Mental Health Act 1983 (Remedial) Order 2001

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Sandra Gidley (Romsey): I support this welcome order. Previously, a patient was detained unless a consultant decided to release him or her. I have come across a couple of cases in which family members manipulated that system and—for reasons best known to themselves—put a lot of pressure on a consultant to make sure that a person was detained who did not need to be. The new arrangements strike a far more appropriate balance.

In many ways it is a shame that we have had to take such action. When the White Paper was published, many of us hoped that there would be a mental health Bill in this Session. How soon will the Bill be forthcoming? Will the Minister press for it to be announced in the next Queen's Speech? It is overdue, and many small anomalies in the 1983 Act remain to be addressed. We need to consider the human rights of mental health service users as well as society at large.

4.49 pm

Jacqui Smith: I welcome the positive approach that Committee members have taken to the remedial order. I agree with the hon. Member for North-East Hertfordshire (Mr. Heald) that the order is not a condemnation of the 1983 Act. Although the Government believe that the time is right for

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modernisation of the legislation, I agree with him that the 1983 Act has played a very important role.

Paragraphs 32 and 33 do not mean that a diagnosis of schizophrenia would be sufficient for detention. That would be unacceptable. The correct interpretation is that, if the tribunal were dealing with a case of schizophrenia, that might enable it not to discharge—it would depend on the nature of the illness. The tribunal will also need to ensure that its decision is proportionate, as required by the European convention on human rights.

I agree with the hon. Gentleman that one of the important developments needed in mental health provision is to ensure that we stop stigmatising people with mental health problems—whether they are schizophrenics, or have other illnesses. That is why in the Government's national service framework for mental health services the first standard acknowledges the need for positive promotion of mental health and action to tackle discrimination. I agree that many people with schizophrenia play an active and important part in our society and communities.

The hon. Gentleman asked about the extent of the problem, although he outlined the answer himself. It relates to the issue of compensation. Since the ability to gain compensation was introduced, nobody has come forward to claim that they fall into the relevant position. The Government take the view that, although there is an incompatibility and it is right to correct it, not many people have been affected. Those who might be affected fall into that narrow category between people about whom there is clear, positive evidence that their mental disorder continues and they can therefore continue to be detained, and people about whom there is clear evidence that they should be discharged. The remedial order deals with the small gap between those categories. Although we do not have evidence of large numbers of people falling through that gap, it is right that the Government have taken action. Even if it could not be proved that any people have been in that position, the incompatibility has been pointed out to us.

Certain other matters were, I think, raised by some of the respondents to the Joint Committee's consultation. It is clear that the policy decisions and concerns relating to the position of those undertaking a life sentence are not within my remit. There are two reasons—and one of them relates to life sentences—why the remedial order does not amend what could be seen as a similar double negative test in section 72(4) of the Mental Health Act in line with the changes that it makes to sections 72(1) and 73(1). First, the enabling provision—section 10 of the Human Rights Act—limits the ability to make changes to remove an incompatibility for those for whom the incompatibility has been identified. People may have a view as to the compatibility—or incompatibility—of section 72(4), but it has not been proved to be incompatible, so it would not be possible to take remedial action of the sort that we are taking with respect to sections 72(1) and 73(1).

Lynne Jones (Birmingham, Selly Oak): For that reason, is there not an urgent need for the Government

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to introduce their proposals to update the Mental Health Act?

Jacqui Smith: I assure my hon. Friend that I am coming to that point.

The argument would apply equally to other areas of legislation in relation to cases of life sentences in which no incompatibility has been proved. There is a qualitative difference about section 72(4) of the 1983 Act: it does not offend article 5(1) and 5(4) of the European convention on human rights because article 5 relates to the deprivation of liberty rather than restrictions on it. That important distinction has been drawn by the European Court of Human Rights in case law. Section 72(4) relates to guardianship. In the absence of detention, article 5 is not engaged. To that extent, the provisions cannot be said to be incompatible with article 5 in the same way that sections 72(1) and 73(1) of the 1983 Act have successfully been argued to be.

