MENTAL HEALTH BILL

LORD TAYLOR

I beg to support my noble friend Lord Stonham. The issue really is the difference between "severe subnormality" and "subnormality" in the definitions. According to the definitions, a "severely subnormal" person is one who is "incapable of living an independent life", and 349 such persons are covered by the provisions in the Act by normally being compulsorily detained. A "subnormal" person is a person with a degree of subnormality such as would enable him to lead an independent life, presumably, since that is not mentioned, but who "requires or is susceptible to medical treatment".

Now the problem—and it is a very real problem, as my noble friend Lord Stonham has pointed out—is that some people who are subnormal become severely subnormal because of the loss of the social support which they have enjoyed from their families. They are a small group; but, as I say, this is a very real difficulty and, I understand, is so regarded in the eyes of medical superintendents of mental defective institutions. If we can be assured by Her Majesty's Government that the medical superintendents of mental defective institutions do not find this a difficulty, then I think the case for our Amendment is perhaps a slender; but, in our experience, it is a real difficulty, and I hope the Government will have some solution—if not in my noble friend's words, then in their own.

THE LORD CHANCELLOR

If I might deal with the general point first, obviously both noble Lords have in mind a matter of importance, to which great thought is being given, and I approach it in that way. Perhaps they will bear with me if I deal with it at slightly greater length than I should otherwise have done, and take it as a compliment to the point which they have raised. It is the intention of the Bill, and of the recommendation of the Royal Commission on which it is based, that the severely subnormal group should extend well over the lower ranges of the present feeble-minded category. Noble Lords will remember that that was stated explicitly by the Royal Commission in paragraph 193 of the Report, where they said: The broad dividing line between the patients whom we call severely subnormal and those whom we call psychopathic"— and that includes those referred to in the Bill both as "subnormal" and "psychopathic"— comes in the middle ranges of what is now called feeblemindedness,… But in some cases it may be rave to say that patients are 350 seriously subnormal and are incapable of living an independent life even if their intelligence quotient is, say, 60 or even higher, if they have other serious defects of personality in addition, resulting in a generally subnormal personality which makes them incapable of managing their own lives or places them in serious danger of being taken advantage of by other people. They went on to estimate that from one-half to two-thirds of the feeble-minded patients in mental deficiency hospitals would come into the severely subnormal group. The Royal Commission expected that this criterion would be clear if the severely subnormal group were described as "patients incapable of living an independent life"—and that, as your Lordships will see, is the phrase used in the definition of "severely subnormal" in Clause 4 (2) of the Bill.

On the other hand—and this may be the reason for the difficulties which presented themselves to the medical superintendents whom the noble Lord, Lord Taylor, has mentioned—it may be they are under the impression that the definition of "severely subnormal" is not intended to cover much more than the present idiot and imbecile categories, and that the case for removing the age limits for the compulsory admission of subnormal patients is to meet the needs of the feeble-minded patients whom I have mentioned. That aspect of the point I am fully ready to consider.

I should have thought, as a first reaction to it after hearing the speeches, although I should like to consider them more fully, that the most appropriate way of doing this would not be by Amendments to Clause 26 or Clause 44, but by amending the definition of "severely subnormal" in Clause 4 subsection (2) by importing into it words which would show that it is meant to cover persons whose arrested or incomplete development of mind is of a degree which makes them liable to, and unable to defend themselves from, serious exploitation by others. That is, we might import into Clause 4 (2) that part of the criteria suggested—if I may look at it in advance—in the Amendment to Clause 44 to be moved by the noble Lord, Lord Stonham. That is the approach which I should like to make to the matter, and I should like to consider it again between now and Report stage.

351 I want to say only one word about the reasons for the age limit. As most of your Lordships will have realised, the 21 year age limit follows the recommendations of the Royal Commission in paragraphs 353 to 356 of their Report. Their view was that compulsory admission for treatment is justified for patients up to the age of 21 as a form, in effect, of extended compulsory education and training for persons who are mentally immature, but that persons who are only mildly subnormal should not be compulsorily detained in adult life, except for short periods of observation, unless their conduct is anti-social to the extent of constituting an offence against the criminal law. That is why the Bill provides for compulsory admission to hospital under Part V at any age; but, under Part IV, apart from observation under Clause 25, these patients may not be compulsorily admitted over the age of 21 or detained beyond the age of 25 unless dangerous. But I should remind your Lordships that informal treatment without compulsion is available at any time at any age; and compulsory admission under Clause 26 is also available at any age for the severely subnormal, who are defined as being "incapable of living an independent life".

I do not want to be argumentative on the matter—I could go on further—but I should like to say a word on one point which I know is in the mind of the noble Lord, Lord Stonham. I am saying it not so much as argument, but so that he will have a chance of considering the way it appeals to me. As he indicated (and Lord Taylor, I think, had the same point in mind), it has been suggested that the 21 age limit is inappropriate for patients who have been adequately looked after by their parents, and who do not need hospital or local authority care until the parents die or become incapable, by which time the patient may be over 21. We felt that most patients cared for by their families beyond the age of 21 are likely to be willing to receive similar care later from local health authorities or hospitals without compulsion; and those who are quite incapable of living independently would be "severely subnormal", as I have tried to point out, and could, if necessary, be taken into guardianship (or, if necessary, admitted compulsorily to hospital) at any age. I 352 think that those who need care after 21 because they suffer from premature senile deterioration are a separate problem; but it will be possible to admit compulsorily at any age subnormal patients who are also suffering from mental illness of a nature or to a degree which itself warrants detention. They can be dealt with as mentally ill under Clause 26, or received into guardianship under Clause 33.

The point which I hope may be of most interest to the noble Lord was the first point I made, and I am fully prepared to have another look at Clause 4 (2) to see if we can find something in the definition which would meet what I think is the basic point the noble Lord has in mind. May I say again that I consider the Committee stage is exploratory, and as I told the noble Lord, Lord Pakenham, I never take it amiss if the Opposition want to divide on a point, although what I am most anxious to do is to find the real point so that I can have a look at it and, if possible, improve the Bill.

