Mental Health Bill [HL]

My Lords, we come, almost at the end of our deliberations on Report, to a most important matter. As the noble Baroness, Lady Barker, and the noble Lord, Lord Patel, have stated, the inter-relationship between the Act and the code is critical in terms of confidence about how the legislation will be carried out in practice, and the advice and guidance that is given to practitioners in exercising what are often difficult judgments. We need to acknowledge that, legislate as we do, practitioners in the field need clarity, as we have all agreed. Equally, it is also important that professionals have the confidence to exercise their professional judgment and discretion within the parameters of the Act, but with sufficient flexibility too. In a sense, the code enables us to have that discretion and professional judgment but within the clear parameters set down by the legislation. I pay tribute, as I have done before, to the architects of the 1983 legislation. The noble Lord, Lord Patel, referred to the three occasions on which the code has been amended since the 1983 Act came into being. He may say that it should have happened more often, but it clearly shows that the code is not set in stone. We have a mechanism for making adjustments to it in the light of experience. There is also clear parliamentary scrutiny of the code and any changes to be made to it. Before responding to a number of points that were made, perhaps I may correct a statement that I made in Committee on 29 January in relation to the code of practice. It may be found at col. 115 of Hansard. In setting out the facts of the judgment in R (on the application of Munjaz) v Mersey Care National Health Service Trust 2005, I stated that the judgment set out the circumstances which could provide cogent reasons for not following the guidance in the code. While I stand by the correctness of what I said, I now understand that the reasons are given in the interpretation of the judgment in the 10th edition of Richard Jones’ Mental Health Act Manual, published by Thomson Sweet & Maxwell. I apologise for this misattribution, and wish to put the record straight. The amendment would spell out the status of the Mental Health Act code of practice in the legislation. My problem with it is that it would also raise its status far closer to that of directions. It also provides that the reasons for any departure from the code must be recorded. The amendment would have the effect of overturning the position established by the House of Lords in the case of Munjaz and would effectively reinstate the Court of Appeal’s overruled view on the matter: that the code must be followed and may be departed from only in relation to an individual patient. I accept that noble Lords, in proposing the amendment, wish to ensure that patients are treated effectively and consistently in accordance with the guidance in the code, but this amendment is not the right way of achieving it. We are considering this matter carefully and will continue to do so. We understand the advantages of placing the status of the code in legislation. That is why, as part of the promised amendment on principles, I will bring forward at Third Reading a provision setting out the status of the code, but I must make it clear that it will not be the restrictive status proposed in the amendment. Rather, it will be a status consistent with the judgment of the Appellate Committee of this House in Munjaz. This is already implicit in the Act. As I said to noble Lords in Committee, we will strengthen the introduction to the code. I readily accept that the current introduction and the draft introductiondo not give sufficient guidance and clarity to professionals on the status of the code of practice. Therefore, in addition to introducing an amendment on the status of the code to be put in the Bill, we will clearly need to look carefully at the drafting of the code of practice in relation to its status. I am happy to share that with noble Lords who have taken part in this debate so that we may have the benefit of their advice and wisdom. It is clear that people must understand what the code means in practice and that the people to whomit is addressed must have regard to it. This was confirmed by the Appellate Committee of your Lordships' House. The committee said that it was not sufficient merely to have regard to the code, in the sense of being able to deviate from it as a person sees fit, but, rather, that the people to whom it is addressed must follow its guidance except where they have cogent reasons to depart from it. The dictionary definition of ““cogent”” is ““convincing and compelling””. I am not sure how much further I can go on that. It is pretty clear that one has to have a jolly good reason for departing from it. The requirement that cogent reasons must be shown for any departure sets a high standard which is not easily satisfied. A court, in reviewing any departures from the code, should scrutinise the reasons given for the departure with the intensity which the importance and sensitivity of the subject matter require. The problem with the amendment is that it would raise the status of the code beyond what is either necessary or sensible. It would have the effect of limiting the flexibility of practitioners to develop local policies to reflect the needs of particular groups of patients. It might run the risk of ossifying professional practice and make it harder for patients to know how they are likely to be treated. I accept that a delicate balance has to be struck between the principles enunciated in the Bill and the Act and the discretion that needs to be given to practitioners in the code of practice. I think that we would all agree that professionals need discretion, but they need to be discreet within the principles enunciated in the Act and in the code of practice. Equally, we do not want to reach a position in which professionals are leftin too much of a straitjacket when using their professional discretion. I do not pretend that this is easy or that these matters are easy for a professional on the ground. These are difficult matters and it is a difficult judgment, but we happen to believe—and we believe that we are confirmed by the decision of your Lordships' House in the Appellate Committee—that we have the balance right. I also believe that it is very important to recognise the comments made by the noble and learned Lord, Lord Hope, when he discussed the question whether Ashworth was free to depart from the code as a matter of policy, and not just in relation to individual patients or groups of patients. The noble and learned Lord could see no reason why it should not be able to do so, "““provided of course that it can demonstrate that it had a good reason for doing so””." He also referred to the, "““obvious danger that, if the Code could be departed from in the case of individual patients or groups of patients where no written guidance was available, decisions to do this would be open to attack as being arbitrary because their consequences were unregulated and unpredictable””." There is no question that practitioners should have proper regard to the code of practice and keep records of significant departures from the guidance in the code. However, I worry about the implicationsof the amendment, which could increase the level of bureaucracy requiring practitioners to consider all aspects of the code in respect of each individual patient and recording any reason for departingfrom it. We do not favour an attempt to raise the status of the code any further towards that of directions. It is guidance—important guidance, but guidance none the less. Overall, any such change risks reducing the flexibility of the operation of the Act. The current position is that while the code gives guidance, it leaves professional discretion on the interpretation of the statutory provision to the professionals responsible for detaining and treating patients and allows, when there are cogent reasons to do so, the policies which depart from the guidance in the code to be developed in a way which provides transparency and clarity for patients and professionals. I understand how important it is to get this right and wish to give as much clarity as possible to noble Lords and practitioners in the field. That is why, while I do not accept the amendment proposed by the noble Baroness, we will propose an amendment at Third Reading, as part of the amendment on principles, which I hope will make it clear that the status of the code as set out in Munjaz is brought into legislation.