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It is important to have principles in the Bill and not just in the code, as we know that that will help to ensure that legislation is used appropriately. This legislation is going to be around for a lot longer than many of us. Principles are a crucial safeguard and it is critical that they have statutory force. They will give more confidence and stronger guidance to tribunals and lawyers faced with interpreting the legislation, to practitioners concerned about how to implement it, and to people who may be subject to the Act and who are worried about how it might affect them. They would also set and help to raise ethical standards in mental health care and achieve greater transparency.
I wish to comment further on some specific principles and turn, first, to the importance of patient participation. The value of service users’ involvement and participation in their care is widely recognised in voluntary mental health provision and other areas of healthcare. When the context is one of using compulsory powers, it is all the more important that service users subject to the Act are fully involved as much as possible at all stages of their assessment and care. That is likely to enhance their engagement with practitioners and, therefore, treatment outcomes. I give as an example the case of John, who has written a crisis plan for mental health professionals to consider if he becomes unwell again in the future. It includes asking whether, if possible, when he is admitted to hospital, he may be accompanied by his father rather than a social worker and the police, and it asks that he should not be taken to the locked ward where he has had bad experiences in the past. This makes John feel that he can participate in what can be a highly traumatic sectioning process.
My second point concerns providing the necessary information and support to enable participation. In order for their involvement to be effective and meaningful, service users should be given all the necessary information about how to lodge an appeal to mental health review tribunals. We assume that people know these things but, in fact, in many cases they are simply lost in the system and do not have the information. People should know how to contact patient advocacy services and have information about their medication. Information should also be provided in a form that they can understand, taking into account the needs of those with literacy problems or the increasing number of people whose first language is not English.
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I want to comment on the principle that the past and present wishes and feelings of patients should be taken into account. Patient autonomy is the freedom to decide for oneself and the ability to make choices which others will respect. The Department of Health’s Review of the Mental Health Act 1983: Report of the Expert Committee pointed that out.
Practitioners must recognise that many patients retain decision-making ability in relation to many decisions, despite the necessity for detention under the Act. Patients should have a right to continue to make such decisions, subject to their health and safety and the safety of others. Patient choice, which is a
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Finally, I want to comment again on racial equality, non-discrimination and respect for diversity. There is considerable evidence that the current Act is applied more heavily among African and Caribbean people than among other groups. A statement of non-discrimination specifically in the context of the Mental Health Act would give those people a basis for confidence in the law. Importantly, this principle should go beyond non-discrimination and include respect for diversity, which indicates the need for practitioners and tribunals to take a proactive stance.
Principles play a critical role in giving the BME community confidence in the professionals who exercise powers under the Act. The inclusion of principles in the Bill would be a visible recognition by Parliament of the need to overcome stigma and discrimination. That would assist the development of a culture of respect for the qualities, abilities and diverse backgrounds of individuals. It would also help to avoid making general assumptions on the basis of ethnic, cultural and religious stereotypes. Here I note the work of the Mental Health Act Commission in putting a spotlight on the assumptions that have led to the horrendous treatment of many people from black and minority ethnic communities in our mental health system. Crucially, it will also guide the development of future case law by establishing parameters for judicial interpretations of the Act. That will enshrine race equality in all future developments of the legislation.
On this Bill, we stand at a pivotal point. We should take the Bill seriously. We should take seriously the idea that it will affect the freedoms and views of many thousands of people in their relationships with society through the mental health services and we should put the principles in the Bill to reassure people who, at the moment, are not using the mental health services, but who may need them in the future. I urge the Government to take the principles seriously, to accept the amendment and to work with us all to turn the Bill into something in which many people outside the House can have confidence.
Lord Bragg: I support the amendment in the context of a Government who have already done a great deal to alleviate the conditions and perceptions of disability and mental illness. I am convinced that a list of guiding principles is crucial and should be inserted into the Bill. In that, I am supported by Mind, of which I am president, and by many other expert and experienced mental health charities.
The principles are worth restating, even in headline form. The list shows both the ambition and the centrality of the guiding principles. They concern
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Why not put the principles in the Bill? Why put them in the code of practice, but not in the Bill? Why not, when these principles will serve a vital purpose for practitioners, many of whom—for example, the Royal College of Psychiatrists—support this, accede to their wisdom and put the principles in the Bill where both practitioners and patients can see them equally? Why not be guided by the democratic option? The Government’s objections seem to be merely defensively technical. It would be a nailing of colours to the mast: a clear and encouraging act of faith, evidence of conviction and purpose worthy of, at its best, a fine, liberalising Government.
Reiteration follows, but I contend that reiteration is evidence of widespread concern and strong, well informed feeling across the spectrum. The amendment is of crucial importance. Principles in the Bill should and will raise ethical standards in mental healthcare by guiding practitioners and lawyers in the implementation and interpretation of the law. That will also improve people’s confidence in the legislation, particularly those who may be subject to it. We particularly need principles in a law which authorises the use of coercive powers, to guard against expedience, discrimination and abuse, and to encourage proactive efforts in favour of patients’ rights and well-being.
