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I know my noble friend Lord Warner has said that it is massively difficult to change the drafting of a Bill if you have a preamble of this sort beforehand, but if that results in an injustice and in something which makes the law less adequate, it may be none the less necessary for parliamentary draftsmen to work not just for two wet days—if it takes six months, it is still worth getting the law in order. I want to congratulate the noble Earl, Lord Howe, on introducing this amendment. It may not be the final wording but it seems to me to be the absolute basis for something which must be in the minds of the carers when they consider sectioning a patient. This young PhD student is now a brilliant doctor of philosophy, working not in this country any more but in another part of the United Kingdom highly successfully. It was touch and go that her career was not permanently damaged because of the result on her health, and I beg the Minister to consider what he could do to try and come to an agreement to put these principles into a position where they might be used.

Lord Alderdice: I identify myself with the sincere and widespread welcome to the noble Lord, Lord Hunt of Kings Heath, on his return. We all know that his experience and skill will ensure that he picks up this rather heavy baton on the run and is able to continue on with us.

I was very moved by the comments of the noble Lord, Lord Winston, who described a situation very familiar to me, as a consultant psychiatrist quite often on call in Belfast, of the difficulties that arise when one has to confront the pink forms that the noble Baroness, Lady Murphy, referred to on another occasion. What he describes are the practicalities of working out the legislation that has been properly put in place. He has not described the principle. He adverted to the principle of care and concern, and to autonomy, understanding and so on. That can be written into a piece of legislation. What could not be written in was the requirement that the noble Lord, Lord Winston, should turn up. That is not something one can put in. That was a piece of practice that was occasioned by understanding and the principled approach. That is where there seems to be some confusion.

For me—perhaps some might think it a rather quaint notion—principles are things that you do not change very often; rather less than once in every

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25 years in my view. Principles are the kinds of things that are fundamental, that you stick with, the kinds of things one is perfectly happy to put in a piece of legislation which might last for a generation. Practice is a different matter. That is the sort of thing that may have to change in various circumstances, as has been described to us in this particular anecdote. It may have to change quite regularly and frequently. The principle does not change but how one applies it has to change if the principle itself is to be sustained and maintained. The principle is something transcendent with longevity. So when I turn to the code of practice—it is not a code of principles—and the principles that are in it, I find that it states that the status of the principles is the same as the status of the code as a whole. The principles outlined here are not transcendent but are simply in with all the rest of the stuff in the code—a code of practice, that is, not a code of principles. The whole point of principles is that they stand over and above everything else, and one can judge what happens afterwards on the basis of the fundamental principles. As the noble Lord, Lord Rix, says, a list of principles would have a decisive influence on the way in which the Bill is used.

4.30 pm

It has been said by the noble Lord, Lord Warner, that staff do not read the legislation that is passed here; they read the codes of practice. I hope that I am not letting myself or my psychiatrist colleagues down when I say that my experience is that we do consult the legislation, and we consult it all the time to make sure that we are absolutely right with it. How reassuring and encouraging it would be if, right at the beginning of the legislation, was a set of principles upon which we could depend for our interpretation of all the complicated and technical details that happen thereafter. At nine or 10 o’clock on a Friday night, when a practitioner is under pressure from other healthcare practitioners, is dealing with a disturbed patient and a family in difficulties, and there are frequently very few beds available even when the decision to take the patient is made, a set of principles at the start that enables the practitioner to think in the right direction is a great protection and relief.

The fact that those principles do not change too frequently is extremely helpful. It means that through your professional life you know where you stand, along with the patient, the carers and those who provide services over a prolonged period. They know the fundamental principles upon which they should base their professional behaviour, their caring commitment and the provision of services, as a health service should do. The idea that principles should be changed every now and again in a code of practice without parliamentary scrutiny seems to be the wrong way round. The principles should survive; they should be included right at the start and should guide Her Majesty's Government and your Lordships’ House as we consider the rest of the Bill.

It is a fundamental principle of our parliamentary process that subsequent Acts can amend previous ones, so if these principles are not in conformity with some parts of the 1983 Act we should expect that Act to be amended because we are talking about

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principles that go beyond what it was based on. It has been suggested that there is a real problem of compatibility. I have a problem with that, because it means that the code of practice would not be compatible with the 1983 legislation because it sets down the principles. Or does it have some kind of subsidiary statutory position which means that it does not stack up? If so, that strengthens the argument for having the principles in the Bill where nobody can be in any doubt which is primary legislation. The code of practice cannot be primary if the Government are suggesting there is a problem of compatibility.

