§ Question again proposed, That the Bill be now read a Second time.
§ 4.3 pm
§ Mrs. Gwyneth Dunwoody (Crewe)
The Secretary of State said that it was tremendously important to draw a clear distinction between the different categories of patients when discussing legislation that affected the mentally ill and disordered. I welcome the Bill because, as the right hon. Gentleman said, we do not often have an opportunity to discuss legislation on this important subject. That is partly the result of the effeciency of the 1959 Act, which operated extremely well for about 20 years.
It is right to pay tribute to my right hon. Friend the Member for Norwich, North (Mr. Ennals), who not only instigated an interdepartmental working party to discuss the necessary changes in mental health legislation, but took great care to consult all the interested parties. In addition, he produced a White Paper and took account of the representations that were made to him. He had intended to prepare legislation similar to that before us today.
At that point the similarity ceases. Aspects of the Bill and of the Secretary of State's speech express an attitude that is radically different from that which a Labour Government would adopt. At no point did the right hon. Gentleman touch on the basic and important question of resources. Any discussion of amending mental health legislation inevitably involves the effects that that will have on those who will operate it and on those who will benefit from the changes in the law. However, I welcome the changes in definition. It is important that Parliament should give a lead to those who, unfortunately, tend to regard mental illness as an overall enveloping term, which takes account of all those who suffer from any form of mental disorder. After all, the Bill covers only a tiny percentage of patients.
It is impossible to exclude from the effect of the legislation those who may be mentally handicapped but who have aggressive behavioural problems, but I had hoped that the right hon. Gentleman would find time to mention the consolidation measure that I understand he intends to introduce. I hope that in Committee the right hon. Gentleman will spell out the implications and extent of that consolidating measure.
The Bill covers several areas of particular concern. Although several amendments have been made in the other place, there are still many omissions. We should like parts of the Bill to be clarified and other parts to be extended. I hope to speak briefly on some of the points of particular concern, as we shall move relevant amendments in Committee.
It is vital that all the legislation should be tied to the test of treatability. The ability to respond to treatment is one of the most important aspects of the legislation. The care and treatment of detained patients must be our priorities. Although we welcome that aspect of the legislation, we should consider closely the nursing profession's role. Nurses are to be given wider powers, but the Secretary of State did not say that he would hold consultations with the various professional bodies to spell out the conditions 697 under which their new terms of service will operate. I should like the nursing profession to be given specific, written explanations of its legal responsibilities and safeguards and the nursing unions would welcome that.
Hon. Members should recognise that even under the existing legislation difficulties may arise from time to time. The six-hour holding power sounds adequate and is a distinct improvement, because many nurses have been placed in a difficult situation. However, that power may not always he adequate. In our understafed mental hospitals, nurses may experience difficulty—particularly at weekends, or late at night—in gaining access to the independent members of the medical profession who will be required to implement the full effect of the legislation. Will the Minister consider introducing a break clause, which would allow a short time—perhaps as short as 30 minutes—in which the six-hour power could be renewed by the nursing profession? That would cope with the situation in which a patient is thought likely to be a danger to himself or to the community, but who, because of the extent of his mental illness, wishes to discharge himself. If ready support services are not available, that will put tremendous pressure on the profession.
I hope, too, that close consideration will be given to the whole question of staffing. The nursing profession feels that, even in the Bill, there are provisions affecting people suffering from psychopathic diseases which perhaps should not be included. I hope that the Minister will spell out his attitude towards secure units, of which there are still far too few. Regional hospital authorities do not seem to be moving with the speed and efficiency that one would hope. Of course, it is largely a matter of resources. Indeed, one of my worries about the reorganisation of the Health Service was that in some instances it would be much more difficult for smaller district health authorities to generate the support that was needed for special services. Regional health authorities should be encouraged to move as fast as possible to create secure units.
§ Mr. Tim Rathbone (Lewes)
Clearly there are financial constraints, but there are also the constraints of consultation with the communities in which those regional secure units will be located. They are often—as in my constituency—immensely concerned about the location of the units. There has to be a long and carefully planned process of explanantion about their operation so that the local community is carried along with the decision about their siting.
§ Mrs. Dunwoody
If the hon. Member means explanation, agreement and co-operation, I agree with what he says. I hope that secure units will not be regarded as highly dangerous operations which local authorities or local groups of residents will regard as a disadvantage rather than an advantage. They are essential, and it would be wrong if we were to allow the public to believe that they would in some way endanger the people living near them.
§ Mr. Charles Irving (Cheltenham)
Does the hon. Lady recollect that quite a large sum of money was made available for secure units, but, alas, that money was diverted elsewhere and not spent on those units? That was rather unfortunate.
§ Mrs. Dunwoody
I agree with the hon. Member that secure units should have been one of the priorities of regional health authorities. Now that the trauma of 698 reorganisation is over, I hope that those authorities will look at the matter urgently and try to get on with the building of suitable units.
§ Mr. Fowler
I am grateful to the hon. Lady for giving way. I know that she would like me to put the matter in context. There are plans in all but one of the regional health authorities for regional secure units, and we hope that, by 1985, 500 places will be available in regional secure units. That is the latest information. The hon. Lady may say that that does not go far enough, but in my view it is a considerable step forward.
§ Mrs. Dunwoody
I thank the Minister for that assurance. In view of the financing of the National Health Service, I very much doubt whether that timetable will be adhered to. If we get 500 places in such a short time., I shall be extremely happy.
This legislation is not just about the staff in mental hospitals; it is in particular about the patients. The changes in the law in relation to applications to mental health tribunals are extremely welcome. The fact that it will be possible to appeal to the tribunals more often, and that in some cases there will even be a degree of automatic review, is greatly to be welcomed. However, I come back to a point which, in my view, is vital. If patients are to ask to have their cases taken before a tribunal, will the Minister now give an undertaking that they will be able to apply for legal aid? That is fundamental.
There is clear evidence that the majority of cases that go before a tribunal are not represented. Ordinary people—people who do not have the burden of mental illness—are worried by the formal atmosphere of other tribunals. I have represented a number of my constituents at tribunal hearings of different kinds, and I know that those constituents were intimidated by the atmosphere, even when there was a specific attempt by the Church and the tribunals to create a more relaxed atmosphere. How much greater the problem will be for patients in these circumstances. In some cases where there was not proper representation, important papers were not available to the patients and they did not see the evidence that was to be given to the tribunals.
It is a pity that the Minister did not see fit, in these changes, to give the tribunal greater flexibility in the application of its duties. It has the right to order further detention or further release. There will be occasions in the not-too-distant future when another form of treatment or recommendation will be better than a direct decision on detention. I am extremely sorry that that has not been included in the Bill.
Then there is the matter of the Mental Health Act Commission. I welcome the idea of having a new group of outsiders capable of assessing what is happening to detained patients, although I think that the commission will have a great deal of work to do. It will have to visit quite a large number of special hospitals, and it will have quite a number of detailed cases to take up. The Minister did not make it clear at any point whether the commission would report to the House of Commons.
Why should there not be an annual printed report of the work that has been done, and why should not that report be available in the way, for example, that the health Ombudsman's report is available to Members of Parliament? The information that is gathered by the commission and the detailed work that it does would be 699 best recorded in such a way that people other than health professionals and the Secretary of State would have access to it and thus learn from the information in the report. I hope that the Minister will look closely at the matter.
I come now to a delicate area. When the Minister talked about treatment and choice, he said that when a patient refused treatment it was extremely difficult for that treatment to be imposed upon him without safeguards. We all agree, of course, that this is a delicate matter and not one to be changed without much consultation, but a suggestion was made by a group of psychiatrists connected with the Camberwell institute of psychiatry that because of the wording of clause 41 about medication—not about more radical treatments—the bizarre situation could arise whereby a patient admitted to hospital who was likely to become violent could not receive medication from his own doctor until a second doctor was found. That could cause real problems both for the staff and the patient. Considerable difficulties will be caused if it is not possible to give tranquillisers or to carry out such simple operations as blood tests when they are necessary.
I understand the problems that the legislation creates, but the Minister has managed to do the unthinkable: he has upset organisations such as MIND, which does not want any provision in the legislation for any form of compulsory treatment, and he has not dealt with the practical problems of the medical profession when suddenly faced with the real problems under the existing wording. I hope that this matter can be examined closely in Committee.
The Bill is an important step in the right direction—but it really is only a step. I wish to refer to the vital function of the social worker. Under the new legislation, a social worker, when dealing with this category of patient, will require a great deal of expertise and will need to have undergone a specific system of training. I hope that there will be consultation with the Department of Education and Science to ensure an overall national pattern in the standard of training for social workers. It would be wrong if the matter were left to independent local authorities and if, for some reason, there was not an agreed standard for social workers dealing with the mentally ill.
It is essential that the Government face the question of resources. Local authorities are not even aware of how much money will be available to them to fund their existing social services departments. They are under tremendous attack. They are looking for ways of funding services that are already inadequate, in some instances, to deal with the number of patients in the community. If the Minister is not to commit a specific sum of money to help with the training of social workers to provide specific services in relation to the Bill, he will be failing in his duty. Some local authorities, even now, do not provide 24-hour emergency social services cover. In the sort of case covered by the Bill the situation will be virtually impossible for those wanting access to trained social workers unless a 24-hour cover is available within some local authorities.
While there are good local authorities that are willing to undertake extra responsibilities and that seek to provide a high level of care for ratepayers, there are also local authorities which, given half a chance, will slide out of their responsibilities and will certainly fail to provide the sort of care that is inherent in the Bill. The Minister therefore has a special responsibility. He should say today 700 how the money will be provided for the training of social workers and whether there is to be an agreed standard. What efforts will be made, in the two-year period to which he refers, to monitor the creation of an efficient social worker force? What consultations will he hold with the social workers and with the multidisciplinary teams to ensure that a very high standard is achieved?
Good social workers will make all the difference to the operation of the Bill. Without that kind of advantage, real problems will arise. I welcome the changes contained in the Bill. When talking about the detention of any human being, we must be careful, as a Parliament, to ensure that we pass only legislation that is in the interests of the individual. We have a special responsibility in relation to the mentally ill, and certainly to those who are detained for their own safety and for whom the very best treatment should be made available. Many problems still exist in relation to the Bill. The Opposition will wish to ask many questions in Committee. On balance, however, it is a measure that we should welcome. I am glad to join other hon. Members in so doing.
§ Rev. Martin Smyth (Belfast, South)
I welcome the terms in which the Minister presented the Bill. I agree with many of the observations of the hon. Member for Crew (Mrs. Dunwoody) speaking from the Opposition Front Bench.
I wish, in the first instance, to pay tribute to my illustious predecessor, the Rev. Robert Bradford, who took a keen interest in mental health and sought to improve the welfare of those who so suffered or were mentally handicapped. This was typical of a man who cared for people and toiled indefatigably for his constituents, in particular, and for the nation at large. Even those who may not have shared his convictions or dreamed his dreams had to admit his integrity, and admire his courage and consistency in furthering the cause to which he was committed and the manifestation of Christian love that he displayed to those with whom he would otherwise have been at variance. He died, mowed down by terrorists, in the service of the country and of his constituents.
Ministers of the Crown and others sometimes speak of mindless terrorism. In so doing, they reveal their ignorance or grasp of the situation. In this debate on the Mental Health (Amendment) Bill, I wish to correct such a false opinion. There is a mind directing terror. In Ulster, this is the work of a small number of dedicated murderers seeking to impose their rule on an overwhelming majority who, like Robert Bradford, refused to be bombed or bullied, cowed or cajoled, into a country with whose fundamental position they disagreed. Sometimes, as politicians seek to internationalise the conflict, we, in Ulster, recognise that extra-national forces have been at work, ranging from Eastern bloc countries, through Palestinian terrorists to Uncle Tom Cobbleigh and all. Yes, even "the man from Uncle" appears to be meddling. Robert Bradford's people, however, consistently refused to be defeated and returned me to carry on his work.
I also rise to speak because the Bill is of concern to my constituents. The changes suggested and the overall Act will have import in Northern Ireland as part of the United Kingdom. Within the constituency, we have a very fine hospital in this sphere, and offices of various bodies associated with mental health are also found there. A number of constituents have shown great concern in the 701 matter. Some have provided valuable evidence, even if not fully heeded, to the Northern Ireland review committee on mental health legislation. In this context, I offer the comment that a better balance of lay participation in such bodies, rather than merely following the professionals, who may have peculiar axes to grind, could lead to a more healthy report.
Nevertheless, reverting to participation in this debate on a national Bill, I believe that we can share some of our experience so that the new Act might be improved and Great Britain learn from our experience. We shall consequently benefit, along with the whole kingdom.
It is my privilege to represent some of the finest people in the nation. Belfast, South has an excellent record with such distinguished servants to this House as Connolly Gage and Rafton Pounder, to name but two.
There are areas of great need, dismal housing and bad social conditions in Belfast, South. There are also estates with modern housing and contented people looking after their neighbourhood. Faced, like other areas, with too much unemployment, it is good to see the city leading in the provision of leisure centres and some beautiful parks and recreational areas. However, the river Lagan, which flows through it, is a source of pollution. A massive effort, co-ordinated by the Government, is needed to ensure that it is clean and can be used as a helpful amenity. Some steps have already been taken, but much more needs to be done.
Furthermore, Belfast, South influences not only Northern Ireland but the world at large by the outstanding work carried on in Queen's university and Stranmillis training college. I trust that that work will not be impaired by the present education cuts.
This is not the time for a detailed discussion of the Bill. However, in welcoming it and paying tribute to the work of the noble Lords and the draftsmen who have brought it this far, I would express some disquiet. Section 141 of the principle Act is similar to section III of the Northern Ireland Act, the outworking of which has given rise to concern.
I pay tribute to the outstanding improvement in the care both of the mentally ill and the mentally handicapped. I admit that in most cases patients are adequately cared for by staff who do a magnificent job in difficult circumstances. I also acknowledge that there are cases of extreme difficulty in dealing with some patients who refuse to be treated.
Nevertheless, a basic task of the House is to frame legislation that protects citizens and safeguards their liberties. The Northern Ireland Act tried to do that, as the Bill now tries to do, but it still tends to protect the profession rather than the patient. The rights of the relatives have been subsumed by the tribunal. Even the phrase "as soon as practicable" in section 45 has, in our experience, been interpreted broadly. Patients have not been informed of their rights when they should have been. In one case "as soon as practicable" meant six months. In some cases the nearest relative was not informed. In the Bill, social workers can, on the spot, overrule the wishes of the nearest relative.
If various local authorities might differ, as the hon. Member for Crewe argued, so may social workers, some of whom are good and some bad. These cases are not of simple human error, but rather of definite decisions where attempted cover-ups were performed, as some hon. Members can confirm. That relates not to one hospital, but to several, and I suspect that it is found also in Great 702 Britain. Even the management committee, which is responsible for protecting and informing the patients, was unaware of the position. In one case a distinguished public-spirited member resigned from a management committee when he discovered the facts.
Although the Secretary of State referred to the distinction between mentally handicapped and mentally ill, to my mind it is better that they continue to be served by separate bodies caring for them. The continued ambiguity over detaining for assessment arid the formalising of treatment requires further study.
For these and other reasons, I hope that the Bill will be given careful scrutiny and improved before it passes through the House.
§ Sir Derek Walker-Smith (Hertfordshire, East)
It is with a keen sense of pleasure and privilege that I express my congratulations and those of the House to the hon. Member for Belfast, South (Rev. Martin Smyth) on his maiden speech. He sits in the House in the place of the late Rev. Robert Bradford, to whom he paid a fitting and deserved tribute. He was a much-loved Member whose loss we mourn and whose memory we cherish. I was glad to hear the hon. Gentleman's reference to Connolly Gage, who was for many years my dear and valued friend.
I am pleased that the hon. Gentleman chose to make his maiden speech on the important, challenging and immensely human subject of mental health. His speech was distinguished by its perspicacity of thought and its felicity of phrase. We look forward with confident pleasure to hearing him on many occasions in the future.
The House is engaged in discussing amendments to the Mental Health Act 1959, which came of age on 29 July 1980. July 1959 is a long time ago. My right hon. Friend the Secretary of State, who opened the debate with a characteristically thoughtful and interesting speech., was a 20-year-old lad of promise, not even entitled to parliamentary suffrage, when on 26 January 1959 moved the Second Reading of what is now the Mental Health Act in a speech from which he has been good enough to quote today. Tempora mutantur, nos et mutamur in illis.
The Act has weathered well. It was a mammoth measure, with 146 clauses and 8 schedules on its introduction in January 1959, growing to 154 sections on its final enactment in July. It was subjected to detailed and important consideration in Standing Committee and on Report, at the end of which Dr. Edith Summerskill, as Opposition principal spokesman—perhaps I should say in the contemporary idiom "spokesperson"—whom I hold in affectionate remembrance, was able to start her speech on Third Reading by saying that it was an occasion for mutual congratulation. Certainly no Minister could have hoped to have better guidance or a more agreeable ecumenical atmosphere than obtained in the proceedings on that Bill.
A notable contributor to the Standing Committee was the formidable but very nice and dedicated Bessie Braddock, who was a member of the Royal Commission to whose consideration and recommendations the Bill owed so much. Bessie was good enough to say on Third Reading that the Act would be known as the Walker-Smith Act. It never has been so known. Perhaps the fashion for personalising statutes has passed, or perhaps it is because the rather slender armoury of my political equipment has never included a taste or capacity for personal public relations.
703 The Act has justified the high hopes entertained for it. After 23 years there is no question of repealing it, no question of having to repeat the action required and undertaken in 1959 and no need now for the clean sweep undertaken when it was necessary to make a holocaust of the existing law—The Times called it the jungle of mental health law—and substitute a single contemporary design.
On the contrary, Lord Elton told another place on 1 December 1981—as he was the Minister in charge I am entitled to quote him verbatim—thatThe Mental Health Act 1959 was a landmark in the development of care for the mentally disordered. It established many important principles … I doubt whether anyone would challenge those principles today; this Bill seeks to amend the 1959 Act but it does not challenge those principles. On the contrary, it seeks to ensure that they are more perfectly implemented."—[Official Report, House of Lords, 1 December 1981; Vol. 435, c. 933.]My right hon. Friend today reiterated that asseveration in regard to the maintenance of the principles of the Act.
It is against that background, within those parameters, and with the benifit of two decades of experience of the workings of the Act—basically a satisfactory experience—that the amendments have been devised. Although the case for some is clearer than others, taken as a package the Bill is surely to be welcomed.
Therefore, I shall make some comments on the important amendments in part II of the Bill, which relate to part IV of the Act dealing with compulsory admission, and to part I of the Bill which deals with the definition and classification of mental disorder and the sorts thereof as set out in section 4 of the Act.
I shall deal also with the provisions relating to mental health review tribunals and the proposed Mental Health Act Commission, and make a brief reference to the controversy on clause 41, to which the hon. Member for Crewe (Mrs. Dunwoody) referred.
I do not, however, propose to deal with part III, which relates to "Mentally Disordered Offenders". I do so not solely for economy of time and certainly not out of lack of appreciation of its importance. Part V of the 1959 Act was a Home Office product and responsibility for its conduct was then in the capable hands of my distinguished noble Friend Lord Renton, whose contribution has already been made, with customary clarity and authority, in another place.
My noble Friend Lord Renton recalled the dichotomy of responsibility and presentation of the 1959 Act and recorded the view that part III of the Bill improves the criminal justice provisions of part V of the 1959 Act in various useful although relatively minor ways. Mention of my noble Friend brings me to a matter of considerable controversy which has commanded much attention and debate both in another place and outside, which is whether mental handicap should properly be dealt with in the same measure as mental illness. Lord Elton said:I am aware of a body of opinion forcefully held by distinguished people that mentally handicapped people ought not ever to have been included in the principal Act and that one purpose of this Bill should be not to change the nomenclature but to take them out of the Act altogether."—[Official Report, House of Lords, 1 December 1981; Vol. 425, c. 935.]
Like Lord Elton, I have great respect for the views of Lord Renton, who is the distinguished and active chairman 704 of the National Society for the Mentally Handicapped, of which I am only a very undistinguished and non-executive vice-president.
Of course, there is much force in the argument for separation. Lord Renton said that he would be content to see the dichotomy that he recognises dealt with by separate parts within one measure rather than the more sweeping proposal of two separate Acts. I am sure that the Minister and his advisers will give careful thought to that and to what has been said about it. There were substantial reasons in 1959 for including both handicap and illness in the same measure.
First, both were the subject of expert consideration by the Royal Commission whose conclusions on both were incorporated in one report on "The Law relating to Mental Illness and Mental Deficiency". Secondly, and even more important, it was necessary to make the definition of mental disorder all-embracing to secure appropriate entitlement to care and treatment available under the National Heath Service. That purpose was attained by enacting in the seventh schedule to the Mental Health Act 1959 an amendment to section 79 of the Mental Health Act 1946 by substituting in the definition of illness a reference tomental disorder within the meaning of the Mental Health Act, 1959.That replaced the previous reference to mental illness simpliciter, a narrower term which would not have included mental handicap and would therefore have excluded the mentally handicapped from the provisions of the 1946 Act. There was, therefore, good practical reason for including both. mental illness and mental handicap in the single definition of mental disorder which in turn was the passport to NHS facilities. Of course, I do not suggest that that practical consideration is necessarily conclusive against the argument for separation, only that it is an aspect to which my right hon. Friend and his advisers, in their sympathetic and informed consideration of the matter, may wish to have regard.
I turn now to part II which amends part IV of the Act and deals with the important and sensitive topic of compulsory admission. Having regard to the sensitivity of the subject, the amendment is relatively modest after such a passage of time. The term "admission for observation" is sensibly renamed "admission for assessment" which is, indeed what it is.
I imagine that the 28-day period for observation and assessment has proved its value over the years, but the addition to section 31 of the Act, through clause 3, which provides the right of application to the mental health review tribunals within the first 14 days, should do nothing to impair the usefulness of the provision while reinforcing the rights of the patient.
The amendment of section 26 of the Act by clause 4 is also to be welcomed. In the context of admission for treatment in cases of mental handicap it substitutes the criterion of treatability for the more arbitrary criterion of age.
My welcome to the revision in clauses 1 and 2 of the statutory definition of mental disorder contained in section 4 is less warm as I do not altogether understand their basis. No explanation was vouchsafed by Ministers when the Bill was introduced in the other place.