LORD STONHAM

I feel that the noble and learned Viscount has done exactly what I hoped he would do—showed me a way out of my dilemma and how to meet this difficulty, which I believe is a real one. I accept his suggestion for an Amendment of Clause 4, provided that we can make it clear that it will apply to severe subnormals of any age. It is true that nearly all new admissions to mental deficiency hospitals are on a voluntary basis. I am not concerned about that aspect, but about the difficulty of those who have never been in hospital and have always been looked after by their parents, who are suddenly confronted as adults, sometimes middle-aged adults, by the fact that they have to go into hospital. In the initial stages, compulsion will be needed. There will not be many of them, but I think we ought to have the power, subject to proper safeguards. I think that the noble and learned Viscount's suggestion will meet the case, and with that in mind I beg to withdraw my Amendment.

BARONESS WOOTTON OF ABINGER

The only point on which I should like to confirm and support what my noble friend has said is to call attention to the degree to which this Amendment would put the initiative in the hands of the Mental Health Review Tribunals. I know that the Bill, as it now stands, contemplates that the Tribunals should be more of a court of appeal than a court of first instance, but this Amendment is closely bound up with the Amendment to be moved later, No. 18, which would restore the rôle of the justices of the peace in the first instance. If there is to be no layman who takes part in the original authorisation of admission it surely becomes doubly important that the initiative should be with some body other than the two doctors who can certify or 356 authorise compulsory treatment alike for psychopaths, for the moderately subnormal and for those who are mentally ill.

THE LORD CHANCELLOR

As the noble Baroness has just said, this is the first Amendment which raises the question as to how far there should be lay action in the compulsory admission. I ask your Lordships to note what Clause 26 provides at the moment. It provides for the compulsory admission of patients to hospital for treatment on an application made by the patient's nearest relative, or a mental welfare officer of a local health authority, supported by two medical recommendations. I stress that last point, because the noble Lord, Lord Stonham, was envisaging the nearest relative in rather a different position. A patient so admitted may be detained, subject to powers of discharge held by various persons (and I ask your Lordships to note these powers, which are set out in Clauses 47, 48 and 123) for up to one year, after which the authority for detention may be renewed under Clause 43 for a further year and thereafter, if necessary, for further periods of two years at a time. As has been said, the patient is given a right to apply if he wishes to a Mental Health Review Tribunal at any time within the first six months after admission and after any renewal under Clause 43.

Despite what has been said, I feel that any one of these Amendments would strike at the roots of a new series of safeguards which Part IV of the Bill sets up to replace the present system. I think it is necessary to look a little more closely at the present position, because it was said on Second Reading that to rely on medical opinion alone was a serious matter when depriving a person of his liberty. But that disregards the many safeguards incorporated in the new system, which must be regarded as a whole. Those safeguards include, as I said on Second Reading, not only the procedures used at the time of admission but also the limits placed by the Bill itself on the use of these procedures, the powers of discharge and the provisions for appeal and review. The main changes in this connection are the abolition of the magistrate's order and of the Board of Control—who at present have the duty of scrutinising the admission documents and have 357 certain powers of discharge—and the replacement by new safeguards based on the Royal Commission's recommendations. These we regard as more appropriate and more effective. Therefore I venture to remind your Lordships of the main extra safeguards which have been introduced.

First, two medical recommendations are required in all cases, one to be given by a specially experienced doctor. It is true that two are required under the Mental Deficiency Acts, but only one is required under the most common procedure under the Lunacy Act. Secondly, there is the establishment of Mental Health Review Tribunals consisting of legal, medical and lay members, to whom the patient can go, if he wishes, on specified occasions, though this procedure is not forced on him willy-nilly as the magistrate is at the moment. Thirdly, there are the wider powers of discharge. Fourthly, there are the more frequent statutory reviews of the authority to detain.

I think it is important to note the lay persons who take part under the procedures which the Bill sets up. There is, first of all, the applicant who must be the patient's nearest relative, or any relative, in an emergency, or a mental welfare officer, who is, after all, an experienced social worker employed by the local authority. Secondly, there are the managers of the hospital, who have power to discharge at any time, including immediately after admission, if they think fit. Thirdly, there are the Mental Health Review Tribunals, which include, as I have said, legal and lay as well as medical members. It would completely upset this carefully balanced system to superimpose on it automatic reference to a justice of the peace or to a Mental Health Review Tribunal in all cases, whether this is to be done before or after the patient's admission.

This Amendment would require all applications under Clause 26 to be referred to a Mental Health Review Tribunal. It is not clear—I do not think the noble Lord mentioned this in his speech; I did not understand him to do so—whether it is intended to require the Tribunal merely to scrutinise the documents or also to see the patient. Of course, as the noble Lord said, it allows the patient to be admitted, pend- 358 ing consideration by the Tribunal, on an observation basis. Therefore, let us consider these alternatives.

If the Tribunal is only to scrutinise the documents and not see the patient, that will be no safeguard to the patient. Your Lordships will remember that that question was discussed by the Royal Commission in paragraphs 749 to 757 of their Report and they stressed, first, that no routine scrutiny of documents by a person who has not examined a patient can provide any check on their accuracy or any safeguard against deliberate malpractice or errors of diagnosis. Whether or not the documents accurately describe the patient can be determined only if the medical details in the recommendations are considered by a doctor who has himself examined the patient. Secondly, the main effect of the scrutiny of documents as at present carried out by the Board of Control is to make sure they are technically correct and, on the assumption that they accurately describe the patient, provide good documentary authority for his detention. In other words, it ensures that the hospital has proper documentary authority to detain him. But the Royal Commission recommended, and Clause 32 of the Bill provides, that this should be the responsibility of the hospital authorities themselves.

That is one of the alternatives. The other is for Tribunals to see the patient as well as the documents. If this is to be done before admission, it will impose undesirable delay. Even though in some cases the patient could be admitted for observation under Clause 25 while the application for admission under Clause 26 was being considered, in many cases the need for an application under Clause 26 would be apparent only towards the end of a period of observation under Clause 25, and the patient would then have to be discharged at the end of the observation period if the application under Clause 26 needed to be referred first to the Tribunal. That, I think, would be most unfortunate. If reference is made to the Tribunal after the patient has been admitted, it would require the Tribunal to consider details about all patients, large numbers of whom will need to remain in hospital only a short time and may be ready for discharge before the 359 end of the 28 days in which the Tribunal has to give its decision. Many patients complete their treatment within two or three weeks.

