§ Order for Second Reading read.9.33 am
§ Mr. Eric Clarke (Midlothian)
I beg to move, That the Bill be now read a Second time.
This is a little Bill—in Scotland, we would call it a small or a wee Bill—but it will serve the major purpose of helping some of our most unfortunate and disadvantaged fellow citizens. It will address a gap in the legislation enacted by our predecessors 15 years ago. The Mental Health (Scotland) Act 1984 was a consolidation measure: it consolidated the Mental Health (Scotland) Act 1960 and later amendments. We are dealing with legislation that is 40 years old.
Time marches on, and with it changes take place. The intervening period has seen wide-ranging changes in society's attitudes to people who are mentally ill. I am glad to say that there is no longer the unacceptable stigma that once attached to the illness and to those who suffer from it. There have been welcome advances in treatment and, more relevant to the purpose of my Bill, there have been changes in where people are cared for.
The availability of good-quality community care has meant that far fewer patients are cared for in hospital: they are now looked after in the community, be it in their own home, a nursing home or a residential establishment. By and large, I welcome such developments if they are clearly shown to be in the patients' best interests.
However, the growth of community care has identified a difficulty in the 1984 Act relating to the finances of patients who leave hospital. I shall explain a little of the background. Section 94 of the 1984 Act makes provisions for hospital managers to manage the funds of patients who, because of mental disorder, cannot look after their own resources. The legislation provides that managers can do that only if a doctor states that, in his opinion, the patient is unable to manage his own affairs. If no other arrangements have previously been made—for example, a patient's funds may be managed by the Mental Welfare Commission, the local authority or a relative—the hospital managers may receive and hold money on behalf of the patient. That may be a regular income from a pension or savings in the patient's possession.
I am sure that hon. Members agree that patients should benefit from the money held by hospital managers. Their needs may be small, but they are important. Such 608 arrangements are part and parcel of the overall effort to ensure that such people enjoy an appropriate quality of life while in hospital. They may want a particular item of clothing, a magazine each week, flowers in their room or the occasional special outing. It is important that they should be able to benefit from their own resources for such purposes. The 1984 Act enables hospital managers to spend the funds that they hold in the patient's best interest.
Hon. Members will be wondering, given what I have just said, where the problem lies and why my Bill is necessary. The difficulty comes when the patient leaves hospital and is cared for in the community. As I have said, community care is now increasingly widespread, and many patients, such as people with a learning disability, who may at one time have expected to live their days in a long-stay hospital, can now live a fulfilling life in the community with appropriate support. Similarly, elderly patients may prefer the more homely surroundings of a care home.
Unfortunately, the 1984 Act did not envisage a time when the patient would live anywhere but in a hospital. We are dealing with legislation of considerable vintage, which has not kept pace with modern concepts of care and treatment. The problem is that, when those people leave hospital, managers cannot pass the money on to the carers or spend it on behalf of the patient who is no longer in their direct care. Sometimes special arrangements can be made, but they are costly.
The Act contains no provision for those circumstances, and the money becomes stuck in the hospital, out of reach of the patient and of those who look after him. The patient cannot benefit from his own resources. We cannot allow that situation to continue, and my Bill aims to address the problem. It will enable hospital managers holding funds on behalf of patients to continue to use that money in patients' best interests when the patients leave hospital to live in the community.
This may seem a relatively minor difficulty, but it is indefensible to deny patients access to their own resources simply because they have left hospital. We want to ensure that such people enjoy the highest possible quality of life. Moreover, statistics show that many patients are affected. I am sure that many hon. Members will describe the way in which the problem affects their constituents. The position can only get worse as time goes by, and more and more patients leave hospital. We are dealing with a growing problem, but my Bill offers a means of addressing it.
It is not my hope that the Bill will, like the 1960 Act, last for 40 years. My further wish is for the introduction of comprehensive legislation to deal with the finances of incapable people, based on the consultations on the Scottish Law Commission's report, at an early stage in the Scottish Parliament. That would not only deal with this problem, but, hopefully, provide new arrangements for the management of the resources of incapable adults that are appropriate to the 21st century.
I hope that hon. Members will feel able to support my Bill.
§ Mr. Tony Baldry (Banbury)
I congratulate the hon. Member for Midlothian (Mr. Clarke) on presenting a thoroughly worthwhile measure, which is doubtless supported by the Government. At least, I hope that it is. It clearly has a very good chance of becoming law.
609 Although I have a Scottish mother and many of my relations still live in Scotland, I realise that many Scottish Members wish to speak, so I promise to be brief.
Although welcome, the Bill will prove worth while only if adequate safeguards and protections for discharged patients are provided. Those who have read the Bill may have a number of specific concerns, but no doubt the hon. Gentleman and Ministers will be able to reassure us in due course.
It is impractical for hospitals to continue to manage money for any great length of time on behalf of patients who have moved to other locations. As I have said, there must be adequate safeguards, and the funds must be reviewed. The Bill can only serve as a stop-gap reform pending the introduction of comprehensive legislation, and I suspect that at some stage, the Government will want to introduce such legislation. Some aspects of the existing provision for hospital management are outmoded and unsatisfactory, and will have to be dealt with either in this Bill or, as soon as possible, in further legislation.
At present, if patients are still legally incapable when discharged from hospital—and most are—the hospital cannot hand over their money. It can no longer spend the money for them, and cannot pass it to someone else who can look after it. Under existing law, the only solution is the appointment of a curator, and that can make the situation worse, as it involves petition, formal medical certification and expensive management arrangements. No one who has considered the issue will think that such an appointment is suitable to deal with the modest amounts of savings typically managed by hospitals.
