Mental Health Bill [HL]

My Lords, it is always a pleasure to listen to an intervention from the noble Lord, Lord Campbell of Alloway. Some noble Lords will have enjoyed his many interventions on the question of codes of practice and Section 7 statutory guidance with a great deal of interest. I welcome the constructive comments noble Lords have made this afternoon. In essence, we are debating a compromise. Inevitably, compromises do not completely commend themselves to all noble Lords. It is, however, good that we have reached an accommodation on the issue of principles. I have always thought that, if we were able to do so, that would ensure, as the noble Earl, Lord Howe, said, a very important message is being given out regarding parliamentary scrutiny and the importance that Parliament places on the principles that appear in the amendment. That is a very important signal, and I thank all noble Lords for it. The noble Earl, Lord Howe, invites me to give a guarantee that the principles will not be watered down and that we will not use nebulous language. I will try to do that. I make it clear that we wish these principles to be absolutely transparent and to mean something to the practitioners who have to operate what is, in every sense, difficult legislation in difficult circumstances. I will come on to talk about how further consultation will take place, but I want to reassure the noble Earl, Lord Howe, that we wish the code to be as clear as possible and to embrace the principles. We are taking note of all comments made in the discussion on legislation. We have a draft code, but it is very much work in progress. I can give an absolute assurance to noble Lords that everything stated in our debates will inform the production of the draft code when it comes up for full parliamentary scrutiny. I agree with the analysis of the noble Earl, Lord Howe, about the full range of options. He then went through a number of the principles contained within the amendment and he was absolutely right. I thank the noble Lord, Lord Alderdice, for his acknowledgment of the work that has been done. I understand that it does not meet all that he wants to be met. There is no more to it than the explanation I have given at all stages of the Bill as to why the principles cannot be put in the Bill in the way he wants. There is no hidden agenda. He said, absolutely rightly, that lawyers act under the instructions of their client. But when the advice given to the Government on the matter has been so clear, the last thing we want to do, in the light of everything noble Lords have said about the need for clarity, is to cause confusion regarding interpretation. That is the only reason we were not able to accept the kind of amendments which the noble Lord would have wished to see. The proposed provision, "““the efficient use of resources, and ... the equitable distribution of services””," means merely that in carrying out functions under the Act practitioners, should consider the efficient use of resources and the equitable distribution of services. This line in the amendment ensures that these broader aspects of service delivery are considered as well as the more individualistic considerations that are to be addressed in the statement of principles. When preparing the statement of principles, the Secretary of State should draft it in such a way that, where she considers it desirable, it addresses the efficient use of resources and the equitable distribution of services. The noble Baroness, Lady Barker, asked whether there is a preference for the list of fundamental matters. There is none. I listened with a great deal of interest to the noble Lord, Lord Ramsbotham, who has such wide experience in relation to prisoners. The Act deals with patients transferred from prison to hospital for treatment; it does not cover treatment for prisoners with a mental disorder where that treatment is not required to be given under compulsion. The issue raised by the noble Lord therefore does not arise in the principles relating to the Act, but his general point is well made. I have been very clear that part of the health service’s general role is to treat prisoners, and the changes that have been made to its responsibility are to be greatly encouraged and welcomed. I have also referred to our debates on prisoners waiting for a place in NHS institutions. We have invested more resources. There is clearly a huge challenge here, which I do not underestimate; but we are at one with the noble Lord on the crucial importance of this area. We must ensure that there is continuity of service when prisoners are discharged. Given the scale of mental health issues among prisoners, it is vital that there is continuity of service and that the health service is geared to meeting the health needs of former prisoners. Again, the active intervention and involvement of the National Health Service is very important in that matter. On the question of whether the Secretary of State’s decisions on what the principles are are subject to judicial review, my advice is that they are. The noble Baroness, Lady Barker, asked again about the status of the code and whether the principles can be departed from. The answer is yes, but only where there are cogent reasons for doing so that are demonstrably justifiable. That is consistent with the decision being proposed in relation to Munjaz. I pay tribute to the noble Baroness for mentioning Scotland again. I will write to her in some detail, if I may, about the specific issues that she raises, but the general point is that the principles apply to patients who are transferred using the cross-border arrangements once they are under the English Act and to all functions dealt with in the code. She raised a rather more general issue when she said that, where we are dealing with people’s liberty, there should be no separate approach between England and Scotland. I understand what she is saying, but in a sense we are governed by devolution legislation and must act within those parameters. She has signalled the fact that, in those circumstances, it is very important that, first, there is clarity and transparency in cross-border arrangements and that, secondly, whatever the different approaches taken by Scotland, England and Wales to mental health legislation, we must ensure that there is as much collaboration as possible. It is also very important that we learn lessons from the introduction and implementation of different legislation. Noble Lords have pointed out to me the benefits of Scotland’s approach to its legislation, but I would say to them that it is also important to look at some of the practical challenges that are being faced in Scotland; I do not want to repeat the various letters that have appeared in the medical press recently from Scottish practitioners about some of the issues that they face. I do not seek to criticise legislation in Scotland, but I do think that, whether we are talking about English legislation or Scottish legislation, we need to be aware of some of the impact of our legislation on the practical, day-to-day business of practitioners. In a sense, that brings us back to the importance of the code of practice in ensuring as much clarity as possible in giving advice and guidance to practitioners. The noble Baroness, Lady Barker, asked me about Section 118 and whether it ought to be subject to the affirmative or negative procedure. I was surprised that we did not have an amendment on that. As she suggested, it is currently under the negative procedure, and the Delegated Powers Committee did not recommend that that should be changed to the affirmative procedure. When the code of practice is laid before Parliament we may well have a debate on it, and I would welcome such an important debate. The very fact that it is subject to parliamentary scrutiny emphasises the importance of the code of practice.