Mental Health Bill [HL]

As the noble Baroness, Lady Barker, observed, we have reached one of the most significant amendments in the Committee’s proceedings. I endorse and agree with all she said. I shall re-emphasise a couple of points. A great deal hangs on the code of practice in what we have been debating. If we are to know or be confident that the human rights of patients are to be safeguarded by clinicians and other professionals in the correct and conscientious way that we all believe in and if patients and their carers are to know and be confident about the manner in which they can expect to be treated under the law, the code occupies centre stage in our view of how the provisions of the Bill will play out. The problem with the code is that it is semi-detached from the primary legislation. That semi-detachment allows too great a scope for clinicians to depart from it in ways of their own choosing. The Minister may say, correctly, that there is helpful case law in this area, which has established that the current code is more than mere advice and that the people to whom it is addressed must have regard to it. However, we have heard from the Minister throughout the Committee proceedings when resisting the amendments that the code of practice rather than the Bill is the right place for certain issues—sometimes very significant issues—to be covered. If that is so, and if so much rests on the effective operation of the code, we need surely to look at ways to make explicit reference in the Bill to the code’s standing and importance. As it is, the code relating to the 1983 Act is not specifically referred to in the legislation; nor is it issued under Section 7 of the Local Authority Social Services Act. As the noble Baroness rightly said, either of those things would have given it so-called higher status. It is interesting that in the Munjaz case of 2003-05 the Court of Appeal and the House of Lords came to different conclusions about the code's status. That fact speaks volumes about the confusion that exists. So, without an amendment of the kind proposed, there will be no benchmark against which a patient can reliably measure the standard of care he receives under the Act. Hospitals will not necessarily act consistently with each other and we will find rules and policy being formulated in individual trusts in different ways. I hope that the Minister will be receptive to the amendment, or, if not to the amendment, then at least to the purpose of it.