In either case, it would clog up the Tribunals with patients who do not want to go to a Tribunal. It would, in fact, impose upon every patient, whether he wants it or not, a procedure far more formal than the present reference to the magistrate. Whether the Tribunal sees only the documents or the patient as well, it would destroy the whole concept of the Tribunals as bodies to consider appeals, and would turn them into part of the administrative machine for admissions. That would be entirely contrary to the intentions of the Bill. I am very sorry that I cannot agree with this Amendment, and I have ventured to put before your Lordships the reasons why I cannot agree.

LORD DOUGLAS OF BARLOCH

I should like to congratulate the noble and learned Viscount upon what he has just said. He has made a most interesting speech, in the course of which he has demonstrated how much simpler and more effective the existing system of certification by a magistrate is than anything which is contained in this Bill: much more satisfactory to the relatives of the patient and to the patient himself if he is capable of any understanding of the position at all.

The noble and learned Viscount has said that this Bill contains a series of safeguards, including the right of appeal to the Mental Health Review Tribunal. But I should like to know what provision there is in this Bill—perhaps I have overlooked it—for notifying the patient, when he is detained in the first place for treatment, that he has a right of appeal to the Mental Health Review Tribunal. I know there is a provision later on, if his detention is renewed by which he is notified of the position. But unless I have missed it somehow, I do not find any provision for notifying him in the first instance and enabling him to exercise his right of appeal to the Mental Health Review Tribunal.

The noble and learned Viscount has fortified his argument by the observations of the Royal Commission upon the unsatisfactory nature of a review 360 which consists merely of a scrutiny of documentary authorities. But let me point out that this Bill does provide for a review by the Mental Health Review Tribunal, which is what my noble friend has asked for in this particular Amendment. Are we to understand from what the noble and learned Viscount has said that any appeal to the Mental Health Review Tribunal under this Bill is going to be merely a scrutiny of documentary authorities? Surely not.

THE LORD CHANCELLOR

I never said that for a moment, and I do not know how the noble Lord ever thought I did. I was putting up the hypothetical argument that on this Amendment there were two possibilities—first, that there would be the appeal on the documents and, secondly, an opportunity of seeing the patient. I never suggested that under this Bill it would be only a matter of scrutiny of documents.

LORD DOUGLAS OF BARLOCH

But is there anything in this Bill which provides otherwise—which makes it obligatory upon the Mental Health Review Tribunal to act in the alternative fashion which the noble and learned Viscount has suggested, rather than by means of a scrutiny of documents? I do not think there is anything obliging the Tribunal to do that. It is true that the Tribunal is given power as a body, or by one of its members, to inform the patient, but it is not obligatory. If the noble and learned Viscount's criticism of my noble friend's Amendment is justified, it is also a criticism of what is provided in this Bill—that there is a possibility that the Mental Health Review Tribunal will act in that fashion. With all respect, I suggest that that is not a valid criticism of this Amendment, because it is presupposing that the general procedure of the Bill will not be effective to secure what is required.

I am very concerned about this matter, because, after all, we are dealing here with the compulsory legal detention of an individual, and it is a very serious matter. I do not feel at all happy that it should depend upon the opinion of experts. I do not know of any other branch of our law in which the opinion of experts is decisive. It is certainly a very unusual thing that the decision 361 should be in the hands of experts, especially in a matter which involves the liberty of the subject.

LORD STONHAM

I do not propose to prolong the discussion. I have had a very fair but, in my submission, unsatisfactory answer. I should like to make it clear that it would be a matter for the Tribunal to decide whether or not to see the patient or whether to deal with the documents. It appeared to me that in his reply the noble and learned Viscount admitted that quite a number of patients might be in hospital for only two or three weeks, and I should have thought that that was a strong argument for the Amendment and not an argument against it, because these people will have the stigma of having been detained in a mental hospital for treatment when, in fact, they should have gone there only for observation. In my Amendment that would be possible in respect of all cases.

The other disappointing part of the reply was that it said nothing at all about the greatly changed conditions of mentally deficient people under the Bill as compared with the present position. There are to be these purely medical qualifications, the same number of doctors as at present, but less the lay influence, which is extremely important for such people. I do not say it will happen, but I can foresee the kind of case where a mentally handicapped person is being properly looked after at home and some over-zealous medical officer decides that he ought to go into a mental deficiency hospital. There ought to be a very early right of appeal against that kind of thing, and I do not think the Government have looked sufficiently into the point. Although I do not propose to press it now, I hope the Lord Chancellor will have a look at it again. With your Lordships' permission, I will withdraw the Amendment.

THE LORD CHANCELLOR

This is a drafting Amendment. I do not know if noble Lords are prepared to leave it at that. If anyone has any doubt on any aspect I will deal with it in full with pleasure.

LORD STONHAM

There is one point. The Amendment appears to relieve the mental welfare officer of the greatest part of his responsibility of consulting the nearest relative. Surely the original wording to "take such steps as reasonably practicable" should be sufficient protection. Why transpose on obligation to the negative and bring in this question of delay? The noble Viscount said that it is a drafting Amendment, but it seems to me somewhat more than that as it appears to tie up with a later Amendment to Clause 41 and Clause 54. Since one of the great virtues of the Bill is that it gives greater powers to relatives to safeguard the liberties of patients, I should have thought twice before weakening it by saying that the mental welfare officer need not consult relatives.

THE LORD CHANCELLOR

It will probably be better if I deal with all the points. The position at the moment is that subsection (2) of the clause precludes a mental welfare officer from making application for admission to hospital against the known wishes of the nearest relative. These objections cannot be overridden unless a county court makes an Order under Clause 52. The second half of the subsection in effect requires a mental welfare officer to take all reasonably practicable steps to ensure that the nearest relative has an opportunity to make such objection if he wishes. The wording at present might lead to practical difficulties in cases where the nearest relative lives too far away to be visited in person and can be consulted only by correspondence. It raises the question of how long a mental welfare officer must wait for a reply before he can assume that the nearest relative has no objection and he can proceed to make application. The Amendment is intended to overcome this difficulty.

