Mental Health Bill [HL]

– in the House of Lords at 3:07 pm on 6th March 2007.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform) 3:08 pm, 6th March 2007

moved Amendment No. 1:

After Clause 9 , insert the following new Clause—

"Fundamental principles

The fundamental principles

After section 118(2) of the 1983 Act (code of practice) insert—

"(2A) The code shall include a statement of the principles which the Secretary of State thinks should inform decisions under this Act.

(2B) In preparing the statement of principles the Secretary of State shall, in particular, ensure that each of the following matters is addressed—

(a) respect for patients' past and present wishes and feelings, (b) minimising restrictions on liberty, (c) involvement of patients in planning, developing and delivering care and treatment appropriate to them, (d) avoidance of unlawful discrimination, (e) effectiveness of treatment, (f) views of carers and other interested parties, (g) patient wellbeing and safety, and (h) public safety.

(2C) The Secretary of State shall also have regard to the desirability of ensuring—

(a) the efficient use of resources, and (b) the equitable distribution of services.

(2D) In performing functions under this Act persons mentioned in subsection (1)(a) or (b) shall have regard to the code.""

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, the question of how the Government should express principles to inform practitioners making decisions under the 1983 Act as amended by the Bill has dominated our discussions and caused a great deal of interest, as evidenced this afternoon.

On Report I said that I would introduce an amendment at Third Reading to address the concerns raised. I pay tribute to noble Lords on all sides of the House who have taken part in discussions on this. I very much appreciate their co-operation and help. We first opened our discussions on the Bill in Committee on Monday 8 January. Understandably, the question of principles is very important. The Bill has been the subject of a great deal of debate both in your Lordships' House and in the community, among mental health patients and stakeholders, and it is not surprising that, with so many varied views about the legislation, the principles under which it will operate have been a matter of great interest and concern.

As noble Lords will know, the Government have no argument, and have not had any argument, with noble Lords who emphasised the importance of transparent principles to govern the behaviour of professionals. The problem all along for the Government was the technical difficulty of grafting new principles on to existing legislation, in contrast to the approach in Scotland, for example, where they started from scratch, or the "long" Bill, which we have discussed often during the passage of this Bill. Our amendment responds to the technical problems in noble Lords' original amendments, and I hope that it answers the question posed by the noble Earl, Lord Howe, when he opened the debate on Report. The noble Earl explained that his amendment would provide for a clear statement from Parliament about the values that should inform and guide practitioners. This amendment achieves that.

The noble Baroness, Lady Barker, asked that we had a clear explanation of how the code of practice and the legislation work together so that practitioners were not confused. I readily agree with her that it is very important that practitioners who will work under this legislation and the code of practice are very clear on what is required of them. The request for transparency is clearly very important, which is why our amendment also relates to the relationship between the legislation and the code of practice.

Our amendment places in statute a new requirement that the Secretary of State and Welsh Ministers include a statement of principles in the respective codes of practice for England and Wales, which should inform decision-making under the 1983 Act. The amendment legally obliges the Secretary of State and the Welsh Ministers to address certain fundamental issues in preparing this statement of principles. It also enshrines in legislation the duty of practitioners to have regard to the code in performing their functions under the Act, as elaborated by the judicial arm of this House in the case of Munjaz.

We listened to the debate on this issue very carefully. It is clear that there are certain values that this House regards as fundamental in the exercise of powers under the Act. We share those views and have given careful thought to those fundamental values and how they might be most effectively brought to bear in the context of the Act. We have included them as matters that must be addressed in preparing a statement of principles to be included in the code of practice for England and Wales. That will ensure that the key values expressed in Committee and on Report are given effect.

I need not go through the entire list of issues, as they are self-explanatory, but perhaps I might comment on two of them. In Committee, the noble Lord, Lord Williamson, drew attention to the importance of patients participating as fully as possible. Indeed, much of the debates around principles focused on the benefits and desirability of patient autonomy. That is why the fundamental issues include respect for patients and involvement of patients in planning, developing and delivering care and treatment appropriate to themselves. That will support the best practice of considering the past and present wishes and feelings of patients and treating them with dignity to improve their well-being.

We listened to the concerns raised in the House, including those of the noble Lords, Lord Adebowale, Lord Bragg and Lord Patel of Bradford, regarding the treatment of black and minority-ethnic groups. A number of noble Lords have pointed it out at various stages of the Bill, and we agree that there is evidence of disproportionate use of detention, seclusion and restraint for patients from a black and minority-ethnic background. As I stated in previous debates, we are addressing this issue through Delivering Race Equality, in England, and the Race Equality Action Plan, in Wales. But we will include a requirement to address unlawful discrimination. That is up front in the legislation as a fundamental matter that must be addressed in the principles to guide practitioners.

We have listened carefully to Peers' concerns regarding the legal effect of these principles and the code generally, in particular those of the noble Lord, Lord Carlile. As I said, the status of the code has been reviewed by the judicial arm of this House in the case of Munjaz. In the light of that case, no one should be under any illusion that principles expressed in the code can lightly be ignored. They must be properly and carefully considered. We have given effect to this in the duty of practitioners to have regard to the code, a duty that must and will continue to be read in the light of Munjaz.

We support the idea of principles and we believe that the implementation of the legislation should be undertaken in a principled manner, but there are serious difficulties with grafting new principles on to existing legislation. That is why we think that the code of practice is the best vehicle to convey those principles to inform practitioners' decisions under the Act. I hope that this amendment convinces noble Lords that we are serious and that we agree with the sentiment behind the amendments tabled in Committee and on Report. We have listened carefully to noble Lords. I hope that we reach a satisfactory conclusion of very constructive debates in your Lordships' House and outside on the critical area of principles. I beg to move.

