Clause
8
Appropriate
treatment test in part 4 of 1983
act
Amendments
made: No. 19, in
clause 8, page 4, line 28, at
end insert—
‘( ) In the
following provisions, for the words from “, having regard
to” to the end substitute “it is appropriate for the
treatment to be
given.”—
(a)
section 57(2)(b) (certification of second opinion where treatment
requires consent and a second opinion),
and
(b) section 58(3)(b)
(certification of second opinion where treatment requires consent or a
second
opinion).’.
No.
20, in
clause 8, page 4, line 31, leave
out from ‘is’ to end of line 32 and insert
‘appropriate in his case, taking
into account the nature and degree of the mental disorder from which he
is suffering and all other circumstances of his
case.”’.—[Ms
Winterton.]
Clause
8, as amended, ordered to stand part of the
Bill.
Clause 9
ordered to stand part of the Bill.
Clause
10
The
fundamental
principles
Mr.
David Kidney (Stafford) (Lab): I beg to move amendment No.
54, in clause 10, page 5, leave
outline 16 and
insert—
‘(h)
assessment of risk,
(i)
transparency’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 41, in
clause 10, page 5, line 16, at
end insert—
‘(i) the
particular needs and impact of treatment on black and minority ethnic
patients.’.
No.
66, in
clause 10, page 5, line 16, at
end insert—
‘(i) the rights
of
victims’.
No.
55, in
clause 10, page 5, line 17, leave
out subsection
(2C).
Mr.
Kidney:
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.
5.30
pm
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.
James
Duddridge (Rochford and Southend, East) (Con): The hon.
Gentleman defined transparency. I was initially confused as to what it
would mean. Why does he not table an amendment that would carry that
definition rather than refer only to “transparency”,
which is, paradoxically, a rather opaque
term?
Mr.
Kidney:
That is a good point. The draft code states on the
transparency principle
that
“decisions by
professionals and statutory bodies should be made in a transparent
way”.
To answer the hon. Gentleman’s
question directly, I did make a visit to the Public Bill Office before
our deliberations began and presented a large suggested amendment that
would have put all the relevant principles in the Bill. I shall not
labour the discussion that I had with the Clerk, but suffice it to say
that more work needs to be done on the principles behind the Bill and
their status before we finish our
deliberations.
Mrs.
Madeleine Moon (Bridgend) (Lab): I also welcome you to
this afternoon’s deliberations, Lady Winterton. I hope that they
will be calmer and more rational than this morning’s were at
times.
James
Duddridge:
Apologise to the
Minister.
Mrs.
Moon:
The hon. Gentleman suggests that the apology should
be to the Minister. Instead I commend her for the calmness with which
she has taken all the amendments and the suggestions, at times
hysterical, of hidden agendas behind the
Bill.
As my hon.
Friend the Member for Stafford explained, the issue of fundamental
principles is critical to calming what has sometimes been hysteria, but
which at other times has been a genuine reflection of fears and
anxieties expressed in many of the submissions that we have received.
One of the most positive things about the new way of looking at
evidence in Public Bill Committees has been the opportunity for people
to express their fears and anxieties, and for hon. Members to read them
and get a clear impression of the views of many different bodies and
professions.
Many
questions have been asked during our deliberations about the intentions
underlying the Bill. The clause gives us a good opportunity to be clear
that there are such underlying intentions and that they are set out in
the fundamental principles. The Bill is intended to update legislation
from 1983. Much has changed; we have moved on as a society. Many of the
prejudices towards the mentally ill have changed, as have many of the
ways in which we work with people who have mental health problems. The
training for professionals and the way in which the professions deal
with each other has also changed. In particular, we have far more
community-based care than we had in 1983. Therefore, it is more than
appropriate that the Bill recognises those changes and tries to project
forward into the future to determine how, as a society, we want to
facilitate the care for those who have mental health
problems.
We have been
very clear in saying that what we are trying to do is to ensure that
the patient has access to help and support in times of crisis, and that
a patient’s personal identity remains central to the
deliberations that take place during treatment. At times, there has
perhaps been a lack of recognition that the emotional pain that is
often experienced during times of mental ill health is more
excruciating and more debilitating than any physical pain. That
emotional pain can be terrible.
I particularly
welcome the fact that, within the underlying principles set out in
proposed new subsection (2B) in clause 10, the first three
principles—
(a), (b) and (c)—focus initially very clearly on the patient. The
Bill says that there must be “respect for patients’ past
and present wishes and
feelings”.
I have today
tabled an amendment that I hope will also allow greater attention to be
paid to patients’ past and present wishes and feelings when we
examine advance directives. I know that another amendment has been
tabled in relation to that, and I have also tabled one in relation to
advance statements, which I hope will allow greater recognition in the
Bill of patients’ past and present wishes and feelings, so that
they can be clearly identified and have a status in an advance
statement.
We have
said clearly that we wish to minimise restrictions on liberty. I hope
that that will also remove some of the anxiety felt—the belief
that there are hidden intentions to use this legislation as a catch-all
Bill to lock people away, including those chain smokers that still
exist in our society, although I cannot believe that that scenario
really has been suggested in this House.
In particular, all of
us—the professionals, patients, carers, anyone who works with
people with mental health problems—should welcome the third
principle, which is principle (c). It is the
“involvement of patients in
planning, developing and delivering care and treatment appropriate to
them”.
