Clause 29
Mental Health Bill [Lords]
5:45 pm
David Kidney (PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs; Stafford, Labour)
Again, my hon. Friend takes me down an avenue that I do not wish to go down. He has some strong views on a slightly different subject that is not at all relevant to this one. However, just to deal with the question that he asked me about proposed new subsection (4K), the point is that if there is some doubt at the time of presentation for treatment in a mental health facility as to whether there exists such an appointment, or there might be some legal challenge to that appointment or some court case necessary as a result of disagreement about it, people can carry on and give treatment in the meantime until that doubt is resolved.
I want to complete my arguments about how the present law is not currently as effective as it might be, due to court decisions arrived at since it was enacted. The latest one was R (E) v. Bristol city council in 2005. The court said that a patient with capacity could decide that their nearest relative under the Act must not be consulted by health professionals. It seems that a person can say, “All right, the Act says that’s my nearest relative, but I forbid you to have anything to do with them.” The treating practitioners will respect that decision, because a court now says that that is the right thing to do as well. Yet that person cannot go a step further and say, “I don’t want you to tell them, but I want this person to be my nearest relative.” The two things do not hang together. It would not surprise me, if we just leave the law as it is now, if there were another court challenge later, saying that that was not acceptable. Let us please get the legislation right first time and not wait for the courts to tell us that we got it wrong. Making an appointment would give us a procedure that is more flexible and more tailored to the circumstances of the individual patient, avoids the great expense of court challenges in most cases and gives us a degree of speed and certainty from the outset.
I should like to say a little bit about the other new clauses on advocacy, because I am a strong supporter of what I would call citizen advocacy. Once upon a time, I was a lawyer. Many lawyers are good at some kinds of advocacy, but they charge a lot of money for it. However, in this debate, we are not talking about that kind of advocacy. I have a slight interest to declare, because in Staffordshire, back in the 1980s, I was a founding member of Advocacy Services in Staffordshire or ASIST—a citizen advocacy scheme. Over 20 years, both as a member of that organisation—I am its honorary patron—and as a Member of Parliament, I have had contact with advocates on behalf of the people for whom they advocate and I know how important their role is.
Back in the 1980s, giant hospitals housing many people, some with nothing more than learning difficulties, were being closed and people were being given proper homes in the community. At that time, advocates were appointed who did fantastic work to ensure that those people were not just taken from one dumping ground to another. Vulnerable people received a superb service in the community, because of the help given by advocates. Many times as a Member of Parliament, I have been contacted by advocates who are simply standing shoulder to shoulder with a person who is entitled to ensure that their voice is heard in the right places. I have never seen anything other than appropriate contact with MPs to enlist help for a person where an MP’s intervention is warranted. That is why I support advocacy.
I understand that the Government support advocacy, too. I have just mentioned that the Mental Capacity Act 2005 makes more provision for independent advocates to help people in cases involving mental capacity. We are looking for the Government to provide for similar independent advocacy in mental health cases. The Government have paid for research and for formal courses of study to be worked up, leading to recognised qualifications for people to be citizens advocates. A lot of work is being done in that regard at present. I understand the Minister’s saying that it takes time to reach a position of being satisfied that a body of advocates is available, we know what their role is, we can rely on them to do their job well and we know how to fit them into the legal framework affecting everybody else. I am prepared to be patient and to see the Government’s proposals, but I congratulate those who have drafted the new clauses dealing with advocacy on making sure that the issue is on the agenda as the Bill passes through the House.