I have a few specific questions, with which I am sure the Minister will be able to deal. The Bill will allow hospital managers to spend the money that they hold on behalf of patients—the Bill refers to the "benefit" of patients—after their discharge from hospital. Section 94 of the Mental Health (Scotland) Act 1984 allows a manager toexpend that money or dispose of those valuables for the benefit of that person and in the exercise of the powers conferred by this subsection the managers shall have regard to the sentimental value that any article may have for the patient, or would have but for his mental disorder.First, what is the precise definition of benefit to the patient? Secondly, if the manager does spend money to the benefit of the patient, what rights have the patient's family if they disagree with that spending? Thirdly, in the event of such a disagreement, what provisions are there for arbitration?
If an incapax patient who has been discharged, and whose money is being held by hospital managers, is subsequently deemed to be able to manage his own affairs, will the Bill automatically give that patient the right to assume control of his or her assets? Would such a former patient no longer deemed to be incapax have any right of redress against spending of his money by managers, which he subsequently believed was not to his benefit? Is there any provision for the establishment of an independent body to oversee managers' actions in spending the assets of a discharged incapax patient, and to ensure that those managers are acting in the patient's best interests? If not, should there not be such a body?
610 I suspect that all my questions merely require clarification. No doubt the Minister and his Department have given thought to them, and will be able to reassure us. As I have said, the Bill is clearly worth while, and worth supporting.
§ Dr. Gavin Strang (Edinburgh, East and Musselburgh)
I am grateful for the opportunity to speak, and to support my hon. Friend the Member for Midlothian (Mr. Clarke). He is indeed a very good friend, who represents a constituency near to mine. It was characteristic of him to use his success in the ballot to present a measure that will bring so much benefit to a vulnerable group, although that group does not consist of many people in Scotland today.
About 100,000 people in Scotland are believed to be unable to look after their affairs as a result of mental disorder. That figure is not accurate, but it is the best estimate that has been made, and, as people live longer and more develop Alzheimer's disease or other forms of dementia, it will probably increase rather than decreasing. Medical science has not yet made much impact on such conditions.
As my hon. Friend said, a small number of these people have no legal representative, no relative, no friend—no one who can look after their affairs for them. As he also said, special consideration was given to them in the Mental Health (Scotland) Act 1984 by authorising hospital managers to hold money and valuables, and to spend money on their behalf. I know that there is concern about the fairness and manageability of the system, but I was surprised to learn that no change had been made to reflect the move towards community care. As a result, the funds of those who leave hospital can be trapped with hospital managers, and cannot be used for their benefit.
As my hon. Friend said, it is estimated that over the coming year, another 540 patients could be caught in the trap. That would bring the number of patients affected to 750, and £3 million of their property would be frozen and could not be used on their behalf. For example, should the patient or someone on his or her behalf appeal to the Department of Social Security for income support or some other type of financial benefit, that appeal could be debarred on the ground that the individual had a capital sum, although it could not be accessed on his or her behalf. That is an important matter, which my hon. Friend seeks to deal with in the Bill.
The funds can be accessed in Scotland only by petition to appoint a curator bonis in each individual case. As lawyers will know, and I am not one, that legal process can be quite costly. By allowing hospital managers to continue to hold and to spend patients' funds on their behalf even after they have left hospital, the Bill will meet an urgent need. As my hon. Friend has pointed out, it is supported by the Law Society of Scotland. In its most recent report, the Mental Welfare Commission for Scotland also came out in support of such a Bill.
My hon. Friend made the important point that it is a narrow reform which deals with a particular difficulty involving a number of people. What is desperately required is major legislation on mental health in Scotland. Obviously, we have to look to the Scottish Parliament to deliver that.
It is clear that Scottish law has fallen well behind in some areas. The fact that a so-called tutor at law—appointed to look after a patient's finances—must be the 611 patient's nearest male relative on the father's side brings home to us how archaic some of the components of the law are.
Tutors at law are appointed under the Curators Act 1585. I understand that 100 years went by without one being appointed. Obviously, some judge or official discovered the measure in our history and was able to start to appoint tutors at law again. Some areas of the law have stood still for 400 years, but services have changed a great deal.
There is consensus that, where possible, people with mental health problems should be supported in the community, rather than in our great old institutions. I say consensus because there has again been some debate about the matter. I was looking at the exchanges in the House on 8 December between my right hon. Friend the Secretary of State for Health and hon. Members, when he addressed the issue of individuals who, as a result of mental problems, are a potential danger not only to themselves, but to society at large. There has been at least one tragic incident in this city where a mentally handicapped person has committed murder, so it is not an easy issue.
The issue has been thoroughly addressed. I was quite surprised that the Secretary of State said that he thought that care in the community was not succeeding, although the Opposition spokeswoman, the right hon. Member for Maidstone and The Weald (Miss Widdecombe), and a number of Labour Back Benchers take the view—I think that it is the view in Scotland—that it is the right policy. There is no question but that we need to move people out of institutions into more friendly establishments—houses where two or three can live with adequate support, usually voluntary organisation or housing association accommodation. Without doubt, our experience in Lothian is that it is a beneficial policy.
In Lothian, we have the Gogarburn hospital, an institution that is situated in Gogar just to the west of Edinburgh. Just over five years ago, a five-year joint transfer programme was agreed, based on a partnership between the Lothian health board, local council social work and housing departments, the hospital trust and Scottish Homes. Working together, those people have organised the transfer of patients from Gogarburn to suitable accommodation in the community. About 250 patients have been discharged into care homes or housing projects, with the remaining 40 or so due to be relocated by May. When we bear in mind the fact that a few of those people had been in that establishment for more than 60 years, we can understand the trauma involved and the importance of handling these things sensibly and sensitively. I pay tribute to the staff involved.