Photo of Earl Howe Earl Howe Shadow Minister, Health 3:15 pm, 6th March 2007

My Lords, I express my personal and very considerable appreciation for the Minister's constructive approach to this important issue following our debates at earlier stages of the Bill and for the efforts that he has personally made in helping to frame the amendment now before us. I also thank him for facilitating discussions between noble Lords on this side of the House and the Cross Benches and members of the Bill team over the past two weeks, and for his willingness to allow some of our suggestions to be incorporated in the wording of the amendment. At the start of Committee I frankly did not think that we would reach this position. Without the Minister's commitment that simply could not have happened.

I am sure that the Minister will not take it amiss if I say that what we have here is not perfection. Perfection, from our point of view, would have been a set of clear, overarching principles in the Mental Health Act. For reasons that we know about—mainly practical and legal ones—the Government did not feel that this idea could be taken forward. I was sorry about that but, given that this was how they felt, this amendment represents a more than acceptable second best, which should achieve much of what we were hoping to achieve through our amendment in Committee. In particular, it demonstrates to service users and professionals in mental health care that Parliament has put its imprint not only on the code, which is, of course, important, but also on the Act itself as regards the basic principles that should govern it and be read into it. It is a message that Parliament itself rather than officials, managers or doctors, regards the subject headings set out in proposed new subsection (2B) of the amendment as matters of universal applicability in the way that the Mental Health Act is to be interpreted and implemented. That signal should be understood within the framework of our earlier debates, when noble Lords spoke of the values that should permeate decisions and actions taken under the Act and what those values should be. I hope that the Minister will agree with that broad analysis. From his remarks, I believe that he does.

If we are to embrace this amendment, we need to do so with our eyes open. Although the Secretary of State is bound by the amendment to act in certain ways, we can see that much of what happens will depend on his or her own opinions and decisions. That aspect of the drafting is less tight than I would have liked; nevertheless, we should not overlook the considerable significance of subsection (2D), which expressly binds the code of practice and the implementation of its principles into the Act. That is a major plus.

Perhaps I may put some brief questions to the Minister on the detail; if he cannot reply today, I would appreciate it if he could do so in writing later. Can he confirm that when the principles in the code are drawn up, the language used will reflect the intention and the underlying sense of each paragraph in subsection (2B)? We do not want to see any watering down of the principles when they are translated into the code; for example, the "wishes and feelings" of patients should include the past and present wishes and feelings, as the amendment specifies, and should not be taken to mean something more general or nebulous. "Minimising restrictions on liberty" should encompass the inclusion of a preference for informal care over compulsory care unless compulsion is absolutely necessary in the circumstances of the case. It should include also the idea of least restriction, once a person has been compulsorily detained.

I welcome the principle of,

"involvement of patients in planning, developing and delivering care and treatment appropriate to them", but we need to be sure that, when it is incorporated into the code, it conveys what I hope the Government intend: that the individual patient should, as a matter of course, be consulted on the care and treatment that is right for him and his opinions should be respected.

The "avoidance of unlawful discrimination" should not be taken simply as prohibition of an obvious, negative kind, but rather as a positive rallying call for respect and equal treatment of all patients, no matter what their characteristics or background may be. This principle is about banishing the culture of stereotyping in mental health care and about promoting in its place a culture of respect and confidence.

Proposed paragraph (e) refers to the "effectiveness of treatment". This idea is somewhat condensed. I would like to think—and perhaps the Minister could comment—that it opened up the concept of maximum benefit to the patient, which our original amendment specified. In so far as there is an interaction between this principle and the principle of respect for the patient's wishes and feelings, the concept of maximum benefit would appear to be covered.

One of the principles that we had hoped to be included, but that is not there, is the need to consider the full range of options available in the patient's case, both during assessment and after. Can the Minister confirm my understanding, arising out of helpful discussions with officials, that this principle is effectively covered by considering three principles together: the need to respect the patient's wishes and feelings, the principle of minimum restriction and the effectiveness of the treatment considered? If one were to overlay those principles with the Secretary of State's duty to ensure the equitable distribution of services, the substantive point at issue would seem to have been addressed. If that is so, will the Minister undertake to ensure that that is made explicit in the code?

The amendment refers also to the Secretary of State's duty to,

"have regard to the desirability of ensuring ... the efficient use of resources".

I am sure that none of us here would deny her that responsibility in the general exercise of her functions. However, one could envisage circumstances whereby the need to make efficient use of resources could be used as a reason for diluting or even negating the practical force of the main principles. That would be highly undesirable. Can the Minister explain what is intended by the "efficient use of resources" in that context?

I hope that the Minister can also confirm that the principles foreshadowed and signposted by this amendment will be the only ones to be contained in the code and that no extraneous ones will creep in. Does he accept that the amendment confers a special status on to the principles set out in the code such that any departure from them would be unlawful and therefore, in practice, unthinkable?