The definition in the Act was good and was formulated on proper principles. The principles, as I explained at the time, were twofold. The first was to make the definition 705 of mental disorder wide and comprehensive. That was the proper approach for the reason that I have already given. It was a clarifying or entitling definition of those states or conditions by which, lawfully and appropriately, the care and treatment of the NHS can and should be administered. Secondly, and by contrast, we tried to draw narrowly and as precisely as possible, the definitions of the three categories of mental disorder, as those definitions form the basis of compulsory admission.
As far as I am aware, those definitions have worked well. The amendment proposed in clause 1, the substitution of the terms "subnormality" and "severe subnormality" by "mental impairment" and "severe mental impairment" is cosmetic. If those terms are preferred I have no objection, but I cannot see that they alter much. However, it is the substance of the amendment of the existing statutory definitions of "subnormality" and "severe subnormality" about which I have doubt.
The essence of the definition of subnormality in section 4 of the 1959 Act was arrested and incomplete development requiring or being susceptible to treatment or special care. The essence of the definition of severe subnormality was a degree of arrested or incomplete development as makes the patient incapable of leading an independent life. In neither definition was there reference to "abnormally aggressive" or "seriously irresponsible conduct". That was the ingredient of the definition of psychopathic disorder under section 4(4), and of that alone. This concept appears to have been extended into the definition of "mental impairment" and "severe mental impairment", so putting those unfortunate conditions of subnormality into the same category as psychopathic disorder. That is hardly the hallmark of an enlightened approach. Perhaps the Minister will address himself to that.
I turn now to the mental health review tribunals and the proposed Mental Health Act Commission which my right hon. Friend the Secretary of State has described as the most important innovation in the Bill.
The tribunals were introduced in 1959 as an entirely new safeguard for the citizen, providing an independent forum for those wishing to challenge the necessity of compulsory admission. The tribunals have worked well, and though part V is entitled "Mental Health Review Tribunals", there is no substantial amendment of their procedure, and there is an extension of their jurisdiction. No doubt consideration will be given to the argument already forcefully made from the Opposition Benches of the possibility of extending legal aid to tribunal cases.
The commission to be set up by the Secretary of State is to be given powers to perform the functions specified in clause 44 (1) and (2). I favour the visiting and interviewing of detained patients and the investigation of their complaints. However, I should like to be assured that before deciding on the creation of this new, large and presumably expensive body my right hon. Friend has satisfied himself that the performance of these tasks cannot be undertaken within existing machinery. The commission will be what is sometimes called a quango. I am able, in the Churchillian phrase in another context, without difficulty to restrain my enthusiasm within the bounds of decorum. The onus of showing the necessity for any quango must clearly lie on the person seeking to set it up. I hope that my right hon. Friend will be able to show beyond peradventure that the onus is discharged in this instance.
706 The hon. Member for Crewe addressed herself to the provisions of clause 41 on detained patients and on making the consent of the patient a condition of specified forms of treatment. I am sure that it is a well intentioned provision but it has incurred criticsm from those charged with the exacting and responsible duties of caring for these unfortunate people. My right hon. Friend will be aware of the terms of the letter that appeared in The Times on 4 March from Professor John Gunn and other eminent psychiatrists working at the Institute of Psychiatry. The letter spelled out the difficulties and disadvantages apprehended in this provision in that doctors will lose control of the treatment of their sickest patients. I do not have the personal expertise to pronounce on these matters, but I am sure that my right hon. Friend and his advisers will accord to the views expressed the weight and importance that their authorship dictates. No doubt these views will be considered in the context that those legislating on mental health matters have always to seek to strike a delicate and sometimes difficult balance between provision for the liberty of the subject and safeguards for the protection of patients and the public alike.
Comments on a Bill of this sort may sound more critical than the general attitude of the commentator because one necessarily tends to single out aspects that require closer clarification for consideration. One does not waste the time of the House by cataloguing the much more numerous matters with which one is in cordial and unqualified agreement. All in all, I congratulate my right hon. Friend on his Bill and express to him and those associated with him my best wishes for the continued success of the good work in which they are engaged.
§ Mr. David Ennals (Norwich, North)
It is a particular honour to be able to take up the remarks of the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith), but before I comment on his speech I shall refer to the hon. Member for Belfast, South (Rev. Martin Smyth), who made his maiden speech.
We have all made our maiden speeches and I think that we all remember the sense of fear and trepidation when we first addressed the House. I congratulate the hon. Member for Belfast, South. He spoke with confidence and compassion. He rightly paid the sort of tribute that I would want to make to his predecessor, the Rev. Robert Bradford, and referred to the tragedy that led to the House being deprived of his presence. However, the House is privileged to have as a new Member the hon. Member for Belfast, South.
The Bill is of tremendous importance. Its title includes the words "mental health", but it is really concerned with mental ill health. Mental health and ill health affect us all. One in 10 of the population may expect at some stage in their lives to require psychiatric treatment. However, it is not likely that all of the one in 10 will come within the terms of the Bill.
The Bill represents the culmination of seven years of intense and wide-ranging debate about the provisions of the Mental Health Act 1959, one of the most radical pieces of social legislation passed by the House during this century. It is an especial honour to follow the right hon. and learned Member for Hertfordshire, East, who moved 707 the Second Reading of the 1959 measure, which made a tremendous difference to the attitudes of mind, as well as the law, to problems of mental illness.
The Act was a reflection of the belief that legal safeguards restricted opportunities for early medical treatment. "Insanity", which was the common word, became "mental illness". At the same time "asylums" became "mental hospitals". There is no doubt that the 1959 Act was born in an age of optimism about the treatment of mental illness. Despite the shortcomings—some of which are dealt with in the Bill—there can be little doubt that it has greatly benefited the mentally ill and, to a lesser extent, the mentally handicapped.
The provision of treatment for the majority of the mentally ill on a voluntary basis has led to a far wider understanding of mental illness and mental handicap in our society than existed before. It is not inappropriate to comment on the voluntary organisations, especially MIND, which have done a great deal to enable people to understand and become associated with helping those who have suffered from mental illness. I make these comments with some knowledge, because for four years I was the director of MIND. Much of the unfair stigma attached to mental illness or mental handicap has gone.
From the mid-1960s there was a growing feeling that in the optimism of the 1950s we had perhaps jettisoned too many safeguards of the rights of the mentally impaired. It was felt that the 1959 Act did not deal with that and other crucial issues. The debate intensified with the publication in 1975 of the report of Lord Butler's committee on mentally abnormal offenders and of MIND's document entitled "A Human Condition".
Almost immediately after the publication of those documents I became the Secretary of State for Social Services. It was under my aegis that the 1976 consultative document "A review of the Mental Health Act 1959" was published. It led, as my hon. Friend the Member for Crewe (Mrs. Dunwoody) said, to a great deal of further consultation with all the organisations concerned. It led to the 1979 White Paper, Cmnd. 7320, which I have discovered from the Vote Office is out of print. I hope that someone will get it back into print before we consider the Bill in Committee, because I think that we shall want to consider some of the proposals in it.
When I was Secretary of State, I took a close interest in mental health. I feel a certain sense of paternity for the Bill. Perhaps I had better try to be a godfather rather than a parent. I had hoped that I would move the Second Reading of a Bill of this sort. However, there are many changes in this political world.
I welcome the Government's stated intention that the Bill should be a non-party issue. I am pleased to note the flexibility and readiness to compromise that was shown during the helpful debates in another place. The Bill was undoubtedly strengthened there. I welcome the Government's decision that the new Committee to examine it should be able to call witnesses. That is an appropriate way to deal with a Bill of this sort. It has many difficult technical aspects that we wish to explore.
Many improvements were made in the other place, on such issues as the responsibility of hospital managers to inform detained patients of their legal rights, removal from the Home Secretary of his exclusive power to discharge 708 restricted patients and the transfer of it to mental health review tribunals following the European court's judgment, consent to treatment, and the removal, in effect, of mental handicap from the Bill and its replacement by a much smaller catgory of patients defined as "mentally impaired".
I welcome the inclusion of so many of the 1978 White Paper proposals, especially the exclusion of alcoholism, drug dependency and sexual deviancy from the definition of mental disorders. Secondly, I welcome the inclusion of almost all of the White Paper proposals concerning compulsory admission to hospital and guardianship, particularly the tightening up of section 29 admission requirements—the short detaining power—the extension of section 25, the 28-day power, to cover assessment and treatment, and the inclusion of a six-hour holding power for nurses under section 30. That is essential, and I know that nurses and those who represent them will welcome that greatly.
I am disappointed that the White Paper proposal to allow for removal to a place of assessment rather than to hospital only under section 29 has not been implemented, but no doubt that can be reconsidered in Committee.
Thirdly, I welcome the removal of age limits for the detention of psychopaths and the mentally handicapped and the replacement of that provision by a requirement that the patient is likely to benefit from treatment. That point was well made by my hon. Friend the Member for Crewe.
Fourthly, I welcome the halving of the initial detention periods under sections 26 and 60 to six months and the doubling of the opportunities for patients to apply to a mental health review tribunal to be discharged. Fifthly, on the question of abnormal offenders, I am delighted that the Government have seen fit to follow the White Paper proposals that section 65 restriction orders should be imposed only to protect the public from serious harm, and that restrictions under section 74 should cease to apply at the prisoner's earliest date of release from imprisonment and if he requires further treatment he should be detained under section 26.
I am also pleased to note that the Bill incorporates many of the recommendations in the consultative documentRemands to Hospital and Interim Hospital Orders",which extends the court's powers to remand offenders to hospital for varying periods.
Although the Bill is welcome and was improved by consideration in another place, it has still—as my hon. Friend the Member for Crewe said—left some problems unresolved. I shall mention four of them in the hope that we can explore them more fully in committee.
My first point concerns the powers of mental health review tribunals. Many of the White Paper's proposals on the tribunals have been accepted, and of course I welcome that. However, it is essential that tribunals should be allowed to be more creative in their reactions to patients' applications. That can be effected in two ways. First, it can be done by the addition to each tribunal of a fourth member with specifically social work experience. That situation was different when the Mental Health Act 1959 was passed.
Secondly, it can be done by extending the powers of tribunals. At the moment, tribunals may discharge a detained patient, refuse to discharge or delay discharge. Not only should there be a time limit on any delay, but, more importantly, tribunals should have the power to recommend a trial leave, transfer to another hospital—this 709 is particularly important in the case of special hospitals—or recommend that the applicant patient be subjected to a guardianship order under section 33 of the 1959 Act.
My second point relates to legal aid. The House knows that, under the Mental Health Act 1974, a solicitor may obtain remuneration for advising and assisting a person on a matter of law. However, that was limited to advice and assistance and did not fund a solicitor to represent a person's case before a tribunal. In 1979 the Lord Chancellor's advisory committee recommended that mental health review tribunals should be given the highest priority and the extension of public funds to representation before a tribunal.
It is extremely difficult for a patient, for many reasons, to advocate his own case—much more so than it is before other types of tribunal. For example, a detained patient suffers handicaps that applicants to other tribunals do not experience. Many patients are under the influence of psychotropic drugs, or major tranquillisers, to a degree that is often intellectually disabling. Others have been institutionalised for years, leading to excessive passivity. They have perhaps a certain unwillingness to challenge what is said by a doctor, as a result of long stays in hospital.
Perhaps the greatest handicap to an unrepresented patient is that he is unlikely to know the evidence against him. The mental health review tribunal rules 1960 specifically allow a tribunal to withhold from a patient any part of the evidence before it which it would not be in the interests of his mental health to see. On similar grounds, a tribunal may exclude a patient from parts of the proceedings. These powers are frequently used by tribunals. If a patient is represented, the evidence is normally released to his representative, who is permitted to remain while the patient is excluded. Therefore, we Hmust realise that it is extremely important that every opportunity is given to patient—who is unlikely to have many resources—to be represented. Legal aid should be made available for that purpose.
My third issue is that the Bill makes no provision for amendment or repeal of section 141 of the Mental Health Act 1959, which requires that a patient shall not bring any proceedings relating to any act done in pursuance of the Mental Health Act without leave of the High Court, which must be satisfied that there are substantial grounds for the contention that the person to be proceeded against has acted in had faith or without reasonable care.
The 1978 White Paper recognised that that section was in need of amendment. First, we recommended that criminal actions should be removed from the scope of section 141 and made subject to the DPP's consent. Secondly, we recommended that the word "substantial" should be replaced by "reasonable". Thirdly, we recommended that it should be made clear that section 141 did not apply to informal patients—that was not always fully understood. That section first appeared in the Lunacy Act 1890 as a result of doctors threatening to go on certification strike unless they were given a measure of legal immunity. In effect, it differentiates between the mentally ill and handicapped and the rest of the population by reducing their rights to seek legal remedies against those who care for them under the Mental Health Act 1959.
Doctors and nurses in mental hospitals have a difficult job. When I was Secretary of State, and since then, I have 710 many times paid tribute to the remarkable work that they do under difficult circumstances. Many of them regard protection against the constant threat of legal action as vital if they are effectively to care for their patients, so I am not in favour of the repeal of section 141, although if it were repealed I do not believe that there would be the anticipated flood of patient-initiated litigation. We must consider carefully any changes that may be made in the section. I am not happy with the present proposals in the Bill.
The fourth and perhaps most important issue that I wish to raise is the question of consent to treatment, to which I have referred. In many respects clause 41 is the most controversial part of the Bill. I welcome the Government's stated intention to move amendments to provide for forms of treatment that are hazardous, irreversible—such as psychosurgery—or not fully established, to be administered only with the patient's consent. That is an important step forward. Confirmation by a multidisciplinary panel that the patient's consent is valid and confirmation by a doctor that the treatment should be given are also right, and they are important steps forward.
The controversy centres on the imposition of treatment on a patient who is adjudged to be competent to understand the consequences of treatment but who, nevertheless, refuses consent. The approach in the Bill and that in my proposal on 1978 are very different. The Bill says that treatment can be imposed against the will of a competent patient by the responsible medical officer alone, or, for certain treatment, such as surgery and ECT, by the responsible medical officer and a second independent medical opinion. The 1978 White Paper proposed the imposition of treatment only where it was necessary to save life, to prevent violence or to prevent the further deterioration of a patient's mental condition.
There are dangers in taking powers to impose treatment against the will of a patient, be he voluntary or otherwise. It is not enough just to require a second medical opinion. The 1978 White Paper proposed that a multidisciplinary panel should provide the second opinion. The basis of the recommendation was that questions of competence in the imposition of treatment against the will of a patient raised not only medical and scientific considerations, but wider social and ethical issues which require a lay commonsense judgment. I do not suggest that doctors do not have common-sense, but when caring for a patient who is resisting the proposed treatment, it is important for the doctor to capture his confidence. If treatment has to be imposed, it is more likely to achieve a higher degree of acceptability to the patient if it is imposed by a body that is not primarily medical.
The suggestion of a multidisciplinary panel is resisted by the medical profession, although it has widespread support elsewhere. I respect the doctors' fears. A compromise is possible. If it is accepted that a competent patient should not have treatment imposed on him on the ordinary course of events, a two-tier system could be set up. A multidisciplinary panel could decide whether the patient was competent. If it was decided that he was not, the medical member could decide whether the patient should receive the treatment.
A further compromise would be to allow the Mental Health Act Commission to provide second opinions or findings of competence, but not limited to medical 711 opinion. It could, for example adjust the number of the members that it nominated to consider each case to accord with the urgency and circumstances of the case.
It has been argued that questions of consent to treatment are too important to be delegated to doctors alone. I agree. The Government have to some extent recognised that by their statement of intent to introduce amendments providing for a multidisciplinary panel to confirm consent in cases of treatment giving rise to special concern. The Government having been pushed in that direction, I hope that in Committee we can push them a little further down the road.
Those are the four points that I wish to raise. I hope to put many other questions to the Minister in Committee. I have yet to be convinced that the new quango—the Mental Health Act Commission—will serve the purpose in the Minister's mind. There is much ambiguity in the Bill about its purposes and method of work. I do not doubt the sincerity of the Government's intention, but we wish to probe the matter further in Committee. If the commission is to secure the confidence of patients and the public, its powers and its accountability or independence must be clarified. They are far from clear in the proposals in the Bill.
All those issues can be raised in Committee. At this stage I wish to support a Bill that does much to carry into legislation generally accepted proposals. I was responsible for the 1978 White Paper, and I believe that the Bill does much to carry forward the proposals that formed the basis of our consultations then.
§ Mr. Charles Irving (Cheltenham)
There are few occasions when there is so much common ground on both sides of the House in welcoming a Bill that involves so much above party politics in the care and compassionate treatment of one's fellow citizens.
The Secretary of State and his colleagues and those who piloted the Bill through the other place should be highly congratulated on the steps that they have taken so far. That does not mean—I am sure that the Secretary of State will forgive me if I say so at the beginning—that one can go along with everything in the Bill, but what is so pleasing and remarkable is that this is the first time since 1959 that we have had an opportunity to reflect on and bring up to date a Bill that was a tremedous step forward at the time. In the intervening years much has changed. The 1959 Act was passed at a time when there was far less recognition of the rights of patients and of the need for safeguards against compulsory admission and treatment.
I join others who have paid considerable tribute to the great dedication and sacrifice of the staff who look after some of the most vulnerable people in our society. Yet we must never forget that it is Parliament's historic function to be vigilant in the face of misuse of authority, however infrequently it may occur. When the House grants discretionary authority, even for the most benevolent of reasons, it must always balance the exercise of that discretion with safeguards against its misuse.
Reform of the Mental Health Act 1959 is long overdue. The Bill is a remarkable achievement for the Government. It is all the more remarkable because it enshrines rights for patients who are the most isolated in society, and there is little political gain in securing their interests. The 712 Government have shown enormous respect and concern for the mentally ill and mentally handicapped. The Government's efforts for the mentally handicapped in the publication "Care in the Community", together with their support for new voluntary movements, such as the Advocacy Alliance, and, most important, the Bill give the Government an unsurpassed record of concern for the mentally disordered.
I remind the House with sadness that a major impetus for the Bill came from the late Lord Butler. Lord Butler was the president of MIND—the mental health charity—and chairman of the Butler committee on mentally abnormal offenders. He presided over the publication "A Human Condition"—a major report published in 1975 with proposals on the Mental Health Act. He gave personal support to the proposals in that report. I am happy to observe that approximately two-thirds of the proposals in the Bill seem to stem from that publication, and many more from the report of his committee on mentally abnormal offenders.
The provisions in the Bill derived from those two influential reports include the doubling of mental health review tribunal hearings, automatic referrals to tribunals, increased power of tribunals, new "treatability" tests for compulsory admissions to hospital and much improved safeguards for patients transferred from prison. Those are great achievements, and they must be welcomed on both sides of the House.
There are still areas of deep concern. There are issues of fundamental principle that will have to be debated forthrightly from both sides of the House. As chairman of the all-party parliamentary mental health group, I have had considerable opportunity with my colleagues to study the issues at first hand.
I should like to register significant reservations about some parts of the Bill, mainly involving the human rights of patients, which must be resolved. During our all-party visits, we had the opportunity to observe the use of treatments such as ECT in special hospitals. For example, I was made aware that those treatments were administered sometimes in the most unconventional and disturbing manner without anaesthetics or muscle relaxants. More important, treatments are sometimes given without the consent of the patient. Perhaps I did not make it clear at the time, but I must say now that we were very unhappy about the use of such treatments and how they were used.
I ask myself whether the proposals in the Bill will prevent such abuses. I fear that the clear answer is that they will not. My fundamental dissatisfaction with the proposals—and, bearing in mind the complexity of the Bill, I do not think that I will put too much fear into the mind of the Secretary of State, because I am sure that he will take seriously the points made on both sides of the House concerning several matters of common concern—is that the Bill provides that second opinions should be given only by doctors, when virtually all voluntary and professional groups, apart from the Royal College of Psychiatrists, have always proposed a multidisciplinary second opinion, on the ground that issues of competency and consent to treatment cannot be determined solely on the basis of medical expertise, but require also a social lay judgment.
According to English law, issues of competency and consent have always been a judicial or quasi-judicial decision. It must be realised that this is one area in medicine where treatment can be expressly imposed on an 713 adult without his consent. In such circumstances, it is crucial that the safeguard adopted is meaningful and trusted by the patient.
The Government's intention is that the Mental Health Act Commission will be able to monitor the use of the power to impose treatment and that the psychiatrist will discuss his decisions with the commission. However, none of those aspects of open and multidisciplinary decision-making flows from the Bill in its present form. The doctor need not be a member of the commission. There is nothing that requires him to discuss his decisions with the commission, particularly before he makes them, and there is nothing that requires him to discuss the matter with the patient or to give reasons for his decision.
As with any professional group, self-regulation is always open to the criticism that it is not sufficiently energetic or dispassionate. There may be informal pressures to comply with the wishes of fellow members of the profession, and the views and questioning of non-professionals may not be given sufficient weight.
That is the most important area where Parliament should ensure that not only medical opinion is respected. It is a matter of the deepest concern to patients, voluntary organisations, professional associations and unions outside the medical profession, including nurses, social workers and psychologists.
One can envisage how the Bill will operate. Will a doctor be able to ask for a second opinion of a doctor from the same hospital? Will he be able to telephone a colleague of his own choice? Will the second doctor have to examine the patient or listen to what the patient or his representative has to say? What recourse is there for a patient if the second opinion is simply a rubber stamp? No doubt these important points will be resolved in Committee.
I referred earlier to ECT. If a doctor asks for a second opinion from a colleague in the same hospital, inevitably they will concur. There would be a closing of ranks and no meaningful safeguard. Professional self-regulation, as exists for the police and lawyers, will never gain the public's confidence. In deciding on an appropriate safeguard, it is important to avoid expensive, clumsy and bureaucratic machinery. Therefore, it would be preferable for the second opinion to be provided by an existing body. A mental health review tribunal commends itself, because it is a trusted and well-established structure.
This is the first time in the history of English law that a patient who is competent can still have treatment administered without his consent. I can think of no reason why a patient who understands the nature and purpose of a treatment, and who refuses it, should have it forcibly imposed upon him.
It must be remembered that we are referring to treatments—such as ECT and major sedatives—of which some patients, perhaps even some of us in the Chamber, have a great fear. We know that such treatments, when properly administered, can have considerable benefits for the patient, but we also know that they can have serious and dangerous side effects when given improperly. In some circumstances the use of ECT or drugs can have hazardous or irreversible effects.
We must be certain that the safeguards in the Bill do not unduly hamper the proper treatment of patients. In a genuine emergency, the doctors must be able to administer treatment without the necessity for a second opinion. Therefore, I am happy to see that the Government have wisely included a generous emergency clause in the Bill 714 If treatment is urgent to avoid deterioriation in a patient's condition, or to avoid danger to self or others, the Bill rightly does not impede the doctor in his task. Those who have criticised the Bill on practical grounds have missed that important provision.
