Mental Health Bill [HL]

moved Amendment No. 72: 72: Before Clause 40 , insert the following new Clause— ““Code of practice: duty After section 118 of the 1983 Act, insert— ““118A Code of practice: duty (1) It is the duty of a person to have regard to the code if he is acting in relation to a patient and is doing so in a professional capacity. (2) If it appears to a court or tribunal conducting any criminal or civil proceedings that either— (a) a provision in the code, or (b) a failure to comply with the code, is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.”””” The noble Baroness said: My Lords, we return to a matter which I imagine first attracted the attention of the House when the 1983 Act made its passage through Parliament. It certainly attracted the attention of your Lordships as long ago as 15 January 1986, when the House discussed codes of practice and legislation in a debate lead by the noble Lord, Lord Campbell of Alloway, who I am sorry is not in his place. Contributors such as Lord Denning discussed the status of codes of practice in legislation. Codes of practice in the 1983 Act was one to which they turned their attention. The Minister will not be surprised to learn that the amendment before us seeks to impose a legal duty on Mental Health Act professionals to comply with the code of practice of the Mental Health Act 1983, except where it is not possible to do so in the particular circumstances of a case. A familiar argument in Parliament—one that has been made many times—is exactly what is the status of a code of practice that attaches to legislation. I say at the outset of the debate that there is a flaw in the drafting of the amendment, which means that in any case we will need to return to the matter. None the less, it represents an opportunity to discuss an important matter. The draft code of practice, lengthy and substantial though it is, says on page 7 of its introduction: "““The Act does not impose a legal duty to comply with the code, but the people to whom it is addressed should not depart from the guidance contained within it without cogent reasons””." Therein lies the problem. That does not give the code of practice statutory force and it leaves the reasons for departures from it too widely drawn. The Minister will know that codes of practice receive higher status as a result of two things. First, they are issued under Section 7 of the Local Authority Social Services Act 1970. It is always stated at the front of a code of practice issued under that Act that it is. Secondly, primary legislation includes a clear statement about the status of the code of practice; such as, for example, Section 42 of the Mental Capacity Act. However, the code of practice for the Mental Health Act 1983 was not issued under LASA 1970, as it is fondly known, nor does it have an explicit statement about the status of the code of practice. It has been clarified to an extent by case law, but there is conflicting case law about this code of practice. Earlier in Committee, in relation to mental health review tribunals, we discussed the work of practitioners and the things to which they will refer. We argued that they largely make reference to what is in the legislation. The code of practice is necessarily extensive because it rightly contains a great many matters of practice that may change over time, and one would not wish to have to amend primary legislation to reflect those changes. However, there is a significant problem, and it is not just the standard problem of what is in the code of practice and what is in primary legislation. It is that the code of practice is radically different from the legislation. It is founded on a set of guiding principles that are reflected throughout it, but the legislation is not. There are a great many details in the code of practice that offer safeguards to patients, but they are not in the legislation. There is such a discrepancy between the two documents that if one were a patient or a practitioner, it would be difficult to know where one stood and what one’s rights were. The departure from the code of practice as it is set out is far too wide. The noble Lord will correct me if I am wrong, but I think that there does not even have to be a written record of the reasons why a practitioner departed from the code of practice. This is the most important debate about what happens to people as a result of the legislation, and it is a matter we should discuss at considerable length. I hope that we will have more than our routine discussion on matters of this sort. I beg to move.