§ 6.58 p.m.
§ Lord Mottistone
rose to move to resolve, That the amendment to the code of practice under the Mental Health Act 1983 laid before this House on 29th November be withdrawn.
The noble Lord said: My Lords, this story of the English and Welsh code of practice is a sorry one. It needs some explanation, but I shall try to be brief. As I explained when moving a Motion to withdraw that code of practice nearly two years ago on 29th January 1990 (Hansard col. 68) the code had two false starts in 1985 and 1987. The final version, against which my earlier Motion was directed, was nothing like so good at meeting the requirements of Section 118 of the 1983 Act as was the Scottish code of practice produced at the same time.
The main failings of the English and Welsh code were in its relative verbosity and its departure from the text of the Act about which it was intended to provide guidance. That is still the case. The sooner the authors of the English and Welsh code swallow their pride and adopt the wording of the Scottish code, the better.
I turn now to the amendment to the code of practice, which is the subject of the Motion. In January 1990, I pointed out that in paragraphs 2.6 and 2.7 of the code it is not made clear that a person can be admitted to hospital in the interests of his own health as well as his safety and the protection of others, as is provided in Section 2(2)(b)of the Act and in the Scottish code.
The experience of members of the National Schizophrenia Fellowship is that even though the 1983 Act has now been in force for over seven years, some 408 doctors and social workers do not know what it says about the admission criteria. I gave examples of this confusion in the debate on 29th January 1990. Since then, the last president of the Royal College of Psychiatrists has confirmed that it still exists. The mistake was to say that compulsory admission is only possible if a person is a danger to himself or to others.
The need to overcome this misunderstanding is thus still very important. The amendment which we are debating technically does this by sending the reader back to the Act to discover the statutory criteria. One might say that because it says nothing different, it might be necessary to go back to other Acts as well, but it just says "statutory criteria" without giving a reference.
The whole point of the code is to provide guidance on interpreting the Act, so the proposed amendment not only does not achieve the aims of Section 118 of the Act but makes matters worse because busy people will not wish to hunt for the Act or go anywhere else to see what are the statutory criteria. A simple repetition of Section 2(2) (b) of the Act, as in the Scottish code, as an introduction to paragraph 2.6 would have been much better. I hope that the Government will take notice of the urgent need to provide a useful amendment to this part of the code.
I was also disappointed that the Government, having at last decided to make an amendment to the code of practice, failed to do the job properly. During the 1990 debate on the subject, my noble friend Lady Blatch—then speaking for the Government—agreed that the wording in paragraphs 2.27 and 2.30, was "very definitely ambiguous"; that appears in col. 85 of Hansard for 29th January 1990. As a result, when the code was issued, in a covering circular carefully marked,This circular is not part of the Code of Practice",a reference was made to the remarks of my noble friend Lady Blatch together with an interpretation of them. There is, however, no cross-reference to the covering circular in paragraphs 2.27 and 2.28, so that busy medical practitioners and social workers are most unlikely ever to learn of the wise words of my noble friend who is now the Minister for Heritage Matters. Surely, when the Government decided to issue an order amending the code of practice, the sensible action would have been to include an amendment incorporating what had already been agreed as necessary, to correct paragraphs 2.27 and 2.30.
However, that amendment is not the only one to be overlooked by the Government. On 27th March 1990, my honourable friend Mr. Roger Freeman—then the Minister with responsibility for mental illness—saw a delegation from the National Schizophrenia Fellowship led by myself and my honourable friend Mr. David Atkinson, MP. While agreeing to the amendments which I have already mentioned, he encouraged the fellowship to put forward any other amendments to the code which it felt would be helpful. These were sent to him on 29th May 1990. In July 1990, the present Minister responsible, my honourable friend Mr. Stephen Dorrell, informed the NSF that 409 the suggested further amendments had been forwarded to the Mental Health Commission. The commission had been asked to comment by the end of 1990. Nothing was heard from them from July 1990 until well into 1991, although in the meantime I tried to persuade my honourable friend Mr. Dorrell that they should get a move on.
In March 1991, the NSF heard that the Mental Health Commission supported my proposals about paragraphs 2.6, 2.27 and 2.30 and that the Minister proposed to put them to Parliament. That was nine months ago. I have already told your Lordships what a mess he made of that, and it was eight months before the amendment which we are now discussing.
What I find disgracefully cavalier, in addition, is that in all the time since July 1990 nothing has been done about the further NSF amendments then sent to the Mental Health Commission which now seem to have disappeared without trace. It is a sorry story and I hope that it is only incompetence that caused it. I beg to move.