A doctor should act without a second opinion not for convenience, but only in a genuine emergency. It is important, therefore, that when a doctor has acted in a crisis, he should enter the details in the hospital records. Those records could be monitored periodically by the Mental Health Act Commission.
Is it widely known that where a doctor unlawfully treats a patient against his will or a nurse assaults a patient, the patient can sometimes be prevented from going to court and receiving a fair hearing? The right hon. Member for Norwich, North (Mr. Ennals) and my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) referred to section 141 of the Mental Health Act. That section can impede and prevent a patient from going to the courts to resolve even his genuine legal rights. Section 141 is perhaps one of the most unjust and discriminatory provisions in mental health law. It violates one of the most basic human rights—full and fair access to Her Majesty's courts of law.
There are several reasons why section 141 is antiquated and unfair. It is based on the assumption that patients are vexatious litigants. They are seen as paranoid and aggressive. In fact, the reverse is true, and there is evidence to prove it. One-third of hospital patients are mentally handicapped. A high proportion of the rest are severely depressed and, therefore, withdrawn and unlikely to enter into litigation. Section 141 should not be regarded as a barrier against an irresistible tide of groundless litigation. On the contrary, it represents the effective removal of the protection of law from particularly vulnerable sections of our community.
The courts, in their legislative powers under the Supreme Court of Judicature (Consolidation) Act 1925 and the inherent power propounded in Metropolitan Bank v. Pooley, clearly have adequate powers to deal with vexatious litigants.
It is still not clear whether section 141 applies to informal patients. Court decisions give conflicting rulings. Such confusion cannot be good for staff morale or the care of patients. The Bill could and should be used to clarify the issue.
I agree with the comments of my right hon. and learned Friend the Member for Hertfordshire, East on the Mental Health Act Commission. I had to read the proposals several times, as I found them difficult to believe. Unfortunately, I arrived late for the debate and may, therefore, have missed my right hon. Friend's explanation. However, I did not hear anything to convince me that the Mental Health Act Commission would serve the purpose for which it is, I suppose, intended. It seems yet another bureaucratic tier in the NHS.
In a recent debate I was highly critical of the reorganisation of the NHS. My right hon. and learned Friend the Member for Hertfordshire, East was correct to describe it as as quango. The commission will involve additional cost and bureaucracy, which I should have thought was alien to the Government's thoughts. However, if we must have it, we must ensure that it does not overlap existing National Health Service management 715 or the other NHS watchdogs, such as the Health Advisory Service, the Health Service Commissioners, Uncle Tom Cobbleigh and all.
It may have been much simpler and more efficient to extend the remitting powers of mental health review tribunals. This could have maintained public confidence and would be more cost-effective. I still believe that we should look to the tribunals as the second opinion on consent to treatment. If we are to keep the Mental Health Act Commission, we must be certain, especially in view of the cost of setting it up, that it is useful. I have heard from voluntary bodies in Scotland that the Scottish commission is not at all popular. Therefore, we must ask ourselves a considerable number of searching questions.
Currently, mental patients cannot have legal aid for representation before a mental health review tribunal. I feel that this is one of the greatest injustices which still exist. The hon. Member for Crewe (Mrs. Dunwoody) referred to it fully, but I take it up again. It is enormously difficult for a detained patient to argue his case before a tribunal. The detained patient suffers handicaps that applicants to other tribunals do not necessarily experience. Many patients are under the influence of psychotropic drugs and major tranquillisers to a degree which is often intellectually disabling. Some patients lack verbal skills. Others have been institutionalised for many years, leading to excessive passivity and acquiescence and often leaving them out of touch with changes that have occurred in the world to which they wish to be discharged. As a member of a board of prison visitors, I have witnessed the acute difficulty of many people who are inarticulate, and much the same applies in this instance. Living in a hospital regime is likely to inculcate deference to staff, and therefore questioning a doctor's opinion can be dangerous and daunting to the patient.
Arguably, the greatest handicap to the unrepresented patient is that he is unlikey to know the evidence against him. The mental health tribunal rules of 1960 specifically allow the tribunal to withhold from the patient any part of the evidence before it which it would not be in his interests to see. On similar grounds, the tribunal may exclude the patient from parts of the proceedings. These powers are used frequently by tribunals. If the patient is represented, the evidence will normally be released to the representative and he will be permitted to remain while the patient is excluded.
I believe that the cost—I am not sure, but I understand that it is in the region of £750,000—is well worth while investing for safeguarding patients in these circumstances. In 1979 the Lord Chancellor's advisory committee recommended that mental health review tribunals should be given the highest priority in the extension of public funds to represent patients before them.
Recent decisions in the European Court suggest that United Kingdom law violates the convention in not guaranteeing representation for detained patients. I quote the case of William Collins, a detained patient in Broadmoor, who applied to a mental health tribunal. His solicitors found themselves out of pocket in preparing the case and therefore could not continue with representation free of charge. With no income to finance a representative, Mr. Collins had no choice but to represent himself before the tribunal. It was virtually impossible as he was denied sight of the case papers and was excluded from all 716 proceedings. I hope that steps will be taken during the Committee stage of the Bill to ensure that that is not allowed to occur again.
We have a wonderful opportunity to make many changes which I am sure society generally will look upon with great joy—especially those people who have relatives and who know others who are in institutions throughout the country.
I have refrained from referring to a report in the Lancet of 28 November, which I am sure the Secretary of State will have read and viewed with the greatest anxiety and concern, about the administration of ECT and the use of totally outdated equipment for the purpose of giving that treatment. I do not want to take the time of the House by going into the details of that report, but I urge the Secretary of State to study it with the care that it deserves, because it may alarm people who may have to accept that treatment. It should be corrected with the fullest possible speed.
I am happy in broad principle to support the Bill, and I concur in a most fulsome way in the congratulations to the Government and to all those concerned on bringing forward a Bill which has so much in it which will make improvements for those for whom we care.
§ Mr. Mike Thomas (Newcastle upon Tyne, East)
Although he is not here, I join those who have complimented the hon. Member for Belfast, South (Rev. Martin Smyth) on his maiden speech. I suspect that he may find the congregation here a little different from the ones to which he is used. I am especially pleased to be able to refer to his constituency, as it gives me an opportunity to pay tribute to his predecessor, Robert Bradford. When I and others sought to establish the House Magazine he was fulsome in his personal support and secured the support of his party for what I hope all right hon. and hon. Members will agree has been a successful all-party and non-partisan venture.
That is perhaps a good starting point for a discussion of the Bill. I greatly welcome, as does my party, the proposal that the Bill should go to a Special Standing Committee. If I am fortunate enough to find myself a member of that Committee, I suspect that I may be the only hon. Member with experience of proceedings of that kind.
§ Mr. Christopher Price
I must contradict the hon. Gentleman. He may like to know that if I am lucky enough to serve on the Committee, I shall be the only member of it who has chaired a Special Standing Committee.
§ Mr. Thomas
I stand corrected. I simply wished to refer to the proceedings of the late lamented Select Committee on Nationalised Industries, which I know the hon. Member for Lewisham, West (Mr. Price) will remember, and which in 1978 paved the way for this development by taking the Electricity Bill into precisely the sort of hearing to which we are proposing to commit this Bill. I felt that that was a successful experiment, and I only regret that so revolutionary is the way in which we have proceeded on these matters since that I failed to notice it and the hon. Gentleman's no doubt impressive part in it.
I join those who have paid tribute to the various individuals and organisations from which the Bill has 717 sprung. It is fair to recall that the National Association for Mental Health MIND, played a great part in creating a debate and an atmosphere in which the proposals that we are considering were progressively brought forward. That was due in no small part to the efforts of the right hon. Member for Norwich, North (Mr. Ennals), who, as he has said, carried those through when in Government. I also congratulate the Government on bringing forward the Bill. This is not an area in which Governments in the past have readily relinquished legislative time, and Ministers should be complimented on fighting for and obtaining the time for the House to consider this measure.
I agree with the Secretary of State that we must look at the Bill in the general context of health and social services provision. Many of the Bill's proposals depend on the Government's attitude, as with community care, to public expenditure and to the facilities available in our mental and other hospitals and outside in the community. The scope for the success of the Bill must be measured by the cash available for after-care provision—in which context I welcome the passage of Baroness Masham's amendment in the other place—and for training the workers who will be involved in implementing the provisions of the Bill, particularly social workers, to carry out the role that is placed upon them.
The SDP welcomes the Bill, its general move to protect mentally disturbed patients' rights, particularly with regard to detention under section 26 of the old Act, the increased access to mental health tribunals, the proposals for automatic hearings, and, in general terms, the establishment of the Mental Health Act Commission. I hope that neither the Minister nor the Conservative Members will misunderstand me if, in the rest of my speech, I concentrate on the changes that we should like to make in the Bill. That does not mean that we do not support the overwhelming majority of the provisions.
The SDP-Liberal alliance will be looking at the activities of the noble Lords Kilmarnock and Winstanley in the other place, and I shall return to some of the issues that they raised. I am concerned about six or seven matters that I shall deal with briefly, as they are all matters on which others have, at least in part, spoken, and which will be returned to in Committee.
Overwhelmingly, I am concerned to ensure that the Bill will meet the provisions of the European Convention on Human Rights. The judgment in the case of X v. the United Kingdom means improved access to review for restricted patients, but I should like the Minister's comments on whether the fact that the appointed day is still to be 30 September 1983—if I understand the Government's proposal properly—means that the Government will be responsible for contravening the convention in the interim. Does the Minister feel that victims of this continued contravention, should, if there is such a contravention, be able to obtain compensation?
Can the Minister tell us whether removing the existing right of unrestricted patients to a review of their cases within the first six months—which is unnecessary and should be removed—will lead us to contravene the convention? In the context of the Mental Health Act Commission it seems that the power, the responsibilities and the methods of working of this body—to put it mildly—need greater clarification. I hope that we shall have a body that is active and real, not a cosmetic approach that is designed purely to satisfy, in some general way, the problems of meeting the provisions of the convention.
718 I welcome the proposal for a commission, but should like to see more of what it is to do. We must not get caught between two stools. I am not sure that a body of 70, split up into five or six regional groupings, with a mere 14 staff and the sort of budget that is being talked about in the Bill, will be able to do very much in practice. If it is not to do much in practice, I share the view of the hon. Member for Cheltenham (Mr. Irving) and should prefer not to have it at all. I prefer to have it, but I want it to be capable of carrying out a sensible task in a comprehensive and satisfactory fashion.
With regard to legal aid and section 141 of the principal Act, I share the views of those who have spoken. Legal aid for people appearing before mental health review tribunals is desirable and necessary. I cannot believe that it would be an excessive cost to bear and l do not understand the Government's reluctance to move on this matter. I suspect that they will be faced with a Committee that is of one mind on the matter, and representations in the first stage of our proceedings that are also of one mind, and I hope that the Government will respond, as they have said that they are prepared to do.
Equally, I agree that the protection from litigation that is embodied in section 141 should be modified. The right hon. Member for Norwich, North (Mr. Ennals) put it clearly. There is need for proper access to legal redress for patients against staff who act in bad faith or without reasonable care and the present provisions do not provide that. I hope that we shall be able to persuade the Government to include provisions to deal with this problem.
With regard to consent to treatment, I share with the hon. Member for Cheltenham the belief that in principle and practice treatment should not be given to those who are able to understand the nature and purpose of what is proposed and yet decline to give consent. Again, I think that we should return to the amendment narrowly defeated in the other place, amendment No. 47 by Lords Winstanley and Kilmarnock. Perhaps a mental health panel is a good way to assess whether consent is being given, perhaps the two-stage procedure that has been referred to, perhaps some further use of mental health tribunals, but we must look at the question again.
Generally speaking, I agree with those who have taken the view that we should have a multidisciplinary approach. In that connection I was interested to hear the proposal of the right hon. Member for Norwich, North to add a social work element to the existing mental health review tribunals. That might be a useful thing for us to consider and accept.
The Speaker's Conference examined the question of electoral registration in the early 1970s and made proposals to get over the various anomalies and difficulties that might arise. It is, in principle, wrong that those legally competent to vote but resident in a mental hospital are disfranchised, although this is again a matter that can be examined in Committee. I warmly support the Bill's general provisions and look forward to playing a pan in its proceedings.
§ Miss Janet Fookes (Plymouth, Drake)
I am glad to join the hon. Member for Newcastle upon Tyne, East (Mr. Thomas) in welcoming the Bill. We must always be 719 concerned to give the maximum protection to those least able to care for and look after themselves. That is the main purpose of this amendment to the Mental Health Act.
I do not wish to detain the House for long, but it would be churlish if we did not pay tribute to my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) who was responsible for piloting through the original Act. As he himself said, the Act has stood the test of time well. We now seek only to amend it, not to do away with it altogether.
The hon. Member for Crewe (Mrs. Dunwoody) made general inquiries about when we might expect a consolidation measure. I asked the same question. I am perhaps more sensitive about this than I used to be. Since I became a member of the Speaker's Panel of Chairmen, it has been my lot to consider silently many Bills that have come before a Standing Committee. One of the difficulties that arises when we examine Bills in detail is the extent to which we add one Act after another and there is no single document to which one can turn for a definite statement on a particular subject. It is very important that on each and every occasion we seek to have one definitive document.
After all, one of the chief merits of the Ten Commandments is that they are simple, clear and comprehensive. How much less attractive and vigorous would they be if they had not been complete in one piece and Moses had sought to go up the mountain a second time to bring down the Ten Commandments (Amendment) Act and the two had to be read in conjunction. [HON. MEMBERS: "More tablets."] Yes, more tablets. I make a plea that at the first opportunity the Government, when they have completed this Bill, should seek to consolidate one up-to-date piece of legislation referring to mental health.
I shall now discuss some of the Bill's general provisions. Under the new definition, mental handicap is to be described as mental impairment. I can understand what lies behind that. The Government are anxious to ensure that they are able to deal with people suffering from mental handicap—or mental impairment as we must now call it—who are dangerous or irresponsible and for whom some compulsion is necessary. I agree with that objective. I hope that my hon. and learned Friend the Minister for Health will make clear what is to happen to the bulk of mentally impaired people who offer no such danger. Are they still to be considered in a legal context and will they have proper protection?
That matter has been raised by the Royal College of Psychiatrists, which has expressed its concern. It says:The College is particularly concerned that the protection afforded by Part VIII and Part IX of the 1959 Mental Health Act might no longer be available"—that is, to mentally handicapped persons who are not violent. I should like an answer to that tonight.
I am worried about those who might fall between several stools in relation to the Mental Health Act. I can best illustrate what I have in mind by a case that is exercising public opinion in Plymouth. It concerns a young woman, Beverley Channing, who has been imprisoned on several occasions because she has committed offences. She suffers from a personality disorder which apparently is not sufficiently severe to 720 warrant detention in a special hospital, but it is almost impossible to place her anywhere because of her irresponsible behaviour.
Hostels are not prepared to take her because she has a tendency to set things on fire from time to time. Her mother is at her wits' end and no longer feels that she can take her in. Beverley's behaviour is so dangerous that her mother's insurance company has said that insurance protection will stop the moment the girl sets foot in the house. That is an indication of the difficulties.
Everybody is at their wits' end to know what to do with her. She has been sleeping rough in winter weather because there is nowhere for her to go. That is a scandal. According to the local paper the defending solicitor in a recent court case said:The principal defect lies in the absence of a separate category within the Mental Health Act.I do not know whether the solicitor is absolutely right, but I am sure that there is a gap in the provisions, and possibly a gap in the Mental Health Act. I beg the Minister to address himself to the problem of girls such as Beverley Channing for whom no place can be found.
The National Schizophrenia Fellowship has pointed out an odd twist. The Bill deals with the right of mental patients to appeal and to have more legal protection. The National Schizophrenia Fellowship makes an interesting counter observation. Referring to the new right of appeal by patients detained under sections 29 and 25 of the old Act, it refers to the dangers of not being able to put someone in hospital at all.
The fellowship states:Sections 29 and 25 are only used if a person is extremely ill and resists voluntary admission. This resistance to hospitalisation"—I use that horrid expression because it is in the letter—occurs with schizophrenia when it is most severe, for then the person concerned is usually most convinced that there is nothing wrong with him, and that he needs no medical treatment.So far from being pressurised into hospital needlessly, it is in our experience often extremely difficult to secure admission to a hospital at all.
The fellowship believes that treatment and the task of relatives will become more difficult if we go overboard on the right of appeal. I am not sure what the answer is within our general concern to give patients better legal protection. I leave the thought with the Minister in the hope that there can be a reasonable compromise.
Another matter has already exercised hon. Members on both sides of the House. I refer to the consent to treatment as set out in clause 41. I make a general observation about the clause. Perhaps I am less intellectually bright than some hon. Members, but I found the clause complex and difficult to follow. It reminded me of Hampton Court maze—easy to get into but difficult to get out of. I have read the clause a number of times. I hope that I have understood its purport, but I am not sure. Is it within the competence of the parliamentary draftsman to clarify it?
The clause deals with the question of proof in circumstances where a second opinion is required and with who should give that second opinion. I believe that the arguments are more finely balanced than some hon. Members seem to think. It is at least arguable that the second opinion should be by a psychiatrist or medically qualified doctor. If that is to be so, I take the caution issued by my hon. Friend the Member for Cheltenham (Mr. Irving). We should ensure that the person is not in cahoots with the original psychiatrist and that he is truly independent and from another hospital.
721 If such precautions can be observed, I should be prepared to settle for the second psychiatrist rather than a multi-discipline panel. If I cannot be satisfied of that, I believe that there is some merit in a panel, but I can envisage practical difficulties in arriving at a decision and in getting on with the treatment. We must beware of putting so many safeguards in the way that the patient is not treated. That is the other side of the picture and we must not lose sight of it.
One matter is not dealt with in the Bill. In some disturbing cases, patients are not treated as well as they might be. Sometimes allegations are made, against nurses in particular. We must consider how nurses who believe that there is something wrong and want to complain about it can translate that into action. I refer hon. Members to the challenging booklet issued by Social Audit Ltd., which says that many nurses are victimised because they dare to speak up when they believe that patients are not being treated properly. I hope that the Bill will give additional protection to nurses who are prepared to speak up in such circumstances.
In welcoming the Bill I should like to issue one caution. While it is important that we should improve safeguards to patients, we should never allow ourselves to forget that what matters supremely is the quality of the treatment given by the medical and nursing professions. We should concentrate our energies on ensuring that both get not only financial support but every encouragement to carry out their difficult duties in connection with psychiatrically disturbed patients. It is not an easy branch of medicine. In some ways it has been a Cinderella branch, especially in regard to mental handicap. Far more attention needs to be devoted to training, to career prospects and so on, especially for nurses. I hope that the Minister will take that into account when he considers the other important matters in the Bill.
§ Mr. Stan Thorne (Preston, South)
It is probably inevitable that there will be a large measure of agreement among hon. Members about the Bill. So far, I do not think that we have heard a speech that could be considered in any way controversial in regard to the Bill's contents. Some hon. Members have mentioned its apparent weaknesses, and I hope to do likewise.
The treatment of mental illness is not a purely medical matter—a point that has been made previously. It involves the collaboration of a number of professions—medicine, nursing, psychology, social work and occupational therapy. The jargon for that collaboration is "multidisciplinary teamwork". The importance of effective teamwork is frequently emphasised in official publications—for example, the policy White Paper on "Better Services for the Mentally Ill" and the recent report of the working group on the organisational and management problems of mental illness hospitals—the Nodder report. Collaboration or teamwork is not just a matter of good practice. No one profession has competence in the whole range of treatment methods.
I shall restrict my remarks to psychology. When what became the Mental Health Act 1959 was debated and enacted—in the late 1950s and early 1960s—psychologists were developing a range of assessment and treatment procedures of proven effectiveness. They have become well known under the general 722 terms "behaviour therapy" and "behaviour modification". They are applications of the findings of psychology as a scientific discipline.
By the late 1960s those procedures were beginning to be used by psychologists in many psychiatric and mental handicap hospitals. They are not usually part of the skills and competence of psychiatrists. Psychologists have worked hard to train medical and nursing colleagues in the use of behavioural methods. It would be fair to say that psychologists are still acknowledged to be the experts in their use. Indeed, the relatively infrequent use of behavioural methods, compared with the use of drugs and ECT, is a reflection of the relatively small numbers of psychologists available to prompt and guide other professions about their use.
The contribution of psychologists is widely valued, especially since it tends to be concentrated in those areas of health care where doctors have often felt less effective—mental illness, mental handicap and, more recently, care of the elderly. Indeed, the recent report on medical postgraduate education by the House of Commons Social Services Select Committee suggested that the work of psychologists provides a ground for wider experimentation in doctor substitution. The Government welcomed that proposal in paragraph 8 of their response Cmnd. 8479, but none of this comes through in the Bill, and that brings me to the deficiency in the measure.
Doctors have a central role in the operation of the Mental Health Act 1959. Throughout, there are references to the responsible medical officer—the RMO for short. In the Bill that term is restated in clause 41 (10). Also, references to treatment are almost invariably phrased as references to "medical treatment", which is defined in the original Act as including nursing and care and training under medical supervison. That definition is amended in clause 48 (2).
The Bill seems to go wrong in relying on medical judgments alone at certain stages in the formal procedures laid down. That seems quite inappropriate in view of the multidisciplinary nature of the treatment of mental illness, and I shall now give two examples of that deficiency.
In clause 12 there are procedures to be followed when detention and guardianship are to be removed. Clause 12 (4) provides that a test of likelihood of benefit from treatment has to be met before detention is renewed for any of the four categories of mental disorder, and, in the case of mental illness or severe mental impairment, a test of grave incapacity has to be met.
The way in which those tests are operated is that the responsible medical officer has to certify that one of the tests is satisfied before detention can be renewed, but the Bill places no obligation on the RMO to consult the other professionals involved in the treatment of the patient when making that judgment, although, within the current practice of clinical teams, other team members would usually be involved in making that kind of assessment
More specifically, since few psychiatrists are skilled in or even knowledgeable about psychological treatments, the RMO may fail to recognise that a patient is treatable by psychological methods. The RMO could be overoptimistic about the potential value of psychological treatments and could commit a psychologist to attempting to carry out a treatment which, had he made his own judgment, he would not have attempted.