As this may be the last opportunity to do so, I end by expressing my appreciation for the courtesy and helpfulness of the Minister throughout the passage of the Bill. He has never been less than utterly straightforward and equable, even when, regrettably, we had to disagree. I thank him for that. If he will allow me to say so, I cannot help being fearful that the same spirit of open and constructive engagement may not be carried over into the debates in another place. Last week the Minister's right honourable friend Rosie Winterton made several public pronouncements about the effect of the amendments carried by your Lordships' House that were, to be frank, grossly misleading. I stop short of saying that they were wilfully misleading because I have no grounds for going that far, but the Minister was certainly ill briefed. This is not the moment to issue a line-by-line rebuttal of what she said, but I hope that it will be in order for me to do that by way of a letter before the Bill has its Second Reading in the Commons.

Photo of Lord Soley Lord Soley Labour

My Lords, I congratulate my noble friend on his amendment. I think it is basically right, but he will be aware that I have always taken the view that principles in a Bill are not a good idea. We always need to remember that courts of law are required to interpret Acts of Parliament and if you end up balancing clauses with principles, you open the door to some interesting legal squabbles which, in my experience, are usually very expensive for the taxpayer. That brings me to the warning point on this. I like the way it has been approached and it is right that we have sought to meet the concerns of Members of this House on the issue. But my word of caution is to ask that we have the lawyers check out the way the code is worded because, as my noble friend will remember, it was only a few years ago that the NHS was paying out large sums of money in out-of-court settlements because the health service feared that if it went to court, even though it felt that its case was good, it would cost it much more than settling out of court.

If we ask people to balance a code with the requirements of the Act, there is a danger of reopening that door, which has in recent years been closed. That does not in any way imply that people should not be able to go to the courts if they feel that aspects of the Act have not been fully and properly dealt with, and that their rights have not been acknowledged. But it is a warning that this can be an expensive way of meeting that need.

We have all known for many years the over-representation of certain ethnic-minority groups within patients having compulsory treatment. There are at least three areas that we need to address. One is the recognition that social and economic factors, not least racism itself, put extra pressures on some groups within the ethnic-minority community to the extent that they either exacerbate or trigger a mental illness. That is a wider social issue.

Secondly, certain sections of the ethnic-minority groups are seriously under-represented in the professions themselves. Perhaps we could put on the record again that it is high time that some of these professional groups took a leaf out of the Army's book. When it realised what a serious problem it had, it began to go around schools, clubs and other organisations in ethnic-minority areas to make a far greater effort to recruit and educate people about opportunities, whether in psychiatric nursing or medicine. The professions to some extent have responsibility here.

The third factor, which I hope will not be taken out of context, has to be addressed by the Government. It is hard to believe that there is not an element of institutional racism in this context. The concerns that have rightly worried those on all Benches may be dealt with more effectively by addressing those areas than by drawing up codes, which are useful but whose effectiveness should not be overestimated.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative 3:30 pm, 6th March 2007

My Lords, does the Minister consider that the principles in the amendment apply to what is now Clause 37, entitled "Cross-border arrangements"? In Committee, I asked the Minister a question and he was kind enough to write to me at some length on the matter. He confirmed that the implications of Clause 37 are that if a Scot, say, is detained in Edinburgh against his will on the grounds that his decision-making ability is impaired by his mental illness, and if that patient's family are in London, he could not be moved south to be near them because the law in England would be different. He could no longer be detained there on the grounds that he is detained in Scotland; that is, his diminished decision-making ability. In that case, what may well be his wishes and feelings could not be met because his safety could not be assured if he was moved south.

The Minister amended the Bill, which I appreciated very much, to make it possible for a patient who is detained in Scotland on grounds that do not exist in England to go on a short visit south of the Border—this could also apply to those coming north to Scotland from south of the Border—if they were escorted in safety; if they by chance escaped, they could be recaptured. I very much appreciated that but the Minister was not able to meet the main point, which is that if someone is detained on one side of the Border on a ground that does not exist on the other, he cannot be moved in safety to be detained at the other end.

The amendment states that there should be respect for patients' "wishes and feelings" and that their "wellbeing and safety" should be taken into account. These things do not apply in this case. The Minister may argue that that is one of the reasons why he does not want to put this principle in the Bill, but it is such a major principle that not doing so would be a great pity. I wonder whether care should be taken in the Scots Parliament and at Westminster to make issues that affect people's liberty and rights the same north and south of the Border. I know that Scotland legislated first and that the Government here do not wish to follow them in this regard; they have every right not to do so. However, that creates a very awkward situation for a few people who will be disadvantaged. Is the Minister happy with the principles in light of Clause 37?

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I echo the words of the noble Earl, Lord Howe, in thanking the Minister for the courtesy and care that he has taken to keep us informed on all the things he has been thinking about during the Bill's passage. I welcome the fact that we now have fundamental principles in the Bill. At every stage, I have made the point that there is one minority who have not been mentioned in the principles so far; that is, those in custody. I reminded the House several times that the Government used the word "equivalence" about their treatment. While there is no mention of that word in the Bill's principles, and it does not look as if there will be much chance of getting it put in, will the Minister assure us that in the code of practice, "equivalence" will be mentioned as a reminder to all those responsible for delivering services to those in custody that that is the standard that they must not only aspire to but maintain?

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

My Lords, I thank the Minister very much for his efforts over the past few weeks to enable me, the noble Earl, Lord Howe, and others to meet the Bill team and parliamentary counsel. I have never had the experience of meeting parliamentary counsel before and it was extraordinarily helpful that we did so, not least because members of the legal profession are often wont to say things by omission rather than put things expressly in terms. It was very helpful to learn directly from them exactly what was meant by omission in the wording.

