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As the noble Earl, Lord Howe, also said, there are immediate parallels to which the Committee may look. The Mental Health (Care and Treatment) (Scotland) Act 2003 begins with a statement of principles to which practitioners must have regard. More than that, 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.
In the run-up to this Bill, there has been a fair degree of discussion about whether principles should be included in the Bill, as one would expect. The argument that has most frequently been deployed by Ministers is that principles may lose their authority or appropriateness over time, and if they are on the face of the legislation rather than in a code of practice they become more difficult to change. I do not accept that argument. Principles should be enduring. But even if they change—and sometimes they do—they are usually changes of such importance that they should be debated by Parliament.
Over the past 30 years, the attitude of society and of the psychiatric profession to homosexuals, for example, has changed. Homosexuality is no longer defined as a mental disorder. Rightly, that change was the subject of widespread discussion in society and Parliament. I do not believe that any of the principles we put forward in this amendment would be any less durable. Nor should any change to them be of such minor importance that it should not come before Parliament.
Why should principles be on the face of the Bill? The key issue is safety. If we have principles that set the parameters within which all clinical judgments are made, patients and practitioners will have more faith in the safety of those decisions. As a consequence, people will be more likely to avail themselves of treatment. Throughout discussion of the Bill, we will return time and again to the issue of safety and what will help or hinder practitioners as they seek to reach
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We have the benefit of having been through so many drafts on this Bill that we have a lot of material with which to work. Commenting on the draft 2002 Bill, the Joint Committee on Human Rights 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, and that it should be clarified by putting principles on the face of the legislation. As the noble Earl, Lord Howe, said, we also have other examples near to hand. We have principles in the Children Act 2004 and the Mental Capacity Act 2005—cornerstones to everybody who has to implement those pieces of legislation that specify what the legislation seeks to achieve and what considerations should be fundamental and underlie any actions. We have not yet heard why people who are subject to compulsory mental health legislation deserve less.
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Which principles should be included? The Joint Scrutiny Committee spent a great deal of time considering this issue. We decided that the principles in the Scottish Act would be consistent with good practice nationally and internationally. We thought they should serve as the basis for legislation in this country. The principles laid out in this amendment exactly reflect the legislative situation as it is being implemented in Scotland.
There are principles in the code of practice. I do not know if noble Lords have had a chance to study them in any detail, but they should. There is similarity yet also a great difference in emphasis between the list of principles which the Government subscribe to—we assume, because of their presence in the code of practice—and those in our amendment. I draw noble Lords’ attention to two in particular. First, the Government talk about a participation principle—that care and treatment should be provided in such a way as to promote a patient’s participation, self-determination and personal responsibility to the greatest practicable degree. It is questionable whether giving personal responsibility to people is a principle of mental health care, as it is a principle more generally extended throughout healthcare. I am not clear why the Government should believe that this principle should have to be applied to people who are mentally ill.
Secondly, the non-discrimination principle bears a striking resemblance to what, in the world outside, one would call the equal opportunities framework—the principle that is in the amendment. Remarkably, the code of practice does not include disability. Why do the Government not believe that disability should be included as a basis on which people should not be treated less favourably under mental health legislation?
There are other principles in the amendment relating to children which are not in the code of practice. It is difficult to change and to challenge principles when they are in a code of practice. There is not an easy means for us to do so. Nor is it easy to
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The Government have already said that it would be difficult, perhaps impossible, to include principles on the face of this Bill because it is an amendment of the Mental Health Act 1983. Which parts of the 1983 Act would be incompatible with the list of principles in the amendment? I struggle to find parts of that Bill that could be enacted in a discriminatory way and would be in conflict with these principles, which as I say reflect to a large extent international good practice.
One of the main reasons for including principles is to give guidance and confidence, not only to practitioners and to patients but to tribunals, to lawyers who have to implement the legislation, and to users. The noble Earl, Lord Howe, set out that case at length. The Government may believe that it would be wrong to restate principles that are set out in other legislation, but it is not an argument that I find compelling. The Children Act’s paramountcy principle is repeated in various different pieces of legislation that relate to children. Therefore, I do not see why we should not have the principles included in this legislation.
I leave it to others to go through in some detail the reasons for the different principles that are set out in the amendment. However, there is one in particular that needs to be singled out—the principle of reciprocity. If people are to be subjected to compulsory treatment under mental health legislation, it must be an absolute point of principle that there is reciprocity and that services are available to them. I do not believe that in this day and age we could condemn people to be subject to compulsory treatment and then not make services available to them.
This is one of those pieces of legislation on major social topics that comes around once in a generation. Noble Lords have participated in many of those debates in the past; I refer to debates such as those on the adoption Bill. This is our opportunity, and perhaps the only one that we will get for the foreseeable future, to set out in terms what we believe is now, in this country, an acceptable way in which to treat people who have a mental illness. It is important that we do so as clearly as we can—and for the avoidance of any doubt about what we believe the purpose of this legislation to be, it is necessary that we accept an amendment of this nature.