Principles should not be left to the code of practice, where they could be changed without Parliament’s agreement and would carry less weight. If the Mental Health Act becomes incompatible with any of these principles, those of its aspects should be amended. Such essential principles should be at least as enduring as the legislation. For example, principles of participation, right to information and patient autonomy would all help to counter the kind of situation where people are, or feel, coerced into agreeing to treatment, or are effectively told that there is no point in refusing. In a Mind survey of people’s experiences with ECT, over half the total sample and one third of those who had had ECT most recently were not aware that they could refuse to consent to the treatment. People detained under the Act who consent to treatment do not get the second-opinion safeguard.
The following quotations are from people who had had ECT in the previous six months not many years ago:
“If I had known I had the right to refuse, I would have done so. My understanding was that I had no choice in the matter and that they could do it by force”.
On racial equality, non-discrimination and respect for diversity, racial inequalities in mental health have been documented in the “Count Me In” census of 2005, particularly for African-Caribbean peoples,
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My final example refers to something that will come up again and again: patient autonomy. The Mental Health Act clearly restricts patient autonomy by authorising the use of compulsory detention and treatment. That makes it all the more important to include a principle that people should retain as much autonomy as possible. They may have decision-making ability in many of the areas where decisions must be made. For example, it may be necessary for someone to receive treatment under compulsory powers, but they may have views and knowledge about which treatments have previously helped or harmed them. Alternatively, there may be activities or therapies available which the patients would be willing to explore and over which they could be offered real choice, rather than either not having them or having them presented as part of a compulsory package. People should be supported to make their own decisions where possible and given the same choices as people with physical health conditions. Autonomy should be curtailed only to the extent that it is absolutely necessary, and making that a principle in the Bill makes this clear.
I hope that my noble friend seizes the day and accepts this amendment. I urge the Government to take full note of it. Accepting this amendment would go far to help clarify and reassure those in an area which is, at last and thankfully, ceasing to be an area of darkness.
Lord Williamson of Horton: I support the amendment. I am among those of your Lordships who would like to welcome back the noble Lord, Lord Hunt of Kings Heath. I have agreed with his views on a whole range of issues over many years, and it only remains for him to agree with me for us to arrive at a satisfactory solution.
I have it in mind that by the time the Bill becomes law and is implemented it will be about a quarter of a century since the passing of the Mental Health Act 1983. It might well be another quarter of a century before we have the opportunity to set out fully in legislation the principles that we believe in and to make the improvements that we seek within primary legislation. So we need to be bold and to establish in this Bill certain key principles that will stand for many years and bring a good deal of confidence back into mental health provision.
I am for a bold approach. If in fact some of the principles set out in the amendment do not exactly match some provisions in the 1983 Act, then we should make some small change in that Act to make it possible to adopt this amendment within the Bill. I
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I will refer briefly to three basic points arising from the amendment. First, there is,
in the discharge of the activities that concern him or her. We should emphasise that important point and set it out right at the beginning of the Bill. We then have the reference in the principles to carers. If we cast our minds back only five or 10 years, there would have been no reference to carers, who were very much on the margin. There has been a huge change of attitude in that area. I was a carer for many years and know what the attitudes are. It is important to get the views of the carer set out in the principles.
Another important point is the question of separate treatment of children or young persons. We are coming to amendments, to one of which I have put my name, about the age appropriate setting. I really hold that view and would therefore like to see it in the principles.
Lastly, there is the question of the,
That reflects Amendment No. 55, which stands in my name and to which we shall come eventually. There is a widespread feeling now that this is what we believe in. We have not expressed it very well before. Let us express these principles in this Bill, take a bold step and get it clear. It will last for a long time, and we shall all welcome that.
Lord Warner: I start by wishing my noble friend Lord Hunt well in his new job. I am sorry if my departure has caused him to take a crash course on the Bill, but he is of course well versed in the NHS and I am sure that he will cope well. Just to reduce expectations around the Committee, let me reassure my noble friend that I am not about to say anything that I would not have been prepared to say if I had been in his place.
I understand well the arguments against putting a set of principles into the Bill, which after all amends the 1983 Act and does not start afresh as the original draft Bill did. If at this stage we put any set of principles into the Bill, it will require the parliamentary draftsman to comb through the rest of the Bill to ensure that all its provisions are totally consistent with those principles. I detected a slight feeling among other noble Lords who have spoken that this would be a simple job to do in a couple of hours on a wet afternoon in January or February, but it is a bit more complicated than that.
