Mental Health (Approval Functions) Bill

Dan Byles Excerpts

Tuesday 30th October 2012 Commons Chamber

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

The Opposition do not oppose the Bill. We are aware that much of this activity took place under a Labour Government, and we are anxious to work in the most co-operative way possible to resolve the situation. However, I would do the House a disservice if I did not set out the in-principle objections to retrospective legislation of this kind.

I should like to quote someone whom Government Members may take more seriously than some of us. In the “The Road to Serfdom”, Hayek said of the rule of law:

“Stripped of all technicalities [the rule of law] means the government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s affairs on the basis of this knowledge.”

I shall set out objections to retrospective legislation, because despite the urgency of the situation and the problems that might arise if it were not introduced, we should recognise that it is a very serious matter to introduce retrospective legislation of this kind. The Opposition, as my right hon. Friend the Member for Leigh (Andy Burnham) said, were a little surprised that the Secretary of State for Health did not open the debate.

If retrospective legislation is undesirable in principle, it is particularly undesirable when it concerns the liberty of the subject. There is no precedent for retrospective legislation on such matters. We are dealing with the mentally ill and the sectioning of people under the Mental Health Act 1983. Due process is even more important in relation to issues under that Act than in relation to other matters of criminal justice, as we are dealing with vulnerable people who are not in a position to advocate for themselves. Due process is not less important in relation to Mental Health Act matters; it is more important.

I urge the House to pause for a second and see the situation from the point of view of the mentally ill, their families and their supporters. For people engaged with mental health legislation, the process may appear Kafkaesque and labyrinthine. They now know that 5,000 people—perhaps more—were sectioned, strictly speaking, illegally, which can only cause unhappiness and uncertainty. As hon. Members have said, it may even affect the condition of those people.

[Dan Byles (North Warwickshire) (Con)]

I do not disagree with anything that the hon. Lady has said, but I should like to clarify something. Is she basically saying that she supports what the Government have done, but is putting on record the fact that the measure must not be seen in any way as a precedent? This is an exceptional and unique set of circumstances. Is that effectively what she is saying?

[Ms Abbott]

I have been a Member for 25 years. I have never seen retrospective legislation of this kind. Although we support what the Government are doing, we do not want it to be seen in any way as a precedent; nor do we want it to be thought that, because the measure relates to the Mental Health Act, it is less significant than if it were a broad criminal justice concern. That is the point that I want to put on the record.

As I have said, for patients and their families, the mental health system may appear labyrinthine and Kafkaesque at the best of times. Now they find that for a long period—some of it under a Labour Government—people were being sectioned without proper due process. Ministers have said, both today and yesterday, that this is a technicality, but due process means that people should abide by the technicalities. Only in that way can we defend the liberty of the subject, and only in that way can the subject have any recourse. If we do not abide by the technicalities and if the rule of law does not apply, where do our constituents and other ordinary people turn if things go wrong?

Ministers have made a series of assertions. They have said that no patient has been wrongly detained or received care that was not clinically appropriate. They have said that no doctor was unqualified to make the decisions, and they say that urgent action is being taken to correct the situation. But I would be interested to hear from Ministers whether there has been an individual case review of these cases. How can they assert that no patient has been wrongly detained or received inappropriate care if the Government have not reviewed each case individually? How can Ministers assert that no doctor was unqualified to make the decisions if they have not reviewed each case individually?

I am not raising these issues to stop what I understand is an urgent process, but it would not be right for the House to railroad the legislation through without paying attention to the individuals and the individual cases involved. If there has been no individual case review, the question raised by other hon. Members whether the Bill will stand up to judicial review comes to the fore. Is the Minister in possession of robust, irrefutable evidence to show that none of the more than 5,000 patients detained by the approximately 2,000 not properly approved doctors was subject to clinically inappropriate detention or hospitalisation?

Will the families and carers of those individuals be advised of the situation and given an opportunity to raise any concerns that they may have? When a relative is detained under the Mental Health Act, the question whether that is appropriate can be one of the most difficult and traumatic questions that a family has to face, and to dismiss the lack of due process as a mere technicality, as Ministers have come dangerously close to doing, is not fair to those individuals and their families—our constituents.

Although I accept that the doctors concerned have acted in good faith, I hope the Minister will agree that we are dealing with a highly vulnerable group of individuals—the patients and their families—and they need to have absolute confidence in the Government’s response. We understand that introducing urgent legislation is part of offering such reassurance. It will protect vulnerable patients from a potentially exploitative situation in relation to what are commonly called ambulance-chasing lawyers, but when their relative is taken away from them, people also want to know that this is not a mere rubber-stamping process. I have heard nothing so far that would reassure me, if I were the mother or a relative of one of the people detained under a defective process, that Ministers do not regard this as a mere rubber-stamping process and that all the Bill does is alter in some technical way the nature of the rubber stamp.

My right hon. Friend the Member for Leigh made the point that we need to move forward with a very different attitude to mental health. We need to look for parity of esteem between mental health and physical health, but in this matter, in relation to the liberty of the subject, we also need to look to parity of esteem when someone’s liberty is taken away under the Mental Health Act and under broader criminal justice legislation. If people had been held in prison and there had not been due process, it would not be good enough to railroad through retrospective legislation in an afternoon in the House of Commons. There would be much more uproar.

We want to impress upon Ministers that we must take seriously the liberty of people detained under the Mental Health Act and demonstrate that we are doing so. A number of questions have been raised by hon. Members on Second Reading, and we hope that the Minister will be able to answer them. I thank right hon. and hon. Members who have taken part in the debate. As I said earlier, I hope the Government will try to involve the family and carers of those affected more closely in the process of bringing clarity. I hope that the Government will seek to remove any uncertainty and will explain to them what they can do to seek redress.