There can be no
clearer statement as to the central role that the patient will play
when decisions are made by professionals in response to the
Bill.
However,
we also need to take into account the feelings of the people who have
not been mentioned so far in our deliberations and the effect of the
Bill on them, because it must address the need to protect, help and
support the wider public. There has been a great deal of discussion
about professional roles, professional tasks, professional
responsibilities, professional training and professional skills.
However, much of the care of the mentally ill is provided not by
professionals, but by carers, and they are responsible for
patients’ well-being and safety.
In its submission MH49, SANE
sets out that position well, speaking of the need to safeguard the
rights of those with mental illness or disorder. Legislation should
respect and protect those families and carers who provide support to
people day in, day
out.
Sandra Sullivan
of Justice for Victims wrote a book of poems in memory of her murdered
daughter, Katie. She
said:
“To trust
the unsuspecting with the unaccountable is the policy of an uncaring
government.”
There
has been little reference to carers or to the continually stressful
role that they often play in supporting mental health patients. Without
them, many such patients would not be able to cope. In the submission
by the Princess Royal Trust for Carers, 47 per cent. of carers are
described as feeling that they have insufficient help to care
efficiently and effectively. The Zito Trust has reported that,
according to 35 independent homicide reports, non-compliance with
medication was a contributory factor in 57 per cent. of cases of
breakdown of care that led to
homicide.
Information
for carers is essential if they are to provide adequate care, and I
believe that the advance statement provides an opportunity to widen the
list of carers to whom information can be provided. Carers
are a diverse group: they are partners, family, friends, professionals,
home care workers and residential care workers. We must place a duty on
professionals to share information, and that needs to be a part of the
Bill. Amendment No.
66 is a probing amendment which I felt I had to table after I had met
Justice for Victims. That organisation told me about how the fear of
the unknown—the fear of difference—much of which is
unfounded in relation to people with mental health problems, has for
some people proven to be a nightmare reality. Sandra Sullivan expresses
that well in her poetry when she
says:
“I had my
heart removed today. There is a hole where it used to
be.”
The
experience of violence or death as a result of an interaction with
somebody who is in crisis and who has a severe mental health problem
can produce a profound effect in some people, so it is unfortunate that
Opposition Members were unable to meet Justice for
Victims.
Tim
Loughton:
We were not
invited.
Mrs.
Moon:
I had understood that there was an offer to
meet, and that the meeting had not taken
place.
Tim
Loughton:
During the past few months, my hon. Friends and
I have met many organisations with different perspectives, including
the Zito Trust, which the hon. Lady mentioned. I am not aware of any
invitation having been made by the other organisation that she
mentioned, but I would have been more than happy to meet its
representatives, as I did everybody
else.
Mrs.
Moon:
I am pleased to hear that offer and commitment.
Justice for Victims informed me that a meeting had been arranged for
Monday but that it had not taken place. I apologise if I have been
wrongly informed.
The
Zito Trust has drawn attention to the lack of support or recognition
for victims in the Bill. The Domestic Violence, Crime and Victims Act
2004 has a scheme for providing information to victims of mentally
disordered offenders. However, it applies only to restricted patients
and patients subject to a restriction order, a limitations direction or
a restriction direction. It is concerned with those who are charged
with a sexual offence or an offence of violence and who are convicted,
found not guilty on grounds of insanity, or found unfit to be
tried.
In those
circumstances, the local probation board must take reasonable steps to
ascertain whether the victim, or their representative, wishes to
receive information about conditions in the event of a discharge from
hospital. The board must take reasonable steps also to let them know if
or when a restriction is to cease following a discharge, and any other
appropriate information. Equally, the Secretary of State must inform
the probation board, which in turn must inform the victim or their
representative, when considering whether to lift the restriction on a
patient, to discharge the patient—absolutely or subject to
conditions—or to vary the
conditions.
5.45
pm
As
I am sure the Committee recognises, victims are calling for rights set
out in the 2004 Act to be extended to victims of serious offences,
including violence, at the hands of a mentally disordered person who
has been convicted and subjected to a hospital order, or a hospital or
transfer direction, but not to a restriction order, or limitation or
restriction direction. It is right that the Bill strikes a balance
between our responsibilities to, and protection and justified
restriction of, those suffering from a mental health condition with our
responsibilities to victims of violence. Their voices should be
represented. For that reason, I have tabled my
amendments.
Tim
Loughton:
I would like to provide some clarification on
what the hon. Lady said about Justice for Victims. We listened very
seriously to the evidence given to the pre-legislative scrutiny
Committee. My memory is that the organisation arranged a meeting with
my hon. Friend the Member for Cotswold (Mr. Clifton-Brown),
who is not a member of this Committee. His office did not arrange for
us to meet it as well, but I would be more than happy to do that in
future. Certainly, there was no intention not to meet it; it is just
that the invitation was not passed on. That was the problem. However,
we could certainly arrange a meeting. Nevertheless, we have met other
organisations with similar concerns, and I am happy to expand on
that.
I listened
carefully to the case for the amendments, which I think are useful and
thoughtful, and I am interested to hear the Minister’s response.
Let me provide some background to the principles. They were potentially
one of the big battlegrounds, but a sensible compromise on them was
reached in the Lords. However, some people are still unhappy, and that
goes back to the technicalities of this being an amending Bill, so we
are told by the experts, rather than one to which we can apply
principles. However, applying principles to existing legislation poses
technical problems. I am sure that the Minister can confirm
that—she nods her head
helpfully.
