Mental Health Bill [HL]

My Lords, I express my personal and very considerable appreciation for the Minister’s constructive approach to this important issue following our debates at earlier stages of the Bill and for the efforts that he has personally made in helping to frame the amendment now before us. I also thank him for facilitating discussions between noble Lords on this side of the House and the Cross Benches and members of the Bill team over the past two weeks, and for his willingness to allow some of our suggestions to be incorporated in the wording of the amendment. At the start of Committee I frankly did not think that we would reach this position. Without the Minister’s commitment that simply could not have happened. I am sure that the Minister will not take it amiss if I say that what we have here is not perfection. Perfection, from our point of view, would have been a set of clear, overarching principles in the Mental Health Act. For reasons that we know about—mainly practical and legal ones—the Government did not feel that this idea could be taken forward. I was sorry about that but, given that this was how they felt, this amendment represents a more than acceptable second best, which should achieve much of what we were hoping to achieve through our amendment in Committee. In particular, it demonstrates to service users and professionals in mental healthcare that Parliament has put its imprint not only on the code, which is, of course, important, but also on the Act itself as regards the basic principles that should govern it and be read into it. It is a message that Parliament itself rather than officials, managers or doctors, regards the subject headings set out in proposed new subsection (2B) of the amendment as matters of universal applicability in the way that the Mental Health Act is to be interpreted and implemented. That signal should be understood within the framework of our earlier debates, when noble Lords spoke of the values that should permeate decisions and actions taken under the Act and what those values should be. I hope that the Minister will agree with that broad analysis. From his remarks, I believe that he does. If we are to embrace this amendment, we need to do so with our eyes open. Although the Secretary of State is bound by the amendment to act in certain ways, we can see that much of what happens will depend on his or her own opinions and decisions. That aspect of the drafting is less tight than I would have liked; nevertheless, we should not overlook the considerable significance of subsection (2D), which expressly binds the code of practice and the implementation of its principles into the Act. That is a major plus. Perhaps I may put some brief questions to the Minister on the detail; if he cannot reply today, I would appreciate it if he could do so in writing later. Can he confirm that when the principles in the code are drawn up, the language used will reflect the intention and the underlying sense of each paragraph in subsection (2B)? We do not want to see any watering down of the principles when they are translated into the code; for example, the ““wishes and feelings”” of patients should include the past and present wishes and feelings, as the amendment specifies, and should not be taken to mean something more general or nebulous. ““Minimising restrictions on liberty”” should encompass the inclusion of a preference for informal care over compulsory care unless compulsion is absolutely necessary in the circumstances of the case. It should include also the idea of least restriction, once a person has been compulsorily detained. I welcome the principle of, "““involvement of patients in planning, developing and delivering care and treatment appropriate to them””," but we need to be sure that, when it is incorporated into the code, it conveys what I hope the Government intend: that the individual patient should, as a matter of course, be consulted on the care and treatment that is right for him and his opinions should be respected. The ““avoidance of unlawful discrimination”” should not be taken simply as prohibition of an obvious, negative kind, but rather as a positive rallying call for respect and equal treatment of all patients, no matter what their characteristics or background may be. This principle is about banishing the culture of stereotyping in mental health care and about promoting in its place a culture of respect and confidence. Proposed paragraph (e) refers to the ““effectiveness of treatment””. This idea is somewhat condensed. I would like to think—and perhaps the Minister could comment—that it opened up the concept of maximum benefit to the patient, which our original amendment specified. In so far as there is an interaction between this principle and the principle of respect for the patient’s wishes and feelings, the concept of maximum benefit would appear to be covered. One of the principles that we had hoped to be included, but that is not there, is the need to consider the full range of options available in the patient’s case, both during assessment and after. Can the Minister confirm my understanding, arising out of helpful discussions with officials, that this principle is effectively covered by considering three principles together: the need to respect the patient’s wishes and feelings, the principle of minimum restriction and the effectiveness of the treatment considered? If one were to overlay those principles with the Secretary of State’s duty to ensure the equitable distribution of services, the substantive point at issue would seem to have been addressed. If that is so, will the Minister undertake to ensure that that is made explicit in the code? The amendment refers also to the Secretary of State’s duty to, "““have regard to the desirability of ensuring … the efficient use of resources””." I am sure that none of us here would deny her that responsibility in the general exercise of her functions. However, one could envisage circumstances whereby the need to make efficient use of resources could be used as a reason for diluting or even negating the practical force of the main principles. That would be highly undesirable. Can the Minister explain what is intended by the ““efficient use of resources”” in that context? I hope that the Minister can also confirm that the principles foreshadowed and signposted by this amendment will be the only ones to be contained in the code and that no extraneous ones will creep in. Does he accept that the amendment confers a special status on to the principles set out in the code such that any departure from them would be unlawful and therefore, in practice, unthinkable? As this may be the last opportunity to do so, I end by expressing my appreciation for the courtesy and helpfulness of the Minister throughout the passage of the Bill. He has never been less than utterly straightforward and equable, even when, regrettably, we had to disagree. I thank him for that. If he will allow me to say so, I cannot help being fearful that the same spirit of open and constructive engagement may not be carried over into the debates in another place. Last week the Minister’s right honourable friend Rosie Winterton made several public pronouncements about the effect of the amendments carried by your Lordships’ House that were, to be frank, grossly misleading. I stop short of saying that they were wilfully misleading because I have no grounds for going that far, but the Minister was certainly ill briefed. This is not the moment to issue a line-by-line rebuttal of what she said, but I hope that it will be in order for me to do that by way of a letter before the Bill has its Second Reading in the Commons.