Mental Health Bill [HL]

moved Amendment No. 1: 1: After Clause 9 , insert the following new Clause— ““Fundamental principles The fundamental principles After section 118(2) of the 1983 Act (code of practice) insert— ““(2A) The code shall include a statement of the principles which the Secretary of State thinks should inform decisions under this Act. (2B) In preparing the statement of principles the Secretary of State shall, in particular, ensure that each of the following matters is addressed— (a) respect for patients’ past and present wishes and feelings, (b) minimising restrictions on liberty, (c) involvement of patients in planning, developing and delivering care and treatment appropriate to them, (d) avoidance of unlawful discrimination, (e) effectiveness of treatment, (f) views of carers and other interested parties, (g) patient wellbeing and safety, and (h) public safety. (2C) The Secretary of State shall also have regard to the desirability of ensuring— (a) the efficient use of resources, and (b) the equitable distribution of services. (2D) In performing functions under this Act persons mentioned in subsection (1)(a) or (b) shall have regard to the code.”””” The noble Lord said: My Lords, the question of how the Government should express principles to inform practitioners making decisions under the 1983 Act as amended by the Bill has dominated our discussions and caused a great deal of interest, as evidenced this afternoon. On Report I said that I would introduce an amendment at Third Reading to address the concerns raised. I pay tribute to noble Lords on all sides of the House who have taken part in discussions on this. I very much appreciate their co-operation and help. We first opened our discussions on the Bill in Committee on Monday 8 January. Understandably, the question of principles is very important. The Bill has been the subject of a great deal of debate both in your Lordships' House and in the community, among mental health patients and stakeholders, and it is not surprising that, with so many varied views about the legislation, the principles under which it will operate have been a matter of great interest and concern. As noble Lords will know, the Government have no argument, and have not had any argument, with noble Lords who emphasised the importance of transparent principles to govern the behaviour of professionals. The problem all along for the Government was the technical difficulty of grafting new principles on to existing legislation, in contrast to the approach in Scotland, for example, where they started from scratch, or the ““long”” Bill, which we have discussed often during the passage of this Bill. Our amendment responds to the technical problems in noble Lords’ original amendments, and I hope that it answers the question posed by the noble Earl, Lord Howe, when he opened the debate on Report. The noble Earl explained that his amendment would provide for a clear statement from Parliament about the values that should inform and guide practitioners. This amendment achieves that. The noble Baroness, Lady Barker, asked that we had a clear explanation of how the code of practice and the legislation work together so that practitioners were not confused. I readily agree with her that it is very important that practitioners who will work under this legislation and the code of practice are very clear on what is required of them. The request for transparency is clearly very important, which is why our amendment also relates to the interrelationship between the legislation and the code of practice. Our amendment places in statute a new requirement that the Secretary of State and Welsh Ministers include a statement of principles in the respective codes of practice for England and Wales, which should inform decision-making under the 1983 Act. The amendment legally obliges the Secretary of State and the Welsh Ministers to address certain fundamental issues in preparing this statement of principles. It also enshrines in legislation the duty of practitioners to have regard to the code in performing their functions under the Act, as elaborated by the judicial arm of this House in the case of Munjaz. We listened to the debate on this issue very carefully. It is clear that there are certain values that this House regards as fundamental in the exercise of powers under the Act. We share those views and have given careful thought to those fundamental values and how they might be most effectively brought to bear in the context of the Act. We have included them as matters that must be addressed in preparing a statement of principles to be included in the code of practice for England and Wales. That will ensure that the key values expressed in Committee and on Report are given effect. I need not go through the entire list of issues, as they are self-explanatory, but perhaps I might comment on two of them. In Committee, the noble Lord, Lord Williamson, drew attention to the importance of patients participating as fully as possible. Indeed, much of the debates around principles focused on the benefits and desirability of patient autonomy. That is why the fundamental issues include respect for patients and involvement of patients in planning, developing and delivering care and treatment appropriate to themselves. That will support the best practice of considering the past and present wishes and feelings of patients and treating them with dignity to improve their well-being. We listened to the concerns raised in the House, including those of the noble Lords, Lord Adebowale, Lord Bragg and Lord Patel of Bradford, regarding the treatment of black and minority-ethnic groups. A number of noble Lords have pointed it out at various stages of the Bill, and we agree that there is evidence of disproportionate use of detention, seclusion and restraint for patients from a black and minority-ethnic background. As I stated in previous debates, we are addressing this issue through Delivering Race Equality, in England, and the Race Equality Action Plan, in Wales. But we will include a requirement to address unlawful discrimination. That is up front in the legislation as a fundamental matter that must be addressed in the principles to guide practitioners. We have listened carefully to Peers’ concerns regarding the legal effect of these principles and the code generally, in particular those of the noble Lord, Lord Carlile. As I said, the status of the code has been reviewed by the judicial arm of this House in the case of Munjaz. In the light of that case, no one should be under any illusion that principles expressed in the code can lightly be ignored. They must be properly and carefully considered. We have given effect to this in the duty of practitioners to have regard to the code, a duty that must and will continue to be read in the light of Munjaz. We support the idea of principles and we believe that the implementation of the legislation should be undertaken in a principled manner, but there are serious difficulties with grafting new principles on to existing legislation. That is why we think that the code of practice is the best vehicle to convey those principles to inform practitioners’ decisions under the Act. I hope that this amendment convinces noble Lords that we are serious and that we agree with the sentiment behind the amendments tabled in Committee and on Report. We have listened carefully to noble Lords. I hope that we reach a satisfactory conclusion of very constructive debates in your Lordships’ House and outside on the critical area of principles. I beg to move.