James
Duddridge:
I apologise if I am stealing my hon.
Friend’s thunder, but was it not the case that when the two
draft Bills were introduced, they were Bills in their own right, rather
than amendments to the 1983 Act? The Minister has refused consistently
to allow the principles to be placed in this Bill. It is not about
amending the Bill, but about her view of what should
happen.
Tim
Loughton:
My hon. Friend is absolutely right, and given
that that happened before he was elected to the House, it is diligent
of him to know the Bill’s origins. Neither of the two draft
Bills, with which we were faced back in the aeons of time and from
where this Bill originates, contained principles, and they were
original Bills. The contention of all concerned and of the
pre-legislative scrutiny Committee was that principles should be placed
clearly in the Bill. I remember that the Minister came before the
pre-legislative scrutiny Committee and was challenged on that. She made
the case that occasionally principles could be disapplied, and we asked
her when the principle of non-racism could be disapplied, because it
is difficult to think of an instance when that could be the case. Surely
non-racism should apply to this and every other piece of legislation,
and there is no juncture at which, all of a sudden, a little bit of
racism would be acceptable.
That is why fundamental
principles that go to the heart of safeguarding the rights and
treatment of vulnerable people subject to sectioning should be clearly
laid out. The point made by the hon. Member for Stafford about
transparency is right. If we are to deprive somebody of his liberty,
the principles on which that liberty is taken away must be clearly
outlined, as well as the basis on which he can challenge the judgment.
Setting out principles to back that up is exceedingly useful. It
provides a good safeguard for the patient and a clear instruction for
both the professional and the lawyer who might seek to challenge it on
a client’s behalf. We have always taken the view that principles
should be on the face of the
Bill
For technical
reasons, it was suggested that that posed a problem. Therefore, their
lordships came up with the compromise whereby the fundamental
principles in the code of conduct are mentioned in the Bill without
being principles themselves. Some of us are still not completely happy
with that, because they will not have the cachet of being in the Bill,
but in the interests of achieving some accommodation in order to
proceed, their lordships were content—I shall not say happy or
delirious—to accept the compromise.
On that basis, we will not
return to stage one and say, “Let’s have the principles
on the face of the Bill,” because that would be going around in
circles. However, things can be done to beef up the quasi-principles in
the code of conduct, as the Bill alludes to it. I return to the case
that we made in pre-legislative scrutiny Committee. It would be useful
if the Government could lay out, at an early stage and in as detailed a
form as possible, the code of conduct, particularly as it will be
crucial if things are not in the Bill but in the code. The applies as a
general rule, as I think other members of the Committee will
concur.
Hywel
Williams (Caernarfon) (PC): I also have concerns about the
degree of legal protection afforded, given that the principles will be
in the code of conduct. Perhaps another question that might be
addressed is how the principles might be varied, if they are to be
varied, as the Minister said when she came before the Joint Committee.
The mechanism is of interest to many and would need to be
safeguarded.
Tim
Loughton:
The hon. Gentleman makes a
valid point, and he was privy to those discussions in the scrutiny
Committee as well. Most of what we would describe and understand as
fundamental principles are fairly timeless in any case, but codes of
conduct are subject to constant revision. Those are areas of concern on
which we need assurances from the Minister. How will they be
handled?
On an
interesting point, I attended the Black Mental Health UK presentation
earlier, between the two sittings. It was held in Committee Room 6 and
had a number of eminent presenters, some of whom spoke at our witness
session last Friday on the concerns of black and minority ethnic
communities about the way that the Bill is going. My first amendment,
to which I shall come, specifically addresses BME considerations. Black
Mental Health UK said quite clearly in today’s briefing and have
said
previously: “BMH
UK believe that mental health law should be framed within both human
rights and race relations legislation and geared towards reducing
discriminatory practices and increasing the protection of the rights of
both patients and carers engaged with mental health
services.”
I think that
we would all agree with that. It went on to
say:
“The 2006
Mental Health Bill fails on all of these points. BMH UK believe this
Bill is unethical and unworkable and has thrown away the opportunity of
updating the 1983 Mental Health Act so that it meets the demands of a
21st Century multicultural
society.”
BMH UK still
has serious concerns. Clearly, the fact that the principles are not
included in the Bill has undermined its confidence. It will listen to
the points that we are making. We hope for assurances that the
principles will serve the purpose that we are all trying to
achieve.
We received
an interesting presentation from a consultant psychiatrist. To
paraphrase him, he said that psychiatrists work around a code of
practice—as long as something is not legally binding, they can
work around it. If it is legally binding, as legislation would be, with
principles included in the Bill, they will follow it. It is interesting
that, according to that interpretation by a practising psychiatrist, a
code of conduct does not carry the same weight and gravitas as primary
legislation. One therefore has slight concerns about how practitioners
view the code of conduct as opposed to something in the Bill.
We need reassurances from the
Minister about how things will work in practice. I have provided a bit
of background to how we got to this stage on the issue of principles.
We are not tabling amendments to ensure that the principles are put
back into the Bill, but we need some
assurance.
Amendment
No. 41 would add to the fundamental principles a reference to the
particular needs of black and minority ethnic patients and the impact
of treatment on them. The principle of “avoidance of unlawful
discrimination” is included in proposed new subsection (2B), but
that can refer to all sorts of discrimination; there is no specific
reference to racial discrimination. We have tried to adopt a more
positive form to take account of particular needs, because we know that
the black and minority ethnic community has particular mental health
needs and that it is particularly susceptible to the need for mental
health services and sectioning.