It requires a mental welfare officer to consult the nearest relative unless, as 363 Lord Stonham says, it appears to him—that is a subjective test, and not an objective test answerable in the courts—that such consultation is not reasonably practicable or would involve unreasonable delay. That leaves the decision at the discretion of the mental welfare officer in the light of the circumstances of the particular case. The reason I think it covers this point is that if the mental welfare officer goes ahead and makes application, the nearest relative can at any time, if he wishes, discharge the patient under Clause 47(2)(b). That safeguards the position of the relative in cases where his views cannot reasonably be obtained before the patient is admitted. The Amendment does not disturb the first part of the subsection, which prevents application where a known relative objects. The Amendment assumes that the mental welfare officer acts bona fide and reasonably according to his knowledge. I do not think that is unreasonable to assume if we are going to make progress in upgrading these officers. Perhaps I should have gone through the matter in detail, but I hope I have now dispelled any doubts.

LORD DOUGLAS OF BARLOCH

I appreciate the reasons for altering the provisions of this subsection in the case where it might be difficult to get into touch with the nearest relative, but in the alternative it does appear that the mental welfare officer is now relieved of any obligation of informing the person. Surely the nearest relative ought to be informed, even if he happens to be at some distance and it is difficult to get in touch immediately. I agree that there may be good reasons for taking quick action and avoiding delay, but surely at some stage or other the nearest relative ought to be informed if the action has been taken without his being consulted in the first instance.

The LORD CHANCELLOR

I said he would be informed, and the nearest relative can let him out at once if he likes.

LORD DOUGLAS OF BARLOCH

That is not what the Amendment says. I cannot find that in the clause as it will be altered.

THE LORD CHANCELLOR

Would your Lordships excuse me if I speak at this stage. It is my desire to meet the noble Lord, Lord Taylor, and if I can point out how we propose to do it I hope he will be satisfied. If he is not, perhaps he can think it over again. As our intention is the same, it might be convenient if I put it to your Lordships. The Government agree that local health authorities should be required to take the advice of medical representatives nominated by the Regional Hospital Boards and, where appropriate, by the boards of teaching hospitals also, before approving doctors under this clause. This point was raised in another place and the Government moved an Amendment there to insert what is now paragraph (d) in subsection (2) of Clause 56. Your Lordships will find it on page 40 of the Bill. That allows the Minister to make regulations constituting committees to advise local health authorities as to the approval of medical practitioners for the purposes of Clause 28.

May I say quite frankly that that was a mistake, because committees of local authorities are liable to certain rules. They could not, for example, contain an officer of the local authority, however desirable that was. Therefore, I have put down Amendment No. 43 which your 366 Lordships will find at page 7 of the Marshalled List, saying that my right honourable friend may make regulations. requiring local health authorities to consult such bodies or persons as may be prescribed by or determined under the regulations in connection with the approval of medical practitioners for the purposes of Section twenty-eight of this Act, and for confining approval to such practitioners as may be agreed upon between these authorities and any bodies or persons required to be consulted by them respectively. That does not alter the general effect; it simply gets us out of the difficulty we found we were in.

I hope that the noble Lord, Lord Taylor, will consider, on reflection, that it is more appropriate for this to be dealt with by regulations under Clause 56, as special arrangements may be needed in some areas. It would not be right to leave the teaching hospitals out of the picture, but it would not be appropriate to bring them in in all local authority areas, some of which are far removed geographically from a teaching hospital. Also special arrangements will be needed in London, as four Regional Hospital Boards and twenty-six teaching hospitals operate in the London area. I think this is a proper case for regulations which allow flexibility and can always be changed to meet changing circumstances. I hope that the noble Lord, Lord Taylor, will understand that I am very desirous of meeting his point. That is how I should like to meet it. Perhaps he would consider it and if he is not satisfied inform me before the Report stage.

LORD TAYLOR

I am perfectly happy. I think it is a very good solution, particularly in view of the question of the teaching hospitals. I can see no objection to that arrangement; I am very pleased indeed. I beg leave to withdraw the Amendment.

LORD AMULREE

I should like very briefly to support the Amendment which the noble Lord, Lord Silkin, and his noble friends have put down. Although, with the noble Lord, Lord Silkin, I believe that the cases where trouble may arise will be extremely few, I feel that this safeguard should be there so that it can be absolute, so that patients and their relatives may feel that there is some protection from the law in this matter. I hope that Her Majesty's Government will be able to give us some satisfaction along the lines proposed, though possibly not in those words.

BARONESS WOOTTON OF ABINGER

In rising to support this Amendment, I should like to associate myself with every word that the noble Lord, Lord Silkin, has said. This Amendment seems to me of fundamental importance for every kind of mental disorder, but perhaps particularly for the two categories, the subnormals and the psychopaths. The psychopaths are themselves the subject of a separate Amendment which comes later, and therefore I propose to address myself in the few remarks I want to make this afternoon purely to the question of the subnormals.

It has already been said by the Royal Commission and accepted by the noble and learned Viscount on the Woolsack that the category of severely subnormal is to be extended to include more than those at present diagnosed as idiots or imbeciles, and is, in fact, to overlap the category of the rather lower class feebleminded. Now the definition in the Bill of the severely subnormal is in terms of capacity to lead an independent life—surely, a highly elastic phrase. In the strictest sense of the term, no one of us is able, in this world, to lead an independent life, but I think it is apparent in the context of the Bill that what is contemplated is an independent life primarily in the economic sense. That interpretation was already to be seen in the Radnor Commission Report in the first decade of this century and it runs right through the subsequent literature of the subject down to the Report of the Royal Commission which has recently reported; and I believe we may take it that it is first and foremost the economically independent life with which the Bill is concerned.

Meanwhile, the less severely subnormal are defined in terms of their need of special care or training—a hardly less elastic phrase. There are those who do not lead an independent life in the economic sense because they are wholly physically or mentally incapable. There are also those who do not lead that life because they do not want to do so. They are a second category who are provided for under other legislation, and your Lordships should recognise that if this clause is not included we are going to have very great difficulty—indeed, we 372 may have difficulty anyway—in distinguishing between those who are wholly incapable of leading an independent life and those who do not wish to do so. Some very fine lines will have to be drawn in the future.

