Mental Health Bill [HL]

My Lords, in Committee I raised the question of what mental health legislation is for. I return to that matter today. It goes to the heart of why we need principles in the Bill. Like the noble Earl, Lord Howe, I have been involved in detailed discussions since Committee about whether it is possible or desirable to include principles in the Bill. I have gone away from every meeting trying to answer the question of what difference it would make in practice. The answer came to me after I listened to two people. The first person was Professor Appleby, the Government’s mental health adviser. On 30 January, in a meeting with a number of all-parliamentary groups, he talked about the role of mental health legislation. He said that it is possible to take one of two approaches: either you believe that mental health legislation is about enshrining rights and responsibilities—in which case practitioners are looking over their shoulders all the time to make sure that what they are doing is correct—or you believe that there should be a limited role for the law and that practitioners should be allowed to carry on and get on with the job of making people better. Those were perhaps overstated positions but they clarified for me the role of mental health legislation. It is about setting out, using the best knowledge available to us, what we believe is the ethical basis of legislation. This legislation governs the only form of treatment that can be given to a person compulsorily against their wishes—the only detention outwith the criminal justice system. The second person who gave me some clarity on the matter was the Minister. In our discussions in Committee he talked about the 1983 Act. He said that it already contains overriding principles, "““albeit that they are inherent in its provisions and not separately spelled out””.—[Official Report, 8/01/07; col. 47.]" He went on to list six, one of which is the principle of least restriction. Twenty-three years on, arguments are still raging about whether that principle is enshrined in that legislation, and, if so, to what parts of mental health practice it applies. It is no wonder that practitioners look over their shoulders. There is a lack of clarity about the law. I have listened very carefully, not least to the noble Lord, Lord Soley, who in Committee talked very convincingly about dealing as an MP with very difficult cases of people with a mental illness causing extreme problems for other people. However, I have concluded, for the reasons I gave, that unless we have not only a clear statement of principles in the legislation but also clarity about how the legislation and the code of practice work together, we will condemn practitioners and people subject to this law to continuing confusion. That, I believe, would be wrong when we have the chance before us to shed light on the matter. My second point is, again, one that I raised in Committee. If we accept that there should be principles, what should they be? The noble Earl, Lord Howe, has explained why this time around the amendment, which stands in both our names, has been changed to accommodate some of the problems that parliamentary counsel outlined. I accept that we had to change the provisions, just as those of us who worked on the Mental Capacity Act did when we were trying to achieve the same ends. Parliamentary counsel explained that we could not use the standard equalities and diversity format that one would use elsewhere. I want to return to the principles in the code of practice and to take issue with how some are written. The participation principle in the code of practice talks about care or treatment being provided in sucha way as to promote patient participation, self-determination and personal responsibility to the greatest practicable degree. It is not clear exactly what that means. In the ““respect for others”” principle, the code talks about people being treated with respect and the respect for wishes and feelings so far as they are known. At a later stage we will talk about the efforts which should be made to record a patient’s wishes and feelings and how practitioners need to take account of them. The principle of minimum restriction in the code of practice is ambiguous. It talks about restriction and keeping the use of compulsory powers to the minimum necessary—““the minimum necessary”” to do what? I hope that the Minister will accept that there is a case not only for including some principles in the Bill but also for an explicit statement about how they will interact with principles in the code of practice. As the noble Earl, Lord Howe, said, the reason for that is not pedantry. It is perhaps one of the most important decisions we can take. The aim is to end up with legislation that not only appeals in that it has a principled nature but in practice offers security and clarity to those who will be subject to it and those who have to operate it, whose professional reputation rests on it. I believe that we have come to, if not a perfect compromise, a way forward and I very much hope that the Minister will accept that. As we have said, we have an opportunity that comes but very rarely to Parliament to make legislation that will affect the lives of many vulnerable people. I hope that in doing so, we will pass legislation that is fit for purpose.