I had a constituency case of a middle-aged person with mental health problems who had been discharged from Gogarburn. Hon. Members will understand the concern of the family who came to see me. I was tremendously impressed by the way in which that individual's needs were dealt with, by the range of accommodation that was available in Edinburgh for that person, and by the way in which the family were involved in the decision on where to accommodate that individual. I pay tribute to the way in which Lothian health board has handled the issue to the benefit of our people.
Of course, there is still much to be done in the mental health sector. We still need to erase the Cinderella-service image and remove the taboo that is attached to mental 612 health problems. The Government have demonstrated great commitment to mental health. Under the leadership of the Under-Secretary of State for Scotland, my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith), the national health service in Scotland has made mental health one of its three clinical priorities for the coming three years.
In their first year of office, the Government promised a new framework for mental health services. In December, the Under-Secretary announced that he was setting up a committee to review the Mental Health Act 1983, which will report to Ministers in the Scottish Parliament by the summer of 2000. I am sure that that will be an excellent report, not least because the chairman of the committee is a certain Mr. Bruce Millan, who is probably well known to a number of hon. Members in the House. He will certainly be known to colleagues who have been here for a few years—I see my hon. Friend the Member for Bolsover (Mr. Skinner) nodding his head. I think that a few others were in the House when Bruce Millan was here. Afterwards, he became a European Commissioner and continued to do much valuable work for the community; he is no longer on the Commission.
A major review is being carried out into that mental health issue in England and Wales. I have no doubt that, when the issues come to be addressed, and when the comprehensive legislation that my hon. Friend the Member for Midlothian referred to comes forward in the Scottish Parliament, Members of the Scottish Parliament will take into account the review that has been set up by the Under-Secretary and the report that, I hope, will be available on the studies in England and Wales.
The Bill is not only important, but a significant reminder that big legislation is required from the Scottish Parliament. The whole House will probably encourage that Parliament to ensure that, within a few years—within, I hope, two or three years—of it being established, it will deal with that big issue.
In advance of a full incapable adults Bill going through the Scottish Parliament, today's short Bill deals with a problem that faces some of the most vulnerable people in Scotland. I am grateful to have had the chance to give it my support.
§ Mrs. Ray Michie (Argyll and Bute)
I, too, congratulate the hon. Member for Midlothian (Mr. Clarke) on introducing this short, but worthwhile Bill. I am glad to have my name included with those who support it. As we have already heard, it is timely because, while the Scottish Parliament is expected to introduce comprehensive legislation following the outcome of the report on incapable adults, that will take time. If the Bill goes through—I am sure it will—it will have early effect and bring early benefit for the many more patients who are being discharged back into the community.
In my constituency, the Bill has been welcomed by the physician superintendent of Argyll and Bute hospital, Dr. Angus Mackay. When he saw the draft of it, he reckoned that it was worth while and was delighted that the hon. Member for Midlothian was introducing it.
I have a couple of questions for the Minister. Does the Bill allow hospital management to hand over the patient's money to someone or some body that might have responsibility for the person once he or she is discharged? 613 If so, that person or body would have to be chosen with great care, particularly if the patient were going into a residential home.
If that does not happen, I presume that the hospital will still manage the money for the patient, but it could have considerable difficulty in continuing to expend the funds for the benefit of a former patient if that patient moved away to another area—say, to the south of England. We have to ensure also that hospital authorities are not caught up in a lot of extra bureaucracy in administering and managing former patients' funds. If it is true that any money left after a patient dies goes to the Crown, that is not good or right.
With those few remarks, I am very happy to support the Bill.
§ 10 am
§ Mrs. Irene Adams (Paisley, North)
I am grateful to my hon. Friend the Member for Midlothian (Mr. Clarke) for giving the House an opportunity to debate a very important issue. As we all know, when an hon. Member is fortunate enough to come high in the draw for private Members' Bills, he or she will be inundated with requests from many different types of groups and societies to champion their cause by introducing legislation expressing their point of view. I am certain that my hon. Friend's experience was no different.
My hon. Friend could have chosen almost any subject that anyone might care to mention. He could have chosen to promote a Bill of headline-grabbing proportions—dealing with a cause that would have filled the House to capacity, or caused great division, not to mention tremendous controversy. We all know that reputations in the House have often been made by championing causes that are now—so oddly—considered to be "sexy" subjects.
My hon. Friend, however, has not sought to bathe himself in glory or to seek eternal gratitude. He has chosen instead to promote an amendment to the Mental Health (Scotland) Act 1984 and, if his Bill is successful, some of the people whom he will help will scarcely be aware of how or from where that benefit comes.
The nature of the legislation that my hon. Friend has chosen to promote and to amend speaks volumes of the man himself. With this Bill, he has chosen—as he has done his entire life—to fight the corner of those in society who are least able to fight for themselves.
The Bill, as my hon. Friend said, is a small one, and is probably only the start of a legislative process on incapable adults. I am sure that the new Scottish Parliament will be only too glad to build on that process very quickly. Today, however, in a small Bill, we have the opportunity to make a big difference in the lives of, currently, about 700 people in Scotland, some 60 of whom are in the Argyll and Clyde area in which my constituency is located.
So many people take not only the big things, but the little things in life for granted, such as being able to buy a magazine, some flowers or a record—or CD. I am harking back to when we played records; I still have some 78s.
614 My constituency is served by two units that house incapable adults. The whole House should take the opportunity to thank those who work in such units. On behalf of us all, they perform an often thankless and under-appreciated task.
Over the years, the units have improved greatly. They are very homely now, and have been home to some of my constituents for up to 30 or 40 years. I am sure that my constituents living in the homes have felt great changes. Hospital managers have been able to hold and disperse the funds of people living in the units, and some of those people have benefited greatly.