Those who do not wish to lead an economically independent life are liable to be prosecuted under Section 51 of the National Assistance Act for failure to maintain themselves or their dependants; and they can be sent to prison for a period of not more than three months. Year by year a small number of them—forty-nine in the last Report of the National Assistance Board—were sent to prison. About one-third of those prosecuted are not imprisoned but are put on probation or dealt with in other ways, and a considerable number of cases liable for prosecution are not brought to court but are dealt with through the Assistance Board's centres for re-establishment. This means that a fine line has to be drawn between those whose incapacity to lead an independent life is thought to contain no voluntary element, who will be liable to indefinite detention without judicial process, up to the age of twenty-five, and those in whom a voluntary element is present who may be brought to court and formally tried and are liable to not more than three months' imprisonment.

The discrepancy seems to me quite out of proportion to our ability to distinguish between the waster, the idler or the rather "poor fish," and the person whose incapacity brings him within the definition of this Bill. Clearly, there is in this a social element, and I think it is because there is a social element that we attach great importance to the presence of a layman who must, of necessity, be a justice of the peace (as being the one category of persons readily available) in the process of authorising compulsory treatment.

It has already been admitted that there is a social element. The noble and learned Viscount is favourably contemplating (if I may so put it) an Amendment to the definition of "subnormal" which would take in those cases in which a person's need for special care or training arises from the breakdown of his domestic arrangements. That admits that this is not a purely medical problem but is also a social problem. 373 Moreover, it is not a social problem only because it depends on personal circumstances; it is a social problem also because capacity to maintain oneself depends upon the state of the employment market.

I should like to call your Lordships' attention to the observations of two medical men, one at least of whom (I believe both) has had wide experience in dealing with those who are now classified as mental defectives. Doctors Lyon and Heaton Ward have said that the opinion is often expressed that mental deficiency is on the increase; but, they write: it is more probably true that owing to the increased tempo of the times, the defective is unable to keep pace with modern stress and consequently falls by the wayside when employment is competitive. In times when suitable employment is easy to find he manages to keep going, and being occupied, he keeps out of trouble. That is a frank recognition by medical men that the definition of a mental defective—and the same will be true of the definition of mentally subnormal—is not a purely medical problem. It varies not only with a person's mental condition but also with the state of his domestic circumstances and the state of the employment market; and that surely means that it is not an appropriate question to be decided by medical men alone.

The noble and learned Viscount has called attention in his remarks on earlier Amendments to the carefully balanced system of safeguards which this Bill provides. But surely the outstanding characteristic of those safeguards is that the Bill does not increase the safeguards for not getting in; what it does is to increase the safeguards for getting out. It makes for more frequent review. It makes it easier, perhaps, for those who were either wrongly subjected to compulsory treatment in the first place or hate now recovered sufficiently to be released. But it can hardly be said that this Bill, except in providing for a second medical certificate, gives increased safeguards against possible mistakes—I put it no higher than mistakes—in bringing people under compulsory treatment. There is, I think, no other case in which persons can be deprived of their liberty without the consent either of some court order or at the very least of a judicial authority, and if we 374 allow what is provided in this case we are making a radical and fundamental departure from one of the basic principles of our Constitution.

LORD TAYLOR

My noble friend Lady Wootton of Abinger has dealt with the question of mental subnormality. I propose to speak briefly entirely from the point of view of mental illness. In this matter the Royal Commission and the noble and learned Viscount, in speaking about an earlier Amendment, present us with something like an intellectual Morton's Fork: one is caught either on the "rubber stamp" justice, or, alternatively, on the full-scale judicial inquiry into sanity, both of which are manifestly undesirable.

I wish to show that in fact the "rubber stamp" argument is entirely false or will become entirely false if doctors do their job properly. I suggested on the Second Reading that one in fifty of admissions to our mental hospitals might in future be under compulsion. I was greatly overestimating the picture. I was talking last week to Dr. Duncan Macmillan, the superintendent of a mental hospital at Nottingham which is one of our outstanding mental hospitals. It serves 390,000 people and has just over 1,100 beds. In 1953 98.7 per cent. of all admissions to that hospital were voluntary; in 1954 98.9 per cent. were all voluntary; to-day there is one certified patient in the whole hospital, apart from acute emergencies. There is nothing peculiar about Nottingham or about the people in Nottingham. The peculiar thing is to be found in the astonishingly good work done at the mental hospital.

We may ask why that has not happened everywhere. The first answer is that Dr. Duncan Macmillan, being a great personality, has twice the number of psychiatrists in his hospital compared with the number in any other hospital in the region; and the second is that he has very good and happy relations with the Medical Officer of Health for the County Borough of Nottingham. Given this kind of situation, the number of compulsory admissions under this Bill for mental illness could go down to this order of figures; that is to say, one admission, other than acute emergency admissions. per hospital per year. Given this state of affairs, the argument against having 375 some form of judicial element in detention seems to me to be non-existent. Moreover, one of the great virtues, which was stressed by my noble friend Lord Silkin, in having some judicial element included is that it makes the act of compulsory detention a little more difficult for the doctor to do and therefore encourages him to behave, as Dr. Duncan Macmillan and his colleagues at Nottingham have done successfully, so as to persuade persons to become voluntary patients.

THE EARL OF FEVERSHAM

I feel that I may be reflecting the views of the whole of your Lordships' House when I say that the noble Lord, Lord Silkin, and the noble Lords who have supported his Amendment have rendered a very valuable service by moving this Amendment and contributing to the discussion that has ensued, for it has provided the Committee with the opportunity of debating in detail the most important subject of whether the safeguards in this Bill are sufficient to protect the liberty and the rights of freedom of the individual subject. Whether or not the individual is mentally ill, subnormal or inadequate, the same principle applies: that there must always be eternal vigilance at all times in order to protect the individual liberty and the rights of freedom of the subject.

I am, however, opposed to this Amendment, for, after the most careful consideration, I, like my noble and learned friend the Lord Chancellor, have come to the conclusion that the many safeguards incorporated in this Bill and regarded as a whole cannot in fact be improved upon. In my opinion the Bill provides not only more safeguards than have been provided hitherto but more effective safeguards. As my noble and learned friend the Lord Chancellor said, these include not only the procedures for admission but also the increased powers of discharge and the provisions for appeal and review.

The broad argument is surely this: either we put in our safeguards at the beginning or we put them in at the end. Under previous legislation we tried putting them in at the beginning, with the certifying authority being a justice of the peace. The cause whereby that was initiated was not due to the pungent arguments enunciated by the noble Lord, Lord 376 Silkin, but largely because a justice of the peace in the early days of the asylum was the person appointed by the public as the appropriate guardian of all those who could be conveniently disposed of in an asylum; and that, broadly, is the reason why we have in subsequent legislation had the magistracy as the authority for certification.