I do not need
to remind the Committee that a King’s Fund study found that
members of the black population were seven times more likely to be
admitted to a medium secure unit. Men from black Caribbean, black
African and other black groups had a rate of detention ranging from 25
to 38 per cent. above average; a similar pattern was noticed for women,
with a detention rate that was 56 to 62 per cent. higher than average
for those from black Caribbean, black African and other black groups.
In 2005, rates of suicide and self-harm were 60 per cent. higher for
young Asian girls than for their white counterparts.
We all know—I do not
think that there is any contention over this—that people from
black and minority ethnic communities are caught up far more than
others in mental health services. There are particular problems with
getting them to present in the first place. After the case of Rocky
Bennett, there are concerns about the way in which black men are
treated by the mental health services when they are contained and the
fact that black men are subject to sectioning on a scale that far
outweighs their representation in the population as a whole.
The black and minority ethnic
community clearly has perfectly legitimate concerns about the impact of
the legislation on it. It is worried that some of its members, who are
represented through BMH UK, might be scared off from presenting for
services in the first place, which we know is so crucial. It is
essential that we take account of those needs. In response to this
probing amendment, we need some assurances on how the Government aim to
take care of the requirements of black and minority ethnic community.
From the “Count Me In” census, which was eventually
published earlier this year, we know how the fears of that community
filtered through to have a real impact on the number of its members
caught up in mental health services.
It is particularly important
that those concerns are taken on board in the light of the debate about
exemptions that we had when we considered clause 3. We were trying to
promote exemptions in respect of cultural or religious beliefs, which
are of particular concern to the BME community. We do not have the
safeguards that we wanted, in the form of exemptions in clause 3, so it
is even more important to add something to the principles to give
assurances to people from the BME community that they will be looked
after and given appropriate treatment, and that they have no reason to
fear coming into contact with mental health services. That is the basis
of amendment No. 41.
6
pm
Mr.
Kidney: As the hon. Gentleman says, the list in clause 10
at least includes new paragraph (2B)(d), which states “avoidance
of unlawful discrimination”. That gives the tie-in to the draft
code, which we have before us. He has not mentioned it, but does he
agree that it contains a good non-discrimination principle. It states
that
“patients should not
be discriminated against, either directly or indirectly, on the grounds
of age, gender, sexual orientation, race, colour, language, religion or
national, ethnic or social
origin.”
Does he agree
that that goes quite a long way along the road that he
mentions—the only things that are missing are disability and
politics?
Tim
Loughton:
Well, that is an interesting addition, although
it is a bit late for the hon. Gentleman to add his own amendments. I
agree with him, but the things that he mentions are negatives. That is
why we have framed amendment No. 41 in terms of a positive. We want to
take account of “particular needs”; we are not talking
about particular needs that should not be “discriminated
against”. We must send a clear message, offer clear, positive
action and give assurances to
people from the BME community that account will be taken of their needs.
That does not happen in the negative, “discriminatory”
clause.
Amendment No.
55 proposes to leave out new subsection (2C). I am perplexed as to why
that provision remains in the Bill, but I am sure that the Minister
will clarify the point. New subsection (2C) deals with matters of
funding and general service delivery that do not concern individual
professionals applying the compulsory powers of the Mental Health Act,
so it looks out of place in this list. The presence of a provision in
the principles section of the code of practice that is about service
provision will surely cause confusion. Worse still, such a provision
would be in danger of being misunderstood as providing a reason for
professionals to take less account of the principles themselves. The
Mental Health Alliance does not accept that this should
occur.
We are also
puzzled about how the provision might work in practice and what the
Government aimed to achieve by its inclusion. Again, amendment No. 55
is a probing amendment, but this provision looks out of place. I have
no problems with the list in new subsection (2B), subject to the
additions that we propose and perhaps to consideration of some of the
additions that Labour Back Benchers have proposed, but we do not see
the rationale for new subsection (2C). I would be grateful if the
Minister would elaborate on both those
points.
Sandra
Gidley:
I realise that we are dealing with the amendments,
but as we have spoken generally about the Bill, some of my remarks will
be stand part comments in order to shorten the length of the debate.
The
Chairman:
Order. Bearing in mind what the hon. Lady has
just said, perhaps it would help members of the Committee were I to
indicate that we could open our discussion out to a stand part debate,
and do this all in one fell
swoop.
Sandra
Gidley:
Thank you for that clarification, Lady Winterton.
As has been stated, the clause tries to address concerns raised in the
other place that principles needed to be in the Bill. The reasons why
that is difficult have been outlined. I want to clarify the position in
the draft Bill, because the hon. Member for East Worthing and Shoreham
said that no principles were outlined in the earlier Government drafts.
I read Baroness Barker’s comments in the other place. She
said:
“the
Government’s draft Bill of 2004, which was the subject of the
work of the Joint Scrutiny Committee, included at its beginning three
principles—that patients should be involved in decision-making,
that decisions should be made fairly and openly, and that interference
to patients in providing medical treatment and restrictions imposed on
them during treatment should be kept to a minimum to protect their
health and safety and that of others. So the Government themselves, in
2004, could see a case for having principles included in the
legislation.”—[Official Report, House of Lords, 8
January 2007; Vol. 688, c.