People living in the units have been able to buy not only the little things. Their funds accumulate over the years, and some of them may have up to £10,000. They have therefore been able not only to have flowers, magazines and CDs, but to be taken on holiday to foreign parts that they might never have seen. They have become accustomed to having some of the better things in life—the things that they had never known before. Now, when they are released into the community, they miss those things.
I should like to deal with the case of one individual, who is one of my constituents. For the sake of his privacy, I shall call him John. John was born in 1928. He was the second son, with one brother, who was four years older. Both boys were very bright and did well at school. In 1943, the elder son was called up to serve this country in time of war. He was killed a year later, leaving only John.
In 1946, aged 18, after staying on at school, John went to do his national service. He returned 18 months later with—although no one knew it at the time—schizophrenia, which so often first becomes apparent when those suffering from it are aged 18 to 25. John went directly from the Army to what was then called a mental hospital, where, 53 years ago, things were not so good. He often returned home, for short spells, with black eyes and marks of having been in restraint.
Over the years, John was in and out of hospital; times were better, times were worse. He spent short spells outside the hospital. John's mother, who lived into her 90s, died only four or five years ago. For most of her life, her greatest concern was what would happen to John when she was no longer there to look after him. Very many people—not only those who have handicapped children, but those with mentally ill relatives—share that concern. They wonder who will be their loved one's advocate when they are no longer there. The House's duty is to be their advocate: to see that they have the things in life that their parents would have wanted for them.
Medical science has moved on greatly since John was first taken to hospital, and things are much better for him. He is now 70 years old. He has never lived on his own. Because of his incapacity, he has never had to struggle with the usual daily tasks. Nevertheless, he is much better now and can get by from day to day. He has therefore been released into the community, living in a community house with three other adults.
John cannot understand why, from his funds, he cannot have a new CD every month, as he did when he was in hospital. He wonders why he cannot have a little holiday once a year, as he was used to having. He has a passion for old movies. In the home where he stayed, once a month, video tapes of old movies were bought for him 615 and played in the video machine. Although there is a video machine in the house where he is now living now, he likes to watch his movies alone.
When John was in the hospital unit, he was bought a small video recorder for his room. Now, there are not enough funds to buy a recorder for his room. The unfortunate aspect is that John has £3,500 locked up in his hospital fund, which is managed by his hospital manager—who should dearly love to release the money to get John the things that he wants, but cannot do it.
If my hon. Friend's Bill were passed, within a few weeks, John would be able to have a video recorder in his room. He would be able to watch the movies that he likes and to have the other little things in life that he had become used to.
My plea is made not only for John, but for the other 700 people in Scotland who, like John, are out there in the community and need their funds to be released. I plead also for the parents of those 700 people. Many of those parents have died, after spending a lifetime worrying about who would advocate their relatives' cause and ensure that they—the Johns of this world—live in comfort.
This morning I take great pleasure in supporting my hon. Friend whose Bill gives us the opportunity to help people such as John, who lost his brother in the war, who has spent his life in and out of institutions, who has now lost the parents who loved him dearly and who, at 70 years old, deserves all the help that we can give him.
§ Mr. David Stewart (Inverness, East, Nairn and Lochaber)
I am pleased to make a brief contribution to the debate for two reasons: first, because I support my hon. Friend the Member for Midlothian (Mr. Clarke) who has great interest and expertise in the subject and secondly, because for 17 years I was a social worker in Scotland—in Edinburgh, Dumfries and Inverness. For many years, I worked in mental health before selling out to management and becoming a mental health officer. I remember working at the sharp end—supporting GPs who had to certify patients in the middle of the night, and working with mentally ill clients and patients in the community.
I also worked hard to fight against the stigma that society attaches to mental illness. Hon. Members probably remember the Scottish health education poster in the 1980s. It showed a picture of a woman and the words:Six months after Jean Maclennan had a nervous breakdown her friends are still recovering.That poster is very apt.
I support the Bill as it fills a gap in current legislation—in section 94 of the Mental Health (Scotland) Act 1984. By implication, it also strengthens the 1995 community care order, which makes provision for patients in the community to have a contract which can include financial arrangements. Unfortunately, such a contract is not enforceable. If the Bill becomes law, it will strengthen that provision.
The problem has been well described by hon. Members on both sides of the House. As I see it, the issue is that when a patient is in hospital, his or her funds are easily and well managed by the hospital authorities under section 94 of the 1984 Act. lf, however, a patient is 616 described as incapax by the mental health officer, but is discharged into the community without receiving treatment and there is no relative or friend, his or her funds can become trapped in the system. The irony is that patients in the community may face great financial difficulty, but still cannot obtain access to a lump sum which may be trapped in the hospital system. My hon. Friend the Member for Paisley, North (Mrs. Adams) made a very apt point about John and described his emotive story. I shall also use the example of a patient, whose name I shall change.
I shall describe her as Flora Macdonald; she is a patient in Craig Dunain hospital in Inverness, just outside my constituency. She is 55 years old. She was receiving electro-convulsive therapy because she suffered from acute depression. She was an in-patient and she had no relatives. Her mother had left her £9,500 which was administered by patient funds with absolutely no difficulty. However, she was eventually discharged and went to stay in a home run by Albyn housing association in Nairn, on the east coast in my constituency. Flora was having difficulty coping on her own. She had financial problems, but was unable to access her funds which were held by the hospital. If the Bill became law, it would immediately help her.
In conclusion, the at-risk patients who are currently falling into a black hole in legislation are those who are incapax as defined by the hospital medical officer and who are then discharged into the community without receiving treatment, those who have no nearest relatives or friends and those with funds of less than £10,000. That is extremely important because patients with funds of more than £10,000 can have them administered by a curator bonis. However, the Mental Welfare Commission does not recommend the use of a curator bonis for funds under £10,000 because of the legal costs involved.