We have talked about guidance to those who are involved at every level from the passage of the legislation and the provision of services to the operation of the Act and the code of practice. Then there are the notions of longevity—that principles should outlast the current fashion—and of transcendence, with principles above the rest. There is a very good reason why those are important. The Bill is about the problems of disordered and deluded thinking. When I was training, my old trainer warned me against a particular form of disturbed thinking. Furor sanandi, or the madness to heal, is the belief, sometimes found in practitioners—and legislators and providers of services—that they so know the truth of what should be done that they have the right, and indeed the responsibility, to force it on people to make sure that they get better whether they like it or not. The principles will be a protection against furor sanandi.

Lord Ramsbotham: In expressing my strong support for this amendment I salute the tone and temper, as well as the quantity, of the opening speech by the noble Earl, Lord Howe. From the moment we started discussing this very important Bill it was extremely important that we should all agree on the tone and temper of what the importance of this subject represented. I was particularly glad that, on the principle in proposed new paragraph (f), he talked about the need to ensure that, unless justified by the circumstances, the patient is not treated less favourably than a person who is not a patient might be treated in a comparable situation.

We have already drawn attention to two groups who might benefit from this: minority and ethnic communities, and children. There is a third group, which represents an enormous well of psychiatric morbidity in this country, and that is those who are in custody or in the hands of the Prison Service. It is unfortunate that the National Health Service assumed responsibility for mental health, as well as primary healthcare, in prisons only in 2003. Until then no provision for people suffering from mental health problems in prison had been made in the planning of the National Health Service. It is estimated that up to 500 prisoners each year might have needed to be transferred to special mental hospitals, but had to compete with the requirements of people from the community. Very often the prisoner lost out and became worse as a result. That, of course, is a public health issue.

Had this principle been enshrined in the original 1983 Act, and had Prison Service healthcare been

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subject to the National Health Service, the Act would have required that those in prison received—or be capable of receiving—treatment exactly equal to that received by those outside. It is important that this should be included in the principles at the start of this Bill because, if included, it tempers our judgment on many of the other issues in the Bill, which we will be discussing during the course of the amendments.

I should like to add one practical point, though not the one mentioned by the noble Lord, Lord Warner. It is surely axiomatic that the parliamentary draftsmen should work night and day to get a Bill of such importance absolutely correct—perhaps we should add extra parliamentary draftsmen to the task—rather than that we regard that as something to prevent it happening. My practical point concerns the provision of services to the people who require them as a result of this Act. I shall quote two statistics in support of that. In 1999 when this Government introduced a paper about what they called people suffering from dangerous and severe personality disorder—neither term being recognised by psychiatrists—it was said that there were some 2,500 in the country. Four hundred were in special hospitals receiving the treatment they required; 700 were somewhere in the community, possibly receiving some form of treatment; 1,400 were in our prisons, where nobody knew who they were and they were certainly not receiving treatment. That is one end of the spectrum.

At the other end, it was said by the Office for National Statistics in a report published in October 1998 that 70 per cent of all those in prison are suffering from some form of identifiable personality disorder. That is an enormous well. We must remember that all except some 35 of that huge number will come out and join the community. Therefore, we have a responsibility to use their time in prison to do something to help them lead useful and law-abiding lives when they come out. That is why it is so important that, in any Bill discussing mental health, the needs of those in custody are included so that provision is made for them as a result of that Bill, be that in principle or in practice.

Lord Carlile of Berriew: I apologise for my absence from the first few minutes of this debate. It may assist the Committee if, as chair of the Joint Committee that considered the previous draft Mental Health Bill, I make some comments about this amendment, which I support. However, before I start, I welcome the return of the noble Lord, Lord Hunt of Kings Heath, to the Front Bench dealing with health matters. He and I go back a long way. We were dealing with health matters together long before either of us was a Member of this House. I have great respect for his judgment and I hope that I will not be disappointed later this afternoon.

To echo the words of the noble Lord, Lord Rix, I also mourn the passing of Lord Carter. Denis Carter made an invaluable, consistent and persuasive contribution to the Joint Committee’s deliberations. He is missed by a great many of us in this House. He was a good friend to many of us.

