appealed for while guaranteeing the safeguards for service users that others have asked for. That would mean the Bill being tidier and not needing the amendments that were made in the other place.