I warmly support the Bill. It is a sensible and practical measure which will assist the operation of community care in Scotland, and I endorse it.
§ Miss Anne Begg (Aberdeen, South)
First, I echo the tribute paid by my hon. Friend the Member for Paisley, North (Mrs. Adams) to my hon. Friend the Member for Midlothian (Mr. Clarke). I am absolutely delighted to support the Bill, not just because it is an important one that assists people who society often forgets, ignores or deems unimportant, but because in the short time that I have been in the House I have got to know my hon. Friend the Member for Midlothian very well. It is a tribute to him that so many members of the Select Committee on Scottish Affairs, on which he and I have the privilege to serve, are in the Chamber this morning to support his Bill.
My hon. Friend is a man of great wit. He provides great entertainment in the Select Committee when we take evidence and his stories amuse us all, but he is also a man of strong views. It is a tribute to him that he has introduced a Bill that will assist those who are often inarticulate and face difficulties simply because they may be unable to speak for themselves.
I am delighted to be here to support a worthy Bill. It is a wee Bill that will do a big job. It assists people who are described as incapable. I have difficulty with that word; I do not like it. Nor do I like to be described as handicapped, as people make associations. If someone is 617 described as incapable, he or she is often assumed to be incapable of everything. Just because people are incapable of managing their own financial affairs or looking after themselves—as many of those affected by the Bill are—that does not mean that they are incapable in all aspects of their lives. They are not incapable of feeling emotion or of enjoying life.
§ Ms Sandra Osborne (Ayr)
Does my hon. Friend agree that the concept of community care has been extremely positive in relation to self-determination and helping people to fulfil their potential as human beings?
§ Miss Begg
I agree absolutely with my hon. Friend. Society needs to shift the focus from what people are incapable of or cannot do to what they are capable of and can do. As a disabled person myself, I appreciate that all too well. I am often perceived as being incapable of doing all sorts of things when that is not the case.
It is important that we appreciate that those who we describe as incapable adults have emotions, fears and desires and can enjoy life as much as the rest of us can. Part of that enjoyment is making sure that they get treats. That is why the Bill is important, because it is about enabling people to spend their own money. That may seem a difficult concept for us as we are relatively well paid and can spend most of our money as we please, but we should imagine what is must be like to want something but to be denied it either because someone else determines that we do not really need it or, in the circumstances described in the Bill, because someone else is unable to grant access to the money.
§ Mr. David Stewart
Does my hon. Friend agree that it is somewhat ironic that the people who suffer most are those with smaller funds as those with more money can afford to have a curator bonis to administer their funds? Those with less than £10,000 are the ones who suffer.
§ Miss Begg
My hon. Friend makes a good point. Those at the bottom of the scale would appreciate what my hon. Friend the Member for Paisley, North described as the little things in life. We all enjoy them. Yesterday, I had my hair done at the hairdressers in the House of Commons and I felt wonderful. When I went back to my office, at least three people commented on how nice my hair was looking. It is a small thing, but it is important. If it is important to us, of course it is important to people in homes or in care in the community. Such little things are important to everyone. Other people may prefer to buy compact discs or an ornament rather than have a hairdo. Even someone with limited ability to think rationally still has tactile feelings. They may want something soft or comforting, something that they can hold or stroke—a feel that belongs to them. They want something that is theirs and can be bought with their own money.
I take the point of the hon. Member for Banbury (Mr. Baldry) that there must be safeguards to ensure that money is not spent frivolously. Mind you, most of us spend our money quite frivolously a lot of the time. I wonder why we should deny certain sections of the population that pleasure.
I went to the Monet exhibition recently and spent half an hour looking at the pictures. Needless to say, I spent another half hour in the shop buying all the little trinkets 618 and things that were on sale. None of them is any good for anything, except that they will give me a great deal of pleasure. I hope that my mother, who will get a present on mothers' day, will get a great deal of pleasure, too.
§ Ms Osborne
Does my hon. Friend agree that she may well have enjoyed spending some time at the exhibition of the Society of Women Artists at Westminster Central hall? That would not be a frivolous way of spending time, but a valuable experience that can be commended to us all.
§ Miss Begg
I thank my hon. Friend for that recommendation. I shall make sure that I set aside some time next week.
We get a great deal of pleasure from spending our money on ourselves. When people move from a large institution to care in the community—the time when they might want something extra to decorate a new room, even just a bunch of flowers to make the room smell nice—their funds are frozen and they have no access to them. Some think that such people should save their money for a rainy day, not spend it frivolously, but that is the rainy day. That is when they should make the most of what they can buy for themselves.
§ Mrs. Irene Adams
Does my hon. Friend agree that often the rainy day is the morning when someone gets out of bed and just does not feel too great? On days like that, people want to take a wander in the high street with two or three pounds in their pocket, just for a coffee or to go in a shop and buy a scarf or a pair of earrings. Why should not people who have been released into the community after spending spent most of their life in institutions be able to do the same? The Bill would help them to do so.
§ Miss Begg
Absolutely. I might go for an ice cream in such circumstances, but each to his own; that is the important thing. We should allow adults to spend their money as they see fit.
No one in Grampian is currently caught in the trap that we are talking about, but figures show that, over the next year, there are 24 people who could be discharged from long-term care into care in the community. Under existing legislation, patients' money in Grampian has moved from the hospital to the health board, then on to the social work department of the relevant local authority. However, even in areas such as my constituency, the potential for the problem exists. The Bill addresses that loophole in the existing mental health legislation for Scotland by reforming the Mental Health (Scotland) Act 1984 to ensure that funds that are currently locked up or could be locked up in the next year can be released to be used by the people to whom they belong.
