HL Deb 11 April 2002 vol 633 cc601-7

8.2 p.m.

Lord Filkin

rose to move, That the order laid before the House on 19th November 2001 be approved [6th Report from the Human Rights Committee].

The noble Lord said: My Lords, I beg to move that the Mental Health Act 1983 (Remedial) Order 2001 be approved. The purpose of today's debate is to seek approval of the remedial order amending the Mental Health Act 1983 that was made on 18th November 2001 and laid before Parliament on the day following. The purpose is, in essence, to ensure that mental health legislation is consistent with the Human Rights Act 1998 and the European Convention on Human Rights.

The case that led to the making of this order concerned a patient who was detained for treatment under the Mental Health Act 1983 and who had applied to the Mental Health Review Tribunal for discharge from detention under the Act. It was argued before the courts that under the Act the tribunal was not required to discharge a patient unless satisfied that at least one of the criteria set out in the relevant section did not exist. That double negative formulation had the effect of placing the burden of proof on the patient, and it was argued that that was incompatible with Articles 5(1) and 5(4) of the European Convention on Human Rights.

The Court of Appeal accepted those arguments and declared on 4th April last year that these sections were incompatible with Articles 5(1) and 5(4) of the ECHR. Section 10 of the Human Rights Act sets out procedures for remedial action to be taken to remove such incompatibilities.

Section 4(6) and 6(2) of the Human Rights Act preserve the sovereignty of Parliament. It therefore requires action by Government to remedy an incompatibility. This is the first declaration of incompatibility requiring remedial action under the Human Rights Act. A number of options exist potentially for addressing such an incompatibility. First, even though the Court of Appeal refused leave to appeal, it was a possibility to petition the House of Lords. It was the Government's view that there was no discernible error of law in the Court of Appeal's judgment and in addition, the judgment was not out of line with the thrust of government policy intentions for new mental health legislation as set out in the White Paper Reforming the Mental Health Act.

Next, consideration was given to introducing legislation to amend the relevant sections of the Mental Health Act, but that approach was rejected on the grounds that the amendments needed fell outside the scope of any planned Bills. It would not be appropriate to introduce amending legislation on that matter before Parliament had an opportunity to consider a new Mental Health Bill in its entirety.

The Government are committed to introducing a Bill to replace the Mental Health Act as soon as time is available, but to wait for that would lead to an unacceptable delay in remedying the incompatibility. The Secretary of State therefore decided that in the circumstances, making a remedial order would be the best approach.

Under provisions in the Human Rights Act there are two procedures for introducing a remedial order: the "ordinary procedure" and the "urgent procedure". As it would imply, in the case of an urgent procedure an order may be made if it appears that, because of the urgency of the matter, it is necessary to make an order without the draft having first been approved by Parliament.

At the outset the Secretary of State intended to use the ordinary procedure to give Parliament the opportunity to review and debate the order before it came into effect. However, the Joint Committee on Human Rights considered that the remedying of an incompatibility which could affect the liberty of individuals should be regarded as an urgent matter and that the change in the law proposed was relatively simple and uncontroversial. In the light of that view the Secretary of State decided to make an order under the urgent procedure.

The committee also raised a number of other questions. It was in general satisfied with the responses, except that it considered that it would have been appropriate to include a statutory compensation scheme in the remedial order. The Secretary of State, on the other hand, proposed that any claims for compensation should he handled on an ex gratia basis. While expressing its disappointment that its suggestion was not accepted, the committee did not insist on it and agreed that the proposal to deal with any claims for compensation on an ex gratia basis will, if applied fairly and justly, forestall any further legal challenge.

I shall speak briefly on the context for this change. The House will be aware that the Government are committed to reforming the Mental Health Act 1983 because of the significant developments in the way in which patients with mental health problems are treated have come about. New drug treatments and different patterns of care make it generally necessary and important to do so, let alone the Human Rights Act and the European Convention on Human Rights, which also make necessary the need for reform. However, as the House is aware, there is no legislative slot at present for that.

In addition, new legislation on its own will not be sufficient. There need to be effective community-based services that are acceptable to those who need to use them, improving mental health services. Without detaining the House, the Government published in the National Service Framework for Mental Health, the broad thrust of how they intend to move forward making significant improvements in the standard of mental health services. The NHS Plan builds on the work which has been done previously.

The Government have committed themselves to a radical reform of mental health service provision and of the mental health legislation that underpins it. But to achieve such an ambitious programme of change requires time. That is why we are taking action through the remedial order to ensure that the existing legislation is compatible with the provisions of the ECHR. I am satisfied that the order, as it stands, ensures that the relevant provisions of the Mental Health Act are now compatible with the European Convention on Human Rights and therefore afford better protection of patients' rights. I commend the Order to the House.

