Mental Health Bill [HL]

My Lords, I am grateful to those noble Lords who have spoken in this important debate. I say to the noble Baroness, Lady Barker, that from the start of our debate there have clearly been some fundamental disagreements. The purpose of our deliberations has been, in a sense, to try to find a way through in order to ensure that those issues are fully debated. In a considerable number of cases, changes have been made to the legislation to reflect some of those concerns. I do not agree with the noble Baroness about the shift of balance from the individual patient to the clinician. The safeguards contained within the legislation are strong and will ensure that that does not happen. I accept that, in the context of the law, the practice of practitioners and clinicians will be critical. It is incumbent on the Department of Health to ensure as effective a programme as possible, so that clinicians understand the law as it has been amended and the practice that is required. The Bill is well intentioned and has been improved. The agreement that we reached in your Lordships’ House on how to ensure that principles appeared on the face of the Bill, albeit linked to the code of practice, was an acceptable way of ensuring that the legislation was as practicable as possible and reflected the clear desire of many stakeholders to see principles on the face of the Bill. That is why I very much welcome the noble Baroness’s amendment, which seeks to improve and enhance that statement of principles. There has been some debate about why in some jurisdictions it is possible to put exclusions on the face of legislation and why in others it is not. That is rather like our debates on House of Lords reform, where it is possible to find legislatures that have different experiences. It is possible to trawl the world to find examples that support one’s own case—for instance, in a province of Canada it is not the norm to have such exclusions—but, frankly, that is not a helpful exercise, particularly at this very late stage of debate. Jurisdictions are different. The strong advice that we have received is that what is proposed would not be considered good law in the tradition of this Parliament and its jurisdiction because of the risk,to which I have referred, of confusion and misinterpretation by professionals. One of the key points in our debates has been to ensure that professionals in the field, who deal with incredibly difficult challenges on a daily basis, are as clear as possible as to what the law is. The noble Earl, Lord Howe, and the noble Baroness, Lady Barker, referred to the advice and guidance that would be given to practitioners in this area. This is already touched on in the illustrative code for England. Paragraph 1B.5 states: "““Disordered beliefs are sometimes symptoms of clinically recognised mental disorders, but in the absence of such a disorder no-one may be considered to be mentally disordered solely because of their political or cultural beliefs, values or opinions … A person’s sexual orientation does not, by itself, indicate the presence or absence of mental disorder; nor does involvement, or likely involvement, in illegal, anti-social or ‘immoral’ behaviour. Beliefs, behaviours or actions which do not result from a disorder or disability of the mind are not a basis for determining that any of the conditions is met, even if they appear unusual or cause other people alarm or distress””." I realise that there is much more to be said. We will be looking seriously at the drafting and seeking ideas on how it can be improved. The codes, of course, will be subject to formal consultation, both in England and in Wales. I have no doubt that the amendment of the noble Baroness, Lady Barker, will help to set an appropriate context for the implementation of the Act as informed by the code. I shall invite my successor to commit to a willingness to engage with individual noble Lords on the code because clearly, from the quality of our debates, they have a great deal to offer. The answer to the question of the noble Earl, Lord Howe, about an appeal is implied in what I read out of what is already in the draft code. Clearly a patient can appeal—he will still be able to—and argue before a tribunal that they do not have a mental disorder and that their religious beliefs have been mistaken for disorder. There is no doubt about that. I well understand the passion with which noble Lords referred to their concerns about the disproportionate detention rates of people from black and minority ethnic communities, although the reasons for that are not established. I note the comments of the noble Lord, Lord Patel, on that matter. It is entirely understandable that many people in these communities believe, from their own experience or that of others, that at least part of the explanation lies in the legislation being at best applied carelessly and at worst actually being abused. Of course, I understand the question about institutionalised racism that the noble Lord, Lord Patel, raised. However, I take issue with his reference to mischief making by officials. Since 5 January, I have had the great joy of working with a considerable number of people concerned with mental health in the department and I have been enormously impressed by their commitment, experience, skill and integrity. I pay tribute to them. I do not think that, in reality, the issue concerns the words in an Act. We come back to a point that I have made consistently—that while the Act sets the context, the real question is how we ensure that practice is acceptable and non-discriminatory. I very much echo the words of all noble Lords who have spoken on that. I have no doubt that we shall respond in the affirmative to the request of the noble Earl, Lord Howe, for the code’s advice on discrimination to clinicians in the field to be very clear and deliberate. There has been considerable debate and correspondence between the Department of Health and the CRE, as the noble Lord, Lord Patel, said. I do not think that he wishes me to go through the ifs and buts and the backwards and forwards. The Department of Health and the Government wish to ensure as strong and close a relationship as possible with the CRE. Whatever has gone before, we want to ensure that the expertise and experience of the CRE is brought to bear in the development of future health policy and practice. On Thursday, there was a great deal of discussion about the Mental Health Bill and I had the privilege of meeting representatives of black churches. They are represented here in the Gallery. It was a very lively and moving meeting. In accepting the amendment of the noble Baroness, Lady Barker, I assure her that I fully understand the concerns of the black and minority ethnic communities and that we shall do everything that we can to ensure that services meet the needs of all our communities, are fair and impartial and are implemented in the best possible way in the interests of the public and individual patients.