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When he comes to respond to this debate, I invite the Minister to confirm that the inclusion of principles in this Bill, and therefore in the amended Mental Health Act 1983, is in order. I understand that it is within the Long Title of the Bill and perfectly in order. Therefore, I hope that we will not hear any more of the purported explanation that it is not possible to introduce principles in this Bill because it amends the Mental Health Act 1983. The constitutional position is irrefutable. It is possible to amend the 1983 Act in this way.

We have heard the argument that it would be difficult for parliamentary draftsmen to draft anything in time to achieve the purpose of the amendment, even if the amendment is imperfect. That is palpable nonsense. I happen to deal a great deal with terrorism legislation, which is a very difficult area. However, most of it is drafted overnight by parliamentary counsel. Several noble Lords in this House are ex-Ministers who have been Cabinet Members or Ministers at a senior level. Ministers frequently instruct parliamentary counsel to draft much more complex legislation than this literally overnight for the next meeting of a Standing Committee. If the amendment is imperfect, it is not far from the mark, and I apprehend that a couple of parliamentary counsel could probably finish it “between lunch and tea”, to coin a phrase.

My next point is a general one about mental health and mental illness. No doubt others in this House have also been in the position of having to face an entry into acute mental health issues concerning those near or dear to us. In my case, it fell far short of compulsory treatment, I am happy to say. For every family and every patient who enters into these issues, it is a very frightening experience. It is like walking into a completely dark cave with, if you are lucky, the slightest suspicion of light at the other side.

The particular problem with mental illness is that many if not most of the people who walk into that cave are highly intelligent. They are capable of understanding the principles surrounding their treatment. They do not all live in a permanent fantasy world. Most of them have long lucid periods in which they understand exactly what is going on. They are aware that they are ill but when they are sectioned they ask the clinicians—such as my noble friend Lord Alderdice, in Belfast—who go to their homes late at night, what their rights are, why they are being detained and what will happen to them. A stark illustration of that was given by the noble Lord, Lord Winston, in his very helpful speech, which put these issues into a human context.

We are talking about intelligent people who must trust the medical services they come into contact with, particularly if those services are compulsory. The dark cave must seem an even gloomier place, if that is possible, when the treatment is compulsory in the sort of circumstances described by the noble Lord, Lord Winston.

Principles in the statute enable the person concerned and those who have his or her best interests at heart to challenge their detention. We talk in this legislation about the liberty of the subject, and of

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detaining subjects who, in many cases, have committed no crime. They are simply severely ill and a threat perhaps to themselves and others.

I recognise that the courts are of course able to take account of codes of practice. Yet the influence of a code of practice upon a court, on a take-account basis, is quite different from the influence upon a court of principles in the statute. For the service user, for professionals applying the service and for the court determining the liberty of the subject, the literal imprimatur of inclusion on the statute is most important.

It may be said that this opens the floodgates of judicial review. That is sometimes said by Governments when they want to avoid putting some principle or other in a Bill. Let us not forget that judicial review requires the permission of the court to proceed to a hearing. In areas such as this, the courts are extremely conscientious to ensure that leave provisions are applied fully.

On the issue of whether practitioners pay attention to the statute and the codes of practice, I agree entirely with my noble friend Lord Alderdice. As a criminal barrister, I have a lot of experience of reading reports by and calling evidence from forensic psychiatrists who speak of the mental state of somebody who has been referred to them. I have seen Sections 37 and 41 of the Mental Health Act 1983 referred to on hundreds of occasions—and parsed in detail by the practitioners on not a few—to determine whether their patient falls within the provisions. It is rare to read in such a medical report or hear in such evidence reference to codes of practice.

A number of considerations persuaded me and the committee that principles should be in the Bill. I want to list a few of these because they are persuasive—indeed, formidable. We were persuaded by the Richardson committee in 1999, chaired by Professor Ginevra Richardson at King’s College, London, which said that principles should be contained in the Bill. We were persuaded by the Mental Health (Care and Treatment) (Scotland) Act 2003, which has already been mentioned. It has principles on its face.

I was at a meeting earlier today—kindly and helpfully arranged by the noble Baroness, Lady Royall of Blaisdon—at which a number of psychiatrists were present. The question was asked: if Scotland can have principles, why cannot we, too? The answer frankly astonished in its risibility—if that is the noun to go with the adjective “risible”. We were told that it would work in Scotland because,

“it is a small place, a village”.