Moved, that the order laid before the House on 19th November 2001 be approved [6th Report from the Human Rights Committed].—(Lord Filkin.)

Baroness Noakes

My Lords, I thank the Minister for his clear explanation of the order before us tonight. Perhaps I may say at the outset that we on these Benches support the order. It is clearly necessary for the Government to remedy the incompatibility between the 1983 Mental Health Act and the European Convention on Human Rights.

I have two sets of questions for the Minister. The first concerns the clear preference of the Joint Committee on Human Rights for a compensation scheme to have been contained in the order, to which the Minister referred in his introduction, and to the decision of the Department of Health to operate an ex gratia scheme. He also referred to the words of the Joint Committee, which were that it hoped that the proposed ex gratia scheme will be applied justly and appropriately in part to forestall the possibility of further legal challenge.

Perhaps I may ask the Minister to state the status of the ex gratia scheme. Has a scheme actually been drafted? When will the scheme be made public? What arrangements are there for such a scheme to be drawn to the attention of those who might be eligible?

My second question concerns the Government's proposals for other legislative provisions which contain similar burden of proof issues. Several respondents to the Joint Committee drew attention to Section 72(4) of the Mental Health Act 1983 which deals with applications to the Mental Health Review Tribunal in the context of guardianship. Liberty drew attention to a non-health area, which is the Discretionary Lifer Panels of the Parole Board under the Crime (Sentences) Act 1997. Both have burden of proof provisions which will be open to the criticism which led to the incompatibility declaration in the case which resulted in this order. What plans do the Government have to remedy these provisions so as to avoid further challenges under human rights legislation?

Lord Clement-Jones

My Lords, we on these Benches also welcome the order. I think that Opposition spokesmen probably should benefit from the Human Rights Act in terms of cruel and unusual treatment, being deprived of refreshment post-Committee stage. However, I am delighted that in a sense this is a rather historic occasion as this is the first order of its kind under the Human Rights Act, which we on these Benches strongly supported.

The court having made its decision in March last year in Regina(H) v. Mental Health Review Tribunal, North and East London Region, it was right to remove the requirement that the burden of proof should be placed upon the patient. We very much support that, and I am very pleased that the Joint Committee on Human Rights was so positive about the general tenor of the order.

However, a number of matters flow from what the Minister has said. I should like to put on record my thanks to the noble Lord, Lord Hunt of Kings Heath, for the briefing note that was sent around before the debate. It was a very clear and useful way to explain what was in the order to those of us who have not been covering that closely the proposal for an order. It is quite interesting that the actual draft order was tabled last July. Whether it was the ordinary or the urgent procedure it seems rather a slow process. The court decided on the case in March. Yet, here we are a year later faced with an order of this kind. In the meantime, we do not know but it may well be that patients have been prejudiced by the failure to amend the order. Some response is required about future earnest as to whether or not in the future this can be achieved rather more quickly, as a year seems to be rather excessive for what was then regarded as a fairly urgent matter.

There are other matters that the Minister mentioned in his introduction. I welcomed the Minister's statement of the intention to bring forward a new mental health Bill at the earliest possible opportunity. From these Benches I would certainly like to place on record that that mental health Bill is long overdue. The review took place some years ago; the debate took place some years ago. It has been extremely unfortunate from the mental patient's point of view that in a sense that debate has been allowed to die down. We will have to freshen the public debate about issues such as capacity and powers of detention and so on and, in a sense, re-enter that whole public debate which was started so effectively by the review that took place a year after the Government came to power.

Finally, the Joint Committee on Human Rights was clearly disappointed by the Government's views and decision only to institute an ex gratia system. I found the note circulated by the department slightly misleading in that respect. The note states: They agreed, however, that the proposal to deal with any claims of compensation on an ex gratia basis will, if applied fairly and justly, forestall any further legal challenge". Looking at the sixth report of the Joint Committee on Human Rights, it seemed to me that they were rather more equivocal than that. Paragraph 28 states that, we continue to believe that the failure to include in the remedial order a provision allowing a person detained in breach of Article 5 by virtue of the previously incompatible legislation to claim compensation as of right would automatically give rise to a violation of Article 5(5) if it proved that that person had been affected by the incompatibility". I do not know whether those two statements are themselves compatible. But it seems to me that this is a rather blither interpretation of that than it should be. I should like to ask the Minister whether serious consideration has been given to whether there is a risk of challenge if it is purely an ex gratia scheme; and where the Minister places the likelihood of a challenge being successful. Those are my comments.

8.15 p.m.

Lord Filkin

My Lords, I thank both noble Lords for the helpful way in which they have responded to this order. It is a significant historic occasion. It is the first time that we have seen remedial legislation under the Human Rights Act. That in part explains the Government's caution in the way that they proceeded initially under the non-urgent procedure.