It is not good enough to say that psychiatrists and psychologists should get on well enough together for such 723 problems not to arise. This is not the place for me to enumerate examples of the two professions failing to collaborate. I am sure that they are well known to the DHSS, even where they have not been made public. There is no doubt—some of the public inquiries have confirmed it—that some psychiatrists are exceedingly conscious of their authority and guard it so jealously that they do not always consult their professional colleagues as fully as they might. There is a need for a statutory obligation to consult and also for provision for advice on treatability by psychological methods to be given by psychologists.
In clause 41(i) and (3) and clause 42(2), reference is made to a medical practitioner appointed by the Secretary of State to give a second opinion. In fact, the appointment will be made by the Medical Health Act Commission under the provisions of clause 45(2) (a). The functions of that second opinion are twofold, as set out in clause 41(3) (a) and other parts of that clause.
It is not clear at this stage how the Government intend that part of the Bill to read, because when the Bill was given its Third Reading in the other place, Lord Elton announced that the Government would table an amendment in the House of Commons to increase from one to three the number of people entrusted with deciding whether a patient had given informed consent to a treatment that gives rise to special concern. However, Lord Elton also said that whether the treatment should be given would be a matter for the clinical judgment of the commission-appointed psychiatrist alone. It is the wisdom of that procedure that I question.
In order to illustrate the extent of concern, I need to draw attention to some further aspects of the Mental Health Act Commission, the code of practice and the regulations referred to in clause 41(3). Lord Elton made it clear several times during the passage of the Bill in the other place that the code of practice was intended to cover any and all forms of admission and treatment procedures that the commission thinks should be covered, including psychological treatments. For example, on 25 February Lord Elton said:The Code of Practice which the Mental Health Act Commission are to prepare may say more about some forms of treatment in this category, such as behaviour modification therapy."—[Official Report, House of Lords, 25 February 1982; Vol. 427, c. 1065.]
That is right and proper. Some behavioural treatments, such as aversion therapy, and some other procedures that are incorrectly thought by ill-informed doctors and nurses to be behavioural treatments—such as shutting up people alone for hours at a time—raise ethical issues.
Having established a multi-professional commission and having made it draw up a broad code of practice, why leave the final decision to a doctor, who may not necessarily be expert or even knowledgeable about the treatment proposed or about the potential alternative treatments that might be used? It may be anticipated that the commission could get bogged down with that issue.
In 1980 a report was published by a joint working party of the Royal College of Psychiatrists, the Royal College of Nursing and the British Psychological Society—the Zangwill report. The working party was set up to formulate ethical guidelines for the conduct in the National Health Service of programmes of behaviour modification.
724 The report illustrates the serious disagreement between the professions concerning clinical decisions about the use of behaviour modifications and associated methods.
That is one of the reasons why it is important that those issues should be aired in Committee. Leaving them in the pious hope that everything will turn out all right seems unduly optimistic. Therefore, I hope that during the first stages of the consideration of the Bill there will be an opportunity to take evidence—I hope that the Front Bench will take note of this—from the British Psychological Society. I commend that to the House.
§ Mr. Tim Rathbone (Lewes)
I am pleased to follow the hon. Member for Preston, South (Mr. Thorne) because he clarified for me and other hon. Members some of the differences between psychiatry and psychology. That may be something of which you are aware, Mr. Speaker, operating from the psychological Chair. I am indebted to the hon. Gentleman for that clarification.
I welcome my hon. and learned Friend to his new post as Minister for Health particularly because it allows me to contribute to this debate from the back benches. I pay tribute to the Government for the Bill. There has been a welcome from both sides of the House for that initiative. I also join in the admiration, thanks and tributes that have been paid by hon. Members to those who look after the mentally ill and mentally handicapped. I should particularly like to mention the two hospitals in my constituency—Hellingly and Laughton Lodge—which are involved in that care.
One of the welcome aspects of the Bill is the way in which it differentiates between mental illness and mental subnormality or handicap. That is an important difference, The Bill acepts and establishes that difference.
The Bill is also to be welcomed for its broad thrust in its intent that patients should know more about what is going on, yet have some privacy, and be treated as people with rights. I hope that in turn may lead to the eventual obliteration and elimination of the use of mental patients and the troubles that they must face by quasi-religious groups for their own ends. Such groups pretend to act in the interests of the people they have enticed into their ways. That elimination may be a welcome fall-out from the Bill, which has not been mentioned.
I share the concern of other hon. Members about some ways in which the Bill may impose restraints on treatment. On that matter, I see entirely eye to eye with my hon. Friend the Member for Plymouth, Drake (Miss Fookes). I am also concerned about the way in which second opinions are to be structured. In many treatments, time is of the essence.. If a chemical treatment has to be given through sedatives, and that is not immediately available, physical restraint is often the only alternative—mechanically, in some form of straitjacket, or through restraint by hospital staff. Both those methods are unattractive to all hon. Members and all members of th profession when a sedative can be made available.
Therefore, if a second opinion is not readily available, problems can be caused. That is all the more so when, as with psychophrenics and others, the patients are totally intelligible once one accepts their delusions. A doctor's treatment can be denied at one moment when the patient is suffering from delusion and welcomed in retrospect when the patient returns to normality. We must be careful to avoid increasing the problems of obtaining treatment 725 that occur nowadays. New legislation must not create obstacles to treatment or make it more difficult for doctors to give proper treatment. They may be discouraged from doing so for fear of infringing personal rights.
Recently, other hon. Members and I heard a doctor mention three hard cases. All of them suffered from chronic psychosis and were being treated by their families in the community, which is to be encouraged. They sought treatment, but were refused it. Subsequently, each one killed one or more relatives. The doctor conjectured that the number of such instances might increase if greater obstacles to treatment were created. The Bill does not intend to do that, and I hope that will not be one of its results.
Perhaps the Government should consider adding to the powers of the newly envisaged commission the power to monitor the Bill's effects. Some of the difficulties stem from the problem of defining treatment. Does a change of drugs require the whole process of clearance, or does that process apply only to a change in a complete programme or course of treatment? To avoid over-treatment or lack of necessary treatment, the Bill should be clarified in that respect.
Hon. Members have mentioned some of the difficulties inherent in setting up a second body of opinion while maintaining an arm's-length relationship between that person or body of opinion and the person giving the original opinion. In a large institution it may often be necessary to seek a second opinion, and that may lead to a close relationship between those giving treatment and those giving the second opinion. That will not necessarily be overcome if a second opinion is sought from multidisciplinary groups rather than professionals, such as psychiatrists or psychologists. The Secretary of State pointed out that the Bill has a fairly wide remit, but we must be wary of intruding into or curtailing professional treatment to the benefit of no one. That is particularly important, given that the rulings of those second opinion groups will be black and white and will consist of detention or release and nothing in between.
I hope that the Minister will reassure me about regional secure units. Will he confirm that the Bill does not affect the security of those units or broaden the rights or freedom of movement of those within them? That is extremely important to the communities nearby. I welcome the Government's development of such units and look forward to their establishment on the broad base mentioned by my right hon. Friend the Secretary of State. Generally, I join others in welcoming and wishing a fair wind for the Bill.
§ Mr. Christopher Price (Lewisham, West)
I speak as a member of the council of MIND and as one of the deputy chairmen of the all-party mental health group, although I am not remunerated in any way in either capacity.
I add my congratulations to those given to the hon. Member for Belfast, South (Rev. Martin Smyth). His speech showed his concern for the civil liberties of those affected by the Bill. His remarks were respected and welcomed on both sides of the House, as was the proper tribute that he gave to his predecessor, who was to be so tragically taken from us. I am not so senior as to be able to talk with the experience of the right hon. and learned member for Hertfordshire, East (Sir. D. Walker-Smith), but I hope that the hon. Gentleman has a long and fruitful stay among us.
726 I welcome the Special Standing Committee procedure. There has been a little controversy about it, but my experience of chairing the Special Standing Committee on special schools last year led me to believe that it is one of the most important parliamentary innovations to have been made in my time as a Member of Parliament. I am pleased that the Government have not allowed such Committees to fade away, and I pay tribute to the Minister for agreeing to be another guinea pig. The Department could have vetoed the idea and, therefore, it deserves congratulations. Once the Department has seen the Committee in action, it will believe that such a procedure can improve the Bill. When we discussed the Education Bill, we discovered that we needed a little more time than is allowed by the Standing Order. I hope that the Government will bear that in mind, although it is now too late as the Standing Order has gone through for this session. If I criticise the Bill more radically than other hon. Members have done it is not because I do not welcome it. I pressed hard for the Labour Government to introduce such a Bill. Although they produced a very good White Paper, they did not manage to introduce a Bill. Therefore, the Government should be congratulated on getting the Bill off the ground. The Bill is crucial for the House, because we are the final appeal tibunal for those whose civil liberties are affected by such legislation. We intrude on their right to freedom and on their right to maintain their bodies inviolate, with no treatment without consent. We should enact such legislaion only after careful consideration.
My hon. Friend the Member for Preston, South (Mr. Thorne) did the House a great service by reminding us that psychiatrists and the medical profession are by no means the only people with expertise in the treatment of mental illness. The expertise of nurses is crucial, because they are with the patients in hospital all the time, and much more than other members of the medical profession. The role of psychologists, social workers and others is also important. The House must not bend towards one profession, simply because it is the oldest. The House gave privileges to those professions in the nineteenth century, and we must now pay equal regard to the evidence of the new professions. The Committee will no doubt listen to the Royal College of Psychiatrists, but I hope that it will listen equally carefully to all the other professionals engaged in the treatment of the mentally ill.
I shall contrast the plight of the mentally ill with that of ex-prisoners. The House should be careful not to place the mentally ill in a worse position than those who are subjected to terms of imprisonment. Let us consider employment. A recent tribunal case involved a famous insurance company. The individual concerned lost the case when he said that the insurance company had taken into consideration the fact that many years earlier, he had been mentally ill.
For prisoners, the Rehabilitation of Offenders Act makes it illegal, after a certain number of years, for it to be mentioned that a person has been in prison. A person who goes into a mental hospital at the age of 16 knows that, throughout his life, even if he recovers completely, he is bound to reveal that information to doctors. It remains a stigma on him for the rest of his life. To that extent, he is treated worse than a prisoner.
Let us take the issue of solitary confinement. In prisons it is strictly limited by prison regulations and by the administrative directions, which are placed in the Library of the House. We can advise prisoners on whether they are 727 being treated properly within the law. There are no regulations governing solitary confinement for mental patients. I shall read an account, sent to me by a psychologist from my constituency. She said:What actually happens is that a very disturbed patient is kept locked up in a bare cell room with just a bed and only pyjamas and dressing gown. In our hospital the practice was to do this for a week at a time. Patients had all privileges withdrawn. Apparently going to the loo was a privilege and I witnessed a patient with whom I was involved, being given only a plastic bowl in her room which was not emptied too frequently. The smell on a hot summer's day was awful. I found much of these practices degrading to the patient. When clothes were restored for a few hours at a time, no cupboards were provided so the personal items just had to lie about on the floor. In the second week the practice was to allow the patient out for one hour on the first day and each day the patient was 'good' and conformed to the rules, they were allowed out for an extra hour. If not, all the privileges were withdrawn for yet another week. Of course, these disturbed patients often did violate these authoritarian rules with the result that some were repeatedly placed under solitary confinement. I know of one patient who was treated in this way for over a year".
That treatment is being meted out to patients without Parliament laying down any rules or regulations, such as we do for prisoners. I do not have much belief in the commission—this new quango—but if it can lay down, within its codes of practice, something to make it quite clear to hospitals, within a statutory framework, how they should behave in that sort of case, we shall have made some progress.
§ Mr. Douglas Hogg (Grantham)
I thank the hon. Gentleman for giving way, particularly as I am very conscious of the fact that I came into the Chamber halfway through his speech, for which I apologise. If he is recommending that course of action, which I entirely understand, surely it will be necessary to amend substantially the limitation of liability contained in the 1959 Act? Otherwise, of course, the patient will have no remedy.
§ Mr. Price
I shall come to section 141 shortly. Again, if one contrasts the rights of the prisoner with those of the mental patient, the prisoner is in a far better position to bring a legal action than is a mental patient, who is controlled by section 141.
Let us consider the six-hour rule, which the Government are introducing, at the instance of COHSE. I understand how the nursing unions feel, because nurses are being asked to do something that they believe is completely extra-legal. They are being asked to restrain a person without any law under which they can do so. The six-hour rule allows a nurse to restrain a voluntary patient while a doctor is summoned to decide whether that patient should be classified as a compulsory patient. That is why hon. Members are wrong when they say that the Bill applies only to detained persons. It does not. As a result of the Bill, any patients who enter a mental hospital will be in danger of having their civil liberties invaded to a greater extent than if they had not entered a psychiatric hospital. To that extent we should remember the degree to which, even compared with a person sentenced to a term of imprisonment, we are eroding people's civil liberties.
I realise that many of these measures are necessary, but I realise too that much of the law, going back to the Lunacy Acts of the nineteenth century, was conceived by the professions and for the convenience of the professionals 728 and the institutions. We still have not put the balance right between the needs of professionals in the institutions, and needs of those individuals whose liberties are being infringed, and the needs of the relatives of mentally ill people, whose lives in many ways can be more disrupted than those of the mentally ill themselves. The task of the Bill is to draw a reasonable balance between the needs of those three groups.
I want to concentrate on consent to treatment. The Bill improves the legal definitions in many ways. The Secretary of State at the beginning of his speech laid down one of the new definitions. He said that if patients come to hospital they should expect to be treated. That worries me. It means that if distressed people, knowing that they need help, want to go to certain hospitals in certain parts of the country, they can do so only on condition that they immediately receive pretty heavy doses of psychotropic drugs. That does not happen everywhere. We know that practice in different hospitals varies greatly. The Normansfield report, to which I shall refer in a moment, reminded Parliament that some hospitals are virtually run by tin-pot dictator medical directors, whose sanity is sometimes in question.
I have had some experience of mentally ill people. I know that what some of them want is asylum—the idea that was conceived in the nineteenth century. They want to get out of an environment which they cannot stand for one reason or another, and they want treatment in the sense of being looked after and cared for. They do not want treatment which immediately heavily interferes with the whole chemical system of their bodies. That is what the new family of phenothiazines does. These drugs have come on to the market since the passage of the 1959 legislation—they were hardly in existence when that Bill went through Parliament.
The Bill virtually says to the patient "If you come into hospital, you must have that sort of treatment". I want there to be facilities, which perhaps should not be hospitals in the community—we have one such place in Lewisham—where patients can go, not necessarily to get treatment, because many of the patients have had course after course of treatment, but to be treated by professionals, as my hon. Friend the Member for Preston, South (Mr. Thorne) said, such as psychologists, social workers, and others, rather than receive the sort of treatment that they are likely to get from the medical psychiatric profession. That is what disturbs me about the Secretary of State's speech.
I wish to refer to two sorts of treatment. Yet to be resolved is the issue, taken up by the all-party mental health group, of unmodified electro-convulsive therapy at Broadmoor. I hope that we never see that again. The advice of the Royal College of Psychiatrists was that ECT should always be preceded by a relaxant. Certain nurses at Broadmoor were badly victimised by the Department of Health as well as by others for trying to make facts public. It transpired that the practice in certain cases was to give ECT against the patient's consent without a muscle relaxant.
The all-party group, in discussion with the Royal College of Psychiatrists, found hardly anyone except the medical superintendent of Broadmoor who believed that this was an ethical medical procedure. I hope that hon. Members can ensure, during the passage of the Bill, that that practice does not occur. I have my doubts about the commission. If, however, the commission can get a grip 729 on Broadmoor, Rampton, Moss Side and Park Lane, it might do some good. If the commission is to get a grip on those hospitals and really have an influence on them, the Department of Health must allow it and give it all the access that it needs to do so.
The most worrying article I have ever read about ECT was the famous one that appeared in "World Medicine" a few years ago by Dr. Easton Jones on the ECT machine that did not work for a year. The machine had no electricity passing through it but patients were put on the machine and pronounced cured afterwards. It became clear that one of the ways in which electro-convulsive therapy works is the sheer shock of knowing that one is to have treatment, rather than the actuality of receiving it.
A few years ago, I gave some lay opinions on the "Panorama" programme about ECT. I received more letters as a result of a single sentence spoken then about ECT than has been the case for any other public occasion at which I have spoken. Ten per cent. of those who wrote said that it was a wonderful treatment that must be kept, while 90 per cent., including patients, some doctors and relatives of patients, described the permanent memory impairment that electro-convulsive therapy brings on. There is a difficulty with this treatment. Some people swear by ECT, as do some doctors. There is no doubt, however, that in a minority of cases it blocks out whole areas of patient'a minds. The question arises whether the treatment should be used at all now that other treatments have been found.
§ Mr. David Atkinson (Bournemouth, East)
I am interested to hear the hon. Gentleman's comments about ECT. Is he aware that a number of states in the United States have decided to outlaw the treatment? Should we not be analysing the reasons why they have taken that drastic action, and investigating the matter more deeply? Has the all-party mental health group taken an interest in what has happened in the United States?
§ Mr. Price
Our discussion included the California amendments that have taken place over the last six years. Some of the ways in which the debate was pursued in the United States were not edifying. Some of the religious groups that have exerted pressure in Britain were doing so in California. We have to discuss the problem rationally. The difficulty is that no one knows how ECT is supposed to work. The claim is made of much medical treatment that it works. I believe, however, that ECT should be used to a lesser rather than a greater degree now that other methods of treatment are available.
I refer now to drugs. The mass of psychiatric patients are treated in and out of hospital with a new family of drugs known as phenothiazines that go under many different names of which largactil is the most common. There are many others. There is no doubt that these drugs, properly prescribed, have brought enormous benefits to mentally ill patients. There is also no doubt that they have, been appallingly abused. It is exactly these drugs, in very heavy doses, that we in this country complain are being used in psychiatric hospitals in the Soviet Union. The drug is the same, but more of it is being used. That is why the House should take seriously legislation that enables doctors compulsorily to inject these drugs into individuals who do not want them. It is constantly stated that psychosurgery is a radical treatment, whereas drugs are ordinary treatment.
730 There has recently been another instance of what is becoming a common coroner's verdict of therapeutic overdose. This means that individuals in psychiatric hospitals die because, by accident, are given too heavy doses of these drugs. Hon. Members will have seen the report of a recent inquest in The Guardian. I do not believe that these drugs should be seen as treatment different from ECT or psychosurgery. In overdoses, the drugs can kill. In heavy doses, they can ruin people's lives. This is proved by a history of hospital inquiries.
One cannot escape side effects in medical treatment. The worst part of the drugs is that they produce Parkinsonian symptoms or symptoms of obesity that are then said to be part of the original illness. It is impossible later to distinguish between the original illness and the symptoms of that illness. I should like to remind the House of one or two hospital reports. A succession of a dozen or so reports on psychiatric hospital abuse followed the brave decision of Dick Crossman to set up and publish the Ely report in 1969. Paragraph 232 of the Ely report refers to nursing staff being permitted to administer sedatives without any, or sufficient, reference to, or supervision by, the medical staff. One 10-year-old boy was on six times the dosage of largactil in hospital than he took at home.
The Farleigh report of 1971 referred to there being no effective psychiatric leadership. Once more the patients were offered little or no rehabilitative or occupational therapy. The responsible medical officer restricted himself to the prescribing of drugs PRN. As hon. Members will know, that means pro re nata. That gives nurses absolute rights to prescribe what they want at their discretion up to the maximum upper limit. That can amount to huge doses.
The Normansfield report of 1978 criticised the chief medical officer saying that his behaviour was so bizarre that he was at one time referred to a psychiatrist. Paragraph 264 states:Dr. Lawlor abruptly started or stopped five different major tranquillising drugs at levels which were between 50 per cent. and 500 per cent. above the maximum recommended dose.
Those are reports to Parliament of incidents in our psychiatric hospitals. I have quoted three but I could have quoted many more. Every substantial report of this sort contains details of abuses which are nearly always the doctor's fault, for not supervising matters properly, and not the fault of any other professionals. On a disturbing number of occasions, those abuses led to the death of patients in hospitals. My point is that the administration of psychotropic drugs can, in certain doses, be as hazardous as psychosurgery or electro-convulsive therapy. At the very least, doses over a certain level should be treated in this legislation with as great care as we treat the hazardous treatments which the Government quite properly say should be carefully supervised.
We must modify section 141 in some way to give mentally ill patients more access to the courts. As my right hon. Friend the Member for Norwich, North (Mr. Ennals) said, the provision was introduced in the nineteenth century through medical blackmail because doctors said that they would not operate the Lunacy Acts unless it was introduced. It has been stuck in the law ever since and it should be changed.
I am keen to keep compulsory treatment and compulsory detention to the absolute minimum, because I believe that it is now the generally accepted opinion of the medical as well as other professions that mentally ill people, like alcoholics and drug addicts, start to get better 731 only when one has their co-operation. One cannot make mentally ill people better against their wishes. One can lock them up, put them in padded cells and dose them down so that they are scarcely human beings, but for them to recover they must be free to walk in and out of hospital and to say to the doctor that, although he may believe that they need a particular treatment, they do not wish to have that treatment. We accord that privilege to everyone else in society, as long as they are not so dangerous that they may harm themselves or others. That is the correct principle to which we must stick.
In saying that, I am not against the doctors. The rights of professionals must be respected, and I understand the feelings of relatives who believe that family life is broken up by a mentally ill member of the family. That is why I wish to hear more from the Minister of Health about the resources that the Government will provide, because in the final resort hospitals are not the place in which mentally ill people get better. They get better only when they have some freedom and leave hospital.
I am sorry if I have detained the House for rather longer than I intended. However, this is an important issue and some points of view are not put forward by the various professional bodies and pressure groups outside the House. Patients do not have as large an organised pressure group as they might, and it is right that their point of view should be heard in the House.
§ 7.4 pm
§ Mr. David Atkinson (Bournemouth, East
I add my congratulations to the hon. Member for Belfast, South (Rev. Martin Smyth) on his maiden speech. I recall clearly my maiden speech, delivered from precisely the same position as his almost to the day four years ago, but I did not deliver it half as clearly or with as much confidence as he did. I congratulate him on his auspicious start in the House following the steps of his respected predecessor, who was so cruelly struck down in such an anti-Christian and abhorrent way last November.