I do not know what our Scottish friends will make of that—and I can see one or two feisty ones in the Committee now. But I reject it, especially because quite a few people live in Scotland who do not come from the village—who go to Scotland and then, unfortunately, become patients. Having the principles in the Bill would provide exactly the certainty that the Scottish Parliament found when it introduced this legislation.

We were persuaded by the Mental Health Alliance, which proposed that principles should be contained in the Bill. We were persuaded by the Minister of State,

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Rosie Winterton, who said in evidence to the committee that she was not opposed in principle to having principles in the Bill. As the noble Lord, Lord Rix, reminded us, in the Government’s response to the committee’s report, she accepted that principles should be included in the Bill. Nothing has changed in reality. I suggest that the burden is firmly on the Government to show beyond any doubt, if they can, why there is now a persuasive and convincing case for principles not to be included in the Bill.

We were persuaded, too, by the British Psychological Society; No Force UK; the Sainsbury Centre for Mental Health, which has done an immense amount of research in this area; Depression Alliance Cymru; Mind, of which the noble Lord, Lord Bragg, is the president, as he said earlier; Mencap; the Council on Tribunals, to which I shall come in a moment; Professor Thorneycroft; and Rowena Daw from the Mental Health Alliance. They all,

“emphasised the very powerful and important signal value of having clear and explicit guiding principles on the face of the Bill which set out the ethical standards that apply when a person is deprived of his liberty and autonomy under the Act”.

There is an absolute paramountcy in producing ethical legislation on this subject, and including principles in the Bill is a prime ethical consideration.

We were persuaded, too, by the Joint Committee on Human Rights which, in its 25th report in November 2002, recommended that principles be clarified in the legislation.

I referred to the Council on Tribunals, whose words are worth reflecting on. It said:

“Since the Code of Practice will not bind the Mental Health Tribunal, it would greatly assist the Tribunal in carrying out its judicial functions under the Act if a clear statement of the guiding principles were specified in the legislation itself”.

We were persuaded by the Mental Health Act Commission, the Bar Council and, as has already been mentioned, the contents of the Children Act 1989 and the Mental Capacity Act 2005, a close cousin of that legislation, both of which have principles included.

I must say that I am also persuaded by everything that I have heard in the Chamber this afternoon. There is a near unanimity on this issue, and I believe that it would be inexplicable to the community at large if the Minister were not to make at the very least a signal concession. With great respect to the noble Lord, Lord Warner—whom, in welcoming the noble Lord, Lord Hunt, we miss from the Front Bench on this Bill—we do not want a compromise. It is not good enough—we want principles included in the Bill. They may be slightly different from what has been proposed, but that is the commitment that we request, and I suggest that it is a perfectly reasonable request.

Lord Walton of Detchant: I, too, welcome most warmly the return of the noble Lord, Lord Hunt, to the Front Bench. No one is more qualified than he, in the light of his experience, to hold this brief. I can assure him that he will have a very exciting life during the passage of this Bill.

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It has been a singularly well informed debate of very high quality. My comments will be quite brief. I have received a flood of letters from professional organisations of every kind stressing the crucial importance of including principles in the Bill. The issue was brilliantly articulated by the noble Earl, Lord Howe. I will quote just one piece of the evidence that I have received; it is from the General Medical Council, of which the noble Lord, Lord Carlile, was once a distinguished lay member.

The council said that it was very,

“disappointed that principles have not been included on the face of the [Bill] (although they are in the draft Code of Practice)”, particularly as”—

the noble Lords, Lord Rix and Lord Carlile, have also said this recently—

“the Government agreed in its response to the report of the Joint Committee on the draft Mental Health Bill 2004, that principles should be set out on the face of the Bill”.

The GMC says that, while it welcomes,

“the principles, including respect for patients, non-discrimination, maximum benefit and minimum restrictions, which are set out in the draft Code of Practice, we maintain that clear, meaningful principles should be included on the face of the legislation itself”.

It believes that,

“this would be a valuable way of providing clarity about the scope and purpose of the Bill, so that those working within its framework or affected by its provisions are clear about the basis on which it is considered legitimate to intervene in the lives of people with a mental disorder”.

I could not put that more clearly. The House should support this amendment very strongly.

Lord Soley: I support the proposal of the noble Lord, Lord Warner, that the Government take this away, look at it, understand the strength of feeling about the principles, but do not go down the road suggested by some on all sides of the House.

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