Mental Health (Approval Functions) Bill

Debate between Dan Byles and Diane Abbott

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.