This amendment is a compromise and, as such, it is unlikely to satisfy anyone. There are things that we would have wished to see in it and there are things that we would rather were not there, but, like the noble Earl, Lord Howe, I accept that this may be as good as we will get. Others—in which I include my noble friend Lord Carlile, who is unable to be here today because he is unwell—are less than happy. They have carefully read the wording of the amendment and are firmly of the view that it offers no legal protection whatever.

The noble Earl, Lord Howe, has already referred to the remarkable speech made by Rosie Winterton on 1 March. As one would expect, I disagree with much of it, but on one point we are in agreement. She said that mental health legislation is an extremely difficult and sensitive issue. So it is, and that is why I do not apologise for asking the noble Lord a series of questions to which I, too, require answers.

People making decisions under this provision are to,

"have regard to the code".

As I mention that, I notice that the noble Lord, Lord Campbell of Alloway, is in his place. Today, it is our duty to probe the Minister on exactly what those words mean. In particular, do the Government not intend there to be a right to disapply the principles in certain circumstances? I ask that because that was a provision of the 2004 Bill. I am sure that the Minister will be only too well aware that that proposal was firmly rejected by the joint scrutiny committee, so it would be very helpful today if he could answer that point.

The Minister will recognise that the amendment gives a status to the principles in the code. Does that mean that they cannot be departed from? If they can be departed from, can he tell us how and in what circumstances?

Does the Minister agree that minimising restrictions of liberty means that voluntary treatments should be preferred over compulsory ones? That argument has run throughout our deliberations and I should welcome a statement from him on it.

Like the noble Earl, Lord Howe, I should like confirmation that the principle of "efficient use of resources" cannot be used to deny or frustrate the application of the other principles. That leads me to one further point.

We have in front of us a list. That, in itself, is extraordinary: lawyers hate lists, as we are told all the time. Can the Minister confirm that there is no order of precedence in this list and that there is no interplay between the different principles, but that they all have an equal weighting and an equal value? I ask that in order to address the point made by the noble Lord, Lord Soley, about determining the exact words of the code of practice and the relationship between the two. I disagree with him—that will be no surprise to him after the past three months of deliberation. I do not think that lawyers should determine the meaning; it should be a matter that returns to Parliament.

That leads me to another point. The amendment amends Section 118 of the Mental Health Act 1983. Under that section, amendments to change the code come under a negative procedure. Does the Minister agree that this matter is of such importance and has been given such detailed attention in your Lordships' House that any review should be by the affirmative procedure? Will he please explain how the Secretary of State will arrive at a judgment about whether action should be taken under the code of practice? Will there need to be evidence, and will such decisions by the Secretary of State be subject to judicial review?

I have some further points to make. I rebut firmly one charge made by Rosie Winterton in her speech on 1 March, using arguments and phrases that we have heard a lot in the past few months—principally from the Government's mental health adviser. She said of your Lordships' House that we had not put the public at the heart of our deliberations. That is completely and utterly wrong. Even a cursory neutral reading of the proceedings of our debates would show that they have been lengthy, well informed and not without a great deal of argument. They have always been predicated on the understanding that mental health legislation exists to protect patients and the public, and that there will always be a need for compulsory treatment within such measures. Your Lordships' House is entitled to reject utterly and completely that accusation, which is false and without basis.

We have considered all the information and evidence before us—including that put forward by the Government—to put together legislation that we believe will lead to services that mental health patients will not fear, and from which they will not run. In so doing, we will make this country safer because we will not leave people who are very ill outwith the social services to become more ill and a danger to themselves and others. That has been our central consideration on the Bill.

I too thank the Minister and the noble Baroness, Lady Royall, who in very difficult circumstances and with unhelpful noises off have sought to approach the matter in the spirit of your Lordships' House by being unendingly courteous and helpful to those of us who have worked on the Bill—at no mean cost to themselves. We would not have managed to improve the Bill as we have done had they not been in charge of it, so I congratulate them.

When the Bill came to the House on Second Reading it was welcomed by many noble Lords who, at the same time, called it deficient, depressing and fundamentally flawed. It is still flawed, but it is a much better Bill than the one that we received. I hope that when it goes to another place, Members, in the spirit of this House, will pass legislation that is strengthened rather than weakened, and which will make this country a safer place for the people who are mentally ill and for all those who care for them.

Photo of Lord Williamson of Horton Lord Williamson of Horton Convenor of the Crossbench Peers

My Lords, I thank the Minister for his explanation of the amendment. When I saw it, my first thought was to adjourn to the Tea Room so that all of us could eat half a cake. On reflection, I decided that that was not a worthy thought and I welcome the amendment. I have two reasons for saying that: first, it is explicit in the Bill that the code exists in a form that is broadly what we want; and, secondly, it lists the specific issues. The fact that those are included in the legislation means that we do not have to go digging too far into what might actually happen. We have to put some confidence in the operation of the system that the Government have proposed in the amendment. Although I might have preferred something else, given the way the issue has been handled, I have confidence and trust in how it will work, so I welcome the new clause.

Photo of Baroness Murphy Baroness Murphy Crossbench 3:45 pm, 6th March 2007

My Lords, I was not going to speak to this amendment until goaded into it by the noble Lord, Lord Soley, who rather implied that he would prefer an unprincipled Bill. I welcome the amendment, despite it being only half the measure I had hoped for. I had hoped we would have it right there on the front page of the Mental Capacity Act. Having failed to get that, however, this is a spot-on compromise.