Moved, To resolve, That the amendment to the code of practice under the Mental Health Act 1983 laid before this House on 29th November be withdrawn.—(Lord Mottistone.)
§ 7.8 p.m.
§ Lord Thurlow
My Lords, before coming to the code of practice, I wish briefly to put on record that many of us on these Benches warmly welcome some of the improvements that have been made with a view to the better implementation of the Mental Health Act, particularly recently. It is reassuring that the Centre for Mental Health Services Development has been set up to help to plan and implement a comprehensive range of services for care in the community, keeping in close touch with the Department of Health. We wish the centre well.
Further, we warmly welcome the degree of monitoring that we understand is at last being arranged through the Social Services Inspectorate as a result of or in response to the representations of the Select Committee on Social Services in another place of October 1990. Those representations are helpful and we welcome them.
In spite of the sorry story of the code of practice, perhaps we may at least congratulate the Government that most of the code of practice is extremely helpful and clear. However, it does not in any way diminish our surprise, indeed dismay, at the failure of the department to bring forward amendments which are brief, clear and to the point, to cover the representations that have been clearly made over a long time. The noble Lord, Lord Mottistone, has categorised these and I have no desire to go over the same ground.
However, to anyone like myself who has been a civil servant, it is peculiar that, against the background of all our uneasiness about the way in which the code of practice has come into being, more trouble has not been taken to get it right at last. How much longer are we to go on in this way? The department seems to be disregarding and flouting Parliament, paying little attention to the injunctions of its Ministers. We hope 410 that now at last the opportunity will be taken to correct the failures of the past. We hope that the present amendment will be withdrawn and that fully satisfactory amendments will be introduced to cover the question of health.
The amendments should make it absolutely clear that patients may be formally admitted on the grounds of their own health alone. Further, the amendments should seek to add to the code directions concerning the rights of nearest relatives. There is nothing difficult about that. Like others, I am confused as to why your Lordships' House has to devote its time and energy to going over this ground. To put the most charitable interpretation one can on the matter, one must conclude that the present position has arisen simply because of incompetence.
I wish to go beyond the question of the code of practice and refer to the uneasiness which so many of us continue to feel in relation to the implementation of the Mental Health Act. That uneasiness stems from the fact that the Government are not prepared to give Parliament a complete picture of what is happening, and what has happened, as a result of the closure of hospitals. There has been what can be regarded as an abdication of responsibility to Parliament by taking refuge in statements such as, "This is a matter for district health authorities and local authorities".
We have been told time and time again that the statistics are not centrally available. We all know that these kinds of statistics must be recorded on computers all over the country. It cannot be a difficult administrative operation for the Department of Health to keep up-to-date on what is happening. That department retains its overriding responsibility for this important area of the nation's health. To ask the Department of Health to keep up-to-date on this issue does not seem to me to be a matter that is beyond the department's reasonable administrative capacity.
It would be uncharitable to infer that the Government take cover behind the responsibilities of district health authorities and local authorities for fear that exposing the facts would be likely to trigger widespread public demands for greater resources. I dare say that would be the result, but let us not have a cover up. I urge the Government to do all that they can to speed up the monitoring which we are glad to hear is being arranged through the social services department. I urge the Government to make it possible for Parliament to obtain a full and comprehensive picture so far as that is reasonably possible.
§ 7.14 p.m.
My Lords, my noble friend Lord Mottistone proposes an alteration to the code of practice of the 1983 Mental Health Act. From what my noble friend and the noble Lord, Lord Thurlow, have said, it appears that these grave matters have not so far been well handled. My noble friend believes that the wording of the present amendment is unclear and that it causes frequent misinterpretation. That is of particular concern where patients who need hospitalisation are allowed to escape treatment and medication. 411 During a previous debate on this matter I joined other noble Lords in expressing my anxiety over the matter of compulsory admission. At that time the main requirement to compel admission was that the patient should be found to be a danger either to himself or to others. Our view was that wider and clearer powers were needed. However, several of your Lordships were anxious to avoid a situation where there might be questionable intrusion into the liberty of the individual. Therefore the opportunity to come to a general agreement about clearer wording which would be more in line with the law in Scotland was not taken.
Since then there have been increasing complaints. Even in Scotland, where the code of practice is more clearly phrased, there has been a lack of awareness on the part of doctors about the admission criteria. What is needed is a document which sets out to give clear guidance to doctors, to approved social workers and to relatives about the criteria concerning compulsory hospital admission.