I assure the hon. Member for North-East Hertfordshire that, although I have received no applications for compensation, the Government recognise that patients who have been subject to unlawful detention as a result of the incompatibility of sections 72(1) and 73(1) should be appropriately compensated. That will be done on an ex gratia basis. Compensation will be calculated in accordance with the principles set out in section 8(4) of the Human Rights Act and will therefore take into account the principles applied by the European Court of Human Rights when awarding compensation. In other words, consistency in compensation would be achievable under the Government scheme.

Mr. Heald: I have been thinking about the Minister's point about guardianship. Surely the courts believe that a reverse burden of proof is wrong whether or not it is compatible with article 5. On that basis, and whether or not cases involve article 5, does she not want to change the provision on guardianship? It should not be necessary to prove a negative in order to be free of the burdens of guardianship, which involve someone else looking after one's life. That would be an intrusion into somebody's liberty.

Does the Minister agree that the Mental Health Act must be reformed? Is she able to give us any idea of the timetable? Some recent developments have been depressing.

Jacqui Smith: I am not depressed, as I will explain later. I agree with the hon. Gentleman that, were we writing the legislation today, we would not write it in its current form. It is important that we modernise the legislation.

To complete my assurances about the Government's ex gratia compensation scheme, having chosen to compensate on an ex gratia basis, we have introduced flexibility into both the consideration of claims and the types of time limits

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involved; that would not have been possible in a statutory scheme. We rightly with the Joint Committee on Human Rights that it was important to act urgently to remove incompatibility, which was why we revised our plans to use the urgent procedure. It would have proved difficult both urgently to amend the incompatibility and work up a complicated statutory scheme of compensation. That might have delivered less flexibility to those who might seek compensation.

Even if we had been able to introduce a mental health Bill in this Session, the use of the urgent procedure for the remedial order has ensured that the incompatibility was put right as from last November. I doubt whether that could have been achieved so quickly in any other way, no matter how speedily we considered a Bill.

I assure hon. Members that the review of mental health legislation is an important pillar of the Government's approach to organising mental health services. As well as reform and investment in increased resources, we have made a commitment to amend the legislation. Hon. Members know that however hard they push me, and however much I might like to suggest that legislation could be introduced at a specific time, it is outside my control.

Jim Fitzpatrick (Poplar and Canning Town) indicated assent.

Jacqui Smith: The Whip nods. Not only are we actively working on the legislation, but we will maintain our commitment to introduce legislation when parliamentary time allows.

Mr. Heald: We are told that the Scots are to get their Bill in the first week of June. Their Parliament has been in existence for a much shorter time than this place. Why can I not tempt the Minister to give us a clue about when we will get our Bill? It is 18 months since the White Paper was published.

Jacqui Smith: The hon. Gentleman can tempt me as much as he likes and on a whole range of issues, but I shall not succumb. I assure him that the considerable work that is required to ensure that the legislation fits the bill, so to speak, is under way. We will introduce the legislation when parliamentary time allows.

We have had a brief but well-informed debate. I hope that the Government's willingness to introduce the remedial order shows that if incompatibility with human rights legislation is proved, the Government are willing to take urgent action to ensure that we safeguard the interests of people with mental health problems and to ensure that our law is compatible with the European convention on human rights.

Question put and agreed to.


    That the Committee has considered the Mental Health Act 1983 (Remedial) Order 2001 (S.I. 2001, No. 3712).

Committee rose at two minutes past Five o'clock.

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The following Members attended the Committee:
Olner, Mr. Bill (Chairman)
Atkinson, Mr.
Challen, Mr.
Coleman, Mr.
Cruddas, Jon
Field, Mr.
Fitzpatrick, Jim
Gibb, Mr.
Gidley, Sandra

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Heald, Mr.
Jones, Lynne
Love, Mr.
Meale, Mr.
Sedgemore, Mr.
Smith, Jacqui
Williams, Mr.
Wilshire, Mr.

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Prepared 11 April 2002