I welcome the Bill, which is long overdue. Mental illness is far more widespread than is generally realised and is fast increasing. We come across it in our surgeries and in correspondence with constituents just as much as any general practitioner. It represents an increasing inability to cope with the pressure and conditions of modern life, of which there are many causes and symptoms—stress at work, the inadequacies of human relationships, lack of communication, the breakdown in family and community life and widespread loneliness and isolation. I do not wish to pursue that theory, but it has much to do with the loss of support for almost any religion as people become better off and feel that a rising standard of living can be given more priority than peace of mind. They are wrong.
As the right hon. Member for Norwich, North (Mr. Ennals) said, one in 10 people become mentally ill at some time in their lives. Every year 5 million people see a doctor because they are suffering from mental illness. More working days are lost through mental illness than through 'flu and the common cold put together. Those figures under-estimate the true picture. Mental illness is a modern epidemic, and I welcome any legislation that will improve mental health.
732 At the same time, we should always be wary and vigilant about the exact role of the State in the treatment of mental health. I have at the back of my mind the clear abuse of psychiatry that takes place in other countries, often for political reasons. For example, despite the continued persecution and imprisonment of the courageous people who attempt to expose it, much evidence of the political abuse of psychiatry has emerged from the Soviet Union in recent years. One case was that of the Soviet miner Vladimir Klebanov, who was imprisoned in 1978 in a psychiatric hospital for attempting to establish a Solidarity-style association of free trade unions of workers and for applying to the International Labour Organisation for recognition.
Thus, I take seriously any allegations of psychiatric abuse in Britain, especially in our prison system, such as the forcible administration of medicine and drugs to prisoners who are not ill and drug experimentation on prisoners to establish long-term behaviour patterns, which is a process known as DEX. It is not clear to me whether the rights introduced in the Bill will apply to prisoners, because their scope for complaint is understandably limited. They can petition the Home Secretary or write to their MPs. We know from our own experience how long it can take to receive a reply from Her Majesty's prisons, and how difficult it is to question and to challenge that reply when it comes. I know that my hon. Friend the Member for Cheltenham (Mr. Irving) takes a personal interest in such matters. I applaud him on his compassion and pay tribute to his contribution. I look forward to an assurance from the Minister about the mental health rights of prisoners.
I turn now to clause 1, which deals with definition. Definition determines public attitudes. Therefore, it is important that we get it right. It was for that reason that the 1959 Act made so much progress. I wonder whether it is right to start with the words "mental disorder". I hope that the Minister is aware of the resolution that was passed at the annual general meeting of the Association of Community Health Councils in September last year. The association expressed concern about the confusion caused by the widespread use of that term by various authorities. The two specialties, mental illness and mental handicap. should be clearly recognised as being distinct. I share that concern.
It is remarkable that there is no reference in the Bill to the important difference between the mental state and the emotional state. Each disorder requires a different form of treatment. There also appears to be no recognition of the difference between psychiatry and psychology. I hope that I am wrong. If I am right, they are dangerous omissions.
I have reservations about the clauses which have a direct bearing on the mental disorder known as schizophrenia. I have taken a personal interest in that problem. I had no knowledge of it until I became starkly aware of its existence when a friend suffering from schizophrenia died from an overdose four years ago. Last year, all hon. Members were approached and asked to make a personal contribution towards and take an interest in a disability as part of the International Year of Disabled People. For the reason that I have just given, I chose schizophrenia.
As part of my researches, I held a meeting in my constituency of those suffering from schizophrenia and their caring relations. It was a valuable experience and I produced a report. I received invaluable assistance in that 733 exercise from a young American research assistant as part of an internship scheme. It was organised by Beaver college, which has come under so much criticism recently. I hope that when the appropriate Committee examines the matter, it will not terminate that scheme, which is invaluable to hon. Members.
It might be useful to deal with schizophrenia in some detail. There is no doubt that it is one of the major incapacitating disorders now facing society. In Britain, more than half of the 60,000 patients in mental hospitals suffer from schizophrenia. One in every 100 people can expect to suffer from if before reaching the age of 45. It is estimated that 250,000 adults suffer from some form of schizophrenia. That is an alarming figure.
The effects of the disorder are even more tragic and shocking when one bears in mind that it strikes primarily young people in their teens and early twenties. Thus, it creates dependencies and incapacities that often last for the rest of a person's life. The disorder is as widespread as its consequences are tragic, and it remains widely misunderstood and highly contentious.
The term "schizophrenia" is often misunderstood by the public. That is partially due to the flippant and inaccurate way in which it is used by the media. It is derived from two Greek words—"skhizo" and "phrén". It means a splitting of the personality. It should not be confused—as it often is—with the concept of a dual personality rather like the Jekyll and Hyde character in Stevenson's novel. It is not a form of mental handicap. Some schizophrenics are of very high IQ, having held prestigious positions as doctors, scientists, engineers and students before contracting the disorder. However, the nature of the illness and the fact that there is often no observable disability promotes further the tragedy of the disorder as the community is ofter unmoved or insensitive to a disease that is less explicable or visible than almost any other mental disorder.
Schizophrenia is a term used to describe a group of severe disorders that have something in common. According to the severity of the illness, the effects may range from a mild dissociation of personality to total withdrawal from human contact. Symptoms occur in widely differing combinations and with varying intensities, but among them are deep disturbances and distortions of feeling, thinking, perception and conduct which lead to a self-imposed withdrawal from the outside world. These withdrawals and symptoms often take various forms and can be exhibited at different times by the same person over a long period.
Those suffering from schizophrenia may act or talk in ways which appear abnormal or unreasonable. This behaviour may include an insidious reduction in external interests and relationships, in an absence of strong emotions that is often characterised by callous and sometimes violent behaviour to family and friends, self-imposed brooding and withdrawal, inability to concentrate, deteriorating performance at work, bizarre conduct and frequent experiences of false perceptions, delusions and obsessive hallucinations.
Schizophrenia sufferers often feel that others are conspiring against them. Other abnormalities of schizophrenic behaviour may include rambling, mixed-up speech and the use of meaningless made-up words and phrases. The tragedy is that no one general cause is known for schizophrenia, although research continues in many countries to try to solve the dreadful problem.
734 Medical opinion seems to support the theory that partial organic—physical, biological and chemical—factors may contribute. There is evidence that environmental stress may play a part in the development of schizophrenic symptoms. The friend of mine to whom I referred, who may or may not have committed suicide, found it extremely difficult to hold down a job and especially difficult to be in the company of others. However, in some instances there are no obvious indications of a genetic predisposition or of environmental stress. As the specific causes of schizophrenia are as yet unidentified, reliable measures to prevent its occurrence have not yet been conceived.
In recent years some advance in the treatment of schizophrenia has taken place. Last year, I tabled a number of questions to my right hon. Friend with a view to urging the Government to carry out further research into the problem. I much regret the recent closure of the allergy clinic at Basingstoke. There is an increasingly held theory by those who are researching into schizophrenia that diet may be a cause of it.
Schizophrenia can be alleviated by various treatments, including tranquillisers, medication, ECT and group therapy. However, there is no cure as such. Much of it is an attempt to contain the condition so that the patient can return to the community. Hospital treatment is the first step for severe cases. The more acute symptoms can be brought and kept under control by certain medications which can be prescribed by a psychiatric hospital, a psychiatric unit of a general hospital or a psychiatrist to whom a general practitioner refers his patient. The effect of those drugs is often to reduce the level of antisocial behaviour and to mitigate the characteristic schizophrenic withdrawal from ordinary living.
Since the Mental Health Act 1959, with its emphasis on community care, more and more mental health patients have been released from institutional care to be integrated back into their local communities. This must be the correct policy. However, that has led to two situations for the schizophrenic. First, there is a tremendous burden on the families of schizophrenics who are forced to try to cope with a person and situation that they do not understand. Secondly, many schizophrenics and other ex-mental health patients have fallen through the net of community care and joined the growing number of single, homeless people.
In 1972, the National Schizophrenia Fellowship was established, with the improvement of community care and better support for the caring relatives as its main aims. Its work is invaluable, fully recognised and appreciated by the Government, as the replies to my questions last year showed. I have consulted that fellowship about the Bill. I echo the earlier contribution made by my hon. Friend the Member for Plymouth, Drake (Miss Fookes) in expressing the fellowship's concern about new subsection (3A), which provides for a patient who is compulsorly admitted to hospital to apply to a mental health tribunal to be released within 14 days.
The National Schizophrenia Fellowship believes that that clause should be deleted, with consequential amendments to clause 36, because it feels it would be to the disadvantage of schizophrenics. We must consider particular instances when debating the application of that clause.
Somebody who is mentally very ill—perhaps suffering from a severe schizophrenic disorder—may become 735 uncontrollably violent at home and resist voluntary admission to hospital. The family cannot cope and a general practioner is called in. The family might have to wait a long time before he arrives. The doctor may not be able to contain the situation and may, therefore, compulsorily admit the sufferer to hospital. The patient can then be detained, legally with the approval of two independent psychiatrists under section 25, for up to 28 days for suitable treatment to be given, followed by suitable care after discharge. To suggest, as the clause does, that a patient can apply for release within 14 days is, from what I gather to be the widely held view of the profession, impractical and contradictory.
Compulsory admission of a patient in that way—in a violent and uncontrollable state—means that he needs help not just for a few days but for some time. Yet, here we are saying that he can apply within 14, 10, 8 days, or even less, to be discharged without benefiting from a proper course of treatment. Therefore, the clause does nothing to help caring relatives of the patient. Their problems arise when the hospital refuses to admit, when compulsory powers are not taken or when patients are discharged while still ill and with no arrangements for after-care.
The clause does little to help the patient with its provision for appeals and tribunals during the first critical days after admission, when he is likely to be at his most disturbed. Its application also casts doubt, through the machinery of the tribunal, on the collective judgment and good faith of the caring relatives, the general practitioner and the two independent psychiatrists who believed that the patient needed to be compulsorily admitted to hospital for more than the initial 72 hours.
When a patient is compulsorily admitted, being extremely ill, surely the appropriate medical treatment should be of prime importance, while his rights—we must always safeguard them—should not be given the same priority as the clause suggests in such circumstances.
In the context of this clause, I shall also refer to clause 46, which provides for the patient to be informed orally and in writing of his rights as soon as possible after his compulsory detention. The fear is that staff in charge, anxious to ensure that they do not break the law, will impose on the patient complicated information and explanations far too soon after his compulsory admission. That will serve only to confuse him further and encourage him to make subjective decisions about future treatment.
As my right hon. Friend well knows, there is widespread professional concern, including the British Medical Association and the Royal College of Psychiatrists, about clause 41 on consent to treatment. The hon. Member for Crewe (Mrs. Dunwoody) referred to that aspect. Again, the Bill suggests imposing a complicated and restrictive set of procedures which, if applied when immediate and urgent treatment is necessary, may not be in the patient's best interests.
I accept that safeguards are necessary for treatments such as brain surgery and ECT, to which the hon. Member for Lewisham, West (Mr. Price) referred. However, subsection (2), referring to the administration of medicine by any means, could, for example, rule out the application of an injection to calm a violent patient who may be attacking staff and other patients and obviously will not give his consent, until an independent person arrives to give a second opinion. That will take time. I question 736 whether doctors can work on this basis, although I understand the fears that they have about their legal position in such situations.
This is a good Bill, because my right hon. Friend and his predecessors undertook widespread consultations before it was drafted. It is a better Bill now because of the open-mindedness displayed by the Government in the other place where many amendments were made. It will become an even better Bill if the Government maintain that attitude in Committee. It will go a long way towards creating a legal framework necessary for the treatment and care that every patient has a right to expect.
§ Mr. Michael Meacher (Oldham, West)
I shall not follow the hon. Member for Bournemouth, East (Mr. Atkinson) into the intricacies of the definition of schizophrenia or a discussion of the technicalities of clause 13. I am sure that those points will be noted and pursued in Committee.
Like the hon. Gentleman, I welcome the Bill in general and particularly its extension of the rights of detained patients to obtain a review of their detention. I welcome the introduction of the Mental Health Act Commission, to which I would give rather more support than did my hon. Friend the Member for Lewisham, West (Mr. Price) in the role that it has been set to oversee psychiatric hospitals, and particularly the special hospitals, to see and meet patients, so that they have better opportunities to comment and complain if they wish, and to ensure that the law is adhered to in individual cases.
As a sponsored member of COHSE, I very much welcome clause 6, which will enable a registered mental nurse to exercise a holding power over an informal patient for six hours, where necessary, in certain urgent circumstances and where a doctor is not immediately available to arrange a three-day detention.
I welcome, too, the introduction of the approved social worker role, with improved training and more precise duties, which, subject to resource availability—which under current Government policies is a considerable caveat and is a matter that needs to be pressed—should assist the rights of patients.
Those are all major advances under the Bill. Without wishing to derogate from the importance of those advances I must say that there are a number of omissions from and deficiencies in the Bill. First, there is the important consideration that no fewer than 93 per cent. of mental patients resident in hospitals have been informally admitted and so do not fall within the ambit of the Mental Health Act Commission. There is a good deal of evidence that some informal patients are admitted with the implied or explicit threat of a compulsory order. Also, a patient may not be informed of every alternative available. Hospital admission may seem inevitable to him. In no sense could he be said to be making a free choice.
More seriously still, if a patient is unaware that he has the right to refuse treatment and is not informed of that right, he cannot be regarded as giving his informed consent to treatment. After all, the unprotesting patient is not necessarily a consenting patient. If an informal patient is treated under those circumstances and suffers severe, or possibly even irreversible, ill effects, he should have access to the commission to discuss his complaint and seek help.
737 The Mental Health Act Commission is given powers to investigate complaints by patients detained under the Act, as I said in an intervention in the Secretary of State's speech, but it has no power to take action should it find that a patient has been unlawfully detained. Not unreasonably, the Secretary of State referred to the powers of other bodies, and in particular the mental health review tribunal, but it is an anomaly in the powers of the Mental Health Act Commission, which should be rectified.
My second point concerns emergency admissions. The Secretary of State referred to this. There appears to be widespread abuse of section 29, which makes provision for admitting patients compulsorily to hospital without the safeguard for mental patients under sections 25 and 26. Many hospitals receive over 80 per cent. of compulsory patients under section 29.
Recently, Doctors Barton and Hander undertook a study of admissions in one hospital under section 29 in a three-year period. Only 72 out of 182 were justified—only 40 per cent. They concluded that about 5,000 people were compulsorily wrongly admitted every year as emergencies in England and Wales.
There is a need to tighten the criteria for section 29 admissions in the hope of providing greater safeguards for patients and their families.
§ Mr. Douglas Hogg
The hon. Gentleman is making a serious point. Is he saying that the statutory criteria were not complied with, or that the clinical judgment was wrong?
§ Mr. Meacher
The patients were admitted under section 29 because that is compulsory admission and it was easier to secure their admission. They should properly have been admitted under section 25 or 26.
§ Mr. Meacher
Yes. It makes a considerable difference to a patient's rights. It is a serious abuse and one that has lasted for a long time. It is well known. Now is the opportunity for the House to change the practice. Perhaps we can return to the matter in Committee.
Thirdly, wherever possible, a patient should be able to give his informed consent to treatment. I do not believe that that objective would be challenged. To do so a patient must be fully informed of the disadvantages, as well as the advantages, of the treatment proposed and the alternatives available. Where a patient is unable fully to be involved in a decision to treat him, the nearest relative should be able to examine the issues on his behalf. A social worker should be involved in discussions prior to treatment without the consent of the patient. Relatives frequently feel unable to question doctors on technical medical matters, yet it is vital that they be fully satisfied with the justification for the treatment when a patient cannot take responsibility for giving consent.
Fourthly, it is desirable to involve an approved social worker in all section 25 and 26 applications, because a distraught relative may himself be in need of help and support, and because a relative's main concern may understandably be for treatment to be given to the patient but he may not know how that can best be done. A relative may not wish the patient to be compulsorily detained in hospital—my hon. Friend the Member for Lewisham, West referred to that—in view of the stigma and long-term disadvantages that detention involves. Without knowing 738 the alternatives, the relative is in no position to question a medical opinion that compulsory admission is the right solution to the crisis.
The Government's recent White Paper rightly argued that social workers approved to undertake the work should have special training and experience in dealing with mental health, so it is inconsistent to assume that a relative can play that role when the crisis may be the first experience that the family has had of psychiatric illness.
Nevertheless, I believe that caring relatives should be consulted at all stages of hospital admission. There should be an explicit statement in the Bill of the right of a relative to initiate an assessment of the patient's needs. It is also desirable that the reasons for alternative treatment proposed by an approved social worker should be recorded and conveyed to the caring relative. In that way patients and their relatives will be given more opportunity than is envisaged in the Bill to consider the alternatives available to them and to find a solution that is most acceptable to, all concerned.
Fifthly, there is the important question of the vulnerable position of psychiatric in-patients, in the light of which referral to a mental health review tribunal may prove little more, under the current framework, than a rubber-stamping of medical opinion. There is abundant evidence of that. To ensure genuine consideration of the case, with full information being made available on the alternatives to hospital, the ability or otherwise of family members to accept responsibility for the patient and the feelings of the patient about his hospitalisation, there should be a statutory obligation on the relevant local authority to advise and assist a patient whose case is to be heard by a mental health review tribunal. This is separate from, but closely linked to, the point made by my hon. Friend the Member for Stockport, North (Mr. Bennett) about legal aid in such cases. If that is not done by a local authority, we should ensure that such assistance is made available by an alternative agency—perhaps a branch of MIND or some other local voluntary agency. That support is critical if the tribunals are to work properly, as I am sure they are intended to.
Any person detained in a psychiatric hospital is likely to need considerable support and assistance during the weeks following discharge. At present, a mental health review tribunal is limited to a decision for or against continued detention, without any power to ensure that the necessary support will be made available to the patient on his return to the community, if that decision is made. If the Bill were amended as I have suggested, there would be a dramatic effect, because it is clear that thousands of patients are still resident in hospital, not because they need treatment, but simply because the medical staff, understandably, feel unable to send them home unsupported. A recent MIND study found that more than one-fifth of all patients in many hospitals were ready for discharge if the necessary accommodation and after-care were made available.
I hope that the Government will seriously consider implementing that change and will not allow their current obsession over cost-cutting in public expenditure to distort the desired framework of after-care, because we are now preparing a system which may go unamended for a further quarter of a century.
This is an important and valuable Bill, which is wholly welcomed. However, as I and a number of my hon. Friends have sought to suggest, there are some serious 739 omissions from and significant defects in the proposed framework of care. For that reason, I hope that we may have an assurance that the Government will keep open their flexibility and discretion by accepting further amendments to the Bill where the balance of argument suggests that they are necessary.
§ Mr. Douglas Hogg (Grantham)
The hon. Member for Oldham, West (Mr. Meacher) has made two valuable points on which I should like to comment. The first relates to the use of section 29 of the 1959 Act. The hon. Gentleman said that in a number of cases patients had been admitted under a provision of that Act that was not designed for that purpose, and that they should have been admitted not under section 29, but under either section 25 or section 26. That is an important criticism, but it has perhaps a wider importance than that which the hon. Gentleman gave it.
As the House knows, section 141 of the 1959 Act imposes a considerable restraint on a patient's ability to commence legal proceedings. In short, a patient cannot commence legal proceedings against doctors or hospital staff unless he can establish either lack of reasonable care or lack of good faith.
That is not the only difficulty facing the patient, because he also has to get leave from, I think, a judge of the High Court, and the threshold that must be satisfied before leave is given is a considerable one.
I accept that mental care is an unusual form of health care, because those practising it need specific protection. Therefore, I do not suggest that section 141 of the 1959 Act should be done away with, but I believe that the House would be wise to look at the section again and consider whether its terms are too restrictive.
The matter was ventilated at considerable length in another place and many comments were made about the application of section 141. I believe that the House would be pleased if the Minister would give us some idea of the Government's thinking about the section and whether any useful changes could be brought forward in Committee.
The other point that I wish to develop also arises from the speech of the hon. Member for Oldham, West. I listened carefully to my right hon. Friend the Secretary of State, and I hope that he will not think me patronising if I say, in his absence, that he gave us an unusually clear and lucid exposition of an unusually complicated and convoluted matter. The House is grateful to him.
My right hon. Friend said that mental health review tribunals were essential for the proper working of the Bill. He is right. The operation of the tribunals is critical to the proper working of mental health care. My right hon. Friend deserves congratulations for extending to patients much greater opportunities for their cases to be reviewed. However, I fear that the enlarged right of review, and the benefits that we hope will accrue from it, will remain illusory if patients are not entitled, as of right, to assistance in the presentation of their cases before the tribunals.
Subject to the ordinary criteria of financial eligibility, patients whose cases are being reviewed by a tribunal should have automatic access to legal aid. Let me summarise the arguments in favour of that proposition. First, a mental health review tribunal is the only tribunal that deals immediately with individual liberty and has the 740 power to grant or deny a person his freedom. I cannot immediately think of another tribunal with a comparable power, although other hon. Members may be able to suggest some.
By the nature of things, many patients, perhaps even the majority, cannot fully or properly argue their case on matters that are inevitably extremely complicated. There may be a variety of reasons for that. It may be because of the nature of the drugs being administered to them or the nature of the malady with which they are afflicted.
Secondly, patients who have been institutionalised for many years tend to show a degree of passiveness and acquiescence and a sense of institutionalisation that does not fit them properly to present arguments in support of their case.
Two other considerations may influence the House. The first, as many hon. Members well know, is that tribunals quite properly think that some part of the evidence presented to them is not evidence that the patients should hear. I have no objection to that in principle, but it is very difficult for a patient to present his case in a convincing manner when some part of the material evidence has been excluded from him. That would not arise if the patient had a representative, because probably the representative would be permitted to know what would otherwise be the excluded evidence.
I put the other consideration before the House, conscious that it is obvious but having in mind that sometimes the obvious is overlooked. If a patient has been in a hospital for a very long time, he has no prospect of having access either to advice or to funds with which to obtain advice. We are discussing people who, by the nature of their position, cannot go into the street to obtain advice. Because of the conjunction of facts that relate to mental patients, there is a powerful argument for such patients, as of right, having legal aid to assist in the presentation of their cases.
I have three mental hospitals in my constituency, and I visit them regularly. I remember the last occasion on which I went round St. John's hospital, Bracebridge Heath. I saw—the fault was mine—some patients' cards, and I could not help noticing the admission dates. I remember clearly that there were people in that ward who had been admitted to St. John's in the 1930s, the 1940s and the 1950s—people who had been there for 50, 40 and 30 years. I could not help wondering whether they were properly there. The House has to be very sensitive to the special needs of patients. We must strive strenously to create a system which prevents people from being unreasonably and unnecessarily deprived of their liberty. I was pleased to see that a similar view was expressed by the Law Society and the Lord Chancellor's advisory committee on legal aid in its thirty-first annual report in pages 16 and 17.
