Mental Health Act

Lord Hunt of Kings Heath Excerpts

Monday 29th October 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl for repeating the Statement and for giving me earlier briefing today. Detaining people under the Mental Health Act raises the most serious issues of fundamental rights and patient and public safety. Any reported failure will therefore always be a matter of the highest concern. I am sure I speak for the whole House in saying that I have been reassured by the Minister’s comments, in particular on three crucial points: first, that no patient has been wrongly detained or received care that was not clinically appropriate; secondly, that no doctor was unqualified to make decisions; and thirdly, that urgent action is being taken to correct the situation and bring the clarity that is so clearly essential.

I would like to put a number of questions to the noble Earl. Can he say a little more about the events that brought this to light last week? Was it discovered in one SHA, and by what process did the department establish that it extended to three more? Can the noble Earl tell me whether extensive checks have been undertaken in all 10 SHA areas? Is his department confident that no more patients and families are affected than the 4,000 to 5,000 mentioned in the Statement? Has he any plans for direct communications with the patients and families affected? Is it the case that these patients are living not just in the four regions mentioned but in other parts of the country? Will he comment on how many are in high-security hospitals or could potentially pose a risk to the public?

The noble Earl informed the House that, despite the regulations not being followed to the letter in four of the SHAs, the advice from First Treasury Counsel is that the detentions carried out by those panels, even where the relevant doctors were not signed off by the strategic health authority, were none the less lawful. I do not know whether the noble Earl will be able to clarify that or give some more detail of First Treasury Counsel’s advice. The noble Earl confirmed that the Government will be bringing forward emergency legislation to ensure, for the avoidance of any doubt, that the actions of those doctors have legal validity.

The compulsory detention of patients under the Mental Health Act for their own good or for the public good should always be a matter of great public and parliamentary interest and scrutiny. This is doubly so when legislation of an emergency and retrospective nature is contemplated in this area. Emergency legislation should always be used as sparingly as possible, and your Lordships’ House is rightfully nervous of retrospective law. The Official Opposition understand and support the noble Earl’s wish to remove any doubt about the legal status of the patients concerned, but that has to be set against the general undesirability of asking Parliament to legislate hurriedly. Over the next day, will the noble Earl ensure that your Lordships have access to the fullest possible information, including a summary of the legal advice he received? There will also be concerns about the precedent, particularly in the area of people’s rights, and I hope that the noble Earl can reassure me on that point.

The House and the public will, at the end of the day, want to know that this emergency legislation is being used in exceptional circumstances as a last resort, not as a convenient means of correcting administrative failures. In his Statement, the noble Earl mentioned that according to the advice that he had received from his officials none of the alternatives to legislation had proven satisfactory. Will he give a little more detail about what the possible alternatives were? It would be helpful to the House to know that. If he is not able to do that comprehensively tonight, when it comes to Second Reading of the legislation, which I presume we will be debating on Wednesday—I do not know whether that has been agreed yet—it would be helpful to know what the alternatives might have been and why his officials have concluded that they are not sensible ways forward.

Finally, I turn to the investigation. The Opposition support the review under Dr Harris to get to the facts and ensure that lessons are properly learnt. The noble Earl said that he thought the review would be completed by the end of the year. Will the review be made public? While one would not wish to prejudge it, is the noble Earl in a position to say whether it is proceeding on the basis that what has happened is a failure of policy implementation rather than any defect in legislation? This is important because practitioners working in this important field would not want any unnecessary question marks hanging over the mental health legislation in general.

Will the noble Earl clarify what is going to happen post April 2013? This is currently the responsibility of strategic health authorities, which are due to be abolished at the end of March next year. Will the Secretary of State take back this responsibility from April 2013 or will it be delegated to another authority? If it is, to which authority and how it will be ensured that the proper delegations will be carried out in practice? As well as establishing that and the historical facts, will the review consider whether the new arrangements are likely to be well understood post April 2013?

In conclusion, I commend the Minister for the approach that he and his colleagues have taken to this difficult issue. Clearly, the request of this House and the other place is exceptional, but I fully understand that failure to act would potentially cause unnecessary distress and uncertainty to many thousands of vulnerable patients and their families and risk to public safety. While I look forward to a rigorous examination of the emergency legislation, the noble Earl has our support in removing any uncertainty.