During the passage of the Bill, the tone of the Government's negotiation has moved more towards giving life to the principles we would like to see enacted, and convincing us that they share them. I hope that that spirit will continue in discussions in the other place, given the concerns raised in the past week that some of our amendments may not be further supported there.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

My Lords, the Minister has rightly been recognised for his commitment to the Bill and his work with all of your Lordships to improve what came to your Lordships' House. It was not, in that sense, his Bill; he inherited it. He has worked hard with us, as has his colleague, to make things better.

I still find myself a little heavy hearted about the Bill, however. A few days ago, a substantial document dropped through my letter-box with a covering letter from Professor Roy McClelland, who is now chairing the Bamford review of mental health and learning disability services in Northern Ireland. That document was a volume of legislative proposals for Northern Ireland. From the beginning, it set out that mental health legislation should be based on fundamental principles, particularly those of the protection of the human rights of the whole community, but particularly those who were to be held and treated under compulsion.

That review, in the Northern Ireland context, brought together a wider range of people, patients, carers, professionals and officials than had ever been done. It mirrored what we have heard when NGOs, carers, people involved in healthcare and patients and their families have expressed their views: they want the legislation to be based on fundamental principles. The Minister will undoubtedly say that it is. Well, perhaps, but reading through this I had the impression that if the officials who had put the material together had been advising the Almighty when he was looking down on Sinai, Moses might have come down with something saying, "The high priest will address questions like murder, theft, respect for the Sabbath and for one's parents, but only in the context of what is efficient and potentially effective". I do not think that the right reverend Prelates would be espousing their faith and convictions with quite the passion they do if that had been before them.

I ask myself why the Government have been so adamant that the principles should not be in the Bill, clear and irrefutable. It is said that it is for legal reasons. Lawyers make good servants but bad masters. When I listen to what my noble friend Lord Carlile has said—and I am sorry that he is unable to be with us today—I am affirmed in my view that there is something rather more to it. In this, the noble Lord, Lord Soley, has, as ever, been deeply helpful to the House. He has pointed up the real reasons why the principles cannot be put in the Bill. One reason is that a fundamental principle is an attention to the concern of constituency MPs about the problem of the complaints they receive about difficult people. That is one of the fundamental principles that underlie the Bill. Secondly, one of the reasons for putting these matters in a code of practice in a slightly indefinite way is that it makes them non-justiciable if someone challenges them—here the Minister may be able to put my mind at rest and tell me that I am wrong. The noble Lord, Lord Soley, said that we do not want them challenged because it is very expensive for the NHS. It is, and it is just as expensive for any poor patient, family or carer to confront the courts, but they do not have the resources. One of the things this House is here to do is to protect those who do not have resources or power against those who do, and sometimes that is government. If that is why these matters are not in the Bill, it is not satisfactory and does not give me great comfort.

Singularly in the field of healthcare, this legislation is about compulsion. It is about compelling patients to be where they do not want to be and to take treatment they do not want to take in a context that they do not like. It is also about compelling healthcare workers to do things they must not want to do. Why do I say that? I say it because the Minister made it clear at an earlier stage in the Bill. When I observed that much of the care required by people with disturbed personalities was unavailable because of resources issues, the Minister was at pains to point out that it was a matter of compelling and pressing healthcare workers, particularly psychiatrists, to treat people who they were saying were not treatable. Many psychiatrists will find that difficult to take. It is a serious accusation that, effectively, they have another agenda rather than a commitment to the care of their patients. I do not believe that that is true in the majority of cases. Compulsion as regards carers, those giving treatment and the patients must be taken extremely seriously. I entirely accept and support any compulsion on psychiatrists and others to ensure that they observe the rights of black and minority-ethnic community patients and, indeed, the rights of patients as a whole, but that is not what is being proposed.

I said earlier that I still have a somewhat heavy heart. The Bill is better than before and better than nothing, and we can be grateful for the thoughtful, courteous and respectful way in which Ministers in this House have dealt with genuine concerns and with the material before us. I hope that they have more influence than us to persuade their colleagues in another place to adopt the same approach so that the advances that have been made in the Bill, which are genuine improvements, are maintained and built upon rather than taken to pieces.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, my name has been mentioned, so I asked my noble friend Lord Howe whether I should seek the leave of the House to say a few words about this amendment. First, it gives no assurance of any form of legal efficacy; secondly, the code would not be enforceable by judicial review and, in the light of certain decisions on education law to which I shall not refer, the clause about resources could be used as an escape clause. Thank you for the permission to speak.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, it is always a pleasure to listen to an intervention from the noble Lord, Lord Campbell of Alloway. Some noble Lords will have enjoyed his many interventions on the question of codes of practice and Section 7 statutory guidance with a great deal of interest.

I welcome the constructive comments noble Lords have made this afternoon. In essence, we are debating a compromise. Inevitably, compromises do not completely commend themselves to all noble Lords. It is, however, good that we have reached an accommodation on the issue of principles. I have always thought that, if we were able to do so, that would ensure, as the noble Earl, Lord Howe, said, a very important message is being given out regarding parliamentary scrutiny and the importance that Parliament places on the principles that appear in the amendment. That is a very important signal, and I thank all noble Lords for it.

The noble Earl, Lord Howe, invites me to give a guarantee that the principles will not be watered down and that we will not use nebulous language. I will try to do that. I make it clear that we wish these principles to be absolutely transparent and to mean something to the practitioners who have to operate what is, in every sense, difficult legislation in difficult circumstances.