I hope that there will be agreement in the House about the desirability of extending legal aid to patients to assist them with the presentation of their cases before tribunals. My right hon. and noble Friend the Lord Chancellor could use his powers under the Legal Aid Act 1979 to achieve that happy result, and I hope that through one means or another the House will tell the Lord Chancellor that that is what he should do.
Subject to that, I give the Bill a very hearty welcome.
§ Mr. Ken Eastham (Manchester, Blackley)
All the representations being made by progressive medical people seem strongly to favour the further review of the Mental Health Act 1959, and they include my local CHC and medical specialist staff working in the service.
The mental health service is not a glamorous one. The position is quite the opposite. Often it is looked upon as the poor relation. In most cases, patients cannot speak for themselves, which makes it all the more important that we in the House take a special interest, as we are today in this very important debate.
There is a large hospital in my constituency which caters for a large number of mental patients. They are not criminal patients, but they are included in parts of the Bill. Recently I had a useful meeting with a group of consultant psychiatrists and senior nursing officers. They are dedicated people and all work in the service full time. The consultants have links with MIND and the CHCs and they are united as a progressive group generally in favour of the Bill.
The consultants mentioned to me one area of possible concern. It is contained in clause 41(6). They are most anxious that it stays in the Bill in the interests of some of their patients.
At present, 95 per cent. of psychiatric patients are treated informally under current legislation, and there are powers to treat without a patient's consent. The consultants believe sincerely that there is a case for treatment with sedating drugs over the initial crisis period for such disorders as acute suicidal depression, schizophrenia and other uncontrollable outbursts. Usually such patients cannot think properly when it comes to giving consent, and possibly they put their lives at risk if they refuse treatment. I emphasise that only sedation is requested. There is no question of other treatments such as ECT. The inability to treat patients who are unable to consent might even mean their being refused admission to or being removed from a hospital.
The question of obtaining permission from a visiting commissioner or similar authority should rightly be posed because it must be recognised that in many cases consent to treat will place a major work load on the number of visits required for the purposes of clause 41. If, as in the case of my local hospital, the number was between 400 and 1,000, and if this were repeated in scores of hospitals throughout the country, the problem of making speedy decisions in interests of saving patients would become a very important issue. May I ask the Minister urgently to review the numbers of authorising visitors if they are found to be inadequate, which is possible bearing in mind the great number of hospitals involved?
Speaking generally about the care and needs of many of our mental hospitals, it must be said that numerous other issues are vitally important and should be aired in the interest of improving patients' health and ensuring their speedy recovery.
Psychiatry is an increasingly unpopular specialty, and by 1985 it will suffer the greatest shortages of medical manpower. Psychiatrists have to deal with about six times the number of patients that their colleagues on the medical and surgical side see. Buildings generally tend to be the oldest in the National Health Service and usually are grossly overcrowded. Furnishings and beds are nowhere near the required standards.
742 I am appalled to learn that in my own local hospital there is discrimination even in the catering provisions for mental patients compared with others in the non-mental wings. I have it on good authority that the catering allowance is £1 per week less for mental patients and that the hospital dietician at Cumpsall hospital has recognised that the diet is completely inadequate for the patients. He has even requested that doctors prescribe vitamins to make up the serious food deficiency. It would be interesting to know the cost of a week's supply of alternative vitamins in place of providing wholesome food. This is occurring at a time when in the EEC there are all kinds of food surpluses going rotten or being denatured to keep up prices.
It may be that the Minister was not aware of this diet deficiency in some of our mental hospitals. He knows it now, and I should greatly welcome his comments or, better still, a visit from him to my local hospital.
I am also advised that my local hospital has had very good co-operation and back-up service from the Manchester social services department. Regrettably, there is now growing concern that the compulsorily imposed cuts in social workers, old people's homes, and residential hospitals will seriously affect mental patients, especially the very old. It should be realised that half of all the people aged over 80 years have some sort of mental trouble. My local hospital is 50 trained nurses short, but they could be recruited if funds were made available.
The Bill is moving in the right direction for mental health care and we must not be put off with the excuse that the money cannot be afforded for the many needs and urgent improvements that I have listed. The progress that we make is a great tribute to all who have helped to formulate the Bill's contents.
I hope that the Minister will take seriously the fact that if we are interested in improving the lot of mental patients, we must not get bogged down, as hon. Members seem to be, in the various clauses and the various legal aspects, simple and complicated. Other basic considerations have not commanded much attention during the debate. We have to get the fabric of the hospitals, the manning, the ratio of doctors and the diet right. In addition, the shortcomings of the mental hospitals compared with the surgical and medical wards, should be remedied.
Any fair-minded Minister should recognise that there should be an attempt to correct this imbalance in the mechanism. There seem to be two classes of National Health Service patients. Those in the mental wards are in the forgotten army, but those in the sophisticated specialties such as heart surgery, or related fields, have only the best. I am not saying that we should deny any patient in any sector the fullest benefits of the service, but we must make this special plea and recognise, as many people do, that the time has passed when we can continue neglecting mental health. We need a massive input with massive funding if we are to get these patients out of the hospitals and into the world where they can lead a full life.
§ 8.3 pm
§ Mr. Tom Benyon (Abingdon)
I welcome the chance to make a contribution to the debate, which started so well with the maiden speech of the hon. Member for Belfast, South (Rev. Martin Smyth). I am sure that the House agrees with me that we hope to hear many such contributions from him in the years to come.
743 I should like to take up some of the points made by the hon. Member for Manchester, Blackley (Mr. Eastham) about the attitude in which society holds those afflicted with mental handicaps or illness. They may be regarded as the forgotten legion, and they are neglected by rather more people than just those in the House.
This is a problem for society and the community at large. I welcome the Bill and the time at which the Government have brought it forward. I feel that it will do much to publicise the plight of these people.
It is possibly a mark of the lack of compassion in society that we can laugh at those least able to look after themselves. The Government should be especially commended for introducing the Bill. We have a great deal to do in terms of educating the public in their attitude towards those with mental illness or handicap. To start with, many believe that mental illness and handicap are one and the same thing. They also seem, most unfairly, to regard those suffering from mental handicap as being forgivable, but those suffering from mental illness as showing some sign of weakness in having it.
We have a great deal to do to educate people. I say that because of the connections that I have with charities dealing with those who are mentally handicapped or who have suffered from mental illness but recovered sufficiently to come out of psychiatric hospitals, as I am sure many other hon. Members have. One cannot pluck people from psychiatric hospitals and bring them raw out into the community. They need assistance. I commend those charities and voluntary organisations that dedicate so much time to helping those with mental illness.
I speak from my experience of St. John's psychiatric hospital in Aylesbury, where about 30 people have been able to come out during the last four years, assisted by the Guidepost Trust. It helps people, many of whom, as my hon. Friend the Member for Grantham (Mr. Hogg) said, have become institutionalised, having been incarcerated for 25 or 30 years. They forget how to travel on a bus, go to the laundry, shop in a supermarket or manage their housekeeping.
We cannot just throw resources at this problem. It is a community problem and it will involve people in the community giving their time to befriend and help these people. It requires not vast amounts of technical skill, but an approach of common sense and the giving of the most valuable commodity—time.
The Bill is the first major piece of mental health legislation since the Act of 1959 that it seeks to amend. The Government are to be congratulated on introducing this measure. By doing so they give the lie to any charge of a lack of compassion, about which we hear so much in many debates.
Despite the significant change for the better in the attitude of the public to mental health, brought about by the liberating effects of the Mental Health Act 1959, it is still true to say that looking after the mentally ill and handicapped does not win many votes or ensure electoral popularity. It is for this reason, as well as for the content of the Bill, that the Government deserve recognition from all parts of the House.
I illustrate the point about the Bill not winning votes by saying that the public attitude to mental health might be characterised by the fact that for every £1 raised for mental health, £9 is raised for charities connected with animals.
744 The 1959 Act represented the culmination of a debate between the two different approaches to mental illness and its treatment which commenced in the nineteenth century. On the one hand there was what might be called legalism, based on nineteenth century liberalism, the main assumption of which was that no one ought to be confined in any institution without specific safeguards. Against that there were ranged those who might be called the treatment school, who argued that the patient's need for the treatment overrides his legal rights to be committed only by a lay independent tribunal and to legal representation.
It is in that context—and I have grossly simplified it—that any debate on this subject should be put. The treatment school predominated in the passing of the 1959 Act. It was a revolutionary piece of legislation, because, for the first time since 1774, there were almost no judicial controls.
The basic philosophy was that treatment for mental illness was of paramount concern and that it could be provided only if judicial committal were abolished, the majority of patients were voluntary and members of the medical profession, as care givers, were pre-eminent in running the system. That stands in stark contrast to the 100 years before, when, for instance, in 1862 a Member of this House, Mr. Montague Smith, on the Lunacy Regulation Bill moved:That the opinion of any medical practitioner shall not be admissible as evidence of the insanity of such person.
The 1959 Act has resulted in 90 per cent. of patients in mental illness and mental handicap hospitals being voluntary, compared with 20 per cent. in the United States in 1975. The Act has, to an extent, removed some of the stigma of mental illness, by its underlying philosophy that mental illness should be treated in the same way as physical illness. In that context I commend to the House the work of Larry Gostin, who wrote "The Human Condition", an excellent book published by MIND in 1976.
Despite some faults and drawbacks, a great deal of good has come out of the 1959 Act for the mentally ill and handicapped. In the seven or eight years since the publication of the Butler committee report on abnormal offenders there has been an intense and wide-ranging debate about the position and protection of the detained patient. Underlying the debate there seemed to be a feeling that the 1959 Act had weakened the patient's legal position excessively and that his rights needed strengthening. The Bill effectively remedies that without undermining the essential philosophy of the 1959 Act.
As is right in such a Bill, the Government have treated it as non-partisan. I am delighted that the Committee stage will be taken under the Special Standing Committee procedure.
In the spirit of that approach, the Government in the other place either introduced amendments or announced intended amendments which will add considerably to the Bill's importance. Among them are the exclusion from the detention provisions of the 1959 Act of most mentally handicapped people. That represents a speedy and energetic response to the representations of the major charity in the area, MENCAP, and other bodies. The second amendment involves the removal from the Home Secretary of his exclusive powers to discharge restricted patients and the transfer of these powers to the mental health review tribunal. That is a swift response to the European Court judgment in X v. United Kingdom.
745 The third provision involves the establishment of a statutory duty on hospital managers to inform detained patients of their rights. The fourth is the requirement of a multidisciplinary confirmation of a patient's consent to treatments giving rise to special concern. The fifth is the requirement laid on the Mental Health Act Commission to publish a report at the end of its first three years and subsequently every two years.
The measure incorporates numerous beneficial provisions for the well-being of the detained patient. Among them I highlight the tightening of procedures for civil admission, and especially the granting of a right of application to a mental health review tribunal for those detained under section 25. Secondly, I highlight the halving of detention periods under section 26—at present the long-term detention authority of one year—and section 60, under which provision is made for the court-made hospital detention order of the same length, which thereby effectively doubles the number of tribunal applications that a patient can make.
I warmly endorse the creation of the automatic referral of cases to mental health review tribunals at the end of a patient's first six months in hospital and at the end of three years. I welcome the withdrawal of the age limits for the detention of psychopaths and the mentally impaired and the replacement of a "treatability" test. I welcome the generally pragmatic reforms in the way in which courts can remand mentally disordered offenders to hospital for observation or treatment. Numerous other reforms will be revealed during the Bill's passage.
I shall refer to some of the controversial issues. The Bill courageously deals with an issue which it is fair to say the 1959 Act studiously avoided. I refer to the vexed question of consent to treatment and to the powers of the responsible medical officer to impose treatment upon an unwilling patient. The issue lies at the core of the doctor-patient relationship and is probably the most important question arising from the Bill.
Some people say that in no circumstances should treatment be imposed upon a competent patient, but others argue that that will result in a number of patients not receiving treatment who would benefit from it. Up to now the position has been generally unsatisfactory and has aroused the general public's concern. Equally important, it has aroused the concern of staff, primarily because the law does not state the position clearly.
Clause 41 succeeds in that intention admirably. However, the clause may be amended and the clarification of the consent to treatment issue, which I hope will flow from the clause, will be of inestimable value in promoting a greater understanding of mental health by the general public and a greater acceptance by the few detained patients and their relatives of treatment programmes designed for their benefit, which they find hard to accept.
I was delighted to hear of the Government's proposed intention at least to accept in part the 1978 White Paper's recommendation that in this complex area there is a role for the intervention of multidisciplinary panels.
I note that in the other place two other issues came up frequently. The first other issue was legal aid for appearances before mental health review tribunals. It became apparent that all parties, including the Government, recognised that as a priority extension for legal aid. I endorse what my hon. Friend the Member for Grantham said on that subject, that the only outstanding issue is one of resources.
746 Secondly, attempts were made to repeal or amend section 141 which provides a procedural and substantive bar to patients who wish to seek legal remedies, civil or criminal, for any act rising out of their care under the Mental Health Act. I cannot deny that this is a difficult issue, but we must bear two matters in mind. First, we must consider seriously the views of people who are involved in the sometimes extremely difficult, vexing and demanding task of looking after the mentally ill. Secondly, we must inquire whether other safegaurds are either available or capable of being created which would render section 141 redundant. I have an open mind on the subject, and I know that the Government will display a similar openness when the Bill is considered in Committee.
The Bill gives us an opportunity further to refine and improve the law relating to detained patients. It provides probably the last opportunity to do that for at least 20 years. In our deliberations we must keep to the forefront of our minds not only the mentally ill and handicapped, but their families and friends, who have to live with the effects of mental illness and impairment.
§ Mr. William Pitt (Croydon, North-West)
I congratulate the hon. Member for Belfast, South (Rev. Martin Smyth). My maiden speech is fresh in my mind. I remember well the horrors of that occasion, so I can offer the hon. Gentleman sympathy. He spoke eloquently of his predecessor who, sadly, was cut down in the third week of my membership of the House.
I welcome the Bill. I also welcome the unanimity and humanity from both sides of the House. The Bill is important. It will strengthen legislation which was put on the statute book when I was a callow youth of 20 and not even a member of the party which I now represent.
I welcome the Bill but, like a number of hon. Members, I cannot welcome it totally. There are areas which the Government could modify and stiffen. I start by welcoming the shift of emphasis in clause 41. Like the hon. Member for Plymouth, Drake (Miss Fookes)—whose mental capacity I am sure is far greater than mine—I find the clause a little like a maze and somewhat arcane.
I should like to suggest some technical improvements to clause 6. I know that we are not on Report, but it might be worth reminding the Minister of its contents. In regard to the detention of patients in hospital, subsection (3) says thatthe nurse may record that fact in writing; and in that event the patient may be detained in the hospital.When I first read that, it seemed as though the nurse concerned would have to record the fact in writing before the patient was detained. If the patient were in a dangerous condition, or heading somewhere with a carving knife, he should be detained and the nurse should subsequently record the event. That would safeguard the nurse, who would not have to go through a bureaucratic process first.
In schedule 2, paragraphs 29 and 34, I should like to see the words "severe mental handicap" replaced by "severe mental impairment", as in the rest of the Bill. That might be a printing error. It seems strange that, in schedule 3, page 56, the Government are proposing to repeal part of the Mental Health (Amendment) Act before it becomes an Act. Part II refers to the short title, the Mental Health (Amendment) Act 1982, and to the repeal of "section 49(3)". I am sure that that must be a printer's error.
747 There are some points that we would like to incorporate into the Bill. Clause 4(2) concerns the detention of patients. The Minister should look carefully at a new wording that would apply to the detention of patients who pose a threat of serious harm but would not apply to cases of minor inconvenience.
In 1962 a section 65 order was made on someone who stole a pair of slippers and committed a minor assault. That person is still subject to section 65, although no longer in detention. A man was charged with indecent assault. He was unable to plead and was subsequently made subject to section 65. He stayed in Broadmoor for the next 10 years. There is at present before the European Court the case of a woman who has "a tendency to abscond" and commit minor theft. We must look carefully at the powers to detain patients and ensure that those who are detained—there are patients who are in need of detention—are doing serious harm rather than causing minor inconvenience.
I welcome the Minister's announcement that 500 secure units will be provided. However, like other hon. Members, I feel that this may not be enough. Perhaps the Minister will consider—as my noble Friend Lord Avebury said in another place—the imposition of a duty upon local authorities to provide suitable hospital and accommodation treatment.
§ Mr. Pitt
Yes. Will the duty be put upon local authorities to provide those places?
There has been a considerable drop in admissions to hospital of people requiring secure accommodation. That is not because the courts are unwilling to make orders, but because there are not enough hospital beds. We must look to area health authorities and community health councils to provide the secure units, so that people can receive hospital treatment and not be put into prisons which are ill-equipped to deal with the detainees who are properly there and not equipped at all to deal with people who should have medication and care.
The subject of legal aid has occupied a considerable part of the debate. I take the point made by the hon. Members for Crewe (Mrs. Dunwoody) and Cheltenham (Mr. Irving) and the right hon. Member for Norwich, North (Mr. Ennals) that legal aid should be available to all patients who come before mental health review tribunals. It is particularly important that it should be made available before the numbers who will be appearing before mental health review tribunals jump to 4,500 as a result of the Bill.
Legal aid is available in many other circumstances for people who are mentally able to defend themselves. They are not mentally impaired and, by that token, they have an advantage over others who have mental impairment or mental illness. Why should the same facility not be available to people who start with a much greater disadvantage than others? I hope that the Minister will take cognisance of the remarks made by hon. Members on the subject and feel able to include a provision for legal aid for mental health review tribunal cases.
I should like to consider another part of the operation of the mental health review tribunals—the extension of options and what the tribunals can do with patients. At the moment tribunals can only discharge patients or delay 748 discharge for a further period. Will the Minister consider the possibility of leave of absence from residential hospitals, conditional discharge in cases where it is possible to the care of relatives or other caring bodies in the community, and removal from special hospitals to other more suitable hospitals? In other words, whenever it is possible to do it, people should be moved from restrictive accommodation into less restrictive accommodation. They should be able to go out into the care of the community. As the hon. Member for Lewisham, West (Mr. Price) said, mental patients will be cured only when they are able to go out into the community and respond from their own selves rather than having something imposed upon them.
The Government's arguments concerning cost would not apply. If the mental health review tribunals were allowed to do what has been suggested, the cost would be cut and hospital beds would be made available for those whose need was greater at the time in question.
I am concerned about the proposals for a remand period. I suggest—my noble Friends in another place have already suggested strongly—that the review concerning the remanding of patients for assessment should be very strict. I suggest that it should be for 28 days, renewable up to a total of only 56 days. The provision should not be used to detain patients for an indeterminate period without proper consideration of their needs.
The issue that has raised most discussion in the debate is the certification by a doctor of the need for surgery, medicine and electro-convulsive therapy. To that list should be added the use of aversion stimuli, restraint and enforced seclusion. The whole ethos of this part of the debate revolves around the principle of no treatment without consent. That principle already exists for those of us who are not impaired mentally, are cognisant of what is going on, are able to make judgments and know when we want something or when we do not want it.
We must not allow treatment to be given willy-nilly to the mentally ill. After all, they are supposed to be in our care. We should not allow them to be treated in ways in which we would not want our own families to be treated. It is necessary to protect the rights of those who are unable to protect their own rights. Those rights must be protected at least as stringently as the rights of those who are more fortunate. Wherever possible, a patient should be permitted to give his own consent and make his own rational decision concerning any form of treatment—not only ECT and surgery, but drugs.
The hon. Member for Lewisham, West made a damning condemnation of the use of largactil. Largactil is used in enormous doses not only in our own mental institutions, but internationally. If the patient is able to make the decision, he should be permitted to make it. If he is not able to make it, the responsibility for making the decision should pass to the next of kin. If the next of kin is not available, it should pass to a lay body on the "next friend" basis—a mental health review tribunal or some other appropriate body.
I do not want to take up the time of the House any more than I must. We have had a useful and successful debate. Hon. Members made succinct and important points. A point that may not occupy much of our time, but which is still important to a number of people detained in mental hospitals, is voting rights. We are told that the Home Secretary is considering that issue. It is interesting that the mentally ill and mentally handicapped in a general hospital 749 can vote, but the mentally ill or mentally impaired in a hospital specifically for the mentally ill cannot vote. As a layman, I am a little puzzled why one section of the mentally ill community has the franchise and another section of the community, which may be suffering from the same mental impairment, does not have the franchise. I ask the Minister seriously to consider that point.
I recommend an anti-discrimination board. The hon. Member for Lewisham, West referred to the stigma of having been in a mental hospital. If such a person has been declared mentally ill, is cured and goes out of the hospital into the world, he may make an application for a mortgage, for example. His or her medical history will come up in its full glory before the doctor who is examining that person for purposes of the mortgage application. The doctor might sensibly say that that illness was a long time ago and that the applicant should tell him about it. He will be able to judge immediately from the way in which the person talks about it whether there is any danger of a relapse into that mental illness.
On the other hand, such information might appear before the eyes not of a just person but of an employer or personnel department when someone has recovered from mental illness. Already there is a time limitation on the availability of records of those who have been convicted of crimes. We should have an anti-discrimination board so that people who have been discriminated against by the lack of legislation can appeal and obtain redress, or, more preferably, a clause could be included in the Bill or in legislation brought before the House as quickly as possible to limit the time when a person's record of mental illness can be handed out to someone who requires it. The person who has recovered faces a difficult task in going out into the world and part of his recovery is that he knows he can face society with confidence.
That is the intention of the Mental Health (Amendment) Bill, which I wholeheartedly support. The Liberal Party recommends it. I hope that my remarks have been constructive. I hope that the Minister will examine and take on board the suggestions that I, and my noble Friends in another place, have made because I believe that they will greatly improve and reinforce the Bill as an aid to the mentally impaired.
§ Mr. Lawrence Cunliffe (Leigh)
Like many other right hon. and hon. Members, I congratulate the other place on its initiative and enterprise in bringing to this House a Bill that will be a positive measure in reassuring many people representing all sorts of professions, whose work is relevant to some elements of the Bill.
I am certain that the Bill will be received with acclamation by the House. I say this as a Whip who has to do a little prodding. It is agreeable that this is a non-party issue. There has appeared to be a genuine consensus among hon. Members on the primary motive of the Bill, which is to build upon the principles of the already successful 1959 Act.
