§ Second Reading debate resumed.
§ 4.38 p.m.
§ Baroness Robson of Kiddington
My Lords, I wish to join with the noble Lord, Lord Wallace of Coslany, in welcoming the Minister upon introducing his first Bill to the House following his new appointment. He and I have met on I think at least one occasion in our different capacities at the Department of Health and Social Security, and I join him in regretting that the noble Lord, Lord Butler, is not here today. From these Benches we, too, very much welcome the Government's introduction of the Bill, as well as the time that they have seen fit to set aside for it in the House. It shows a recognition of the great need to increase the rights of detained patients in our mental institutions. As the noble Lord, Lord Elton, said, a large proportion of the recommendations are in fact proposals that were contained in the Butler Committee Report and in the White Paper of 1978, and as such I believe deserve the support of all Members of this House.
I shall not speak on every point regarding the Bill, since we have a large number of expert speakers, but there are one or two points that I should like to pick out in particular. We particularly welcome the safeguard introduced in relation to Section 29, that a time limit of 24 hours be introduced for both examination and admittance; and we do not object, I would have thought, to the extension to 72 hours in the case of emergency admissions under Sections 29, 30 and 136. I think it is perfectly reasonable that in the case of an emergency admission of that kind a longer time should be taken and should be given. I do not believe it is purely a question of having hospital staff ready to undertake the examination: it is the greater difficulty of deciding the case on an emergency examination. I therefore believe that the 72 hours under this particular heading is the correct time.
All of us, I am sure, welcome the more frequent recourse to the Mental Health Review Tribunal that will be available to patients, and the fact that the 958 waiting time is cut in half. But there is in society a great cry for recourse to the courts in the final instance. One can see that there is concern among people that this should be possible, but I wonder whether we could not look at it in a different way and see whether the patient could be legally represented before the Mental Health Review Tribunal. That, I believe, would help to allay much of the concern that exists in society over that problem.
Another point which I think is particularly welcome—and this comes from someone who has a large number of psychiatric hospitals in her region—is the right that nurses have, as has been recognised in this Bill, to detain a patient for a period of 6 hours. This was essential, because nurses in hospitals have had this great problem of never having had their rights laid down, and they had always suffered from the fear that they were overstepping their jurisdiction. I believe it is a very good thing that this problem has been finally cleared up.
The question of consent to treatment and the clarification that the Bill offers are very important matters and are fully in line with the Butler Committee recommendations; but there is a widespread concern that the second opinion is purely medical. Anyone who has knowledge of, or has worked in, a psychiatric hospital realises that the treatment of a patient in such a hospital is a complete multi-disciplinary treatment, and that it is necessary to have the opinion of nurses, psychologists and social workers, all of whom put an enormous amount into the treatment of the patient. You have only to talk with some psychiatrists and they will freely admit that on many occasions the ideas that have broken through with a patient have come from the nurses, and not necessarily from the psychiatrist. So there is concern that the second opinion is purely medical.
In the Mental Health Review Tribunal we have a multi-disciplinary body capable of giving that multi-disciplinary second opinion and we recommend that their terms of reference be altered to enable them to take on this additional service. I realise that the proposed Mental Health Act Commission is a multi-disciplinary body, but under the Bill they are proposing to appoint a doctor to give the second opinion. I do not believe this is the right way to go about it, and I believe that, as we have the mental health review tribunal, which is multi-disciplinary, we should ask that body whether it can undertake these additional duties.
When it comes to the Mental Health Act Commission itself, the principle behind the commission appeals very much. What is aimed at by the Government in their statements, particularly in their White Paper, and what the commission is supposed to do, needs to be done; but we already have overlapping jurisdictions and bodies working in the psychiatric field. We have the mental health review tribunal, we have the health advisory service and we have the national development teams, all of which overlap somewhat and all of which have slightly different attitudes from which they are looking at this matter within the service itself. Is it not possible to streamline some of these organisations, change their terms of reference and make one or other of them take on the responsibilities that the Government want to place on the Mental Health 959 Act Commission? I thought this Government were the ones which were absolutely against setting up any more bodies—more Quangos, if you like. I am not saying that the Mental Health Act Commission would be a Quango—it would probably perform marvellously well—but I do not believe it is necessary. I believe we can use the organisations we already have, and perhaps get a better result.