Those who have moved into the community and are covered by the Bill are not the only ones who have difficulty accessing their money. I have a constituent whose mother is in a nursing home suffering from Alzheimer's disease. He has found it virtually impossible to deal with her finances, even though he and his sister are joint holders of their mother's bank account. She has shares that he cannot dispose of. Now that she has been deemed incapable, they cannot even get the tax back on the shares, because the tax refund has been frozen. The only solution would be to apply for the appointment of 619 a curator bonis, but, as my hon. Friend the Member for Inverness, East, Nairn and Lochaber (Mr. Stewart) has said, that process can be very expensive and is time-consuming and complicated. The money to pay for the legal process to get someone to act as curator bonis comes from the funds of the person who is supposed to be helped. It cannot be right to have to spend the same money on the legal process to get it released. Most of us would complain bitterly if our money was taken away to pay for a legal process that we felt was not necessary.
There is a clear need for an incapable adults Bill. It will be the preserve of the Scottish Parliament, which will give the matter due consideration. In the light of my earlier comments, I hope that the Parliament will think of a better name than incapable adult. We want words that describe such people without being derogatory to them.
I may be being a bit presumptuous, but I hope that the Under-Secretary of State for Scotland, my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith), will be in the Scottish Parliament to see that Bill through. I appreciate that we still have to go through an election and that it is up to the Scottish people to decide, but he would be a worthy champion of such a Bill through the Scottish Parliament.
An incapable adults Bill would address the issues that we have been discussing today, but it should also address the other areas in people's lives in which decision making has been taken from them. People who may have not wanted drugs all their life but find themselves in a home and declared incapable of making a rational decision may be given the drugs that they have resisted throughout their rational thinking life. We should consider whether they have a right to refuse certain treatment. We should also consider advance directives. Those issues are outwith the scope of this Bill, but they are important and should be addressed in the near future. I hope that the Scottish Parliament will be in a position to do so.
I am happy to support my hon. Friend the Member for Midlothian. His Bill is important and will solve an anomaly, but, as he has said, it is a stop-gap measure until more extensive legislation can be put in place.
§ Ms Sandra Osborne (Ayr)
As has been said, this is a small Bill that would make a big difference to the lives of patients who cannot manage their own affairs. I congratulate my hon. Friend the Member for Midlothian (Mr. Clarke) on his choice of Bill. As my hon. Friend the Member for Paisley, North (Mrs. Adams) said, he had a plethora of choices.
My hon. Friend the Member for Midlothian is a big man with a big heart who is used to promoting practical solutions that lead to improvements in people's lives and making the connection between the rights of individuals and those of society. It is therefore not surprising that he is promoting this Bill, which will not only benefit more than 700 people almost immediately, but—I hope—will be a precursor to more radical change, which should be considered in the early days of the Scottish Parliament.
Ironically, the Bill is quite a tribute to the concept of community care. Community care legislation has thrown up many financial anomalies and problems, which have still to be sorted out, but we should remember that, until its enactment, many people with disabilities, especially concerning mental health, were put in institutions, and the 620 key was thrown away. Any concept of choice concerning the basic, everyday rights that we all take for granted was not on the agenda—far less the assurance that any finances could be accessed with no legal impediment for the good of the person concerned. I agree with my hon. Friend the Member for Aberdeen, South (Miss Begg), who articulately described the right to spend one's money in the way in which one chooses.
When one thinks of the many forward-thinking and far more appropriate opportunities of today, such as supported accommodation in the community—in common with many of my hon. Friends' constituencies, South Ayrshire Hospitals NHS Trust provides credible opportunities for people which were not available in the past—one realises that we have come a long way in improving people's physical surroundings and human rights. We all have the right to live, to the greatest possible extent, an ordinary life.
We have taken great strides in recent years. I pay tribute, as did my hon. Friend the Member for Paisley, North, to health service staff, social workers and voluntary organisations. They have developed community care in a positive manner under very difficult financial circumstances, and often when the community has not cared or has at least needed to be convinced that care in the community is a good idea. Hon. Members have emphasised the difficult issues associated with care in the community, as well as how they have been overcome in many areas in Scotland by the dedication of those involved in its provision. Moreover, those difficulties have been overcome by convincing the community that it is far better that people live an ordinary life in their local community than spend years in institutions, as happened so often in the past.
The Bill has brought sharply into focus what various interested organisations have been calling for for more than 10 years. As many hon. Members have said, such organisations formed the Alliance for the Promotion of the Incapable Adults Bill, and have campaigned on the need to reform comprehensively the law on personal, welfare and financial decisions concerning people who cannot act for themselves. Such reform involves a range of mental disorders, including mental illness, learning disabilities, dementia and those caused by head injury.
The current legal framework, including the issues addressed by the Bill, causes needless distress, expense and inconvenience to disabled people and their carers. It must be recognised that, although we have taken great strides in community care and introduced many positive measures, carers often still feel disfranchised, including on financial matters. That must be addressed. People worry a great deal about what will happen to their relatives once they are no longer able to care for them. The law on that matter is part of the problem.
§ Miss Begg
Does my hon. Friend agree that the worry about what will happen to a child or a grown adult in such circumstances casts a shadow over the last few years of carers' lives because, at the moment, they cannot guarantee that, once they die, the same level of care will be provided for their loved ones?
§ Ms Osborne
I agree. I have assisted several carers in my constituency in their efforts to get a social work agreement. Many carers want the certainty of a 621 programme of respite care for 10, 20 or 30 years, not just the foreseeable future. Given the general scenario of community care, that is very difficult to achieve. There must be far more communication with carers to make them feel far more empowered, because, at the moment, they feel pretty powerless.
