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Although noble Lords have referred to what they describe as uncertainty in case law—and there may be disagreements between the Appeal Court and the High Court—I think that we have to have regard to the decision of the judicial committee in the Munjaz case in 2005. It said that it was not sufficient to “have regard to” the code in the sense of being able to deviate from it as a person sees fit. Rather, the people to whom it is addressed must follow its guidance except where they have a cogent reason to depart from it. It went on to say:
“Such a departure may either be in relation to an individual patient or by way of policy, whichever is appropriate and justified in the circumstances”.
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Perhaps I should spell that out a little bit further. The court held that the code does not have the binding effect that a statutory provision or a statutory instrument would have. The code is guidance not instruction. However, the court went on to hold that the,
- “guidance in the code should be given great weight. Although it is not instruction, the code is much more than mere advice, which addressees are free to follow or not as they choose”.
In other words, it is more than something to which those to whom it is addressed must “have regard to”.
The court went on to find that the code contains guidance that should be considered with great care and should be followed unless, as I have already said, there are cogent reasons for not doing so. This sets a high standard which is not easily satisfied. The reasons must be spelt out clearly, logically and convincingly in the court. The court, in reviewing any departures from the code, should scrutinise the reasons given for the departure with the intensity required by the importance and sensitivity of the subject matter.
The court went on to set out the sort of circumstances that could provide cogent reasons for not following the guidance in the code. These included a determination by the High Court that a particular aspect of the code was not legally accurate; that a requirement of the code had been made redundant by subsequent case law legislation; that legal advice had cast a significant doubt on the legal correctness of the guidance; that following the guidance would have involved breaching the patient’s rights under the ECHR; or that a judgment was made that a particular aspect of the guidance should not be followed for a safety or another cogent reason relating to the care and treatment of patients. This was the situation in the Munjaz case. The advice that I have received is that this judgment upholds and establishes what noble Lords would want the status of the code to be.
9.45 pm
The code exists as guidance. It therefore, as I have already said, has the advantage of being more flexible and easier to update and revise. But it has considerable force, and anyone who breaches the code may be challenged to prove to a court that they have good grounds for doing so and that those grounds are defined. For those reasons, I am simply not persuaded that any further advantage is to be gained by changing the words of the Act. We must also be clear about the law of unintended consequences and the actual position of individual professionals and their ability to use their clinical judgment.
I should say to the noble Earl, Lord Howe—this is not a particularly political point—that there has been a debate in the past couple of weeks about the whole question of central direction to the NHS and the discretion of local people and clinicians. I think we all agree that we want to give as much discretion as possible within certain appropriate parameters. In relation to the health service generally, that might be about standards and regulation. In relation to mental health legislation and the issues that we have been
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As the noble and learned Lord, Lord Bingham, said in the judgment to which I have already referred, that would have a “strong centralising effect”. Such a change would also limit the ability of practitioners to develop policies for a particular group of patients that depart from the code. People may well have good reason to depart from the guidance in the code, and there may well be cases in which it is better to do so as a matter of policy. I well understand that this is not an easy issue, but I do believe that the 1983 legislation and the code, as informed by case law, have stood the test of time. We will return to this matter at a later stage, but I hope that noble Lords will think that I have judged it very carefully. There is a very strong argument for retaining the current relationship between the Act and the code of practice.
While noble Lords consider whether they wish to intervene any further and before the noble Baroness responds, I wonder if I may read into Hansard a correction to a reply that I gave to the noble Baroness, Lady Murphy, on Amendment No. 21 on 15 January. I said:
“The Mental Capacity Act provides that these advance decisions do not apply where the person is subject to Part 4 of the Mental Health Act, nor the new Part 4(A) provided for in the Bill. That is because the Mental Health Act provides for circumstances in which a patient with a mental disorder can be treated without consent in order to protect themselves or others”.—[Official Report, 15/1/07; col. 528.]
I am afraid that that was not entirely accurate. Section 28 of the Mental Capacity Act does not allow anything in that Act to provide consent where a patient is subject to Part 4 of the Mental Health Act, and by virtue of Clause 28(5) of the amending Bill in respect of Part 4(A). For example, an attorney cannot consent on behalf of the patient, so a patient who lacks capacity must be treated as if they do not consent. Section 28 of the Mental Capacity Act does not apply to refusals of consent. Therefore, that Act can apply where a refusal is involved. This means that, where a patient has made a valid advance decision refusing treatment, he is treated as refusing consent. This makes no difference to decisions where a patient lacks capacity, as he must also be treated as not consenting.
I apologise to noble Lords for springing this on them at a very late hour. I will of course write to the noble Baroness and other noble Lords, but it was felt important that this was read into Hansard in Committee.
Earl Howe: I am sure that the Committee will be very grateful to the Minister for making that correction. I make a plea for letters written to Members of the Committee to be copied to other Members, because that has not always been happening.
Lord Hunt of Kings Heath: I am sorry to hear that. I have signed an awful lot of letters. I will ensure that
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Baroness Barker: I thank the noble Earl for his intervention. Different Ministers employ different practices with letters. It takes some time to get used to that. For myself and, I think, the noble Earl, it is always helpful to see all the letters that have gone to individual Members.