I will come on to talk about how further consultation will take place, but I want to reassure the noble Earl, Lord Howe, that we wish the code to be as clear as possible and to embrace the principles. We are taking note of all comments made in the discussion on legislation. We have a draft code, but it is very much work in progress. I can give an absolute assurance to noble Lords that everything stated in our debates will inform the production of the draft code when it comes up for full parliamentary scrutiny.

I agree with the analysis of the noble Earl, Lord Howe, about the full range of options. He then went through a number of the principles contained within the amendment and he was absolutely right.

I thank the noble Lord, Lord Alderdice, for his acknowledgment of the work that has been done. I understand that it does not meet all that he wants to be met. There is no more to it than the explanation I have given at all stages of the Bill as to why the principles cannot be put in the Bill in the way he wants. There is no hidden agenda. He said, absolutely rightly, that lawyers act under the instructions of their client. But when the advice given to the Government on the matter has been so clear, the last thing we want to do, in the light of everything noble Lords have said about the need for clarity, is to cause confusion regarding interpretation. That is the only reason we were not able to accept the kind of amendments which the noble Lord would have wished to see.

The proposed provision,

"the efficient use of resources, and ... the equitable distribution of services", means merely that in carrying out functions under the Act practitioners should consider the efficient use of resources and the equitable distribution of services. This line in the amendment ensures that these broader aspects of service delivery are considered as well as the more individualistic considerations that are to be addressed in the statement of principles. When preparing the statement of principles, the Secretary of State should draft it in such a way that, where she considers it desirable, it addresses the efficient use of resources and the equitable distribution of services.

The noble Baroness, Lady Barker, asked whether there is a preference for the list of fundamental matters. There is none.

I listened with a great deal of interest to the noble Lord, Lord Ramsbotham, who has such wide experience in relation to prisoners. The Act deals with patients transferred from prison to hospital for treatment; it does not cover treatment for prisoners with a mental disorder where that treatment is not required to be given under compulsion. The issue raised by the noble Lord therefore does not arise in the principles relating to the Act, but his general point is well made. I have been very clear that part of the health service's general role is to treat prisoners, and the changes that have been made to its responsibility are to be greatly encouraged and welcomed.

I have also referred to our debates on prisoners waiting for a place in NHS institutions. We have invested more resources. There is clearly a huge challenge here, which I do not underestimate; but we are at one with the noble Lord on the crucial importance of this area. We must ensure that there is continuity of service when prisoners are discharged. Given the scale of mental health issues among prisoners, it is vital that there is continuity of service and that the health service is geared to meeting the health needs of former prisoners. Again, the active intervention and involvement of the National Health Service is very important in that matter.

On the question of whether the Secretary of State's decisions on what the principles are are subject to judicial review, my advice is that they are. The noble Baroness, Lady Barker, asked again about the status of the code and whether the principles can be departed from. The answer is yes, but only where there are cogent reasons for doing so that are demonstrably justifiable. That is consistent with the decision being proposed in relation to Munjaz.

I pay tribute to the noble Baroness, Lady Carnegy, for mentioning Scotland again. I will write to her in some detail, if I may, about the specific issues that she raises, but the general point is that the principles apply to patients who are transferred using the cross-border arrangements once they are under the English Act and to all functions dealt with in the code. She raised a rather more general issue when she said that, where we are dealing with people's liberty, there should be no separate approach between England and Scotland. I understand what she is saying, but in a sense we are governed by devolution legislation and must act within those parameters. She has signalled the fact that, in those circumstances, it is very important that, first, there is clarity and transparency in cross-border arrangements and that, secondly, whatever the different approaches taken by Scotland, England and Wales to mental health legislation, we must ensure that there is as much collaboration as possible.

It is also very important that we learn lessons from the introduction and implementation of different legislation. Noble Lords have pointed out to me the benefits of Scotland's approach to its legislation, but I would say to them that it is also important to look at some of the practical challenges that are being faced in Scotland; I do not want to repeat the various letters that have appeared in the medical press recently from Scottish practitioners about some of the issues that they face. I do not seek to criticise legislation in Scotland, but I do think that, whether we are talking about English legislation or Scottish legislation, we need to be aware of some of the impact of our legislation on the practical, day-to-day business of practitioners. In a sense, that brings us back to the importance of the code of practice in ensuring as much clarity as possible in giving advice and guidance to practitioners.

The noble Baroness, Lady Barker, asked me about Section 118 and whether it ought to be subject to the affirmative or negative procedure. I was surprised that we did not have an amendment on that. As she suggested, it is currently under the negative procedure, and the Delegated Powers Committee did not recommend that that should be changed to the affirmative procedure. When the code of practice is laid before Parliament we may well have a debate on it, and I would welcome such an important debate. The very fact that it is subject to parliamentary scrutiny emphasises the importance of the code of practice.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat 4:00 pm, 6th March 2007

My Lords, before the Minister sits down, I seek clarification on whether the code is justiceable and, on a practical note, refer to the phrase "have regard to". Would it be sufficient, for example, for a mental health practitioner confronted with such a difficult question regarding a patient to make a note in the patient's record to say, "I have given regard to this question in the code and have decided that I must set it aside for these reasons"? Would that be challengeable legally in any way? The Minister may not be able to give a definitive answer to the question but I raise it because his answer to it in Hansard in this debate will have particular significance. It is the kind of practical issue on which mental health workers will need clear guidance regardless of whether that comes in the code of practice or is clarified by a word in Hansard.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, the noble Lord tempts me down paths where I do not wish to go. He posed a specific question on a potential action by a practitioner. I do not believe that I am in, or ought to be in, a position to respond to that. The answer to his question is no, as evidenced by the case of Munjaz and the issue of being non-judicial. On the code, I can only repeat what I said about the status. Our understanding is that the code gives practitioners legitimate scope for departure when the individual circumstances of the case make departure appropriate. But decision makers must have cogent reason for any departure, which could be scrutinised carefully by the courts. The status of the code was clarified in the House of Lords ruling on the case of Colonel Munjaz. The code is guidance to which great weight must be given and from which hospitals should depart only where they have cogent reasons for doing so. I do not think that I can add any more on that.