This debate must take account of the fact that the legal framework frequently creates problems for social workers, lawyers and health care professionals. I would like to put on record the great successes achieved in my constituency in relocating adults from psychiatric hospitals into the community—often that has led to much more fulfilling lives. I recently dealt with a case of rivalry in my constituency between carers and social workers over the financial dealings of an elderly lady who was put in a residential home for respite care after being in a psychiatric hospital for many years. She has been assessed as needing nursing care, but has not as yet been moved. I suspect that that is because of finances.
The extent to which such problems can be attributed to a lack of clarity in the legal framework, as opposed to general underfunding in the system and hence a lack of fairness, is a moot point. I am sure that all hon. Members await with great anticipation the outcome of the Government's deliberations on future funding of continuing care, which is of major significance in Scotland, as elsewhere.
The specific measure in the Bill offers a short-term solution, but it is very valuable. A clear mechanism to allow managers of hospitals to continue to hold the moneys and valuables held by them at the time of the patient's discharge, empowering them to spend the money or dispose of the valuables for the benefit of the patient under section 94 of the Mental Health (Scotland) Act 1984, even though the patient is no longer in hospital, will help to break the logjam to which so many hon. Members have referred.
The Scottish Law Commission's report "Incapable Adults", published in 1995, recommended replacing the patchwork of measures with a comprehensive and flexible system of guardianship, with simple no-court solutions to the most common problems. Subsequent Scottish Office consultation has confirmed a wide consensus in favour of the proposals. As hon. Members have said, there is an urgent need to introduce such measures. My hon. Friend's Bill will provide a good start. It will then be for the Scottish Parliament to ensure that wider reform is a top priority, following the detailed work which is more or less available off the shelf as we speak. I hope that the Bill will be dealt with as a matter of priority, and again congratulate my hon. Friend the Member for Midlothian on promoting it.
§ Dr. Norman A. Godman (Greenock and Inverclyde)
I offer my compliments to my hon. and old Friend the Member for Midlothian (Mr. Clarke). He has heard many compliments this morning, but he will have to suffer yet another one. We all know that, during all his adult life, he has sought to protect and promote the interests of those who, for whatever reasons, are unable to defend their own interests. As someone who has long concerned himself with the need to protect such people, I am extremely grateful to him for choosing this subject.
622 Like my hon. Friend the Member for Aberdeen, South (Miss Begg), I am a little chary of using the term "incapable adult". I think that it is a legal term—perhaps my hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne) will help me out on that—and, like many legal concepts, it has a chilling ring to it. I prefer the term "vulnerable person".
§ Ms Osborne
Does my hon. Friend agree that the phrase "hospital incapax patients" is downright offensive?
§ Dr. Godman
I think that it is. I am not a medical man—I have an authentic doctorate—but it sounds like a piece of equipment from the oncology department. God knows who the author is; he or she—I suspect that it is a man—ought to remain anonymous.
In fairness to both Conservative and Labour Administrations, we have sought to defend the interests of vulnerable people. I was delighted that, just before we ejected that odd-job lot from office, they introduced a measure to protect vulnerable persons giving evidence in court cases. The Bill is yet another element in the continuing reform of legislation to protect those who are unable to look after themselves.
I sincerely hope that the Bill is a precursor to comprehensive legislation on mental health welfare to be enacted by the Scottish Parliament. My right hon. Friend the Member for Edinburgh, East and Musselburgh (Dr. Strang) mentioned the commission that has been set up under the chairmanship of the admirable Bruce Millan. I hope that that will lead to a reform of the Mental Health (Scotland) Act 1984. I am sure that Bruce Millan and his estimable colleagues will take cognisance of the Bill.
I sincerely hope that Bruce Millan and his colleagues will investigate the use of electro-convulsive therapy. I suspect that my hon. Friend the Minister and I disagree on that form of treatment. I think that it has been used too freely. He may say that the regulations governing its use are sufficiently comprehensive, but I am not so sure.
My hon. Friend the Member for Paisley, North (Mrs. Adams) shares a concern about those who may be discharged from hospitals in the Argyll and Clyde area. A table published in response to a question about how many "hospital incapax patients" currently having their finances managed by hospital managers are likely to be discharged to continuing care in a non-hospital setting over the next year shows that the figure for that area is 60. I am surprised that it is so high. In some areas, the figure is zero.
It is entirely in the interests of those people to be so discharged and I welcome my constituents leaving the Victorian institutions. Some patients are incarcerated in Bridge of Weir hospital at this very moment. I think that it is to close in June or July. When will the contract for the Larkfield unit be signed? I hope that it will be up and running by December.
We are talking about a significant number of people—although even a dozen would be significant. I have some figures from the excellent Library research paper. It says that aScottish Office statistical bulletin Community Care 1997 showed an increase in people with mental health problems attending day centres from 110 in 1983 to 1,695 in 1997 and a decrease in the number of people living in hospitals from 14,693 in 1983 to 10,216 in 1996.623 It is essential that the patients' interests are looked after when—finally, in some instances—they take their place in the community.
My hon. Friend the Member for Paisley, North mentioned the fact that some of the people are in every sense long-stay patients. I know a couple in Port Glasgow who have visited their son in Merchiston hospital for the past 41 years. Some people will never be able to look after themselves in the community, and we must not lose sight of those fellow citizens, some of whom—sadly, regrettably—will stay in hospitals such as Bridge of Weir or Ravenscraig until their dying day.
§ Mrs. Irene Adams
Does my hon. Friend agree that the concern is not only for the person in that situation but for the parents who have given a lifetime of service? The couple that he mentioned must have spent 41 years not only visiting but worrying about what will become of their son when they are no longer there to visit. People's whole lives are often overshadowed by the fact that they have a loved one in such an institution and that they will not survive that loved one. They are often greatly concerned that the loved one will simply be forgotten and no longer enjoy the little treats that doting parents who visit every week provide.