I cannot but differ from the noble Lord, Lord Silkin, when he says that there are many magistrates who have wished to retain the power that they are now possessed of because they are of the belief that they represent the public interest as laymen. The noble Lord who has now resumed his place as Chairman of this Committee, if he were permitted to do so, would, as Chairman of the Magistrates' Association, support me when I say that that body, I think unanimously, agreed that the problem confronting the individual justice was such that it was almost impossible for him or her to bring to bear a considered view on a matter that is one of profession and highly technical. In my experience, duly authorised officers have often intimated to me that once the medical decision has been made the choice of magistrate is often directed towards those who are known to take the quickest course.

There are many areas where the duly authorised officer together with the medical practitioner—in the case of the Lunacy Acts only one medical practitioner—have had cases requiring certification which have been cases of great emergency; and it is a natural, human instinct that, having had that problem to contend with, they should, by the quickest and most convenient means, get hold of a justice of the peace to sign the necessary document. Therefore I should be prepared to oppose most strongly the argument that was so forcefully put forward by the noble Lord, Lord Silkin, namely, that it is not a hollow mockery to apply to a justice of the peace as at present. The power does in fact lie with the doctor; and under this Bill we have made provision that there should be two doctors, and that one of them should be an expert in psychological medicine.

In order to check what the two doctors do, we are putting our safeguards at the end. I respectfully submit that we cannot have it both ways. I think that, 377 in respect of the Amendment which was discussed before, we have a very satisfactory safeguard by reason of the governors of the hospital themselves being able to discharge. I should like to quote, if I may, Dr. Jackson, a legal member of the Royal Commission, who in 1958 spoke at a conference of the National Association on Mental Health. He said: There is a very great deal of evidence that there is often a substantial lack of confidence in compulsory powers because of their present form, and we should be, I think, as much concerned with eliminating grounds for lack of confidence or doubts about the matter as we should be about possible abuses. That implies, inevitably, that there should be an independent and reliable check. Dr. Jackson goes on to say: Now the present check, which comes normally at the beginning of our certification procedure, is not, I think, one that can stand up to examination as a serious check against the abuses, or as a serious provision to allay any doubts that there may be. If you were to turn lawyers loose upon this and make their check at the beginning a reality, I think you would be very surprised how far it would take you. I remember that Dr. Jackson, in his remarks, quoted an American lawyer from a certain State in the United States of America who showed where they had got to through applying the principles of a legal or lay check before a person was deprived of his liberty. He explained that there, in that State, it came very near to putting the person in a dock and charging him with the offence of being mentally disordered. A person in that State was tried in a semi-judicial court, with lawyers appearing on either side, calling witnesses and examining them and cross-examining them, and the decision was reached, of course, by a truly judicial process. I am not saying that the noble Lord, Lord Silkin, was suggesting that anything of that kind should happen in this country; but, if we are to apply logical argument, I think that the end of logicality leads to such a conclusion as the result Dr. Jackson pointed out, to which I have referred. Therefore, for the reasons that I have very inadequately and briefly tried to state, I hope that the noble Lord, Lord Silkin, and those who have supported his Amendment, will not press it to a Division.

THE LORD CHANCELLOR

I am very grateful to my noble friend Lord Feversham for expressing his views from 378 the wealth of his experience in this field—and even more grateful because I entirely agree with them. They are, therefore, an aid to me. However, I would point out that this is the most far-reaching Amendment that is possible. It would include the procedure for applications for observation under Clause 25; emergency applications for observation under Clause 29; applications for treatment under Clause 26; and also applications for guardianship under Clause 33. It is interesting to remember that, even under the present law, a magistrate's order is not required when the emergency procedures are used. Sections 20 and 21A of the Lunacy Act, 1890, allow a patient to be detained for up to 17 days without a judicial order, and it is because this procedure has been so widely and successfully used as a method of obtaining a period of observation before deciding whether to proceed to certification that the observation procedure in Clause 25 has been inserted in the Bill. It would, in my view, be most retrograde to require reference to a justice of the peace in such cases. In cases of emergency, it would be highly damaging because of the delay involved.

I should like to deal now with the arguments of the noble Lord, Lord Silkin—and I want to make it quite clear that anything I say is not said in denigration of the work of magistrates. They are a great charge of my office, and I have the greatest admiration for the work they do. Lord Silkin did not think that in these days there was any stigma because magistrates' work was concerned mainly with crime. As a matter of history, since 1888 magistrates' work has shifted from being administrative to being preponderantly concerned with crime. Up to 1888, as noble Lords who are interested in the subject are aware, they did a great deal of administrative work in the country—indeed, I come back to the point that my noble friend Lord Feversham raised in that regard. But since then, and despite the lamentations of Maitland, their work has changed from being administrative to dealing with the criminal law; and now they deal with 97.5 per cent. of the criminal cases in this country. I should have thought that the weight of the point had, therefore, rather increased.

379 But I think there is an important point in what my noble friend Lord Feversham has referred to—namely, the origin of this power. This arose out of the administrative functions in the old days. As my noble friend said, the justices were originally the managers of the asylums. In making an order for the patient's admission they were, in fact, both accepting a patient as suitable for treatment in the asylum and also authorising the cost of his maintenance to be met from public funds. The difficulty is that we have not there the judicial process which, as the noble Lord, Lord Silkin, said, could rise above technical difficulties. It is true that where there is a difference between parties, or a charge brought by one party against another, the justices, on hearing the witnesses examined and cross-examined, knowing the case which is alleged, and giving the other side a chance of dealing with it with both sides probably being represented, can deal with the most difficult technical points. But here we are dealing with the procedure under which the justices do their utmost—and it is a very good best. But it is unfortunate that a single justice acting alone in conditions which do not provide the usual judicial approach should have this serious task set upon him; and I think that it is this fact which provides the worry which so many people feel: whether the justice is really performing a judicial function or merely becoming a necessary step which is easily taken. Undoubtedly there has been a great deal of feeling that it is little safeguard to people, in that in these circumstances it is difficult, even impossible, for a justice to come to a sound independent opinion on the patient's mental condition and need for treatment.