Tonight I am able to identify with far greater compassion with the complaints about the vagueness of the criteria. That vagueness often contributes to slowness in deciding whether or not to compel admission. Since our previous debate a member of my family who was in need of hospital treatment had rehospitalisation delayed for a long period. The main reason for that was because his doctor took the view that the patient's condition was not bad enough. This was in spite of urgent appeals for hospitalisation both from members of his own family and from the police. The doctor misunderstood both the criteria and the nature of the illness. I blame myself for not bypassing him earlier. It was only when the situation developed to an alarming extent that it became obvious that steps had to be taken to compel admission. There had been a delay of some nine months.
I find it appalling that such a delay could have happened when there was obvious need for hospitalisation and when there was clear evidence that compulsory admission was needed. In my view this delay was detrimental to the patient's welfare and caused him unnecessary extra suffering. The longer the delay the harder it is for any patient to climb back towards recovery. The decision to compel admission is painful for everyone concerned. However, as the saying goes, "It is right to be cruel in order to be kind".
We no longer live in an age where conditions in mental hospitals are horrific. Humane and skilled treatment is available and early release is encouraged. The rights of the patient and of the relatives are written into our laws. What is needed is greater clarity in the wording of the code of practice and for the code of practice to be widely circulated among the medical profession. Schizophrenia—the illness to which I refer —requires medication to remedy inactivity in the brain. Before medication can be given, an assessment must be made. That assessment is in the hands of the psychiatrists. The quicker general practitioners refer their patients to psychiatrists the better. Too often there are delays. Even then, psychiatrists can be slow to hospitalise. That happened recently with tragic 412 results at Tweedbank. Too many patients are falling through the gap between psychiatrists and general practitioners. By some means the division between the general practitioners and the psychiatrists must be diminished. I hope that my noble friend the Minister will respond to the Prayer of my noble friend Lord Mottistone with some urgency. I strongly support my noble friend Lord Mottistone in his anxiety to get things moving.
§ 7.20 p.m.
§ Lord Rea
My Lords, some noble Lords may feel that the noble Lord, Lord Mottistone, doth protest too much as, underlying his Motion, is the one word "and", which he wishes to change to "or". That is apparently a small change, but we are a revising Chamber and, speaking as a practising doctor who from time to time finds himself in the difficult position of having to decide on the compulsory admission of a patient, that one word can make a very great difference.
Having re-read the code of practice just before the debate, I was struck by its clarity and humanity as a whole. The Mental Health Act of 1983 was an important improvement on previous law and is very much a patient-centred Act. The wording of the 1990 code of practice in paragraph 2.6 which we are discussing—I refer to the phrase,the health and safety of the patient"—has resulted in some reluctance among professionals to invoke—
§ Lord Mottistone
My Lords, I do not understand why the noble Lord, Lord Rea, is referring to the words "and" and "or". I am not saying anything about those words. I am saying that the amendment before us is not what was needed in order to meet what was proposed in 1990, but there is no question of "and" and "or". It is question of other words altogether.
§ Lord Mottistone
My Lords, I am sorry to press the matter, but we must get it clear. If the code of practice is amended by the amendment against which I am praying, the question of "and" and "or" does not come into the matter because the amendment deletes the first three lines of paragraph 2.6 and inserts another version. The "and" and "or" argument does not apply once the code of practice has been amended. That is what I am arguing against. If you ignore the amendment that I am praying against and compare what I was asking for in January 1990 with what is in the code of practice, the noble Lord is talking sense, but we are not arguing about that.
§ Lord Rea
My Lords, I must continue with this argument because the amendment which was put before the House on 29th November refers the reader of the code of practice back to the original Act when 413 deciding whether a compulsory admission should be made. The noble Lord said that the busy practitioner will not have the original Act at his disposal. I contend that the amendment is inappropriate in the same way that the noble Lord says that it is inappropriate; although it uses the "or" version, it does so in a devious way. I was eventually coming round to support him on that.
Perhaps I may ask noble Lords to consider the situation in which one makes a decision about a compulsory admission. The health professional is often uncertain whether he should invoke the Act if the health of the patient alone is the reason for the admission and where the safety of the patient or of other people is not an issue. When the health of the patient alone is at issue much effort is often taken to persuade the patient to go in informally. I can say from my own experience that the great majority of patients agree to go in informally, but, in some cases even if they are admitted informally, if they do not agree to take treatment a compulsory order must be invoked once they are in hospital. That is occasionally difficult to arrange and sometimes it would have been better if the person had been admitted compulsorily under the Act in the first place. If the word "or" had been clearly included in the code of practice as the noble Lord suggests, it might have brought about earlier compulsory admission.
