Mental Health Bill [HL]

This has been a short though very interesting debate. As both the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, have suggested, it is appropriate that we end our deliberations in Committee coming back to much the same debate that has taken place. I want to come on to this question of the balance between what should be in the Act of Parliament and what should be in the code. I do not recognise the term ““semi-detached”” in terms of the relation between the code and the legislation. I pay tribute to those responsible for the 1983 legislation. I would argue that the very construct of that legislation allows for some flexibility in terms of what is in the code of practice so that instead of continually coming back to amend primary legislation—we know how infrequent is the passage of mental health legislation—you have a code of practice which can be changed from time to time, but which is consistent and underpinned by the legislation. So I do not see it as being semi-detached. I see it as an endorsement of the way the legislation has been framed. I fully accept that we have had this debate. Noble Lords from all around the Chamber have sought to ensure, because of their genuine concerns about service provision, particularly in the circumstances of mental health legislation, that the services provided in the NHS are up to the standard that we and they all wish to see. I can see the temptation to amend legislation to try to ensure that that happens. Noble Lords know that I do not agree with that approach. I think that the Bill is essentially about legal processes for compulsory powers; it is not about service provision. I think that there is a genuine problem of seeking to give patients rights to certain health services that are not given to other patients of the health service. We have a duty under the NHS Act 1977, which requires the Secretary of State in England to continue the promotion of a comprehensive health service designed to secure improvement in the physical and mental health of the people and the prevention, diagnosis and treatment of illness, with a duty to provide or secure the effective provision of services in accordance with that Act. I ask noble Lords to consider the implications of simply taking mental health services or perhaps, on another day, palliative care or cancer services. You cannot, in my judgment, use legislation to determine the actual services to be provided throughout the NHS. Due to that and the importance of, as I have said, underpinning the legislation, we have the code of practice. 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””." 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. 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 debating, we believe that the code of practice sets a very strong framework that is backed up by the judgment of the Judicial Committee of the House of Lords. It must, however, allow some professional discretion to interpret the statutory provision because those professionals are responsible for detaining and treating patients. I urge noble Lords to think of the consequences of shifting that balance any further. 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.