Mental Health Bill [HL]

moved Amendment No. 1: 1: Before Clause 1, insert the following new Clause— ““Guiding principles: incorporation in the 1983 Act (1) Part 1 of the 1983 Act (application of Act) is amended as follows. (2) Before section 1 (application of Act: ““mental disorder””) insert— ““Guiding principles A1 Application of Act: guiding principles (1) In the discharging of a function by virtue of this Act, a person shall have regard to— (a) the importance of the patient participating as fully as is possible in the discharge of the function; (b) the present and past wishes and feelings of the patient which are relevant to the discharge of the function; (c) the principles of non-discrimination contained in— (i) the Sex Discrimination Act 1975; (ii) the Race Relations Act 1976; (iii) the Disability Discrimination Act 1995; and (iv) the Equality Act 2006. (2) After having regard to the matters mentioned in subsection (1) above, the person shall discharge the function in the manner that involves the minimum restriction on the patient that is necessary in the circumstances.”””” The noble Earl said: My Lords, we begin our Report stage by returning to an issue that occupied us in Committee for several hours and which, of all our Committee debates, perhaps elicited the most support from around the Chamber. I refer of course to the case that I and others put for including a set of key overarching principles in the Mental Health Act. The reasons for wanting to do that are very simple. First, we need a clear statement from Parliament about the values that should inform and guide those tasked with putting the Act into practice. Secondly, we need to reassure the public and those in receipt of mental health services under conditions of compulsion that the values and principles set out in the Act should permeate how those services are provided. Thirdly, we need to give greater clarity and certainty to the courts, which over the years have been asked to rule on numerous challenges to the Mental Health Act on human rights grounds. A view expressed in Committee was that a good code of practice can be more effective in law than can principles in a Bill. Some people believe that practitioners will use the code more readily than the law. The code is indeed indispensable in that sense, but we are dealing with no ordinary legislation. This legislation provides for individuals who have committed no crime to be detained and treated under conditions of compulsion and to be subjected to procedures and treatments that are highly invasive. The inherent three-way tension in the Bill between the rights of patients, public safety and avoiding the excessive and inappropriate use of coercive powers makes it essential to have clarity about the underlying values. Those considerations, above all, have led me and many other noble Lords to conclude that not simply the code of practice but the Act itself must enshrine a set of relevant principles to guide those who interpret and implement it. We know that practitioners regularly refer to the Act itself, and that the Act has a far greater influence on case law than the code of practice. Indeed, case law says that the code of practice can be departed from according to circumstances but that guiding principles are of general applicability. In Committee the Minister made it clear that his objection to including principles in the Bill was not so much constitutional as a worry about their practical impact. I have never concealed my view that the principles are designed to have a practical impact; indeed, that is their whole point. It is clear from the Act as it is now that various principles are already implicit in it. The noble Lord, Lord Hunt, took us through those. I share his view that nothing should be done to the Mental Health Act that might detract from its clarity. I believe that his fears about possible unhelpful conflicts between what is implicit in the Act and what is explicit in the Committee amendment were overdone. Since Committee, I have had the benefit of private discussions with the Minister, for which I thank him. I have taken careful note of the points he made about the possible risks involved in framing an amendment of this nature. I have also borne in mind the Government’s comments in response to the joint scrutiny committee indicating that a limited set of broad and general principles would be acceptable if properly drafted. I see nothing whatever difficult or contentious about the principles for which I argued in Committee. They are all important. Nevertheless, this amendment is briefer and less ambitious than the earlier one. It is designed to enshrine four principles of general applicability, which I hope and believe do not conflict with the interpretation of the Act as it currently exists. They are: patient participation; the importance of having regard to the patient’s past wishes and feelings; the avoidance of unfair discrimination in all its forms; and the principle of least restriction. I argued for all of those in Committee and do not propose to repeat the points I made then. Let me simply say this: the way to make the Mental Health Act work in its revised form is to give patients and service users maximum confidence in it by making them feel that they are still trusted and that their views matter, even if they are, at that very moment, being subjected to coercion. We know from reports by the Mental Health Act Commission that too many patients feel excluded from decision-making and that that feeling of exclusion exacerbates non-compliance. Equally, we have only to think back to our debates on the Mental Capacity Bill to remember that the wishes and feelings of the most vulnerable in society are of central importance to the way in which medical practice is now moving. The Minister may criticise as legally superfluous the part of the amendment dealing with non-discrimination, but even something legally superfluous can have value. It has a declamatory value to a patient who has been on the receiving end of discrimination and prejudice in any of its forms and it also has a powerful symbolic value, reflecting the priorities of Parliament and the feelings of society more generally on mental health law. The fears experienced by black and ethnic-minority communities need to be in our minds most particularly. We know that discrimination towards patients from those communities is commonplace. The consensus in the BME Mental Health Network is that specific measures must be built into the Act to set the parameters of acceptable behaviour by mental health professionals. Finally, there is the principle of minimum restriction. Minimum restriction should apply not only when detention has taken place but also at the earlier assessment stage, when practitioners need to think about whether all other alternatives to compulsion have been exhausted. The principle relates to how the powers under the Act are used; for example, in granting leave of absence or supervised discharge and in the form of treatment given. The way that those powers are used can, for good or ill, profoundly affect the patient’s recovery and his degree of engagement with mental health services in future. People who are subjected to coercive measures undergo dreadful trauma and deep humiliation, often at a considerable social cost. A principle that makes clear that such powers must only ever be used with the utmost care and discretion seems essential. I know that the Minister has given these issues a lot of thought since we debated them in Committee, and I hope that he will give us an answer that reflects those deliberations in a constructive and positive way. The case for the amendment is overwhelming. I beg to move.