16.]
I noticed that
the Minister did not jump to her feet to defend the accusation that
there were no principles in those draft pieces of
legislation.
Ms
Winterton:
No there were not.
Sandra
Gidley:
There therefore seems to have been some confusion
about the interpretation. That is a point that I wish to clarify and
the Minister can deal with that if she
wishes.
Lord Hunt
confirmed that there was no constitutional problem with including
principles on the face of the Bill, but said that the Government were
concerned about the practical impact of those principles. We have also
heard that it is very difficult to put principles in another piece of
legislation when one is dealing with an amending Bill. He considered
that the best way forward would be to incorporate them into the code of
practice, which is where we are with this amendment. He also
said:
“Putting
the principles in the Bill might well lead to a lack of clarity and a
lack of understanding by practitioners who have to operate day in and
day out.”—[Official Report, House of
Lords,
8 January 2007; Vol. 688, c.
46.]
I found that a rather
strange argument. Either the principles are clear or they are not. They
are just as clear or unclear whether they are in a code of practice or
a Bill. But any principle should also stand the test of time.
I find it hard to believe that
in a few years hence we will disagree with the notion that, for
example, patients should be involved in the decision-making and that
those decisions should be made fairly and openly. That seems to be what
is widely agreed at the moment. Any such change in principles is surely
a matter of fundamental importance and should be debated by Parliament.
When the Joint Committee on Human Rights commented on the draft 2002
Bill it said that the capacity of a code of practice to give sufficient
protection to the human rights of patients in the decision-making
process was unclear. It would be useful if the Minister could reassure
us about how much weight the code of practice will
have.
In new
subsection (2B) we now have a list of principles which could appear a
little contradictory. I have a slight problem with the whole package.
Paragraphs (a) to (d) are broadly akin to the comments made by Baroness
Barker. When a set of principles revolves around the patient, there is
a certain clarity about what is involved and what is intended. But the
Government have included paragraph (h) which is “public
safety”. The cynics could say that this is yet more evidence of
the cold hand of the Home Office on this Bill. Perhaps the Minister
could clarify the reasons for this being included.
How does, for example, a
practitioner balance the patient’s wish for liberty, which is in
paragraph (b), against a perhaps not well-founded but nevertheless
expressed caution from a third party about a potential risk to public
safety? To be frank, we are supposed to be dealing with health
legislation. I am somewhat surprised to see public safety expressed as
a core principle. I am much happier with the wording achieved by
amendment No. 54, tabled by the hon. Member for Stafford, as the
transparency element implies a greater level of protection. The
amendment makes it clear that there needs to be a full and proper
assessment of risk. One would assume that that would happen anyway, and
I am sure that most health professionals would be astounded that such a
thing could be suggested, but it is always useful to have such things
clarified.
As the hon. Gentleman pointed
out, we are talking about the draft code, so it would be helpful to
know what opportunities Members of Parliament, including those in the
other place, will have to have some input. It is right that the code of
practice is widely consultedon by professionals, but it is not
clear whether parliamentarians will have a say or in what format. It
would be helpful if the Minister could clarify that.
Amendment No.
41 is important. It has been pointed out that the issue could be
covered by paragraph (d), which mentions the “avoidance of
unlawful discrimination”. The concerns of black and minority
ethnic groups have been raised on a number of occasions during the
debate. Document MH23, a submission from the National Black and
Minority Ethnic Health Network, states:
“The differential impact
of the proposed mental health legislation on BME groups is a
well-documented feature of the mental health
system.”
The organisation
cites the “Count me in” census as the latest in a long
line of evidence. It also comments on the McPherson inquiry into the
death of Stephen Lawrence, which stated:
“The
collective failure of an organisation to provide an appropriate and
professional service to people because of their colour, culture, or
ethnic origin. This can be seen or detected in processes, attitudes,
and behaviour that amount to discrimination through unwitting
prejudice, ignorance, thoughtlessness and racist stereotyping which
disadvantages people in ethnic minority
groups”.
As
has been pointed out, it is not enough to say that we treat people
equally, whatever their colour or creed. There is, or there should be,
a positive duty to ensure that any particular section of society is not
disadvantaged by legislation, and I would welcome the Minister’s
thoughts on that.
I
can see that amendment No. 66 is well intentioned, but I again suggest
that amending mental health legislation is not the place in which to
deal with the issue. I was pleased that the hon. Member for Bridgend
mentioned the Domestic Violence, Crime and Victims Act 2004, because
amending that would be a far more appropriate way forward. I support
the sentiments behind the amendment, but I am not convinced that it is
the best way for her to achieve her aims.
Amendment No. 55 would prevent
the insertion of subsection (2C) into section 118 of the 1983
Act—the requirement for the Secretary of State to have regard to
“the efficient use of
resources, and...the equitable distribution of
services”.
When I first
read the amendment and saw that it was tabled by the Conservatives, I
thought that, although they are always banging on about spending money
wisely and the fact that we in the south-east are not getting
enough—
James
Duddridge: And
Romsey.
Sandra
Gidley:
And Romsey, of course—there is a wider
point to be made. Although those are important considerations, and
while decisions must be challenged when things go wrong, I am concerned
about that line—
6.14
pm
Sitting
suspended for a Division in the House.