Some of us still have some minor reservations about Dickensian elements in the Bill. As other hon. Members have done, I shall highlight a specific case that demonstrates the traumas faced by many of those who have been sent to mental homes and institutions under our archaic Acts. Unfortunately, some of them are still there and I shall cite some positive evidence from those with bitter experiences.
750 I shall deal with sections 60 to 65 of the Mental Health Act 1959, under which those convicted of criminal offences have been sentenced, in essence, to mental prisons. Under section 60 magistrates or a Crown court can order the detention in hospital of a mentally disordered person who has committed an offence. There are some exceptions, which I am sure will be clarified during examination of the Bill in Committee. However, detention can be ordered, providing that the offender has a mental disorder that warrants detention in hospital and the court thinks that that is the most suitable way of disposing of the case. The Act states that two medical opinions are required. Under section 65, if the Crown court thinks it necessary for the protection of the public, it may make a hospital order with restrictions. Magistrates' courts do not have that power. Indeed, I shall cite a tragic case—which will cause hon. Members to shudder—that resulted from a magisterial decision. As a result the patient can be discharged, transferred or given leave of absence only with the consent of the Home Secretary.
Unfortunately, the hon. Member for Cheltenham (Mr. Irving) had to leave the Chamber some time ago, but I congratulate him on his sincere contribution. He emphasised the general importance of human rights. A few months ago I learnt of a tragic case. A lady came to my surgery and told me that 10 years ago she had absconded from a mental home. I asked her why she had done so and why she had been detained. I then asked for an investigation and inquiry to confirm, as she, in her own sweet way said, her "confession". The case highlights the fact that although people have been institutionalised they can, with great courage and tenacity, come forward with their cases.
I shall refer to the mystery of a woman's 15 lost years. The case has received wide press publicity and national newspapers are carrying out investigations.
Mrs. Maureen Baker is now 45 years old. When she was 18, she was charged by a magistrates' court with stealing coal worth 5p—then a shilling. Her mother was unable to accompany the girl to court because she could not get permission to leave her work. So it was decided that a neighbour should accompany the girl. That was in 1957—two years before the 1959 Act reached the statute book.
The girl spent 15 years in Calderstones hospital. and in Brockhall hospital at Blackburn, two well-known institutions, before she attempted to escape—perhaps the correct word is abscond—10 years ago. During that decade she married and now has an 8-year-old son. During all that time no attempt was made by the police or the authorities to inquire into her whereabouts. I am not judge and jury, but it is fairly predictable to say that when a person leaves a mental institution and is away for nearly a decade, during which time she played her part as a reasonable member of society, worked, married and had children, there is great doubt about whether she should ever have spent 15 lost years in those institutions. She said that picking coal was "a common practice" among her school mates at the time. She claimed that most of the people in her area did it, and that most of them were in dire straits. She said:The next thing I knew I was in court one minute and in the hospital the next. During the case I was taken into a separate room then a man and woman told me they would take me to a nice place where there was a swimming pool and games to play'.751 Mrs. Baker found that to be untrue. The newspaper report says:it was not until two months later that her parents and family knew where she had been taken. Her mother was at work on the date her daughter had appeared in court.Mrs. Baker said of the 15 years that she spent in Calderstones and Brockhall:When I was in this place it seemed like someone just locked the door and threw away the key".None of this would ever have come to light, but for the fact that she remembered the girls who were with her during that time and of the minute offences that had taken them there. She therefore decided to go back. A few months ago she went back to see her friends. She was obviously not identified by the staff but she decided to admit that she had defected. I have spoken of the courage and tenacity of the woman. She wished to challenge the authorities. She approached councillors and her MP to say that she believed that hundreds of people were kept in mental hospitals because no one took the time to examine the circumstances and that there was no machinery available to highlight such cases. According to one newspaper report, she said:I know that they are still there, just rotting away. In all my time inside I was given no reason for them keeping me there, or told I could go. My friends were lovely girls. They seemed to be there just"—and hon. Members have quoted similar cases—for the convenience of the authorities who could find nowhere else to put them.I hope that this kind of case—a serious indictment of our society in the past—will never recur. I believe that the Bill will tighten up the situation that gave rise to the problems and traumas that I have described.
I might add that the saga is still not finished. The case attracted some notoriety. On leaving the institution her friend Beryl Williamson, who is now the subject of an inquiry and who had been there 25 years—the periods of 10 and 15 years—decided to follow Mrs. Baker and accompanied her and her child on the bus. This was done openly. There was no one on guard.
The police were called and Beryl Williamson was discovered at Maureen Baker's home. Inquiries were made. One knows from experience that if one tries to open too many doors in dealing with inquiries of this kind it is difficult to get people to speak out. Mrs. Baker found herself once more back in the courts charged with harbouring Beryl Williamson. I am glad to say that when the court heard the circumstances a conditional discharge was immediately given. The magistrate commented that the whole case should be put under the microscope.
The solicitor of Maureen Baker, who has asked to go back to Brockhall hospital to see her friends, states in a letter to me:We do know that you have seen Mrs. Baker on several occasions to discuss her friend Miss Williamson who is at Brockhall's hospital in Blackburn and indeed about her own case which seems to be shrouded in the mists of time.It was time that condemned people in those days. The letter adds:Since the court case, Mrs. Baker has found it increasingly difficult, indeed impossible even to speak to Miss Williamson by telephone and she is we believe sincerely afraid that Miss Williamson is in fact being punished particularly because of the press activities since the case.One can understand why this case received much press attention. Whether those allegations are true or not—it is 752 not for me to say—Mrs. Baker is very worried, especially as she has attempted to telephone the hospital several times and has been put off by the staff. She told us that she heard what could be described as scuffling in the background. On one occasion she talked to a doctor whom she described as having a rather strange manner. The Bill is meant to reveal people about whom we must have free and open discussion. Mrs. Baker has real anxieties about her long-standing friends which, understandably, emanate largely from her experiences. The stories that she has told us must surely be the subject of investigation and inquiry.
I have said some uncharitable things about the other place, but I must congratulate its Members. The debate has done much to reconcile the doubts and the grave anxieties that many of us felt about events in institutions in our constituencies. The fact that there is no vote this evening illustrates our passionate wish for justice for those with whom the Bill will deal. I congratulate everyone who has spoken in the debate, the legislators, the Secretary of State and the other place for bringing such an important and significant Bill to the House.
§ Mr. Andrew F. Bennett (Stockport, North)
Like my hon. Friend the Member for Leigh (Mr. Cunliffe), I hope that no one is now detained in a mental institution who should not be there. My hon. Friend illustrated the problems that occur with those who were committed to institutions many years ago.
However, we should remember that in many ways we are still making the same mistakes. Reference has been made today to someone having to be placed in a secure mental hospital because no other place was available. Within the last two years in Stockport there has been a similar instance of a young girl who should have gone into one sort of accommodation but, because the people running that institution were reluctant to take her on as she had some problems, she had to go into secure accommodation, which was probably unnecessary. The hope is that her case and other such cases will receive a continuous review and that she will stay there no longer than is necessary. At the back of those people's minds is the fear that such people, once they are sent to an institution, stay there. I hope that this legislation will make that less likely.
We are trying to enshrine good practice in the law. There are some advantages in this area. There is a fairly broad consensus of what good practice is. Of course, if there were agreement on what is good practice and we could achieve it, there would be no need to make laws to enforce it. It is a difficult area.
One of the elements of good practice is flexibility, yet the law is bad at making matters flexible and enforceable. There is a conflict in that the more we legalise a system the easier it is to enforce, but the further it is pushed away from good practice.
At the back of the minds of most hon., Members is the perception of many institutions as cages, as something to be avoided, to be worried about and to put people into only with great reluctance. However, it should also be clear that for some people, by not putting them into institutions, but by leaving them in or releasing them into the community, the community can be equally difficult a cage to survive in. When suggesting that people should be out of 753 institutions, it is important that we do not merely throw them into the community without providing them with proper and adequate services.
I turn to the way in which people are persuaded to accept treatment. it is much better to obtain consent for treatment than to go through a legally enforceable system. However, one must also recognise that some people prefer someone else to take decisions for them, and that sometimes one is being harsh by insisting that such persons must make their decisions themselves. Where people are severely disturbed or unhappy, they are often reluctant to come to a decision.
Although there is much idealism in the principle that consent should be obtained, it is a relief for some people when others take a decision. We should not seek always to weigh the matter too much in favour of insisting that we should work hard on someone to obtain his or her consent, as that process may cause more problems for the person concerned than saying that on this occasion, and in these conditions and with all the safeguards, it would be better for someone else to take the decision. In future, however, the individual should be encouraged to participate in deciding whether he wants to go on with the course of treatment. We must be careful about the concept of consent.
It is important that patients should be informed of their rights. Once again, there are many dangers. It is easy to give people a piece of written information, but it is difficult to ensure that they fully understand their rights. The only way that that can be done is for them to be given information and told their rights continually. It should not be a case of someone being admitted, told their rights and then be forgotten. There should be a continuing process while he is in an institution. He should be reminded constantly of his rights and have them explained, especially how they can be exercised.
I am often frightened that someone is given a piece of paper with his rights on it. Often people get the wrong end of the stick and spend a great deal of time writing to Members of Parliament and others about issues that are especially important to them which appear on the list and which they have not fully grasped.
Several hon. Members have referred to caring relatives. Such relatives are extremely important, but one must watch carefully that they are not caring relatives who tend to care for themselves rather than for the patient. I have sometimes been distressed by so-called caring relatives who want a patient off their hands and put into an institution rather than finding out what is best for the patient. I do not blame them. They are often left to bear the brunt of the problems. However, we must be careful about the concept of the caring relative, especially where there are two relatives, equally closely related to the patient, who have different ideas on what is the right treatment or help.
It is vital that the Government extend the legal aid system to include the mental health review tribunals. It would be unfortunate if we spent much of the time in Committee arguing about that. The Government should be able to make a concession. It may appear at first sight that the Government will have to spend a little money in making provision for legal aid, but really it is a matter of avoiding money being wasted. What is the point of having a tribunal if the individual who goes to it feels that he has not derived some benefit from so doing? How can he feel that he has had some benefit from attending the tribunal 754 if he has not been properly represented? It is no good having a tribunal that is merely a piece of window dressing.
The Government must ensure that those who appear before the tribunals are properly and adequately represented. Surely that cannot be done unless they are prepared to concede entitlement to legal aid. I hope that they will make that concession at an early stage so that we do not waste time in Committee arguing over what is really a relatively small issue. We must be careful to ensure that the tribunals are sufficiently informal so that the individuals who go to them feel at ease, feel that they are relevant to them and do not feel that it is a process that is so far removed from them that it means nothing.
I am concerned about the idea of producing evidence at a tribunal that the individual does not know about. I realise that there are difficulties but it seems that there should be a primary duty to ensure that as little information as possible is put before the tribunal that cannot be shown, described or explained to the individual that it concerns. To submit evidence of which the individual knows nothing is not in the best interests of justice and will always leave the feeling in the back of the individual's mind that he has been cheated and that a veto was imposed that he could not challenge.
Consent to treatment is one of the most difficult issues. Such consent is based on having accurate information on the consequences of giving or not giving consent. Recently I have been approached by three constituents who did not have mental problems but who had consented to undergo operations. They said "If we had known what was to happen to us, we would never have given our consent". Their claim is that the doctor did not tell them what the true alternatives were. It appears that the doctor told them what he hoped would happen and did not tell them what could go wrong.
This is a major problem, especially when those concerned may be disturbed. It is extremely difficult to persuade someone in that state to consent to treatment. The doctor may think that it is in the patient's best interest to receive treatment, but at the same time he has the task of trying to give them a balanced view of the possible consequences of having or not having treatment. These are difficult areas. We should not claim that we are solving the problem merely because someone gives consent. It has to be informed consent, and that is a difficult area.
I am disappointed that the Mental Health Act Commission will be concerned only with those who are to be detained. It should be concerned as much with those who are not to be detained. The danger is that when only one group has the protection of the commission, that may influence the way in which decisions are taken. We ought to be concerned whether a decision is taken in one direction or another. The Mental Health Act Commission ought to consider proposals put forward about people who ought to be detained and the position when the proposals have been turned down. It should also certainly consider the position of some people in the community who are unable to get into hospital and who are not necessarily getting access to the facilities they need. Further consideration should be given to guardianship orders. The commission ought to go much further than is proposed.
Living in the community can be worse for some people than being detained in an institution if the community does not care for and show reasonable interest in them. I fear that that happens too often and individuals end up as the 755 responsibility of social workers. Not enough people are showing concern, and most hon. Members are well aware that people are often unable to be released from institutions because of lack of accommodation.
We also ought to be aware that people are often released into inadequate accommodation or, having been released into adequate accommodation, which is often transitional, they then gravitate into less and less satisfactory accommodation. People often have to be readmitted because the accommodation is so unsatisfactory. We have a duty to consider the available accommodation in the community and to ensure that it helps people to remain in the community and does not push tham back into some institutions.
We must consider the amount of money upon which many people released from institutitions must survive. Even if one has all the skills necessary to survive, it is difficult to get by on some of the levels of supplementary or invalidity benefit. To ask people who have not had to manage for themselves for a long time to get by on these minimal levels of income can cause them many difficulties and stresses that may well push them back into the institutions they have left.
Unemployment is one of the most worrying aspects now. Work offers many people the opportunity to meet others and to feel that they are performing a useful role. If one denies people the opportunity to work, it causes them many difficulties and problems. Those who have spent time in mental institutions or have had problems find it increasingly difficult to get work, which is extremely important in ensuring that they do not return to institutions. I make the same point on recreational facilities.
I recently encountered three constituents who, on travelling around my constituency, fell out with almost everybody they met. They managed to row with their family doctors, social security workers and members of the housing department. They often managed to row with me at my advice bureau. Of course, one wonders why they managed to row with everybody. Everybody feels that they are awkward so-and-sos and that they might perhaps be better off somewhere else. However, the truth is that they can cope with having a row because somebody then takes notice of them.
That presents an opportunity to talk to another human being. They probably go virtually unnoticed when left in their accommodation. They cannot easily visit their doctors unless they are complaining of something. They cannot go into the housing department or the Department of Health and Social Security offices to have a chat; they must go in with some purpose. The one thing they can cope with is having a row. A major problem is represented by the far too many people left in the community feeling that they have no worthwhile role. They have no opportunity or excuse to talk to others. Therefore, they get into rows, difficulties and confrontations with their neighbours because that is the only way they can get some individual human reaction. Such people must be fully integrated members of the community.
When we discuss legislation we should also discuss resources. I am disturbed that the legislation offers a new legal framework but no more resources. The Minister paid tribute to the dedicated staff in the service. I am sure that they would rather have heard him announce that a little 756 more money was to be made available. They would prefer firm recognition to praise. The Government need to spend a lot more money training staff both in institutions and within the community.
I mention briefly a constituency matter. In the Stockport area a private hospital has recently opened. It is to take patients with mental problems. I am disturbed by the fact that it may take staff from NHS hospitals in the area which are extremely short of resources for their patients. Had the hospital been prepared to cope with long-stay mental patients, I should not have minded so much, but it is interested only in people who are likely to stay for only short periods.
We have had a useful debate. The proceedings in the other place were also extremely helpful. We are to have a Special Standing Committee on the Bill. Having sat on such a Committee, I believe that there is a danger that everyone who has a view on the legislation will swamp the Committee with information and demand to be heard. The Committee should ensure that the evidence is relevant to the parts of the Bill that could be changed and that the information will enable it to make improvements. I appeal to bodies that may be interested in submitting views to concentrate on the areas of the Bill that can usefully be changed. They should not feel that they must demonstrate their importance in the lobbying business by making lengthy submissions that are not relevant to the legislation.
I welcome the Bill. I hope that the House will give it an unopposed Second Reading.
§ Mr. Terry Davis (Birmingham, Stechford)
I should like to begin with three tributes.
I congratulate the hon. Member for Belfast, South (Rev. Martin Smyth) on his first speech in the House. We were impressed by his knowledge of the subject, and I am sure that you, Mr. Deputy Speaker, were especially pleased with his brevity. He will understand if I say that our pleasure in his speech was qualified by our deep sadness about the tragic circumstances leading to his election. On a happier note, let me say that we were impressed not only by the hon. Gentleman's speech, but also by the fact that he stayed in the Chamber for almost the whole debate.
I also pay tribute to the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) who was responsible for the Mental Health Act 1959, which was a major advance in the treatment of the mentally ill. Indeed, it was the major advance. It put greater emphasis on care and treatment than had previously been the case.
Thirdly, I pay tribute to my right hon. Friend the Member for Norwich, North (Mr. Ennals). We all recognise his deep knowledge and personal interest in this subject. When he was Secretary of State he took the initiative in publishing the proposals on which this Bill is based. To a great extent the Government are finishing the job which he began and in which he was interrupted by the general election. If the Mental Health Act 1959 could be known as the Walker-Smith Act this Bill could become the Ennals Act.
We welcome the Bill generally, but we welcome it especially for the greater frequency of application to mental health review tribunals and for the automatic review after three years. However, some areas need careful consideration. Notably, we shall want to examine the arrangements for consent to treatment contained in 757 what has become clause 41. Incidentally, the hon. Member for Bournemouth, East (Mr. Atkinson) is mistaken in saying that clause 41 could mean that a patient could refuse treatment even in circumstances where he is a danger to himself or to others. As my hon. Friend the Member for Manchester, Blackley (Mr. Eastham) explained, clause 41(6) covers that point. Nevertheless, this question of consent is much less clear-cut than the hon. Member for Cheltenham (Mr. Irving) gave us to understand. It is not simply a case of treatment being used improperly and having serious side effects. The real problem concerns cases where the treatment is entirely proper and suitable for the patient, but will have some unpleasant side effects. What should happen if a patient refuses treatment in those circumstances? The Government's answer is to provide safeguards against the imposition of treatment—at least in some of those cases. The hon. Member for Cheltenham was slightly unfair in saying that consent has always been a judicial question. This is a change by the Government, and it is one that we welcome.
It is clear that some hon. Members who have participated in the debate want to go much further in the protection of a patient's right to refuse treatment. The hon. Member for Cheltenham was not alone in his advocacy of that point of view. My right hon. Friend the Member for Norwich, North also holds that opinion.
However, there is a third point of view—that the Government have already gone too far. The hon. Members for Plymouth, Drake (Miss Fookes) and Lewes (Mr. Rathbone) drew our attention to the problem of delay which could be caused as a result of a refusal of treatment. Many hon. Members will have received correspondence from the National Schizophrenia Fellowship, which is also concerned about the effect of clause 41.
The hon. Member for Cheltenham asked a number of questions. I hope that he will be on the Standing Committee so that he can put his questions again there.
The second aspect of the problem is the unique role of doctors. My hon. Friend the Member for Preston, South (Mr. Thorne) asked whether other people should be involved in deciding what should happen in an individual case. I shall approach the subject with an open mind. I hope that the Government will be equally open and that they will not display the rigidity which, so far, they have displayed in the passage of this Bill. I also hope that the Government will not argue for what I call the silly middle—that because some people believe that the Government have gone too far, and others want them to go further, therefore the Government must have got it just about right. I hope that we shall examine the whole subject with an open mind, because it is a good example of the need for the Special Standing Committee procedure. I am glad that the Government acceded to the Oppositions's request.
The unique role of doctors is not the only aspect of the Bill on which our consideration will benefit from the new procedure. We expect to receive evidence on several omissions from the Bill, and it is clear from the debate that we shall have a number of representations about section 141 of the 1959 Act. Several hon. Members have referred to that section, which requires the permission of the High Court before legal action can be undertaken by a patient who has been detained in hospital. This is a difficult point, 758 because it involves balancing the interests of patients with those of staff working in hospitals. That, too, will need careful consideration.
My hon. Friend the Member for Oldham, West (Mr. Meacher) and the hon. Member for Croydon, North-West (Mr. Pitt) made several more suggestions that we also want to consider. In Committee, the Opposition will look at all these ideas with an open mind, but we do not have an open mind about legal aid. The Bill extends the rights of appeal to a mental health review tribunal especially by making it possible to appeal more frequently. Such rights are useless if they cannot be exercised because a patient cannot afford to employ a lawyer. What could be more important arid, therefore, more suitable for legal aid than a case involving personal liberty? Several hon. Members on both sides of the House have urged the Government to provide legal aid, and I agree with them. I was disappointed that an amendment to that effect was narrowly defeated in the other place. We shall certainly consider the subject in Committee.
On the other hand, I was delighted that another lastminute amendment was carried in another place. It dealt with the duty of a district health authority and a local council to provide after-care. The importance of after-care cannot be exaggerated, nor can the importance of cooperation between the district health authority arid the local council with each other and with voluntary agencies.
The new clause reminds us that it is a matter not only of legislation, but of staff and facilities. The legislation will be effective only if it goes along with the provision of staff and the development of facilities both in the community and in hospitals. That was pointed out by my hon. Friends the Members for Manchester, Blackley and Stockport, North (Mr. Bennett).
We need a choice of facilities—between hospital arid day care and between facilities provided by the NHS arid those provided by local authorities. Within the NHS we need a choice between care in institutions and care in the community, and we need more community psychiatric nurses. Community care does not mean discharging people from hospital to sleep under bushes in the hospital grounds.
I return to the point that I made in the debate on 6 November. The Bill is not about mental health; it is not about how we can reduce the incidence of mental illness; it is not about mental illness, its causes or its treatment. The Bill is much narrower than that. It is about the rights of patients in mental hospitals. I should say that it is about some rights, and for proof of that point I refer the House to the powerful speech of my hon. Friend the Member for Lewisham, West (Mr. Price). It was significant that when he quoted a psychologist's letter about one of his constituents the word "privileges" was used in reference to things that many of us would call "rights".
This is a very important Bill and the rights in it are important, as we were reminded by my right hon. Friend the Member for Leigh (Mr. Cunliffe). Like the right hon. and learned Member for Hertfordshire, East, I would not want my comments on one or two of the clauses and several omissions to detract from the general welcome given to the Bill. If I have not listed its merits and the many progressive steps that it contains, it is only because we can depend on the Minister to do that.
The Opposition welcome the Bill, and the House will not be surprised to learn that we do not intend to vote against its Second Reading.
§ The Minister for Health (Mr. Kenneth Clarke)
I thank the hon. Member for Birmingham, Stechford (Mr. Davis) for his concluding remarks and for the fact that he echoed the fairly general welcome that the Bill has received. Understandably, right hon. and hon. Members on both sides have dwelt on points of detail and concern that we shall be able to consider in Committee.