I dealt on Second Reading with the arguments with regard to the position of the medical profession, and I am not going to repeat them. I do not think that the doctor-patient relation has any effect. We all agree that it is inevitable, from the nature of the subject, that a large part of the responsibility for deciding whether a patient should be detained must be in medical hands, and it seems to me that it is of little advantage to the patient or to the doctor for the doctor to shelter behind a magistrate and the procedure which I have described. A far greater safeguard 380 is the requirement for two medical opinions in every case. In addition, there are the other persons—the applicant and those holding the power of discharge—with whom the doctor shares the responsibility; and, finally, there are the new Mental Health Review Tribunals. The Tribunals will include medical members, who can themselves make an independent medical assessment of the patient's medical condition, and also legal and lay members. It is not accurate, as was suggested on Second Reading, that the patient cannot go to a Tribunal until after six months. Under Clause 31(4) he can go at any time within the period of six months after admission. I think that the noble Lord, Lord Douglas of Barloch, was in some doubt about that point, but I think that he will find that that is so.

As my noble friend Lord Feversham says, the Magistrates' Association—and I assure your Lordships that their President had nothing to do with this, though I am very proud of that honour—support the provisions of the Bill for abolishing the judicial order and introducing the Tribunals. Although it is not, perhaps relevant, it is not without interest that when an Amendment on these lines, limited to Clause 26. and suggesting that the question of treatment should be left to a justice, was moved in Committee in another place, it was defeated by an over-whelming majority—26 votes to 2, with 4 abstentions. That is not wholly relevant, but in view of the colouring of opinions in support of the Amendment it is only fair to note that a similar Amendment did not receive support when it came up in another place.

LORD SILKIN

I am sure that this Amendment will receive more support in your Lordships' House. We shall probably have to test that in a moment. I rise only for two reasons. One is to apologise for the defects of my drafting. Unfortunately, I had to draft this clause myself, and I acknowledge at once that the drafting is defective, in that it covers cases of emergency and guardianship which I had not intended to cover. But if the noble and learned Viscount's only complaint about the Amendment was the drafting, I am sure we could accommodate one another. Secondly, I want to say—and I am sure that both the noble Earl, Lord Feversham, and the noble and 381 learned Viscount will agree—that the opportunity of getting a discharge after compulsory detention by means of an appeal before a Tribunal is not the same thing as preventing detention at the outset. It is quite a different thing. It is like saying that it does not matter if a man is convicted of an offence because he always has the right of appeal. The important thing is the compulsory detention; and the fact that a patient can go before a tribunal and get his detention reviewed is irrelevant.

Let me explain what it is that the doctor has to certify. Here I should like to follow the point which my noble friend Lady Wootton of Abinger made. This is something more than merely a medical question. Under Clause 26, a certificate must be in a prescribed form, and the medical practitioner has to include in every case a statement that certain conditions have been complied with. Subsection (3) says: … each such recommendation shall include— (a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in the said paragraph (a); The medical practitioner has to give the grounds for his opinion and a statement of the reasons for that opinion … specifying whether other methods of dealing with the patient are available, and if so why they are not appropriate. These are not purely medical questions. They are quasi-legal questions. They are surely the kind of thing on which a magistrate should be completely qualified to satisfy himself. It is one thing to express an opinion; it is quite another to give the grounds of the opinion. Those grounds may be defective. It would be quite open to a magistrate to say that if those were the grounds upon which a medical practitioner expressed an opinion, he thought that they were defective.

I saw somewhere the case of a person who was asked what were the different oceans in the world, and was not able to give the answer. He was also asked the difference between a presidency and a monarchy, and these were two of the grounds upon which he was regarded as mentally defective. There are many people walking about and doing useful 382 jobs of work who would find some difficulty in giving utterance to their opinions. They may have clearly in their minds what is the difference between a presidency and a monarchy, for example, but they could not express it. Surely that kind of thing as one of the grounds for an opinion is something that ought to be checked.

I feel that the question of whether or not a person should be compulsorily detained is a mixture of medical and lay opinion, and it is a safeguard against improper detention that somebody accustomed to sifting evidence and to weighing up what is right and wrong should be required to certify. I hope that the Government have not said the last word on this matter. I know that it is very controversial. Many medical people take one view, which is not necessarily shared by the whole medical profession, and a large number of civilians take another. We are going to have to vote on this, but I hope that the Government, even in spite of the obviously successful Whipping in which they have indulged this afternoon, will be prepared to think again on this matter at the end of the day.

LORD COHEN OF BIRKENHEAD

As one who has not been Whipped on this occasion, but who might add perhaps just a little, partly from a medical point of view and partly from that of a justice of the peace, having had the distinction of being a justice of the peace for nearly twenty years, I would stress that I yield to no one in my fervent regard for the liberty of the subject and the rights and privileges of the individual. I ask myself whether this Amendment, or indeed the procedure that we now have to follow to-day, is an adequate safeguard. After careful consideration, I feel that it is not a safeguard, and, in fact, carries certain risks. I will not argue at the moment that this Amendment, if accepted, would run counter to the whole philosophy of this Bill, which is that physical and mental treatment should be regarded in the same light, and that a person should not have to go through a particular procedure to undergo mental treatment any more than he need do in regard to physical treatment—that is a point to which I shall return in a moment.

383 Why do I think that the present procedure is no judicial or other safeguard? No justice of the peace, except fortuitously, has any medical or legal qualification or experience. Most justices of the peace, in their legal capacity, act with a colleague and are guided by a clerk. That is not the case here. What has happened, in my experience, is that certification has been essentially a formality, although occasionally further opinions are sought. But there have been many examples, which I could quote, in which the refusal of a justice to certify a patient has led to disaster. Only the other day, very near my own hospital, a patient who was a pyromaniac, who felt that everyone was setting fire to her own house and who, in turn, threw lighted papers through the letterboxes of her neighbours' houses, was, according to the doctor, certifiable. A justice was asked to sign the certificate. After consideration he concluded that she was not certifiable. These patients are extraordinarily cunning, particularly when they meet a third person. The following morning she was found drowned in the lake at West Kirby. I could amplify that case with others in which harm has followed an approach to a justice to certify.