Photo of Lord Soley Lord Soley Labour

My Lords, this is precisely the point that I was worried about. One can see in the code—having regard, for example, to patients' past and present views, and the views of relatives and friends—that there is very real potential for a clash. That is why I asked my noble friend simply to have the lawyers crawl over this provision very carefully before the Bill becomes an Act. Otherwise, a number of professionals who speak in this House may find themselves before a court of law and rather regretting the way in which they voted and spoke in this debate.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, I was remiss in not referring to my noble friend in my winding-up speech. It has been rather lonely at times during our debates and I wish to pay tribute to him for his very strong support. Of course, this matter has been checked and rechecked with our legal advisers because it is clearly very important. I must pay tribute also to the noble Lord, Lord Elton, for his heroic role in mental health legislation in the past. The framework of the 1983 Act has stood the test of time. The construct of the law, in laying out how patients can be detained and treatment given under compulsion, is very clear. The statutory code of practice has been a very good way not only of informing practitioners working within the auspices of the Act but of allowing the code to change and develop over time in the light of emerging ideas and changes in practice, while at the same time being subject to strong public and parliamentary scrutiny. We have that framework and will continue to do so.

The decision in the Munjaz case is extremely helpful in that practitioners and all concerned understand the status of the code. I do not think that it is possible to give any more clarity than that, and I think we ought to pay tribute to the practitioners who will have to work with the legislation. We will give them as much guidance and help as we can, but we must acknowledge that they will have to use their professional and clinical autonomy to make the best decisions they can in the best interests of their patients. But they will have to do so in the light of the legislation governing their actions and under the guidance that will be given in the code of practice—guidance which is now informed, if noble Lords accept the amendment, by the principles now enunciated. It is impossible to say fairer than that.

On Question, amendment agreed to.

Photo of Baroness Neuberger Baroness Neuberger Spokesperson in the Lords, Health

moved Amendment No. 2:

After Clause 24 , insert the following new Clause—

"Named persons

(1) Section 26 of the 1983 Act (definitions of relative and nearest relative) is amended as follows.

(2) In the cross-heading preceding section 26 after "functions of relatives" insert ", persons acting as relatives".

(3) Before subsection (1) of that section insert—

"(A1) In this Part "named person" means—

(a) any person described in subsection (1) below; or (b) any person not described in subsection (1) below who is the patient's carer, who has been nominated by the patient in accordance with subsection (1A) below.

(B1) In this Part "appropriate authority" means—

(a) in the case of a qualifying patient specified in subsection (C1) below the managers of the responsible hospital; or (b) in the case of any other person not specified in subsection (C1) the responsible social services authority.

(C1) For the purposes of subsection (B1) above the following are qualifying patients—

(a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part II of this Act; (b) a community patient; (c) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition; (d) an accused person within the meaning of section 36 remanded under that section to hospital for treatment; (e) a patient in respect of whom there is in force— (i) a hospital order, (ii) a transfer direction, or (iii) a hospital direction; (f) any patient in hospital, not being liable to be detained under this Act.

(D1) In this Part of the Act "carer" has the same meaning as in section 1(1)(a) of the Carers and Disabled Children Act 2000."

(4) After subsection (1) insert—

"(1A) A person is a named person in accordance with this subsection if—

(a) the nomination is signed by the nominator; (b) the nominator's signature is witnessed by a prescribed person; (c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands that the effect of nominating a person to be the named person will give him the role of nearest relative; and (ii) has not been subjected to any undue influence in making the nomination; (d) the nomination has been forwarded to the appropriate authority and approved in accordance with subsection (1B) below.

(1B) The responsible authority shall approve the nomination of a named person unless—

(a) the named person is of a description specified in regulations made by the appropriate authority; or (b) the named person appears to be incapable of performing the functions of the nearest relative due to mental disorder.

(1C) The powers conferred on any appropriate authority by subsection (1A) above may be exercised by three or more members of that authority or by three or more members of a committee or sub-committee of that authority which has been authorised by them in that behalf.

(1D) A nomination under subsection (1A) above may be revoked by the nominator in accordance with subsection (1E) below.

(1E) The nomination of a named person is revoked in accordance with this subsection if—

(a) the revocation is signed by the nominator; (b) the nominator's signature is witnessed by a prescribed person; (c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands the effect of revoking the appointment of a person as named person; and (ii) has not been subjected to any undue influence in making the revocation.

(1F) The nomination of a named person shall be effective notwithstanding the fact that he has become, after making the nomination, incapable of making a nomination.

(1G) A person nominated under subsection (1) above may decline to be the nominator's named person by giving notice to—

(a) the nominator; and (b) the appropriate authority in which the nominator resides, to that effect."

(5) For subsection (3) substitute—

"(3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the "nearest relative" means, in descending order—

(a) the named person; (b) the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex."

(6) In section 26(4) after "his nearest relative" insert "under subsection 3(b) above".

(7) In section 26(5) leave out "(3)" and insert "(3)(b)".