§ Dr. Godman
I agree with every word that my hon. Friend says. Every one of us has constituents who literally devote the whole of their lives outwith work to caring for others. All of us have an obligation to ensure that those carers' lives are made a little easier. My hon. Friend the Member for Ayr (Ms Osborne) mentioned the important need for respite care for such people. We have a major duty to protect their interests.
When patients are discharged into the community—be it in supported housing or a house or apartment in a housing association complex—is it possible for aid to be given by way of the mental illness specific grant? I am a little disappointed that the grant is stuck at the figure of £18 million a year.
My right hon. Friend the Secretary of State for Scotland said that MISGwill continue to provide ring-fenced resources totalling £18 million a year towards community-based mental health projects in Scotland."—[Official Report, 29 July 1998; Vol. 317, c. 291.]I hope that when patients come into the community voluntary organisations might give them assistance, in line with what is sought in the Bill. The mental health development fund is of the order of £3 million per annum. Will voluntary organisations have access to that fund to help vulnerable people? The Bill will help vulnerable people and their families, if they have them, but they also need additional help. The hon. Member for Banbury (Mr. Baldry) asked about protecting the interests of people leaving hospital, who may have £2,00 or £3,000 in their accounts. What protection can be given to ensure that those people are not cheated by those who undertake their care in the community? Social workers and others do an admirable job in supporting vulnerable people in our communities, but they need help with the management of their money, above and beyond that which is given by the Mental Welfare Commission.
As hon. Members have pointed out—and the Mental Welfare Commission agrees—the majority of those whom the Bill seeks to protect have no contact with relatives. 624 Given the years they have spent in hospital, their parents may be dead and their brothers and sisters may have moved out of the district in which they were born and raised. The former patients are vulnerable to manipulation and it is essential that those professionals who care for them are of the highest integrity. That might strike a sour note, but I have heard of vulnerable people being cheated of their funds, both in hospital and outside in the community. The Mental Health Welfare Commission has a duty, as mentioned by my hon. Friend the Member for Midlothian, to protect those people, sometimes through the appointment of a curator bonis. Nevertheless, we must ensure that when vulnerable people come out into the community they are protected and their moneys are safe.
§ Mrs. Irene Adams
Does my hon. Friend agree that 99.9 per cent. of the people who look after those who are not capable of looking after themselves, both in hospitals and out in the community, do sterling work? However, we as legislators must ensure that the protection of vulnerable people is paramount and that the little funds they have are looked after well. We need an assurance from my hon. Friend the Minister that vulnerable people cannot be cheated.
§ Dr. Godman
I agree with my hon. Friend. I am married to a social worker who used to assess people coming out of hospital, including elderly people leaving hospitals for nursing homes, some of whom were suffering from senile dementia and other illnesses associated with ageing. I have every trust in our social workers and other professionals who care for people in such circumstances, but there are bad eggs in all professions, including the law and even Members of Parliament.
Vulnerable people need protection when they leave hospital, but, as my hon. Friend the Member for Aberdeen, South said, many of them enjoy fulfilling lives in the community. I know a young lad who was in hospital for many years and is now in his 30s. He is delighted with his new house in a housing association complex. He is still not able to manage his money very well, but the local shopkeepers look after him. In fact, everyone in the neighbourhood looks after that fellow.
I understand that the Scottish Office has published draft guidance on the management of the finances of incapable adults, pending wholesale legislation. When will the final version be published and who will receive it? Will it be sent to local authorities, social work departments, trusts and health boards? The closing date for responses to the draft guidance was 31 October 1998, but there is no fixed date yet for the publication of the final form. I hope that it will be published in the next two or three months.
I welcome the Bill. It is a small measure, but it will give protection to many vulnerable people in our constituencies who have been denied that protection until now. I hope that the Bill has a clear passage through Parliament so that it reaches the statute book, where it belongs.
§ Mr. Russell Brown (Dumfries)
I am delighted to take part in the debate this morning and to support my hon. Friend the Member for Midlothian (Mr. Clarke) and his Bill. I am delighted that the Bill will pass through Parliament at the same time as the extensive review is 625 being undertaken by the Millan commission on the Mental Health (Scotland) Act 1984. It met for the first time eight days ago.
We should consider the history of mental health legislation in Scotland. Scottish mental health legislation has, since the war, tended to develop in parallel with English law, although there are significant differences, especially in the role of sheriffs in the relation to detention. The origins of the mental health legislation lie in the late 1950s. The Percy committee, which met between 1954 and 1957, was followed in Scotland by the Dunlop committee, and their recommendations led to sweeping reform in the Mental Health (Scotland) Act 1960. That Act sought to ensure that people with mental disorders were not automatically subject to legal controls, and it protected the rights of those who were detained against their will.
In 1983, the 1960 Act was amended substantially and that was consolidated in the 1984 Act. The debate in the early 1980s focused on tightening legal safeguards for patients and defining more precisely the compulsory powers that could be exercised over them. Safeguards on treatment, not just detention, were extended, and that was consistent with the general growth of concerns about patients' rights, but it led to some problems. The powers of guardianship were constrained to such a degree that the legislation became discredited in the eyes of many professionals. The legislation enacted in the early 1980s was not extensively debated in Parliament. It is, therefore, reasonable to say that the Millan commission has the opportunity to undertake the first fundamental review of mental health legislation in Scotland—
§ It being Eleven o'clock, MR. DEPUTY SPEAKER interrupted the proceedings, pursuant to Standing Order No. 11 (Friday Sittings).