The longer and more complex the list of principles, the more arduous the task of ensuring the compatibility of the amending legislation with those superimposed principles, which is what they are at this stage in the legislation. This is a real practical consideration that cannot be wished way. Many people who criticised the original Bill argued for a simple amending Bill, so, to some extent, they cannot have it both ways. The Government have gone for a simple amending Bill rather than the original new
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In practice, it is easier to place those guiding principles in the statutory code of practice, which has been a little too easily dismissed in the debate so far. Those guiding principles would be in a code that has statutory force and would be taken account of by the courts. I have to let the Committee know very gently that practitioners do not assiduously study the legislation passed in this House or the other place. They tend to turn to the code of practice for their guidance, which is what it is for. So putting principles in the code of practice is not a lesser option, but is a practical option for shaping the behaviour of practitioners. From listening to the debate so far, I sense that many speakers want to shape the practice of practitioners. The code of practice is one of the places, if not the main place, where we can influence and shape the behaviour of practitioners.
I understand only too well that many people would like to see guiding principles in the Bill. I can see why they want that, but I have some difficulty with the approach adopted by this amendment. I am not completely convinced that everything in it is a guiding principle. Some provisions simply urge practitioners to balance a number of potentially conflicting considerations—for example, paragraphs (d), (f) and (j)—whereas paragraph (g) is a guiding principle. The paragraphs are not consistently framed as principles; they may well be good statements of intent, but they are not necessarily guiding principles. I also have some difficulty with how one would apply paragraph (c) as currently drafted. It embodies a noble aspiration, but it is not necessarily one that is easy to apply as presently framed.
I recognise that this debate shows that a considerable body of opinion is very attached to the idea of placing guiding principles in the Bill and that much of the opposition to the Bill in its present form might be abated if we could fashion a workable set of key principles to put in the Bill. If we are to move down this path—and at present I am not yet convinced that it is practical to do so—I favour having genuine principles like the headings for the guiding principles in the statutory code. Indeed, I would much prefer the Bill to limit itself to a minimum list of headings for principles that the code should spell out. They would still have the force of law, but that would make it easier to recast the code if opinions and circumstances change.
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I know that a number of other noble Lords have made my next point, but it is worth registering it again. We seem to be able to change our mental health legislation only about once every quarter of a century. Given the pace of change in many areas of healthcare, we may find that we are legislating here with some principles which may not stand the test of time. I would prefer the little extra flexibility that would be gained by being able to amend the code of practice.
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I reassure my noble friend that I am not in any way urging him to accept this amendment as it stands. I am certainly not trying to behave like many of those Permanent Secretaries in the past who, I remember only too well, suddenly became in favour of freedom of information legislation once their Civil Service pensions were secure. However, I wonder whether it would not be worth giving some urgent consideration, across all sections of the Committee, to whether agreement could be reached on a more limited set of key principles for shaping the code of practice which might go in the Bill. That seems to me to be a more practicable way forward, and it would respond to what are clearly strongly held views on this issue across the Committee.
I hope that my noble friend will be able to give some sympathetic consideration to an approach of this kind so that we might then be able to move forward with this Bill in a way that is acceptable to many of those who have a great interest in it.
Baroness Carnegy of Lour: Perhaps I may briefly intervene before what I know will be a very important speech by the noble Lord, Lord Winston. A number of noble Lords have said that Section 1 of the Scottish legislation of 2003 contains a statement that is very similar to that put forward by my noble friend and others. Does the Minister have any news of how that legislation is going? How is it meeting the needs of Scotland and has there been any legal challenge to it? The Scottish Act refers to the whole of mental health legislation and only Part 7 relates to compulsory detention, so I ask him only about that. The noble Lord, Lord Warner, clearly sees the problems that that will arise as a result of this amendment—I suspect that he saw them at Second Reading. He made a helpful speech. I wonder whether the Minister’s reply will fit in well with it. It would be encouraging if it did. Will the Minister tell us what the news is from Scotland? The Act there has been in operation since October 2005. There must be some evidence of whether the problems which the noble Lord, Lord Warner, sees have arisen.
Lord Winston: I too offer my hearty congratulations to the noble Lord, Lord Hunt, on taking his place back at the Department of Health. It is a pleasure to see him again. I remember with fondness briefly offering him refuge in my office after his previous resignation in the House of Lords.
Perhaps I may tell noble Lords a short story. Some years ago, a young female employee of Imperial College—she was a brilliant young scientist who was working on the ovary in my laboratory—ended up with a quite severe bipolar disorder, with alternating depression and mania. After a while, she became completely impossible at work and caused great disruption. She eventually gained inappropriate access to my laboratory, against the wishes and the instructions of the university, and caused mayhem. One morning, at about 6.30, she rang me at home in huge distress, crying and screaming that they had come to section her. I said to her, “Hang on, just calm down. Speak to me in a calm voice and, above all, speak to the people who you think have come for you
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