Photo of Baroness Neuberger Baroness Neuberger Spokesperson in the Lords, Health

My Lords, I am aware that this is not the sort of amendment normally tabled at Third Reading. I am moving it following discussions with the noble Baroness after Report, in order to give her an opportunity to help noble Lords on all sides of the House to find a way of resolving the problem about named persons. Our discussions have been helpful and informative. I, too, wish to join with others around the House in paying tribute to the Minister and to the noble Baroness. Indeed, I have been greatly encouraged by the Government's desire to find a way through on this issue as there is a point of principle at stake as well as some practical problems.

The amendment seeks to provide a way whereby a patient can choose from a limited list who should act as his or her nearest relative, and, as a safeguard, the responsible authority will be able to approve that choice. I look forward to hearing what the noble Baroness can tell the House in response. I beg to move.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Government Whip

My Lords, I begin by thanking the noble Baroness for her kind words and courtesy. It is a pleasure to be able to find a resolution to differences whenever possible. The issue of the nearest relative was fully debated in Committee and on Report and, according to the normal practice of the House, it is unusual for us to debate it again today. However, in this exceptional case I am glad that the amendment has been tabled in a revised form because it gives me the opportunity to inform the House that, following a meeting with the noble Baroness, Lady Neuberger, we intend to take the amendment away and explore the issue further. I know that noble Lords will understand that the Government can give no guarantees on the outcome. In the light of this, I hope that the noble Baroness, supported by her noble friend Lady Barker and the noble Lord, Lord Williamson, will agree to withdraw the amendment.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, before the noble Baroness, Lady Neuberger, decides whether to withdraw the amendment, on the general point here, I wonder whether the noble Baroness or her colleague the Minister can give the House any good news about how consolidation of the original Act and this Bill is to be dealt with. I ask that because it is going to be very difficult for practitioners to juggle two pieces of legislation and a code of practice.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, I should like to respond briefly to the noble Lord. I cannot give a definitive, helpful and constructive answer, but I can say that I fully understand the point that he makes, and it is certainly something that I shall take back to my colleagues.

Photo of Baroness Neuberger Baroness Neuberger Spokesperson in the Lords, Health

My Lords, I thank the noble Baroness for her reply. We have had constructive and helpful discussions thus far. I know that they will go further and that other noble Lords will be involved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Discharge and variation of orders appointing nearest relative]:

Photo of Viscount Allenby of Megiddo Viscount Allenby of Megiddo Crossbench

My Lords, the noble Lord, Lord Carlile, cannot move Amendment No. 3, as he is sick.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, Amendments Nos. 3 and 4 could be moved formally. They are only consequential on decisions made on Report.

Photo of Earl Howe Earl Howe Shadow Minister, Health

moved Amendment No. 3:

Clause 26 , page 22, line 39, leave out "in his opinion," and insert "he is satisfied, in accordance with subsection (4A) below, that"

Photo of Earl Howe Earl Howe Shadow Minister, Health

My Lords, that is exactly the position. I am grateful to the Minister. I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, I shall speak to my amendments in this group. I also have put down some consequential amendments of a technical nature. They are a direct consequence of an amendment moved on Report, to which the House agreed, to remove what was Clause 30. Clause 30 repealed the provisions in Sections 25A to 25J of the 1983 Act concerning aftercare under supervision. The effect of removing what was Clause 30 is to continue the existence of aftercare supervision. That has a number of consequences elsewhere in the Bill, most notably at Clause 52, which concerns commencement generally; Clause 53, which concerns the commencement of what was Clause 30; and part 5 of Schedule 10, which lists the repeals to be made because of the introduction of supervised community treatment.

The purpose of these amendments is to ensure that the provisions of the Bill are technically compatible with the removal of Clause 30. That means that when the Bill leaves this House for the other place, it properly reflects your Lordships' intentions.

On Question, amendment agreed to.

Photo of Earl Howe Earl Howe Shadow Minister, Health

moved Amendment No. 4:

Clause 26 , page 22, line 43, at end insert—

"(4A) If the responsible clinician is not a medical practitioner he shall arrange for the patient to be examined by—

(a) the registered medical practitioner who has been professionally concerned with the medical treatment of the patient; or (b) if no such practitioner is available, a registered medical practitioner who is an approved clinician; and the medical practitioner shall, if he believes the conditions are met, make the written recommendation in the prescribed form including a statement that in the opinion of the practitioner the conditions set out in section 3(2) above are complied with."

On Question, amendment agreed to.

Clause 52 [Commencement]:

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

moved Amendments Nos. 5 and 6:

Clause 52 , page 44, line 38, leave out "53 to" and insert "54 and"

Clause 52 , page 45, line 10, leave out "(including provision within section 53)"

On Question, amendments agreed to.

Clause 53 [Commencement of section 34]:

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

moved Amendment No. 7:

Clause 53 , leave out Clause 53

On Question, amendment agreed to.

Schedule 10 [Repeals and revocations]:

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

moved Amendments Nos. 8 to 12:

Schedule 10 , page 138, leave out line 30

Schedule 10 , page 138, line 33, leave out from beginning to end of line 13 on page 139

Schedule 10 , page 139, leave out lines 15 to 24

Schedule 10 , page 139, leave out lines 27 to 39

Schedule 10 , page 139, leave out lines 42 to 47

On Question, amendments agreed to.

An amendment (privilege) made.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State, Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, I beg to move that this Bill do now pass.

Moved accordingly, and, on Question, Bill passed, and sent to the Commons.