The amendment laid on 29th November is unhelpful because, although it changes "and" to "or", it does so in an obscure way. Surely the purpose of a code of practice is to explain the operation of a law or regulation in more easily understood language than the language of the Act itself. The amendment throws responsible professionals back to the original Act. I should like to know whether we could not have a summarised version of the Act's intention in the clear language that characterises the code as a whole; in other words, could we not call an "or" an "or"?
One suspects that there may be a gremlin at work here; in other words, though this be madness, there is method in it. I should be grateful if the noble Baroness would explain why the amendment is worded as it is. If professional pressure or pressure from any other quarter is the explanation, I hope that she will take the House into her confidence and tell us about it.
§ 7.27 p.m.
§ Lord Ennals
My Lords, it is rare that I come to the assistance of an embattled Baroness when she sits on the Front Bench and I am sure that she will say that she does not need me to protect her. So far all those noble Lords who have spoken would have the provision changed. I do not feel the same. I have tried to refresh my mind as to the debate that was initiated by the noble Lord, Lord Mottistone, in this House on 29th January 1990. Certainly, none of those noble Lords who took part in the debate then had any doubt that this was an important document. I recall that I warmly commended the document to the House when the noble Lord, Lord Mottistone, wished it to be withdrawn. I acted on the basis of my own experience, just as he acts on the basis of his experience. I acted on my experience in government and my experience on 414 the Standing Committee on the 1983 Bill, knowing what I thought Parliament intended when it prepared the Bill, and subsequently with my work in MIND.
In the previous debate the noble Lord, Lord Mottistone, and other noble Lords criticised paragraph 2.6 of the code because it did not exactly follow the language of the Act. That is fair enough. Until I heard my noble friend, it seemed to me that the amendment put that right and referred specifically to what was said in the Act. The idea that one can somehow or other have a little summary of an Act is not a very good one. There is a suggestion that there may be particular references upon which we can draw in the code of practice, but I do not think that it would be a good idea either to withdraw it or to have a summary of the Act as suggested by my noble friend.
The Mental Health Act makes it clear that an application for admission for assessment may be made in respect of a patient:in the interests of his own health or safety or with a view to the protection of other persons".Paragraph 2.6 of the code of practice did not make it clear that health or safety should be considered. I agree that the "or" is an important part of it. Instead, it states that:In judging whether compulsory admission is appropriate, those concerned should consider not only the health and safety of the patient".That is fair enough, too.
Since the adoption of the code of practice, I am informed that the officers of MIND have travelled up and down the country advising social workers, doctors and nurses on the terms of the code of practice. MIND is firmly of the view that the proper implementation of the code by local and health authorities across England and Wales can only assist patients to receive the care and treatment that they require.
There is always a difficult balance to be held between the rights of an individual suffering from mental illness and the need to protect that person from the consequences of the illness. Certainly MIND believes that the code of practice and indeed the Mental Health Act 1983 maintain that difficult balance.
The noble Lord, Lord Mottistone, particularly in the previous debate, was concerned about the position of patients' families and urged that the interests of families should be respected. Paragraph 2.6 does that very fully. It refers to the patient's family circumstances and what may be known about the patient by his nearest relative or any other relatives or friends; it deals with the needs of the patient's family or others with whom the patient lives and the need for others to be protected from the patient. It seems to me that paragraph 2.6 has the balance right in considering both the needs of the patient and the patient's family.
I understand that there has been a good deal of discussion within other organisations about the code of practice. The Royal College of Psychiatrists has comments that it wishes to make. Certainly MIND has comments to make and we know from the debate this evening that the National Schizophrenia Fellowship has proposals to make. I understand that the Mental Health Act Commission has taken all 415 those bodies into account. It will shortly be coming forward—perhaps the Minister will tell us a little more about this—with proposed amendments and there may be several of them. They may form the basis of an interesting debate in this House.
I am sure that once those amendments have come forward from the Mental Health Act Commission there will be a period of consultation. I hope that we can have a very comprehensive debate in this House. However, at this stage, I believe that it would be irresponsible of this House to seek to remove an amendment which has been honestly brought forward and which in my view does what some critics wanted it to do; namely, to make quite specific in the very first sentence of paragraph 2.6 that it was all done within the terms of the provisions of the Act.
I hope that my support of the noble Baroness's case does not embarrass her. Perhaps she will find another way to present her case so that that support will not embarrass her.
§ 7.32 p.m.