I very much welcome, in reading the Government's White Paper and also in what the noble Lord, Lord Elton, said, the increased responsibilities being placed on the National Health Service under the 28-day admission for observation. This will inevitably increase expenditure in the NHS, and it will also create some problems. Over the past 10 years or more in the psychiatric field we have been working on the open-door policy. We have also proceeded along the line of creating assessment units in district general hospitals. We would not want to jeopardise the open-door policy of the psychiatric hospitals. On the other hand, the assessment units in district general hospitals would not always be suitable for particularly difficult patients.
The Butler Committee's recommendation in 1975 for the creation of the regional secure units would provide the perfect place for a lot of these assessments to take place. The Butler Committee recommended this in, I believe, 1974, and the Government of the day decided to set aside special funds for the creation of regional secure units. Let me give the example of what happened in my own region, because I think it is illuminating. It is not so easy to set up a regional secure unit. I believe there is one fully functioning and two or three in the pipeline in the whole of the country. We set about it in the South-West Thames Region, and we produced a detailed report and a complete scheme for building the unit in the grounds of the Royal Earlswood Hospital, which has grounds of 150 acres. It was to be at one side of the grounds, and would be properly secure, with a secure wall. There was enough local opposition—and we were not helped by the fact that local MPs also joined that opposition—for us not to get permission from the Secretary of State to go ahead with this scheme.
We therefore looked round, and we put forward another hospital. We asked the Department of Health, "Will you give us agreement as to the siting of this place, before we do all the planning?" After a few months we received the aswer, "No; you must come forward with your scheme in a bit more detail—not just on a question of siting". That took some months, and we completed the submission in about July 1980. We finally got an agreement to go ahead in July 1981, which means that that unit might be ready by 1985. I am not blaming anybody; I am just relating this story because it shows how difficult it is to implement these proposals. It is all very well; everybody feels that we should have these places—the courts feel it, the probation service feels it, society in general feels that we should have them—"so long as they are not in my particular patch".
I would recommend that Members of Parliament and Members of this House should themselves go out and actively try to influence people to the view that it is not a danger to society; that, on the contrary, it is much more of a danger to society in many cases to have some 960 of these patients in open-door psychiatric hospitals. We must do all we can to convince people that it is the right way to go forward. Unless we do that, the whole of this Bill, if it becomes an Act, will not function any more than the secure units have functioned in the past. We have an enormous job of persuasion to do.
The noble Lord, Lord Elton, mentioned—and I was going to finish up with my regret at it—that the mentally handicapped had not been removed from the Bill. I understand his problem and understand that it would necessitate a second piece of legislation but, in view of the fact that we have had time for this Bill, I believe that as we have done nothing about the poor mentally handicapped within the Mental Health Act 1959 since 1959, we should have found the time to deal with them on this occasion. I know that the Government have promised a consolidation Bill which will put all this right; but the mentally handicapped people and their relatives have had promises. It has been a case of "This year, next year, some time, never!" I believe that they, and particularly their relatives, are getting very tired of being promised something in the future. I much regret that it was not thought possible by the Government to include that alteration to the Mental Health Act on this occasion.
§ 4.52 p.m.
The Lord Bishop of Norwich
My Lords, with the noble Baroness, Lady Robson, I should like to congratulate the noble Lord, Lord Elton, on the way he steered us through. He called his opening speech analytical but it was so full of facts that, in reading, I believe it will help us very much. This Second Reading has attracted so much attention, publicly and in the press, and with this long list of 23 Members of your Lordships' House wanting to speak it will probably produce an opportunity to clear our minds within the thickets of the whole problem of mental disability, which, I think, is at a very liberalising point. believe that underlying this Bill there is an emphasis upon opening tip society again more understandingly to welcome people of mental disability.