Baroness Murphy: From these Benches, I welcome the Minister home to the health portfolio. I am sure that I speak in part for the healthcare community, which will be delighted at his appointment.
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We all want to have confidence that this Bill will protect the public in so far as legislation can; that it will be respected, if not always liked, by service users; that it feels fair and just to relatives and provides an ethical set of principles within which professionals work. In trying to provide that ethical set of principles, we should go back to the inherent principles in this Bill and all mental health legislation since the Vagrancy Act 1714. That Act specifically included the “furiously mad” among those who should be detained in bridewells but specifically excluded them from the punishment meted out to rogues and vagabonds and set some rules as to how they were to be treated.
The primary purpose is to permit interventions to stop individuals from harming others or themselves should mental disorder impair their judgment to the extent that the usual psychological, moral and legal constraints no longer apply. Secondly, the purpose is to constrain those professionals charged with intervening. So in Committee today we are talking about the counterbalancing principles within which we take away freedom—and I remind noble Lords that this is almost the only time, outside the criminal justice system, when we do that. We must balance compulsion against what society offers to those compelled. There are other public health provisions to detain physically ill or aged people in the public interest, but they are now very rarely used, generally out of favour and many people think that they should no longer be on the statute book. At present, it happens about 46,000 times every year.
As the noble Earl, Lord Howe, remarked, every mental health patient knows about these powers and fears their use. Even people with quite mild depressive symptoms—I would guess that there are noble Lords in the House who have experienced those—sometimes feel as if they are going mad. They might lose control and be taken away under a section. When I mentioned pink forms in the House, everybody knew what they were for.
The Government have an extraordinary opportunity to set a new cultural context within which mental health services are delivered. They know that they have been, albeit unwittingly, the instrument that has managed at long last to unite service users, families, health and social care professionals and campaigning organisations to agree on some fundamental principles within which care should be delivered to those under compulsion. Although I know that there are healthcare professionals who support other parts of the legislation that I have my doubts about, we are all agreed—even those psychiatrists who have expressed support for some parts of the Bill—on the general principles outlined today.
We know that the Government are not against principles, because there are some in the draft code of practice. Indeed, the National Service Framework for Mental Health has a splendid set of 10 guiding principles. Nowhere in the framework document is there any statement that it does not apply to those under compulsion. They are reflected in many of the principles tabled in this amendment.
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I understand that there has been much talk of this being an amending Act and that therefore there are clauses in the 1983 Act that might not be consistent with the new principles. My own trawl through the 1983 Act suggests that there is only one area, in Part IV, dealing with patients under criminal proceedings, which might not be entirely consistent, but it does not seem to be beyond the wit of man or the Government to introduce a small amendment to deal with them. This is such an important issue. I do not see any reason why in future principles for mental health should be abandoned because of one or two clauses that might need slight amendment. Principles should apply to those restricted as a result of criminal proceedings, if they have a mental disorder.
If the Bill is to contain the reciprocity of principles, which principles will we adopt? We have proposed here those that the Scots have found in their recent Bill to cover the fundamentals. They are very similar, with minor differences of emphasis, to those recommended in the Richardson expert report in 1999 and were supported by the joint scrutiny committee. Summed up, they are designed: to promote patient autonomy and involvement and, when possible, to provide choice within the necessary constraints; to respect and involve carers; to promote equality, non-discrimination and respect for diversity; to provide for the least restrictive or invasive alternative; to maximise the benefit to the patient and act always in their best interest; to clarify that the welfare of any child under the Act should be consistent with the principles of the Children Act; and to recognise that the state has a reciprocal duty of care to exchange necessary compulsion with the promise of beneficial care and support.
I first heard most of these principles outlined by the noble and learned Baroness, Lady Hale of Richmond—now our first woman Law Lord, but then plain Brenda Hoggett—at a joint meeting of psychiatrists and lawyers in 1989. I wrote them down, right then. Those who go back to see what Brenda Hoggett wrote then will see that these principles have been around, talked about and supported by those who need to use mental health legislation for a long time. They are entirely consistent with the Government’s wish to improve public safety. I hope that, with so much to gain and every patient, every caring family and professional urging them to accept these principles on the face of the Bill, the Government will accept the amendment.
The Earl of Onslow: I do not normally speak on something like this, but I will for just one and a half seconds. When my noble friend Lord Howe was talking, I watched with fascination the enraptured looks of the people opposite, who were listening to him with immense care. The same applied to the noble Baroness on the Liberal Democrat Benches. In this Chamber, we have a wealth of knowledge, experience and know-how. All I am begging the noble Lord to say is, “My mind is not totally made up, and I will listen to the expertise that there is in this Chamber”. From the faces that I saw, there is a real interest in making the Bill as exactly right as human beings can make it. Will the noble Lord please
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Lord Rix: My noble friend Lady Murphy mentioned rogues and vagabonds, which reminds me that today is the 30th anniversary of my very last performance at the Whitehall Theatre, in a play called “Fringe Benefits”. Today we are not talking about fringe benefits but about something that goes absolutely to the heart of the Bill, and which will decisively influence how it is used. Therefore, I am very pleased that the noble Lord, Lord Hunt, can be welcomed to his new ministerial brief with a debate on such a key issue.
