Mental Health Bill [HL]

moved Amendment No. 85: 85: Before Clause 41 , 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 of failure must be taken into account in deciding the question. (3) The code must be followed unless there is good reason for departing from it in relation to an individual patient and the reasons must be recorded.”””” The noble Baroness said: My Lords, we return to a matter we discussed at considerable length at the tail end of our deliberations in Committee and which noble Lords have continued to discuss since. I refer to the status of the code of practice. It is clear that the inter-relationship between the Bill and the code of practice has an importance in this legislation, perhaps beyond and above many others, given that many other pieces of legislation have attached codes of practice. The central matter is the status of the code in the light of the decision by the Court of Appeal and the overturning of that decision by a committee of your Lordships' House in the case of Munjaz. I do not wish to rehearse all the arguments that were put in Committee. I simply wish to ask the Minister whether he will reflect on his Second Reading speech in which he set out some of the court findings about what would be deemed to be a cogent reason for departing from the code. Will he explain the difference between a cogent reason for an authority to depart from the code as opposed to a good reason, which was the ruling of the previous judgment in the Court of Appeal, because on that matter rests the whole of the status of the code and its relationship with the primary legislation? In Committee, the Minister referred—as does the Munjaz judgment—to the fact that departures from the code of practice can be on a policy or a practice level and they can relate to more than one person. They can relate to groups of individuals, as was the case at Ashworth Hospital and its policy of using seclusion and restraint. In the light of that judgment, could individual hospitals make substantial departures from the code of practice, however it turns out to be in the light of discussions on the primary legislation? We need to understand those key facts before we can let this measure leave your Lordships' House. They will be of key significance to the interpretation of many aspects of the legislation and the code of practice. At the beginning of our deliberations on the Bill, we talked about principles and the purpose of the legislation. At the tail end, we are talking about the role of the legislation and how it will be interpreted. I beg to move.