We all know of cases of wrong certification, and I have tried to find out whether there is any example of a wrong certification being prevented by the intervention of the justice of the peace. I have asked the Magistrates' Association, and they know of no such case. I have asked the National Council for Civil Liberties—which for many valid reasons is strongly in favour of this particular Amendment—and they know of no such instance. I feel that in this respect the judicial procedure as a safeguard has perhaps been exaggerated and that it is in many respects a historical relic.

I would say to the noble Lord, Lord Silkin, and to the noble Baroness, Lady Wootton of Abinger, with great respect, that it is difficult to say that a judgment is purely medical. Practically every judgment which a doctor makes is both medical and social. Whether his treatment is to send his patient to the North of Africa, to live in a dry warm climate, or to New Brighton, from Liverpool is 384 essentially a social and not a medical judgment. The whole of medicine is to-day being properly weighted, as the noble Lord, Lord Taylor, well knows, with the social implications of medical decisions and the part which social factors play in the etiology of disease. Again, a doctor may not be trained as a lawyer in the weighing of evidence, but as a scientist he is so trained and is experienced in what weight is to be put on evidence.

It is true that other objections have been raised, both on the Second Reading in this House and in another place: that doctors might conspire together to certify a patient; that they may be unscrupulous; or, as has been said this afternoon, that they may want to get rid of someone who is troublesome. But now there are two doctors involved. One is the family practitioner, but the other is an independent expert in this field. Surely it is unthinkable that they would both conspire in circumstances in which before long the Mental Health Review Tribunal might find that they had been guilty of a conspiracy. So I confess that I am not unduly impressed with the argument that they might conspire, be unscrupulous, or wish to get rid of troublesome patients.

LORD SILKIN

The noble Lord will appreciate that nobody has put forward an argument about conspiring.

LORD COHEN OF BIRKENHEAD

I said that it had been put forward; and I mentioned that specifically this afternoon the argument had been put forward that they might wish to get rid of a patient who was a nuisance. That point has been put forward this afternoon in this Committee. The noble Lord, Lord Silkin shakes his head, but I am certain that the noble Lord sitting on the Benches behind him made that statement, and he will see it to-morrow in the Record.

The noble Baroness, Lady Wootton of Abinger, paid a high tribute to the medical profession on the Second Reading of this Bill, but she suggested that, although they were competent to come to medical decisions of this kind, they not infrequently might have to do so in a hurry. They are not, of course, the only people who have occasionally to hurry. 385 She then suggested in relation to their responsibilities that this [OFFICIAL REPORT, Vol. 216, col. 717]: lays them open to the exercise of powers which the public would regard as arbitrary in other connections". But what is the power which this compulsory detention for treatment is conferring on the doctor? It is a power to treat a patient who is ill; and it is, indeed, a power which the doctor has to exercise in other circumstances, not only in the case of patients who can come to a decision themselves, but in the case of children; and in the case of patients, for example, who are unconscious: in those cases the doctor has to take decisions and has to deal with the patient.

I would suggest that in this instance a patient who is mentally ill, and particularly the patient who is mentally subnormal and severely subnormal, is clearly not in a position to decide whether or not he shall have treatment. Someone has to take the decision, and the decision, as in other circumstances, is taken by the doctor—and taken, I may say, with the greatest responsibility. In my experience—and I have now a long and extensive experience in this field—doctors who certify have the weightiest considerations before them before they certify, for they realise that there is a risk that they may be regarded as depriving a subject of his freedom, something which they would take away only after the most careful scrutiny and care.

I do not propose to keep your Lordships more than one moment longer. I would say that the British Medical Association and the Royal Medico Psychological Association have expressed themselves as in agreement with the provisions of this Bill in relation to compulsory detention and the methods whereby it shall be carried out. The Magistrates' Association, as the noble and learned Viscount has already said, have made it quite clear that they think the public and the patient will be served better under the provisions of the Bill than under the present procedure. Finally, I would again ask your Lordships to bear in mind that it is fundamental to this Bill that we should regard the treatment of illness as one, and that we should not think in the dichotomous terms of physical illness and mental illness. Just as we have urged 386 that all hospitals should undertake the treatment both of physical and mental disease, so we should concede that no method of treatment should be determined by any outside authority, in whichever hospital the patient may be.

LORD DOUGLAS OF BARLOCH

Let me first clear away what I think is a misapprehension in the mind of the noble and learned Viscount. I did not question the right of the patient to appeal to the Mental Health Review Tribunal under Clause 31(4). What I asked was: how was the patient notified under this Bill that he had that right. I do not know where there is any provision for informing him of his right. Nor, with all respect, is it correct to say that this Amendment has anything to do with Clause 33: that clause deals with an application for guardianship, whereas this Amendment deals with an application for admission. I agree with my noble friend Lord Silkin that when we put down this Amendment what we really had in mind was applications for admission under Clause 26. The other provisions with regard to admission of patients are of an emergency or temporary character and do not carry the serious implications of Clause 26. It is that at which our Amendment was directed. Maybe it is defectively drafted and is capable of improvement, but the noble and learned Viscount has rejected it even as regards Clause 26.

The noble Lord who has just sat down said that this Amendment is contrary to the whole philosophy of the Bill, which is intended to eliminate distinctions between mental and other illness. But I know of no legal provisions comparable to what is in the existing law, or in this Bill, for compulsorily detaining people for treatment for illnesses which are not mental.

LORD COHEN OF BIRKENHEAD

If the noble Lord will look at the law relating to infectious diseases, he will find that patients may be compulsorily removed to hospital and treated there.

LORD DOUGLAS OF BARLOCH

I am well aware of that. I said that there was no provision in our law which is comparable in principle to this. The provisions to which the noble Lord has referred are provisions which are intended for the protection of the public against the transmission of infectious 387 diseases, and they are of a quite exceptional character and special nature. There is a distinction, and it is no use our trying to escape the fact, between mental illness and other illness. Mental illness is of a character in which it becomes essential, either for the safety of the patient or of his relations or of the public, to detain him compulsorily. This is a fundamental and inescapable fact which cannot be glossed over in any way whatever. That is the crux of the problem which is now before the Committee.

I agree that what we are proposing here, and what exists at the present moment, is not a judicial procedure, in the sense of being a litigation in which there are opposed parties; and nobody has suggested that suc