Mental Health Bill [HL]

My Lords, I havealready alluded to the Department of Health’s quite unsatisfactory approach to the mental health code of practice in our debate on Amendment No. 71A. Therefore, I will make only a brief contribution to this debate. Many times in our debates the Minister has responded to calls for statutory measures by telling us of the advantages, particularly in terms of flexibility, of the code of practice. The legendary flexibility of the code is sometimes seen to be just that—a legend. We have had three editions in 20 years, and the Mental Health Act Commission currently produces a guidance note for services outlining the parts of the book that practitioners should annotate to stay on the right side of the past six years’ worth of case law. More importantly, the code is being promoted by the Government in these debates as a way not only to make services work better but to ensure that they work to what might be regarded as minimum standards of practice and legality under human rights law. We are asked to accept this role for the code, while it is also made explicit that it has no statutory force and may be departed from when any service believes that it has a cogent reason to do so. I echo the sentiments of the noble Baroness, Lady Barker, on cogent reasons and the explanation for that. Your Lordships may be surprised to learn that I am quite sympathetic to the argument that the code is the most appropriate means of striking a balance between the need for certainty and predictability in law, and the flexibility that may be required over time or may be required to deal with just those sorts of difficult cases that would make bad law. The code needs to be supported to take this role on board. Departures from it should be exceptional, not routine, and should be justified and recorded. The amendment sets out a modest and reasonable means to make the code work better, and I entirely support it.