6.29
pm
On
resuming—
Sandra
Gidley:
Before the Division, I pointed out that although
it is important to take into account the efficient use of resources and
the equitable distribution of services, I was concerned that the clause
had crept into a part of the Bill that deals with fundamental
principles. It seems that proposed section (2C) has no place here. It
refers to the Secretary of State, but I am not quite sure how
responsibilities are cascaded down to the people whose work involves
making everyday
decisions.
For
example, a mental health professional could be put in the position of
thinking that, according to the principle in new subsection (2B)(e), he
must give the most effective treatment, but, as the legislation states
that he is allowed to take resources into account, he could give the
cheaper drug. I am sure—or at least I would hope—that
that is not the intention of the legislation, and I hope that it will
not be a consequence of the clause. I seek the Minister’s
reassurance that use of resources will not be used to hamper, as it
were, the freedom of health professionals to prescribe or provide the
treatment that is in the best interests of the patient. If the
unforeseen consequence that I have described could arise, that would go
against every code of professional ethics under the sun, so I should
like the Minister’s reassurance on that
point.
6.30
pm
Hywel
Williams:
Following on from your earlier ruling, Lady
Winterton, I thought that I would make some stand part-type remarks, as
well as refer to the amendment, on the issue of principles.
Mental health services are
beset by stigma, fear, prejudice and uncertainty. Principles can be a
forceful and important signal, setting out ethical standards and
thereby improving people’s confidence in the operation of the
law. Having been a member of the Joint Committee, I am of course
disappointed that the principles appear in the code of practice. I
understand the Government’s rationale for that, but we had some
interesting discussions in the Joint Committee about whether the
principles should be in the code of practice or in the Bill.
My preference would have been
for us to follow, if possible, the Mental Health (Care and Treatment)
(Scotland) Act 2003, which I briefly looked at before this debate. I
draw the Committee’s attention to the fact that the phrase used
by the Scottish Act in respect of the principles is “must have
regard to”. Proposed new section 118(2A) of the 1983 Act, in
clause 10, talks
about
“the principles
which the Secretary of State thinks should inform decisions under this
Act.”
I understand why
that wording has been chosen, but it is of a slightly different order
to “must have regard
to”.
I
should also like to draw the Committee’s attention to the fact
that there are other pieces of legislation that include principles. I
have some experience of the Children Act 1989, which sets out long
lists of principles to which people must pay due regard before, for
example, taking children into care. One of the things listed is
language, which is a particular interest of mine and to
which I might refer later in the Committee’s proceedings,
although not today. To refer to the point that the Minister made a
number of times, as a former social worker, I never felt that having
principles set out was in any way patronising to me, and I do not think
that my colleagues did either. I understand the rationale for
putting the principles in the code of practice, but I have a number of
concerns to which I would like to refer briefly. When we discussed the
matter in the Joint Committee, the Minister said that the fundamental
guiding principles might need to be changed over time and that that
would be easier if they were part of the code of practice. I would like
to know what mechanism would be used to change the fundamental
principles over time. In some ways, if principles are fundamental, they
do not necessarily need to be changed.
I also am concerned that if
changing the principles is a matter of changing a code of practice
rather than legislation, they might be changed without sufficient
parliamentary scrutiny. If times or commissions were changing, that
would very much be an argument in favour of proper scrutiny, rather
than saying that we should just be changing the code of practice, in a
slightly less formal way.
My next point is a basic one.
As I said in an earlier intervention, what legal protection does the
statement in the code of practice afford to service users and
practitioners? If it is not in the Bill, there is a question about that
issue. To use a phrase that has already been used in this Committee, I
am worried about that creating a field day for lawyers, as there could
be many legal
challenges.
As far as
amendment No. 66 is concerned, I am the MP who represents Shaun and
Josie Russell. I will say nothing about that particular case other than
that they have demonstrated a quiet dignity and have rebuilt their
lives. However, that is the perspective that I have on this issue. I
worry about what will happen to other victims and the bereaved
relatives of other victims. At the very least, would it be possible to
make available to victims and their families dates of release or any
conditions attached to release? That information could also be made
available to practitioners. I am a former approved social worker and
can still remember the brush of a poker passing my nose when I was
involved in a particular sectioning, of which I am often reminded. I
have subsequently seen the person who was sectioned and she is well and
living a happy life. Fortunately, she cannot remember that particular
incident, but as a practitioner it often comes back to me. I draw the
attention of the Committee to the fact that social workers have been
murdered in the past in the course of sectioning and we must be aware
of the problems that they
experience.
On
amendment No. 41, people from the black and minority ethnic community
have good reason to suspect that they might unintentionally, or perhaps
intentionally—although hopefully not—face differential
treatment. It is reasonable to provide positive reassurance that their
needs have been fully taken into
account.
Ms
Winterton:
This has been a wide-ranging
and thoughtful debate about the issue of principles. We all agree that
it is important that people who make serious
decisions about whether to deprive a person of their liberty should be
guided by a common set of overarching ideas.
I will clarify the issues
relating to the previous Bills. The hon. Member for East Worthing and
Shoreham referred to the pre-legislative scrutiny Committee and the
fact that I appeared before it. It is true that principles were not
part of the Bill, but having looked at the recommendations of the
Committee, I said that I would consider whether it was possible to put
principles in the Bill. I stress that there has never been an objection
to that; it has been a question of trying to do it without upsetting
the balance of the existing Act. As I say, I closely considered all the
issues and tried to look at whether we could address the matter in the
draft Bill, which would have been easier.