§ Lord Elton
My Lords, I apologise to the House because my name did not appear on the list of speakers. Foolishly I thought that this matter was to be dealt with under the procedures for statutory instruments, since it addresses a statutory instrument, and that there would not be a list on which to put my name. I am reassured in my approach by the fact that the noble Lord. Lord Ennals, supports the Minister because it is my reluctant duty to add a featherweight to the difficulties of my noble friend on the Front Bench. I felt that I had to speak because of my interest as the Minister who put through the Mental Health (Amendment) Act 1982 in its first House of consideration and that legislation was absorbed into this Act—the principal part of it—on consolidation.
It is only necessary to endorse the importance of this issue in the briefest of words after the speech of my noble friend Lord Haig. Many noble Lords will have heard and seen in the media painful instances which show how important it is that the correct criteria should be observed when patients are considered for admission under Section 2 of the Act. It seems to me that the rights and wrongs of the issue are clear and my interest is principally in the mechanics of what we are doing and how it ought to work.
The statutory instrument at which we are now looking takes its authority from Section 118(1) of the 1983 Act which states that:The Secretary of State shall prepare, and from time to time revise, a code of practice—
The important words are "for the guidance".
- (a) for the guidance of registered medical practitioners [and others] in relation to the admission of patients … and
- (b) for the guidance of registered medical practitioners [and others] in relation to the medical treatment of patients".
Following the chain of authority into the code of practice itself we come first to the preface which says:This Code of Practice offers much detailed guidance on how the Mental Health Act 1983 should be implemented".In the body of the code, at paragraph 1.2 one finds:The code imposes no additional duties on statutory authorities. Rather it provides guidance to statutory 416 authorities, Managers … and professional staff working in health …and social services on how they should proceed when undertaking duties under the Act".That is the purpose of the document at which we are looking.
We know that the provision in the principal Act that we are now addressing is Section 2(2), in which we read:An application for admission for assessment may be made in respect of a patient on grounds that … (b) he ought to be so detained in the interests of his own health or safety".The code mentions "health and safety" and there is a difference in law which would be recognised by the courts.
Reading the report of the debate which my noble friend Lord Campbell of Alloway instituted on 15th January 1986 with regard to codes of practice and their status, and looking at the words of the Lord Advocate in reply to that debate, we find that indeed in cases in which Parliament has a statutory right to look at and oversee codes of practice, as is now the case, they may be taken into consideration in courts of law. So this matter is important both in law and in practice and the code is different from the Act. That has been generally accepted and my noble friend has been instrumental in bringing it to the public gaze and should be congratulated on that.
Looking at paragraph 2.6 and what the Government have done in order to clarify this point and put it right, we see that in effect they have removed the words "the health and safety" and replaced them with the words "statutory requirements". In other words this is a document which everybody must have to tell them what the Act means and when one comes to the difficult bit it says "Read the Act for yourself".
The department—rather I should say the Government—has described that as clarification in the Explanatory Note, which states:This amendment is to clarify the information in paragraph 2.6 (page 4) of the Code of Practice".It does no such thing; it removes the information and tells the reader to look instead at the Act of Parliament for himself. I am sure that my noble friend is well aware of these difficulties. I do not want to make her burdens heavier. I am encouraged to see on page vii of the code of practice (which comes between the preface and the text but which has no name except "Department of Health" and "Welsh Office") in paragraph 2:All those using the Code of Practice should be aware of the statement made by Baroness Blatch on behalf of the Government during the debate on the Code in the House of Lords on 29 January".The Government listen to what this House says. While the court cannot take it into account, the department can do so.
I hope that we have all said enough to ensure that the department will not throw up its hands and say, "It is too difficult. You must read the Act for yourself", but that it will put in this simple and easy to understand amendment which has been referred to but is not included in the Motion before us. All that is asked is that the language of the Act can be used in a context which is understood by laymen. I hope that my noble friend will undertake to do that.
§ 7.40 p.m.
§ Lord Carter
My Lords, the House will be very grateful to the noble Lord, Lord Mottistone, for introducing this Motion. It is a difficult and sensitive subject because it involves agonising decisions by doctors, relatives, social workers and patients.
There is no need for me to rehearse the arguments at length. They have already been well explained by previous speakers. I shall be brief and restrict my remarks almost entirely to the specific Motion on the Order Paper. The code of practice is a useful document and expresses the intention of the Act with some clarity except in respect of the subject which we are discussing today.
