Contribution
My Lords, in moving Amendment 1 standing in my name, I will also speak to Amendment 3 in my name. There are other important amendments in the name of the noble Baroness, Lady Whitaker, in this group.
Before I turn to my two amendments, I would like to make one general point. On these Benches we very much welcome this long-overdue Bill and will work with others to strengthen it further. The 1983 Act, which we are amending, is more than 40 years old and no longer reflects current understanding, attitudes or best practice in relation to severe mental illness or learning disability and autism. We need to ensure that the final law is truly fit to serve people’s needs for years to come, and our proposed amendments reflect a comprehensive effort to strengthen mental health services by promoting equity, tackling racial disparity, supporting the well-being of children and young people and ensuring that adequate resources are in place to deliver the Bill’s provisions.
A brief look back at the history shows that significant changes to mental health legislation happen on average every 15 to 20 years. That is understandable because it takes time for legislative reforms to take shape and be implemented. This Bill is likely to be the legislation that impacts on the health and well-being of people with mental health conditions for the next two decades. During our debate, we will be raising issues. It may not be possible to deal with them all in the legislation but they are important to mental health services overall, so I hope the Government will view them as part of a wider package of reform, be they issues around resources in the community or the interface between this Bill and the Mental Capacity Act. It is all part of our wider scrutiny, and I hope that the Government welcome that.
Amendment 1 would add a fifth principle to the existing four set out, which of course I fully support, and provide additional momentum towards the goal of addressing the racial disparities in the Mental Health Act. I believe that making equity one of the guiding principles, as in my amendment, would give it far greater clarity, weight and focus. If we look back at the underlying rationale for this legislation, addressing inequalities, particularly racial inequalities, is one of the key issues identified in Sir Simon Wessely’s review of the Act and is one of the key drivers behind this Bill. However, concerns remain in the sector and beyond that the Bill as drafted does not go far enough to address this deeply entrenched inequity. Adding such a principle would also reflect existing duties under the Equality Act and the requirements of the patient and carer race equality framework, a point made by many noble Lords at Second Reading. This would go some way to recognising one of the key drivers behind reforming the Act: to address racial disparities.
I will give a quick reminder of the key facts. Black people are more than four times as likely to be detained under the Act than white people. Black people are over seven times more likely to be placed on a community treatment order, a CTO. On average, people from racialised communities have a worse experience of care and worse outcomes, and black and black British people are more likely to be detained for longer and to experience repeated admission. They are also more likely to be subject to police powers under the Act and to experience higher levels of restraint than white people. These are gaping disparities in the use of the current Act, and we must ensure that the Bill does something about them.
My Amendment 3 is intended to probe whether the principles in subsection (2B) will be statutorily binding. Given that the code can only reflect law and act as guidance, placing the guiding principles in the code leaves a loophole in which they can be deviated from. That is the purpose of this amendment. The Bill provides an updating of the principles to be contained in the statutory code of practice, and that is welcome, but it does not include the statutory principles appearing in the legislation in the way that principles appear in Section 1 of the Mental Capacity Act 2005. I am not clear about the reason for this distinction between the two pieces of legislation, hence this probing amendment. I would welcome an explanation from the Minister of the thinking behind this distinction.
I am aware of strong views held by those working in the sector that it is hard to understand how the principles will be binding unless they are included in the Bill itself. Many feel that this would have much greater force than simply being referenced as “things the Secretary of State must consider” when writing the code. There is also case law. Back in 2005, R (Munjaz) v Ashworth Hospital Authority made it explicitly clear that the Mental Health Act code is guidance rather than instruction.