The hon.
Gentleman also said that I referred to disapplication of principles. I
wish to clarify the actual situation. Every discrimination code has
exceptions and complicated details, including in respect of the Race
Relations Act 1976, and that also extends to the issue of immigration.
The right principle here is the avoidance of unlawful discrimination.
When I referred to disapplication of principles, I was trying to say
that, under existing legislation, it is possible to do that.
I considered very carefully
whether we could put principle in the Bill, but I want to share with
the Committee one of the issues that came to light when considering how
to do that. When deciding what medical treatment to give to a patient,
a practitioner must consider, among other things, the principles of the
patient’s past and present wishes and feelings, and also the
effectiveness of treatment. If the principles were in the 1983 Act,
they would be given equal weight. That begs the question: what if the
most effective treatment were anti-psychotic injection, but the patient
did not like the side effects and wanted to try a slightly less
effective treatment with minimal side effects? What would take
precedence? Would it be the patient’s wishes and feelings, or
the effectiveness of the
treatment?
By
referring to the code and having the principles set out in them, we can
give guidance on how the practitioner could weigh the two conflicting
principles. For example, the code might say that the decision should
rest on a risk assessment, and that as long as the practitioner is
content that the patient or public would not be at excessive risk if an
alternative treatment option were tried, the effectiveness of the
treatment could take a lower priority to the patient’s wishes
and feelings. That is the sort of flexibility that we
want.
Placing the
principles in the 1983 Act fixes them in time. They cannot be changed
in the light of changing practice or emerging issues without primary
legislation. However, we can bring the code—the hon. Member for
Caernarfon asked about this—back to the House and put it through
the parliamentary procedure much more quickly than waiting for a Bill,
which, as we know, may take some time—sometimes nine
years.
Tim
Loughton:
So that we can maximise the
debate on it at the appropriate time, will the Minister enlighten the
Committee on how that might happen? Will it be by the affirmative
resolution procedure, or another procedure?
Ms
Winterton:
It would be the negative resolution
procedure—there would be a 12-week consultation
period—but Members of Parliament could pray against it. To have
maximum flexibility, the negative resolution procedure is an easier
parliamentary procedure, as I am sure hon. Members appreciate. However,
first there would be a 12-week consultation about any changes with the
ability for input from here on in when drawing up the code, and if
Members of Parliament wish to contribute to that we are more than happy
to take on board their comments. We want to ensure that we make it as
inclusive as
possible.
I thank the
Opposition for their support in understanding why we could not overcome
some of the difficulties. As the hon. Member for East Worthing and
Shoreham has quoted from the Lords, I shall do likewise and quote Lord
Howe, who said that clause
10
“demonstrates to
service users and professionals in mental healthcare 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.”—[Official
Report, House of Lords, 6 March 2007; Vol. 690,c.
120.]
I am grateful to the
Opposition for being supportive on this difficult issue with which we
have been
wrestling.
6.45
pm
I now want to
address the amendments that have been tabled today. They would
obviously introduce some new fundamental issues to the list that the
Secretary of State and the Welsh Ministers must address when drawing up
the list of principles in the code of practice: the assessment of risk,
transparency, the needs of and impact of treatment on black and
minority ethnic patients and the rights of victims. The amendments
would also remove one fundamental issue—public safety—and
the requirement that the Secretary of State and Welsh Ministers should
have regard to the desirability of ensuring efficient use of resources
and the equitable distribution of services.
I should probably start by
discussing the amendment that would remove one of the fundamental
issues that was agreed in the other place—public
safety—and replace it with an assessment of risk. I am
sympathetic to the point made by my hon. Friend the Member for
Stafford. His speech was well considered and I know the concerns that
he is trying to overcome. However, the problem of putting assessment of
risk in that way is that it is not in itself a fundamental principle,
buta procedure that is undertaken. We should be transparent
about what we check for when carrying out that procedure; it is
important that we are. All our discussions make it clear that an
important part of that procedure is that we assess the safety of the
patient and of the public, and it is therefore only transparent for
those two issues to be fundamental matters.
Sometimes, I think, hon.
Members feel a bit uncomfortable about public safety, but my hon.
Friend the Member for Stafford made an important point yesterday, which
was well illustrated. Even someone who is suicidal might, by committing
that act, have an effect on public safety. It is important that we have
at the forefront of our minds the fact that when we talk about risk in
these circumstances we must consider the safety of the public. That can
include carers and family members as well as strangers, and it is
important that
when we consider the individual and the difficult decisions that have to
be made, we do not run away from the fact that public safety is an
issue. We have to recognise that some
people and organisations would be worried. As my hon. Friend the Member
for Bridgend said, we met yesterday with Victim’s Voice. If we
were to remove one of the fundamental principles, that group would feel
that we were not listening to some of its concerns or reflecting what
is necessary in drawing up a risk assessment of the patient. That is
why I cannot accept the amendment of my hon. Friend the Member for
Stafford. I would also be unwilling to remove public safety from the
list.
Transparency
is one of the principles in the draft illustrative code for England,
which we published when the Bill was first introduced in the other
place. It is an important aspect of decision making, but it is a
procedure that results from the other principles in the Bill.