We welcome the hon. Member for Belfast, South (Rev. Martin Smyth) to the House and I add my congratulations to those that he has received on the quality of his maiden speech and on choosing a subject of such considerable social concern for that speech.
I also add my tribute to the hon. Gentleman's predecessor, the Rev. Robert Bradford. I knew and liked Mr. Bradford and we all bitterly regret the tragic circumstances of his death, which led to the by-election won by the hon. Member for Belfast, South.
The hon. Gentleman spoke about the general merits of the Bill and touched on the law affecting Northern Ireland. He is aware that only limited provisions of the Bill apply direct to Northern Ireland, but his speech was timely, because the Northern Ireland Office is reviewing the mental health legislation that applies to Ulster, which is governed by the Mental Health (Northern Ireland) Act 1961.
A committee chaired by Mr. Justice MacDermott published a report that recommended amendments to the law and comments on that are now being sought. In addition to taking on board the points that the hon. Member for Belfast, South made on the Bill, I am ensuring that Ministers in the Northern Ireland Office consider his points as part of the review now in hand into mental health legislation in Northern Ireland.
The hon. Gentleman chose this important subject for his speech, and all hon. Members who spoke stressed its importance, even although the Bill directly affects only a small number of people. I agree with those hon. Members who said that one of the tests of a civilised society is how it contends with the problems of dealing with the most severely mentally disordered in its midst. The Government give high priority to the care and concern which they believe should be given to the mentally ill and mentally handicapped.
To that extent I am delighted that we are able to continue the work embodied in what I am happy to call the Walker-Smith Act of 1959, which was steered through the House by my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith). That Act had a tremendously civilising effect on the treatment and care of the mentally ill and mentally handicapped. It affected the outlook of society as a whole towards those people and the way in which their problems should be tackled. We are not repealing, or setting aside, that work, but are carrying it forward in important but limited areas.
The Government are giving high priority to the subject and are finding legislative time for the Bill. We are also happy to approach the subject with flexibility and are prepared to listen to all those who wish to make representations. There has been no mental health legislation since 1959, and it is important that the House should now get it right.
The Government's flexibility was shown in the proceedings in another place. My noble Friend Lord Elton acceded to a number of amendments which were pressed 760 upon him by peers, including my noble Friend Lord Renton. The Bill comes to us already improved because the Government have been prepared to listen to reasoned representation. We now suggest that the Bill should be handled by the Special Standing Committee procedure. This will allow a wide range of interested groups to make representations. Again, although the Government have clearly taken a view, which is incorporated in the Bill, we are not entering the Committee proceedings on any dogmatic basis. We are prepared to listen and to consider the evidence on the difficult judgments that have to be made if the House is to get the Bill right.
The answer to the point raised by my hon. Friend the Member for Plymouth, Drake (Miss Fookes), is that the legislation will not stop with the Bill, whatever form it finally takes. I give her an undertaking that we will endeavour to get the consolidation measure that she rightly said was required on to the statute book before September 1983, when this legislation comes into force.
The Government's approach is to give high priority to this area and to listen to all reasoned representations from interested groups. We are deliberately dealing with a subject which has a number of difficult, delicate, ethical, medical and legal judgments to be made.
The people with whom we are concerned are, fortunately, a small minority of the patients who at any one time are in mental hospitals. Only about 7,000 people are actually detained as patients in hospital at any given time to receive treatment for their own, and other people's wellbeing. One of the main breakthroughs achieved by the 1959 Act is that most patients are now dealt with on an informal and voluntary basis. I am glad to say that the tendency is for more patients to be treated on that basis.
We must address ourselves to a number of changes needed in the law, and to clarification of the law, for the minority of patients who have to be detained for treatment against their will. The amendments that we are making are an attempt to recognise, or clarify, the individual rights of those patients and at the same time to strengthen their rights in such a way that we do not interfere with the necessary care and treatment of the mentally disordered who have been admitted to hospitals.
There is also an area of mental handicap which we have largely excluded from the Bill especially by accepting certain amendments moved in another place to make sure that on the whole this legislation was confined to the mentally ill and the tiny minority of mentally handicapped who required detention, and was not extended to the mentally handicapped as a whole. That was welcomed in another place. It has been largely welcomed in this House, and that explains the differences in definition which my right hon. and learned Friend the Member for Hertfordshire, East noticed between his Act and the definitions applied there to "sub-normality" and "severe sub-normality" and the definitions that we have now, following amendments in another place, of "mental impairment" which specify irresponsible or dangerous conduct.
We are confining the Bill to that very small number of mentally handicapped who need to be detained because of their conduct. The mentally handicapped otherwise are being treated in a way that makes it clear that we recognise that there is an absolute distinction between the mentally ill who may be suffering from temporary difficulties which can be treated and the mentally handicapped who are probably born with limited mental facilities or with mental 761 problems and have to be dealt with on the same basis as the physically disabled have to be dealt with by our medical and other services.
Having explained what the Bill does, before I plunge into the measures that we are providing for the group of people with whom the Bill is still concerned, let me touch on what has been said about resources, especially by a number of Opposition Members.
The Government are demonstrating their concern by legislating, but legislation in itself requires adequate resources going into the treatment and care of the mentally ill as well. There will never be the resources available which everyone desires for his chosen specialty. Nevertheless, there is a welcome increase of resources going into mental health care, backing up the Government's determination to do more for the mentally ill and the mentally handicapped. I have no doubt that I shall have cause to go into more detail in Committee when it takes evidence on various aspects of National Health Service expenditure, but mental illness and mental handicap hospital expenditure is rising in real terms, although the number of in-patients is declining. That means, among other things, that staff-patient ratios are being improved in our mental illness and handicap hospitals. Also, local authority spending on the mentally ill and handicapped continues to increase in real terms.
§ Mrs. Dunwoody
Will the Minister guarantee that when he talks about resources in Committee he will give a specific amount for the training of social workers in their new role?
§ Mr. Clarke
If the hon. Lady wishes, I shall deal with that next.
One of the important features of the Bill is that we are asking local authorities to train and approve a category of social workers who will be known as approved social workers. They will largely have the same powers and duties as the present mental welfare officers, but they will be more specifically trained in the specialised problems of dealing with the mentally ill and they will be brought up to the approved standard within two years of the Bill receiving Royal Assent.
The hon. Member for Crewe (Mrs. Dunwoody) and the hon. Member for Oldham, West (Mr. Meacher) both asked about resources for that training. As my right hon. Friend made clear, many local authorities already provide training to the level that we have in mind. The Bill is making sure that practice everywhere is brought into line with the best practice of local authorities. For that reason alone those local authorities already specialising in the training of their social workers will find that there is little, if any, increased expenditure required. What is more, because we are going over to this corps of approved social workers there will tend to be fewer of them than at the moment there are mental welfare officers, the latter being drawn from the wider ranks of social workers all over the country.
Our present estimate is that, although it is extremely important that we are developing this corps of approved social workers, the extra public expenditure involved in training and approving them will be minimal. Nevertheless, we are consulting local authorities on the guidelines that we have set out for training and approval. We shall review any financial problems when we discuss standards of training.
§ Mr. Mike Thomas
Can the Minister confirm that the Government do not propose to try to reverse Baroness Masham's amendment?
§ Mr. Clarke
We have not finally decided about that. We shall decide before the Committee stage. The Government's submission in another place was not that they were against the amendment in principle, but that it was unnecessary or otiose because it repeated a statutory duty incorporated in other legislation. I shall examine the drafting and other problems, but I assure the hon. Member for Newcastle upon Tyne, East (Mr. Thomas), who has expressed a wish to be a member of the Committee, that I have an open mind and shall reach a conclusion by the Committee stage.
§ Mr. Mike Thomas
Is the Minister's mind so open that he is not prepared to tell the House the truth that he does not want to find the money?
§ Mr. Clarke
That is not the basis upon which the amendment was debated in another place. One must ensure that the legislation makes sense. We shall have to consider whether the statutory duty expressed in the Bill conflicts unacceptably with statutory duties in other legislation. That can be dealt with in Committee.
The question of resources is involved throughout the Bill. Hon. Members have mentioned regional secure units. The provision of such units is an important addition to the treatment of detained mental patients. We need more regional secure units to provide secure accommodation for patients who cause the greatest difficulty.
There have been delays in the programme for regional secure units, which everybody recognises are needed. I am glad to say that in the last two years the Government have made substantial progress and advances are being made. When my hon. Friend the Member for Ealing, Acton (Sir G. Young) was Minister in November 1980 he opened the first treatment unit at St. Luke's hospital in Middlesbrough. Of the 14 regional health authorities in England, only one has yet to submit formal plans for a regional secure unit. Four of them are already under construction and when finished will provide 160 places. Another five, providing a further 295 places, should be under construction by the end of the year. By 1985 the Government expect that 500 permanent places will be available.
We are also increasing the number of places in interim secure facilities which regional health authorities were asked to make available until the permanent secure units are ready. There is welcome progress, and we are finally producing the places required.
I assure my hon. Friend the Member for Lewes (Mr. Rathbone) that the position of people in those units is not affected by the Bill. Most are detained patients and therefore the law will apply to them as much as it applies to detained patients anywhere else in a mental hospital.
My hon. Friend the Member for Plymouth, Drake and the hon. Members for Oldham, West and for Leigh (Mr. Cuniliffe) talked of the need to take mentally handicapped and mentally ill patients out of hospital and to ensure that people are not being housed in hospitals when they might be better off in the community with facilities to give them support. I refer all hon. Members to the Government document "Care in the Community" which is aimed at moving people out of hospital into more suitable care in the community, whenever that is appropriate for the 763 patient and when the patient chooses it. We hope to develop that approach in relation to mental illness as well as to other illnesses. It is plainly wrong to keep patients of any kind in hospital when they would benefit from treatment in the community and would wish to go there.
§ Mr. Clarke
I shall give way when I have completed my point. We issued the document, which is aimed at removing barriers to co-operation between health and local authorities, to achieve that movement in the community. We expect to announce our conclusions in the light of all the comments that are received this summer.
The financing of what is proposed comes largely from the joint finance arrangements that are entered into between health and local authorities. Once more the Government have increased resources from £75.3 million in 1981–82 to £85 million in 1982–83. We would like to build on the whole concept of care in the community and produce more flexibility in the arrangements that are entered into between health and local authorities to produce it.
§ Mr. Ennals
I am grateful for the fact that the hon. and learned Gentleman continued on from the point at which I sought to intervene. He referred to the resources under joint financing as well as the care in the community consultancy document. How does that mesh in with the White Paper proposals on public expenditure, which show local authorities' social services expecting about an 8 or 9 per cent. cut over the next two years? How will they be expected to pick up the tabs, which they are required to do on joint financing, if they are being squeezed so hard as a result of the decisions taken by the Government?
§ Mr. Clarke
I do not have the figures at my finger tips, but I do not believe that they show what the right hon. Gentleman describes as a cut. It is true that for the personal social services we show some increase in the White Paper. I believe that it falls short of anticipated inflation, but that can be accommodated by improved efficiency in the use of resources to provide the services—a concept which we apply throughout the Health Service.
The history of all the areas that I have set out so far in this speech makes it clear that that concept has been applied with some success in the last two or three years. The hon. Gentleman for Newcastle upon Tyne, East (Mr. Thomas) is shaking his head. I repeat—as I set out with some care when I started my speech—that resources have been increased in real terms both for hospital and personal social services care for the mentally ill. I think that that is still attainable.
I come now to the provisions of the Bill. It deals with that small core of patients who have to be detained for their own benefit. We have introduced additional safeguards in the Bill to ensure that we protect the rights of patients, without at the same time inhibiting their access to treatment or preventing treatment from being given to those who are in desperate need of it. The Bill covers all those areas which might otherwise give concern.
First, the Bill deals with the admission of patients to detention, introducing the important concept that has from time to time been described as "treatability". It makes it clear that the basis of admission to hospital, even for those 764 patients being admitted and detained, is that they are likely to benefit from treatment and receive it. At the same time we have tightened up the categories of people who can apply for the admission of patients in various ways, including moving over to the concept of approved social workers, restricting the rights of relatives to apply to the person who appears to be the nearest relative, and so on.
We have tightened the emergency admissions, which so concern my hon. Friend the Member for Grantham (Mr. Hogg) and the hon. Member for 019 am, West, under section 29 of the 1959 Act. We accept that there has been an unexpected increase in the number of people admitted using the emergency provisions. It is possible that they are not always the right provisions of the 1959 Act that are being used. Therefore, we have tightened those criteria.
I move on from admission to detention and the basis upon which someone can be detained in hospital for treatment against his will. We have greatly improved all the provisions which give rise to a review of the basis upon which a patient is still being detained. We have increased the safeguards for patients by improving access to the mental health review tribunal. I shall come back to the details of that in a moment. At the same time, we have tried to make sure, that the safeguards that we give to patients do not give rise to their being released when they are still in danger or when other people might be in danger because they have not completed their treatment.
We have covered the basis upon which people are initially detained, and the basis upon which they are denied release. We have set out rules covering the basis upon which they should be given treatment during detention. In particular, we have for the first time gone in detail into the whole sensitive area of exactly which treatments require consent and which do not, and we have tried to strike a satisfactory balance.
With regard to improved access to mental health review tribunals for patients who are being detained, the enlargements of access to the tribunals provided by the Bill are substantial. We are doubling the opportunity for approach to the tribunals by those detained in mental health hospitals for longer spells. We have introduced a new right of approach to the tribunal by those detained for a limited period of 28 days for assessment.
We have made it absolutely clear—this covers the kind of case referred to by the hon. Member for Leigh—that every detained patient will have an initial hearing of his case after six months' detention and thereafter every three years, to ensure that no one in hospital is forgotten.
Every hon. Member who has spoken has welcomed the enlargement of access to the mental health review tribunals and recognised what an important advance that is for ensuring that an independent quasi-judicial element is brought in to review cases and make sure that people are being detained only for their own well-being or that of others.
Many hon. Members on each side—including again my hon. Friend the Member for Grantham—wished to go on from the greatly enlarged access to consider the question of legal aid for representation in all cases where patients apply to the tribunal. This is not an area in which we are being parsimonious, because the increased access to tribunals will alone cost £1.7 million each year. That is just for enlarging the work of the tribunals.
Obviously, the Government will listen to what has been said today in pressing the case for legal aid. I have no doubt that my right hon. and noble Friend the Lord 765 Chancellor will consider whether legal aid can be granted to those who apply to tribunals along with all the many other competing claims that he has upon the resources available for legal aid for people of all kinds whose individual liberty or substantial interests are affected.
§ Mr. Douglas Hogg
Is my hon. and learned Friend able to quantify the cost of extending legal aid to representation before the tribunals? I have seen the figure of £60,000 given as the cost.
§ Mr. Clarke
I have not seen that figure, and I should like to know whether it refers to the position pre-dating the Bill or to the position that will arise once the increased access to tribunals has been granted by the Bill. The process of increasing the work of the tribunals is involving an additional expenditure of £1.7 million. I have no doubt that my right hon. and noble Friend the Lord Chancellor will be happy to contemplate an addition to the Legal Aid Act once he has had a look at that claim alongside the other competing claims upon the Bill.
§ Mr. Terry Davis
Will the Minister clarify his approach to this question? Is he saying that the decision whether the Government will accede to the request from both sides of the House for legal aid to be provided will be taken by the Lord Chancellor and not by the Ministers in the DHSS in the course of dealing with the Bill?
§ Mr. Clarke
It will be taken by the Government, as all these decisions are. My right hon. and noble Friend the Lord Chancellor is the Minister responsible for this item of expenditure, so he has the first duty of weighing up this claim against the legal aid fund against many other competing claims that flood in to him in regard to tribunals of all kinds.
§ Mr. Clarke
I shall give way to the hon. Gentleman, but I shall not be able to give much more information when I do, because I am not resisting in principle the suggestion that there should be legal aid before the tribunals. [Interruption.] Several Opposition Members are getting agitated, but for 22 years no Government have given legal aid to people appearing before tribunals. That includes the Labour Government. I assure hon. Members that this Government and my right hon. and noble Friend the Lord Chancellor will consider the problem seriously. We could have other debates concerning other tribunals. It is obvious that in those cases the first demand from many sides is for legal aid for representation. All Governments have found that there are practical limitations to the extent to which the legal aid funds can be extended across a wide range.
§ Mr. Andrew F. Bennett
Will the Minister confirm that the Lord Chancellor will take the decision and that, therefore, he will be prepared to come to one of the first three sessions of the Committee on the Bill so that we can put questions specifically to him?
§ Mr. Clarke
I am sure that we all look forward to my noble Friend giving evidence to the Committee, but I think that we should wait for the proceedings on the Committee before deciding how the evidence will be managed.
The mental health review tribunals received unreserved welcome. So delighted was the House with the increased availability of review by the tribunals that it went on to press for legal aid to be given to all who came before the tribunals.
766 There was a slightly more guarded welcome "for the Mental Health Act Commission, which I thought was surprising, because I believe that that is an extremely useful addition to the Bill and an extremely important innovation. There was a little confusion about exactly how the proposed commission would sit alongside the mental health review tribunals. My right hon. and learned Friend the Member for Hertfordshire, East was not sure why we needed the commission in addition to the review tribunals.
Although the review tribunals carry out an important task—for which everyone wants the applicants to have finance—they consider a fairly narrow range of subjects. They exercise a quasi-judicial role and decide whether continued detention is justified in the case of each patient. What we are contemplating for the Mental Health Act Commission is a much more substantial and continuing role, looking at patients' interests and the best practice for treatment of detained patients across a wide area.
I remind hon. Members that the commission arises directly out of a recommendation in the Boynton report of the review of Rampton hospital. In paragraph 4.7 of that report the committee recommended such a body. Dealing with special hospitals, the report said:There is no mechanism, as in local authority institutions, NHS hospitals and prisons, to ensure a regular and authorised public scrutiny of the special hospitals.I refer right hon. and hon. Members to paragraph 4.7 of the report. It refers to the other limitations to the present arrangements and the narrow, although important, function of the mental health review tribunals. The report came to the conclusion:We think that on the face of it there is a strong case for an appointed body to inspect and monitor closed institutions such as Rampton and the other special hospitals or indeed wherever patients are subject to detention under the Mental Health Act.We have decided, upon further consideration of that recommendation, to propose the Mental Health Act Commission at a limited cost estimated at £700,000 each year. In order to provide a substantial watchdog body, it will be a multidisciplinary body, to use the phrase that has been frequently used by hon. Members. It will be concerned with the best practice in treatment and the rights of detained patients. I can tell the hon. Member for Crewe that the commission will report to the House and that she will find the provisions for reporting back to the House in clause 45(2). I agree with those hon. Members who have welcomed the commission. The main part of having it is to make sure that it does a worthwhile job. I shall deal with consent to treatment.
§ Mr. Ennals
The Boynton committee could make a recommendation only about patients who were detained, as it was considering Rampton. I have an open mind about the commission, but I should be much more attracted to it if it dealt with not only detained but voluntary patients. I hope that the Minister will give some thought to that before the Committee stage.
§ Mr. Clarke
I shall certainly give some further thought to that. However, Boynton was concerned with the special hospitals. We propose that the commission should concern itself with the interests of detained patients in all types of hospitals and not just those in the special hospitals. Several other bodies are actively involved in the welfare of voluntary patients and the commission might cut across those if it spread itself across the spectrum.
767 Any recommendations from the commission—although strictly applicable only to detained patients—are bound to have an effect on the practice of giving treatment to voluntary patients.
§ Sir Derek Walker-Smith
My hon. and learned Friend has not put my point with the accuracy that we normally expect of him. I did not for a moment think that the proposed Mental Health Act Commission would have a purely quasi-judicial function, as in the case of the mental health tribunals. I did not suggest that. I said that the onus was on my hon. and learned Friend and on the Secretary of State to show that the task of visiting patients and listening to their complaints—which is not a mental health tribunal task, but is a task that I warmly welcome—could not be discharged within the administrative machinery available to the NHS. That is all I said.
§ Mr. Clarke
I accept that the onus is on us to demonstrate that, and I undertake to seek to discharge it in Committee, or afterwards, to my right hon. and learned Friend's satisfaction.
In the brief time available I shall illustrate the need for such a provision by dealing with the important but difficult matter of consent to treatment by detained patients. It is important to strike a balance and I accept that that balance should not be the silly middle, as the hon. Member for Stechford said. We should avoid that. However, there are conflicting considerations and difficult ethical judgments to be made about the extent to which detained patients should consent to treatment. Informal patients have to consent to all the treatment that they receive.
Everyone would prefer patients to consent to all the treatment that they receive, but we cannot ignore the fact that we are dealing with the mentally disturbed, whose ability to make judgments may be impaired or clouded. We are also making detention more dependent upon the likelihood of the patient benefiting from treatment and we are making treatability the main criterion for admission to a hospital. It would be odd to do that and then to place doctors under an impossible restraint, so that they cannot give the treatment for which the patient has been admitted.
It would be frustrating not only to medical staff, but to friends and relatives, if they had to watch a patient continue to suffer from a condition that could benefit from treatment, but for which treatment cannot be given because the House has gone too far in hedging round the doctor's ability to give it. Therfore, clause 41 is convoluted, because it deals with a difficult and complicated area. However, it sets out clearly differing sets of circumstances, according to the seriousness of the treatment, in an attempt to strike the right balance between the patient's need to receive treatment and the need for consent, wherever it can properly be obtained.
Several hon. Members, including my hon. Friend the Member for Bournemouth, East (Mr. Atkinson) and the 768 hon. Member for Crewe, raised the matter of emergencies. Clause 41(6) allows treatment to be given for emergencies, including that in which a patient is acting in a way that is dangerous to himself or to others. Apart from emergencies, general nursing and other general care can be provided without the patient's consent. Some treatment, such as ECT and other controversial methods, can be given without the patient's consent, but with the agreement of an independent psychiatrist, appointed by the Secretary of State. He will devolve those powers to the multidisciplinary Mental Health Act Commission.
For the most worrying treatments, consent will always be required from the practitioner in charge and then, by means of a second opinion, from an independent psychiatrist appointed by the commission. In the other place we undertook to introduce amendments to ensure that consent was given generally.
The Committee will have to consider immediately that delicate area. However, I hope that I have said enough to show that the legislation aims to cover those difficult areas in a sympathetic and understanding way. It is a valuable manifestation of the Government's great concern that more should be done in this area.
§ Question put and agreed to.
§ Bill accordingly read a Second time and committed to a Special Standing Committee.