The argument seems to turn on the exact meaning and value of the new wording of the amendment in the code of practice as judged against the original wording. I shall return to the point. However, before doing so, I shall ask the Minister —as did other noble Lords—why the opportunity was not taken, when paragraph 2.6 of the code of practice was being amended, to deal with the ambiguity regarding the rights of relatives. As has already been pointed out, the ambiguity is specifically mentioned in paragraph 2 of the circular, but that is not a part of the code of practice. The Government admitted to the House in January 1990 that there was ambiguity, and took the trouble to put it in the circular at the beginning of the code of practice. If they intended to introduce an amendment to the code of practice it would be interesting to know why the opportunity was not taken to remove that ambiguity.
There has been, and still is, considerable misunderstanding about the matter. Mental health professionals, text books and other documents tend to misinterpret the Act as a result of the original misinterpretation in the code of practice. That misinterpretation has now been put right, but I would say in a rather obscure way, by the amendment to the code of practice. I am sorry to labour the point but the "and/or" distinction is extremely important. It is the central point. The Act refers clearly in Clause 2(2)(b) to the interests of a patient,of his own health or safety or with a view to protection of other persons".In the normal meaning of the English language that means that any one of the three criteria—health, safety or protection—can be a sufficient condition on its own to compel admission. The code of practice unamended stated that the health and safety of the patient are to be considered, thus conjoining the two criteria and relegating the protection of other persons —as set out in the Act as having equal importance with the other two criteria—to one of 11 other subsidiary factors to be considered. Paragraph 2.7 of the code—which is still unamended—refers to the health and/or safety. That is even more confusing.
Since the wording in the Mental Health Act seems to be accepted and understood and not capable of misinterpretation, why was that actual wording not used in the amendment to the code of practice instead of the rather obscure reference back to the statutory criteria?
418 The original wording in the code picked up the wording of the Act but then mis-stated it. Why not correct the original mis-statement in the code by correcting the wording in plain language? Let us put it another way. Why not amend the code of practice, picking up the words of the Act and thereby clarifying it? In amending the code, why was there no attempt to deal with the vexed question of the rights of relatives in the matter?
The House debated the code of practice at length some two years ago. There is therefore no need to go over that background again. We are concerned today with the effect of the specific amendment to paragraph 2.6 of the code of practice and the proposal before us to withdraw the amendment. I have already said that the wording of the amendment seems to be unnecessarily opaque, referring back, as it does, to the statutory criteria without spelling out those criteria. Surely the purpose of the code of practice is to explain and amplify rather than to obscure.
Having said that, we must ask whether the code of practice would be improved if we remove the amendment. Surely not. We would be back in the situation where the words in the code unamended would be ambiguous and would be seen to be contradicting the statutory criteria, not allowing the health of the patient as a criterion on its own, but requiring the health and safety of the patient to be considered. I am not entirely sure why the noble Lord has not proposed an amendment to the amendment rather than seeking its removal. If the amendment is removed we return to the position where the code of practice is wrong when compared with the principal Act.
The noble Lord, Lord Mottistone, raised a point regarding obscurity, a point made by a number of speakers. However, that obscurity will not be resolved by withdrawing the amendment and thereby returning to the original wording which I believe is wrong. Will the point about obscurity be taken into account?
A number of points have been made about the code of practice and referred to by my noble friend Lord Ennals. If the amendment is withdrawn we shall be back where we started with a misleading statement in the code of practice. Obscure as the amendment is, it at least directs the user of the code of practice back to the statutory criteria which express the will of Parliament. The House will appreciate the Minister's assurance that the extremely important points that have been made in the debate will be taken fully into account when the code of practice is next reviewed.
§ 7.45 p.m.
§ Baroness Hooper
My Lords, I too welcome the opportunity to respond on behalf of the Government to my noble friend's anxiety about our proposed amendment to paragraph 2.6 of the Mental Health Act 1983 code of practice. In doing so, I wish to acknowledge the importance of the close interest and knowledge of the subject that is consistently shown by my noble friend and indeed has been shown by everyone who has contributed to the debate. I of course fully subscribe to the apology which has been given by my honourable friend in another place to my 419 noble friend for our failure to let him know in advance about the terms of the amendment. My noble friend has been good enough to write to us explaining the grounds of his concern as well as expressing himself clearly on the subject today. However, I hope that I shall be able to persuade him and others who have participated that the amendment fulfils the purpose that he seeks. At the same time I hope to respond to other issues raised in the debate as appropriate.
We are dealing here with an important issue of some complexity and much sensitivity; namely, the circumstances under which it is proper for someone to be admitted compulsorily to hospital. Depriving someone of his or her freedom is a very serious thing to do. The Mental Health Act reflects Parliament's considered view of the criteria to be satisfied and the procedures to be followed before such a step is taken.