Lord Hunt of Kings Heath: In my defence, I think that it is four and a half years since I took a Bill through your Lordships' House, so the Committee will have to forgive my learning process here.
Baroness Barker: That just goes to show that practice varies.
I thank noble Lords who have taken part in this debate. It is extremely important. I apologise for detaining the Chamber at this hour, but we must debate the matter.
I listened with great care to what the Minister said. I think that he accused us of using the word semi-detached. I am not sure that that is a phrase that I would use. The important point that noble Lords were trying to convey is that by bringing forward a Bill which, by their own admission, is short and does not deal with a great deal of detail, the Government have chosen to leave substantial and important matters to the code of practice. Perhaps the Minister will concede that when a Bill is based not on principles but a code of practice in it, there is at the very least room for conflicting views on implementation.
I also hope that the Minister will accept that noble Lords on this side of the Chamber in no way want to compromise the flexibility open to practitioners. That is why one of our suggestions is that there should be some flexibility—that is, that some parts of the code should be stated to have statutory force but others may not. There are precedents for that. The code of practice under Section 3 of the Disability Discrimination Act does precisely that.
At the end of four and a half days of debate, I thank the Minister for making a clear statement that the Bill essentially sets out the legal processes for compulsion, not for services. That is why the code of practice is so important. It is different from other codes of practice attached to other legislation, because it deals with human rights concerns: matters such as seclusion and restraint. The Joint Committee on Human Rights has called for the code of practice to have statutory force for that reason. The Minister talked about there being frequent changes to the code of practice. My information is that the code of practice has in fact been changed only once.
Lord Hunt of Kings Heath: Just to correct that, I was referring to the fact that we have flexibility within the primary legislation to allow us to make changes. I think that the noble Baroness is right about the number of times that that has happened, but that does not mean to say that future changes cannot be made. I was
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Baroness Barker: If my information is correct, the procedures for change are set out in Section 118 of the 1983 Act.
Lord Hunt of Kings Heath: Yes.
Baroness Barker: Given that the code of practice deals with matters such as seclusion and restraint and that the right of departure from the code applies to categories of patients—such as those in Ashworth, for example, when considering the period of review of their cases—we are dealing with matters of great importance. The Minister quoted at length from the Munjaz case, but I want to point out to noble Lords that the judgment of the Judicial Committee of your Lordships’ House was by three to two. I could quote from the dissenting speech of the noble and learned Lord, Lord Steyn, who said of the majority view that it was,
- “a lowering of the protection offered by the law to mentally disordered patients and a set-back for a modern and just mental health law”.
Lord Hunt of Kings Heath: With respect, the law is clear and the judgment has been made. It may be by three to two, but that is the decision of the highest court in the land. There can be no doubt about it.
Baroness Barker: Indeed, but the point we on this side of the Committee are seeking to make is that the scope which it gives to individual hospitals to depart from the code in their policies is so wide that it does not offer sufficient protection to patients. That is why we think that the judgment in the Court of Appeal offered better protection and safeguards to patients, and why there ought to be a clearer statement about the status of the code of practice, or the status of parts of it. The Minister spoke of shifting the balance of protection. The Bill as it amends the 1983 Act shifts the balance away from patients and undermines their safeguards, many of which are set out in the code of practice.
The Minister began his response by suggesting that noble Lords on this side of the Committee were wrong to seek to offer rights and protections to one group of patients over another. I go back to the beginning of our debates, to the very first amendment we considered in Committee. This is the only form of healthcare which can be given to people under compulsion. It is the only form of healthcare that they cannot refuse and which can be given in detention outside the judicial system. That is qualitatively different, and it is a difference we have reflected all the way through the four and a half days of our debate. That is why I believe the arguments put forward by the noble Lord are less than convincing.
Clearly this is not a matter on which we will arrive at a decision tonight, but I ask the Minister to reflect on what we have said about the need for flexibility, on
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Lord Hunt of Kings Heath: Of course we will debate the code again on Report, and I will reflect on this debate. I hope that the noble Baroness, too, will reflect on some of the comments I have made about what I think is very clear about the status of the code, particularly the benefit of the degree of flexibility given to individual clinicians. My worry is that if we were to go down the route suggested, it would be quite damaging to individual clinicians in the exercise of their responsibilities.
One point I should have made in my original response is that it will be important for us to look at the wording in the code as it applies on page 7. From my initial reading, I think it needs to better reflect the judgment we have been talking about. I shall be happy to take that matter away also.
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We are consulting on the draft and whether it could be made more explicit about the impact of the 2005 judgment on individual professionals. We are also looking at how we can ensure that practitioners and patients are as aware as possible of the code and its status. I hope that will help.
Baroness Barker: I thank the Minister; that was helpful. We will go away and give due consideration to each other’s views but I believe it is unlikely that we will reach agreement on this matter. The noble Lord referred to giving notice to practitioners; I am seeking to ensure that there is adequate protection for patients and that they understand their rights. We come at this matter from completely different points of view. However, the hour is late and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 10 [Repeals and revocations]:
House resumed: Bill reported with amendments.
- House adjourned at 10.03 pm.
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