Mental Health (Approval Functions) Bill

Debate between Jeremy Hunt and Dan Byles

Tuesday 30th October 2012 Commons Chamber

[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.