Despite the fact that the code is the product of extensive consultation—two formal rounds and subsequent informal soundings over four years, and careful deliberation by people with direct, practical experience of working within the Act—Ministers quite understand that there are aspects of it that some would wish to see amended. My noble friend has referred to some points that are of concern to the National Schizophrenia Fellowship. We know that other bodies would also prefer that some sections had been drafted in different terms.
Perhaps I may first refer to the background of the amendment although it has already been dealt with fairly extensively. Paragraph 2.6 of the code deals with the factors to be taken into account at assessment—that is for the compulsory admission to hospital. It was one of three issues which my noble friend Lord Mottistone raised in the House just under two years ago in the debate on his own Motion to have the code which was then before Parliament withdrawn. The Government undertook to seek the advice of the Mental Health Act Commission on those three specific criticisms and on the operation of the code as a whole. That undertaking is recorded in the circular covering the code by the Department of Health and the Welsh Office which is printed in the booklet.
The three specific criticisms were duly considered by the commission and my honourable friend the Parliamentary Secretary in the other place wrote to my noble friend last March about the outcome. He reported that the commission had accepted two of the criticisms but not the third. The points which were accepted were those on paragraph 2.6 of the code—with which we are concerned today—and paragraphs 2.27 to 2.30 which deal with the obligations of professional staff to the patient's nearest relative. The third point was not accepted.
My honourable friend said that he accepted the commission's advice. But he added that he would refrain from asking Parliament to consider any amendments to the code until the commission's final report was received.
However, my noble friend departed from that course because the National Schizophrenia Fellowship has represented to us strongly—and my noble friend has given us evidence of that tonight— 420 that amendment of this particular paragraph was especially urgent because it was leading to the Act being wrongly applied by GPs, psychiatrists and social workers. Without necessarily accepting that there is widespread misunderstanding, we have accepted that this particular paragraph could be misleading. That is why we have brought forward the amendment ahead of the more general revision of the code. The answer to the criticism that we have not addressed the issue of the nearest relative is that this is covered in a different part of the code and will be embraced in the amendments resulting from the more general review.
§ Lord Ennals
My Lords, I thank the Minister for giving way. If the amendment was brought forward specifically to meet the concerns of the National Schizophrenia Fellowship I am surprised that the department did not ask the fellowship whether it was satisfied with the amendment being put forward on its behalf.
§ Baroness Hooper
My Lords, yes, and it is for that omission that I have offered an apology, as has my right honourable friend in another place. Those apologies are most sincere. We hope that such an omission will not occur again, but I hesitate to guarantee that.
I turn to the wording of the amendment. A great deal has been said about the question of whether it is "health and safety" or "health or safety". The problem with the existing wording is not only the use of "and" instead of "or", which has been referred to fully, but the fact that the Act to which the amendment refers the practitioner reads:health or safety or with a view to the protection of other persons".The present code omits that provision completely. Separate criteria must be satisfied as regards the health of the patient. They are in Sections 2(2) (a) and 3(2) (a). Therefore, we do not believe that it is realistic to try to gloss all the relevant sections of the Act. As my noble friend Lord Mottistone has pointed out, the wording of the amendment refers simply to:the statutory criteria for admission under the Mental Health Act".There is no attempting to paraphrase them. I certainly have some sympathy with the view that all essential information should be put together in a handy form.
Ours is the approach that was recommended by the Mental Health Act Commission and we believe that it is the right way of dealing with the matter. I must stress here that the code is directed primarily at the mental health professionals who have to operate the Act. Social workers who are approved under the Act have to undergo 60 days of special training in its application. This is the only area in which special additional training is laid down for social workers beyond their qualifying training. Against that background we do not believe that it is an unreasonable assumption that professional staff will have a working knowledge of the key provisions of the Act.
§ Lord Carter
My Lords, we accept the point that the statutory criteria are scattered throughout the Act. Why not put in the glossary to the code the sections of the Act in which the statutory criteria are contained?
§ Baroness Hooper
My Lords, I was about to deal with that matter. While bearing in mind the ever-present danger of misrepresenting a statute in attempting to paraphrase it, the reference to the statute could be more specific and refer to the relevant sections of the Act as appropriate to paragraphs of the memorandum which appear in other parts of the code. Having referred to the professional use of the code I accept that it needs to be reasonably accessible to patients and families. However, even in that case I do not believe that the answer is to reproduce sections of the Act or to paraphrase them. That would add considerably to the length of the document and we want a document that is handy, usable and clear. Most noble Lords who have spoken believe that in general the code is clear.