Principles are important, and they deserve to be on the face of the Bill because they make it clear to practitioners, tribunals and, importantly, service users and their families and carers what standards are expected from mental health law. This argument was accepted by the Government in relation to the Mental Capacity Act. I served on the Joint Committee that scrutinised that legislation when it was in draft form as the Mental Incapacity Bill, under the chairmanship of the late Lord Carter, whose sad loss last month will be keenly felt in this House, in particular by those of us with an interest in disability issues. Lord Carter always took a great interest in disability, influenced in part by his own family’s experience. He was a great ally in improving a number of recent pieces of legislation on disabled people. He and I were the only people to serve on all three of the Joint Committees that scrutinised the draft Disability Discrimination Bill, the draft Mental Incapacity Bill and the draft Mental Health Bill, Lord Carter very ably chairing two out of the three. I am certain that we shall miss him in the months and years to come.
One of our key recommendations in respect of what is now the Mental Capacity Act 2005 was that guiding principles should be on the face of that legislation. We were influenced in this, as noble Lords have heard, by the evidence on the usefulness of principles in the Children Act 1989 and the Adoption and Children Act 2002. The Government accepted that recommendation, and the Mental Capacity Act now contains at the beginning a very helpful statement of principles. When I served on the Joint Committee that scrutinised the previous version of the Bill, one of our recommendations was that principles should appear in this legislation. We said then that,
- “putting principles on the face of a major piece of complex legislation serves a clear purpose, in that it helps to make clear to everyone implementing the Act, what the legislation is trying to achieve and what considerations should guide their actions”.
It is fair to say that the Government were not sympathetic to very many of our recommendations, but they have agreed with us on this, and in their response to our report they accepted that principles ought to be set out in the Bill.
I am not quite sure why the Government have now changed their mind. I understand that they believe
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- “on the grounds of age, gender, sexual orientation, race, colour ... language, religion or national, ethnic or social origin”,
it is the Act and not the principle that is at fault. The same goes for all the important principles set out in the amendment.
It is fortunate indeed, then, that this Bill gives us the opportunity now to amend the 1983 Act both to include principles and to ensure that it meets those principles. Perhaps the Minister could let us know precisely which parts of the Bill violate those principles and then bring forward amendments to change it accordingly. Alternatively, perhaps he could let us know precisely which of these principles he thinks should be violated in the discharge of mental health legislation.
Lord Adebowale: I support the amendment. What strikes me is that, although the current Mental Health Act was never intended to sow fear into the hearts of the black community, to which I speak daily, or into the hearts of many people who have a mental health challenge or know someone who has a mental health challenge, it does sow fear into the hearts of those communities.
I should declare my interest as an employee of the organisation Turning Point, which provides significant services to people with mental health challenges. I know from our service provision and from talking to our clients how critical this amendment is to the confidence that many outside this House will have in whatever we do next with the Bill. The principles are crucial and I hope that one of the easier things that the noble Lord, Lord Hunt, will have to do in his new job is to agree with us on that. Once we have agreed the principles, the rest becomes a little easier. To be honest, I do not understand why the Government would seek to gainsay this argument. This is one of the few occasions on which the voluntary sector, the royal colleges and many other organisations have been in total agreement. They accept that this set of principles—and one could argue about principles from here to kingdom come—are crucial.
Let me explain a little why I support the amendment. We have an opportunity to set in stone how this legislation should be applied and how it
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Let me refer to some of the specific principles that are being suggested. One is to take note of,
I do not mind telling noble Lords that I have had several conversations with people using Turning Point’s mental health services and in my role as co-chair of the Government’s Delivering Race Equality in Mental Health Care strategy. They have a huge fear that, if or when they become subject to the Act, their ability to make decisions about any aspect of their care—even those which do not relate to compulsion—will simply not be respected. They fear not being consulted or included, and that undermines their dignity and confidence in approaching the mental health services, including voluntary services, for help. For example, this principle is relevant to concerns about levels and types of medication: it would be especially reassuring to individuals to know that their views on medication and its side-effects—a huge issue for people in the mental health system—could be taken into account.
I am aware that my noble friend Lord Patel of Bradford will put forward amendments, which I hope to support, to strengthen the race equality and diversity issues in the Bill, but I, the Government and all noble Lords know that people from black and minority-ethnic groups are discriminated against in the mental health system. The Act affects them disproportionately. We have already said in this House that reports such as Breaking the Circles of Fear and others describe people’s fear of mental health services, which, in any other situation, would be a cause for outrage and much concern. Such fears are very real. In this climate and in the light of tangible evidence of overuse of the Mental Health Act, the onus is on the Government to demonstrate in the Bill that the new mental health legislation will not discriminate against BME groups. Putting a principle in the Bill about non-discrimination and respect for diversity is essential in achieving that. Such a principle will support, rather than undermine, the fundamental aims of the delivering race equality strategy—for example, more appropriate and responsive services—and the vital progress being made outside the Act in projects such as the DRE.
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