Like my right hon. Friend the Member for Leigh, I commend Ministers for their attempt to move quickly on a very difficult issue. We want to offer the Secretary of State any assistance that we can as he seeks to answer questions from patients, families, carers and the wider public, but we say to him that retrospective legislation is very serious. It cannot be dismissed as a technicality. The liberty of the subject is, so to speak, the ground zero of parliamentary democracy in this country. It cannot be dismissed as a mere technicality. Sadly, I do not believe that the debate this afternoon will be the last that we hear on the matter. It is extremely important that those of us who are in the House this afternoon tease out the answers to the questions that have been put.

--- Later in debate ---

[Mr Hunt]

The answer to the right hon. Gentleman is yes. I will now return to the specific questions asked about the Bill.

The hon. Member for Southport (John Pugh) talked about the important issue of discrimination—that is, whether we are behaving differently because these patients have a mental illness. Removing discrimination does not mean treating everyone exactly the same. In fact, we will remove discrimination in the mental health field by better understanding the vulnerabilities and needs of people who have serious mental health problems, and that might mean treating them differently to account for that. The hon. Gentleman is absolutely right to say, as was the hon. Member for Hackney North and Stoke Newington (Ms Abbott), that important human rights issues need to be considered. I want to reassure him that, even in the four SHAs where the technical irregularity in the approval of doctors arose, the criteria were as rigorous as those used to make the clinical assessment that it was necessary to detain someone under the Mental Health Act. The same quality of expert advice was drawn on in order to make those decisions.

The right hon. Member for Oxford East asked why we are not limiting the legislation to the four SHAs where we have identified this technical irregularity. That is because we do not know at this stage whether the problem may have predated the establishment of SHAs—we should remember that these powers go back to the Mental Health Act 1983—and therefore, to make sure that we deal with the problem in its entirety, it is better to include the whole country in the legislation lest we find at a later date that the problem had existed in other parts of the country, perhaps prior to the foundation of SHAs.

On human rights, I have signed a piece of paper saying that I believe that the Bill is compliant with the European convention on human rights. I did that on the advice of Government lawyers and of the Attorney-General. The Attorney-General believes that, were a case to be brought now, people would be entitled only to nominal compensation because this is a technical, not a substantive, irregularity, and it is therefore not, on this occasion, a breach of people’s human rights to pass a law retrospectively.

The hon. Member for Arfon (Hywel Williams) asked why this has taken so long—why, for example, the Mental Health Commission did not identify the problem in its years of existence. That is a very important question. I cannot pretend that I have the answer now, but I want Dr Harris to look into that issue in enormous detail because I want to know whether there is a risk that other errors, similar or related, might exist in other parts of the system. The House needs to understand much better whether we should be concerned about that and whether the right governance procedures are in place.

The hon. Gentleman mentioned advocacy. As he will know, all patients have a right to an independent mental health advocate, but that process has not always worked as well as it should. I want to use the opportunity of the transfer of those responsibilities from primary care trusts to local authorities to make sure that we have proper procedures in place so that people really do get the advocacy support that they need.

Let me confirm to the hon. Gentleman—we received this piece of information as my hon. Friend the Minister was speaking—that someone approved in one SHA is able to practise in other SHAs. That is partly why the legislation needs to be UK-wide. We have had a lot of discussions about this with doctors’ representatives, particularly the Royal College of Psychiatrists. I do not believe that there are any implications for the second doctor or the social worker, but if I receive advice to the contrary I will write to him to let him know.

I think that I have covered most of the points raised by the hon. Member for Wolverhampton North East. She asked what is going to happen when the SHAs are abolished. We will be asking Dr Harris to address that when he carries out his independent review.

Finally, I turn to the hon. Member for Hackney North and Stoke Newington and her important comments about the seriousness with which we must treat any retrospective legislation. She referred to what Hayek said about that, with which I wholeheartedly agree. I did not think that we would be agreeing across the Dispatch Box about Hayek, but there it is. She made the important point that due process is about respecting technicalities, so we cannot brush it aside. That is why this legislation is necessary. A failure of due process—a failure to observe technicalities—puts us in an extremely difficult situation where ordinarily we would want to say that due process should be observed in all circumstances and that we should not pass retrospective legislation on that. In this particular case, however, it would have been against the clinical interests of 5,000 highly vulnerable people were we simply to consider that single legal perspective; the broader clinical perspective needs to be recognised.

The advice that I received from Professor Sir Bruce Keogh, the medical director of the NHS, was very important in persuading me that we needed to take the route of emergency retrospective legislation. He said that the alternative, which was to go through all 5,000 people and redo the entire sectioning process now that all the doctors have been properly validated, presented serious clinical risks to those individuals. It is a very difficult matter. As the hon. Lady and I are trading political thinkers, perhaps I could refer her to Isaiah Berlin and say that sometimes important moral principles are not totally consistent with each other. This is one of those occasions, and we have to weigh her very important points about the need to avoid retrospective legislation, even on technicalities, against the clinical interests of a highly vulnerable group of people.

[Dan Byles]

In a previous life, I sat on the board of a Mental Health Act scrutiny committee in a west midlands mental health trust. Does my right hon. Friend agree that this retrospective change does not in any way undermine the fact that every single one of the patients he has mentioned has been through a very robust system of checks and balances throughout the sectioning process in order to be sectioned, and then while they are sectioned, and has access to a very robust appeals mechanism that the Bill in no way undermines?

[Mr Hunt]

My hon. Friend is absolutely right. The key point is that those patients are free to challenge any element of the clinical decisions made as part of that very thorough process. This proposed law is about the technical irregularity only, and it is precisely because of the legal risks associated with that irregularity that we think it is necessary, in the interests of those 5,000 people, to enact this Bill.