In short, we believe that the amendment that we are proposing is the right way to meet the concerns that were expressed to us. I repeat that I accept that we were at fault in not letting my noble friend and the fellowship know how we proposed to deal with the matter. I repeat my apology to him for that.
Perhaps I may also make it clear that we are not just making the amendment and leaving it at that. We shall be sending it to health and local authorities with a covering circular. That will explain the background to the change and in particular will correct the alleged misunderstanding about the words "health and safety". I will be happy to let my noble friend and the fellowship see a copy of our letter before it is circulated.
Finally, I have referred to the wider review of the code by the Mental Health Act Commission. We have just received from the commission its first report on this which includes proposals for amending a number of chapters. We shall be consulting widely about these proposals and considering carefully all the views we receive on them before bringing forward any proposals of our own for further amending the code. As part of that consultation process we shall look again at any views that are put to us on the wording of the paragraph that we are discussing this evening. We shall also look again at the other amendments proposed by the National Schizophrenia Fellowship to which my noble friend referred. The comments that your Lordships have made this evening will also inform the decision making.
Perhaps I may refer briefly to a point made by the noble Lord, Lord Thurlow, about monitoring. The SSI is monitoring comprehensively the implementation of care programmes by health and local authorities. The results of that process will be made public.
§ 8 p.m.
§ Lord Elton
My Lords, before my noble friend sits down, perhaps she will answer two questions. First, in their consultation with the Mental Health Act Commission, was the advice of the commission that 422 the Government should use the language of the statute, or that they should refer to it? In fact, they have "referred" and my noble friend and everybody else asks that they should "use". If the words in Section 2(2) (b) were incorporated in an easily understandable context, the problem would disappear.
Secondly, is it intended to honour the undertaking given at paragraph 3 on page viii of the introduction, which states:If Parliament agree to make amendments, the Code of Practice will be reprinted in full and will be available through HMSO"?Would it not be very expensive to do that if, as we all hope, another larger and better amendment is to follow close behind?
§ Baroness Hooper
My Lords, I understand that the commission has advised us to "refer". I have mentioned already in my remarks that the present amendment before your Lordships had the approval of the commission. That covers also the references to the statute in other parts of the code.
However, as regards reprinting, that is why we felt that on the whole any amendments should be taken together. That will take place after the consultation process to which I have referred, at which time all amendments proposed by the Mental Health Act Commission as a result of its review will be taken into account.
Although the present amendment may be deficient, it is nevertheless an improvement on the wording of the code which is being amended. With the assurances that I have been able to give, I hope that my noble friend will withdraw his Motion.
§ Lord Mottistone
My Lords, before my noble friend sits down, I believe that she has not mentioned any forecast of when the amended amendments are likely to be brought before Parliament. It would be extremely helpful to have some idea about that.
§ Lord Mottistone
My Lords, does that mean before the end of the calendar year or before the end of July?
§ Lord Mottistone
My Lords, that is disgraceful. There was a failed code of practice in 1985, a failed code of practice in 1987, an unsatisfactory code of practice in 1990, amendments which were promised in 1991 but which did not come into being until 1992 and now we are told that it will be 1993 before something is brought before Parliament. That is 10 years after the Act became law. That is disgraceful.
However, I am grateful to my noble friend for what she has done and said even if I am not at all happy about the almost unbelievable incompetence of her department.
I am grateful to noble Lords who have joined in the debate. I am sorry that I did not allow the noble Lord, Lord Rea, to complete what he was saying before I questioned him. However, I believe that our argument 423 pointed to the fact that it is difficult to escape confusion in interpreting what is in the code of practice. That is what this debate is all about. The fact that two quite intelligent people, one of whom is a general practitioner, were at cross purposes demonstrates that that could happen elsewhere.
My noble friend gave us examples of the training of social workers which would make them competent to understand the Act, the code of practice and everything which goes with that. However, general practitioners do not have that training and they are an important element in the whole picture. They need to have matters made easier for them.
As regards cross references, at page 113 of the code of practice one cannot find paragraph 2.6 at all. It does not have a cross reference into Section 2. That is completely inadequate. There is much more room for improvement. I could go on and on.
The noble Lord, Lord Carter, asked why I did not table an amendment to the amendment. One cannot amend a statutory instrument, so I have taken the only course open to me. Even if I do not agree with the present wording, I believe it is better than saying something like, "Look at the Act of Parliament". Very reluctantly, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.