I turn first to the question of the noble Baroness, Lady Noakes, as to why there is not a statutory scheme. In short, there are two reasons: first, there was some legal advice that a statutory scheme could create further legal problems in putting some cases outside, some subsequent tribunal decisions having made them null and void.

The second reason—which is more substantial—is that the ex gratia scheme will give a significantly greater scope for beneficial flexibility on behalf of any potential claimants. Perhaps I may give a couple of examples. A statutory scheme would require a patient to demonstrate that, were it not for the incompatibility, he would have been discharged, which is the proper test legally for damages, whereas an ex gratia scheme, which is based on this notion, is flexible enough to allow the Government to meet claims that do not strictly satisfy the test where it is just to do so.

Further, a statutory scheme would have time limits for claims to which it must adhere, whereas an ex gratia scheme allows more flexibility. Where the patient is not able to demonstrate conclusively that the incompatibility led to his continued detention, the Government could under an ex gratia scheme consider what case he had been able to make out and to take a view on compensation accordingly. We believe that there are likely to be extremely few cases. But in practice we hope that it will give a little more flexibility to make judgments which in the circumstances are benign rather than harsh.

The noble Baroness also asked about the status of the scheme. Essentially the levels of compensation of the scheme in such cases would be set according to the Strasbourg conventions. So there would be principles that would underpin it. The Government do not have a fully worked out scheme at this stage. But we shall he looking on a case by case basis and seeking to apply the Strasbourg principles to any cases that come forward.

The noble Baroness also raised a question about how this will be brought to the attention of any interested bodies. I strongly agree that that is a relevant issue. As soon as the incompatibility was apparent in terms of the Court of Appeal's judgment, the Government wrote to a range of bodies—the most significant of which for these purposes was the Law Society—bringing the matter to their attention. In the circumstances I can see that nothing would be lost by the Government again writing to the Law Society and all other interested bodies on, one trusts, the confirmation of this order, further drawing the attention of lawyers (who represent nearly 100 per cent of all such people) to the potential for making claims in what are relatively tight circumstances, should they believe that they have a case to make. The Government would not want anyone not to be able to make a legitimate claim through ignorance—without wanting to raise hopes of there being a vast army of such people able to do so.

Baroness Noakes

My Lords, on a point of clarification. When evidence was given to the Joint Committee, much reference was made to an ex grata scheme. It was referred to several times in a letter from a Department of Health Minister. As I understand it, the Minister is now saying that there is no scheme—that there is a set of principles but it will be applied on an ad hoc basis. Is there a scheme to which a body—perhaps the Law Society, although I encourage Department of Health to consult a little wider among any bodies that may represent patients and ale concerned with their rights to compensation—can look to know what they can expect from the Government?

Lord Filkin

My Lords, the principles of compensation will be determined, first, by the Strasbourg principles, which concern for how long a person had been detained against his will without adequate evidence to justify his detention. The level c f compensation will be determined based on case law and principles, of which there is a considerable amount, in all the circumstances. Then an offer will be made by the department to the person's lawyer. I am confident that that will be clone fairly. When we spoke with officials earlier this week, both my fellow Minister, Jacqui Smith, and I stressed the importance of clear principles, clear propriety and fairness.

I should also stress the question of numbers. It is perfectly possible that there will be no such cases whatsoever. Of course, that does not for a second mean that we should not ensure that the process is properly provided for. On the other hand, the circumstances are fairly rare. The Joint Committee recognised that it was perfectly possible that there would be no such cases.

With regard to guardianship, it does not deprive liberty, so there is no incompatibility under the Human Rights Act 1998.

I turn to the questions posed by the noble Lord, Lord Clement-Jones. First, he asked: why is the order before the House in April when it was tabled in July? The first order was tabled under the non-urgent procedure. It was therefore retabled in November under the urgent procedure.

The effect of that was that on the following day, I think, it came into immediate effect. That therefore remedied the incompatibility, but 120 days are allowed from the making of the order until its final ratification by Parliament—that is, 120 parliamentary rather than calendar days. Although that appears to be a long time, in practice it was a product of the movement from the non-urgent to the urgent procedure in the light of the JCHR's advice and no delay was suffered by the public as a consequence of using the urgent procedure, because the order was effective in November.

The final point raised by the noble Lord, Lord Clement-Jones, concerned the need for legislation to replace the 1983 Act, which is itself largely based on 1950s legislation. The Government—certainly the Department of Health—could not agree more with the noble Lord. Clearly, that issue will find its usual place in discussion on the Government's future legislative priorities, and one can but wish it God speed in that process. I commend the order to the House.

On Question, Motion agreed to.