I want to
address the point that my hon. Friend the Member for Bridgend made. As
I said, we had a meeting yesterday with Victim’s Voice, and I
have had meetings with the Zito Trust. I know that they feel strongly
not only about public safety, but about information sharing, and my
hon. Friend quite rightly put her finger on those issues. This is not
the appropriate place to address the issues in principle, but I am
happy to have further discussions with my hon. Friend about how we
might take them forward.
I shall address the amendment
that the hon. Member for East Worthing and Shoreham tabled on the issue
of black and minority ethnic communities. It would add a fundamental
requirement to address
“the particular needs and impact
of treatment on black and minority ethnic
patients.”
Again,
I absolutely understand that it is a worthy attempt to address concerns
about the treatment of BMA patients. However, there is a fundamental
issue regarding discrimination. The problem with the amendment is that
it would go further and specify BMA patients as a
group—
Tim
Loughton:
BME patients.
Ms
Winterton:
BME patients. I am so sorry; that was a
Freudian slip.
The
amendment would specify BME patients as a group in isolation from other
groups that may be considered vulnerable. It would also treat BME
patients as a homogeneous group and ignore other characteristics, such
as age or gender, which might also need to be addressed. That is the
basic problem with the hon. Gentleman’s amendment.
Returning to
the issue about the inclusion of principles in the Bill, quite
honestly, owing to unlawful discrimination, it would not be appropriate
to single out one particular group over another. The amendment would
also make life difficult for practitioners. Although we want them to
take into account a range of issues, whether they are issues of race,
age, gender or sexual orientation, the amendment would cause us some
difficulties if we had to highlight one issue above all others. A whole
programme of work exists, and I hope to be able to reassure hon.
Members at some point about the seriousness with which we take the
issue. I am more than happy to explore the issue further—perhaps
when time is slightly less pressing.
I can also
reassure hon. Members that there is nothing sinister about the wording
of proposed subsection (2C). Clause 10 was drafted to include the
fundamental matters considered most important in England and Wales. The
Welsh national service framework for mental health has four
underpinning principles: the so-called four Es of equality, equity,
efficiency and effectiveness. When drafting the clause, we wanted to
ensure that the Welsh principles were incorporated, given that the
legislation covers England and
Wales.
I hope that my
explanation has reassured hon. Members. All the issues raised are of
course extremely important, but I hope that I have made it clear why we
cannot accept the amendments. However, we certainly need to consider
the issue of the victims. With that, I hope that the Committee will
reject the
amendments.
Mr.
Kidney:
I thank everyone who has taken part in the debate,
which has been very useful and helpful. I accept my right hon. Friend
the Minister’s explanation about the difficulty of trying to
graft principles on to the 1983 Act using primary legislation. That
subject is well discussed at page 27 of the Library’s research
paper on the Bill, and is a genuine difficulty.
I am less
persuaded, however, by my right hon. Friend’s argument about the
ability to amend legislation easily in the future, because the relevant
matters could be dealt with in a schedule, and the Act could state that
it may be amended by secondary legislation. If hon. Members read
section 118(4) of the 1983 Act, they will find there the negative
resolution that my right hon. Friend described for amending the
code.
I appreciate
what the hon. Member for East Worthing and Shoreham said about the
purpose of his amendment in relation to black and minority ethnic
patients being to impose not only a negative aspect, that there should
not be discrimination, but a positive one, that diversity should be
respected. [Interruption.] That is why I talked about a ringing
declaration when I spoke to my amendment. I wanted to take account of
the need to be positive. In the Mental Health Alliance’s
briefing for Second Reading, it spoke about having principles on
non-discrimination and respect for diversity, which are virtually the
same thing. However, I point out that the principle about
“respect for patients” principle in the draft code
largely covers those
points.
On the public
protection point, there is a section on assessment in the code that
deals with the assessment of risk and protecting others. Will my right
hon. Friend consider whether the words “public safety”
might be better replaced by the phrase “protection of
others”, which was used in the 1983 Act? Changing those words
might take away the lingering suspicion, which the hon. Member for
Romsey expressed again in this debate, that the measure is about social
control rather than health treatment.
I recognise that we are making
a difficult decision and that there is a need for flexibility. With
those comments, and given that some of these issues could be considered
again, although not in the same way, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
10 ordered to stand part of the Bill.
Tim
Loughton:
Lady Winterton, the Minister got very agitated
earlier, as she does occasionally, about our discussions on clause 6
and the responsible medical practitioner. She kept referring to
amendment No. 56, which you very generously did not call out of order,
Lady Winterton, although that amendment has not been selected for
discussion. I did not intend to move it, even it had been selected,
because it was superseded by amendment No. 60, which refers explicitly
to the “responsible clinician” in any place. We hope that
the Minister will look warmly on that amendment when we debate it in
relation to this clause.
We think that
amendment No. 60 would make clause 11 rather more acceptable, and I
cannot see that the Minister can have any objection to it if she thinks
that the term “responsible clinician” satisfies the
Winterwerp v. The Netherlands test. Our concern is only that the
measure should be legally in order and should not be challengeable
under the law of the European Court of Human Rights. If she is
confident of that, perhaps she will say that the Government will
underwrite the costs of any legal challenge if it turns out that her
definition of the responsible clinician falls foul of the European
Court of Human Rights and that all the sectioning orders are therefore
ruled null and void.
The
Chairman:
Order. I would be grateful if the hon.
Gentleman would move amendment No. 60 formally if he wishes to press it
to a
Division.
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