I give one instance which opened my eyes. In Lowestoft, in my part of the world, we hold mini-Olympics for those who are mentally disabled. To go there, as I did, on the closing day and to help give out the medals, with 800 to 900 people with mental disability from all over the country, many from adult training centres, and to see their enthusiasm and the way in which they work to the limit of their abilities—even at dressage at that mental disability Olympics—was to see how the work being done in this country to welcome into society in the fullest way we can those who suffer from mental disability is moving in the right direction.
I recognise that this Bill is a sincere and determined attempt to look closely at the 1959 Act and to see how it can be amended with improvements. Following what the noble Baroness, Lady Robson, has said, I am sure that we are right to work towards the end of a consolidation Bill; but it may be that, because there is so much work to be done here, to advance immediately on a narrow front within the very strict time limit that the noble Lord the Minister told us about in the aim to get this legislation through by September of 961 next year, is the right step forward and this would open up the wider areas.
§ Lord Elton
My Lords, it is implementation—which I think is what the right reverend Prelate meant by getting through—by September 1983; Royal Assent in 1982; consolidation shortly afterwards. That gets us in a position for implementation with a consolidated Act, which is something you can hold in your hand, read through and work upon, instead of the jigsaw that we are producing at the moment. I did not want that to go unmentioned in case I had earlier misled the House.
The Lord Bishop of Norwich
My Lords, the noble Lord did not mislead the House. I did not write down what he said; I held it in my mind, but bishops' minds are not always as clear as they ought to be. We were all moved by the letter from Brian Rix in The Times this morning making the point that mental illness and mental handicap are different. The heading:Why call my daughter sick when she is sane?has something to say to us for the future. He was able to say that the Government share the concern over this confusion and for the needs of the two groups to be recognised. We are moving in that direction.
I see this Second Reading as partly a matter of general public education for all of us for whom these areas may be new in terms of detail. We have had the whole question of the Down's syndrome issue before us and it is not unconnected with the wider issues concerning mental disability. Time has shown us that mongol children are basically happy, and, given parental love and security, do well in life.
I want to make one point about that from these Benches for two reasons. I find that mongol children, as they grow up, are very spiritually perceptive. Noble Lords will have read that letter from a Member of this House about his little mongol son. When I read that some weeks ago, my mind went back to a comparatively short time ago when I confirmed that little boy in a Norfolk village church. As he came forward and knelt before me and put his two hands together and rested them on my knee it was almost like a child from the Victorian age taught to kneel at his mother's knee to say his prayers. It was a moving moment for me. When later, with other candidates, he received the sacrament, he received it with a quiet and simple joy and a gentle reverence that made me feel that anything we can do to liberate people who are mentally disabled, through the law, through this Bill, through the interest aroused in it, is something well worth while.
The second reason why I tell that story is that in the Green Paper Care in the Community: a consultative document on moving resources for care in England, from the DHSS, of July 1981, noble Lords will remember that in Annexe "A" paragraph 4, we read:NHS Act 1977 Section 26 requires the Secretary of State to make services, facilities and staff available to local authorities so far as is reasonably necessary and practicable to enable them to discharge their functions relating to social services, education and public health".But it does not say "concerning spiritual care". Noble Lords will remember the exact date of the NHS Act—5th July 1948. I remember it because it 962 was three days before my eldest son was born on the 8th July, so it is an easy date for me to remember. Since that date the work of chaplains in hospitals—chaplains of all denominations who are now working closely together in a very warm, ecumenical way—has shown the tremendous importance of the chaplaincy work within the regular health service.
My plea simply at this point is this. We should not forget that if we are seeking to move people out into the community again who have themselves been tremendously helped by the administration of chaplains within hospitals and chaplains who have learned over the years, with considerable expertise, how to minister to those who are ill and mentally ill and suffer from both mental handicap and psychiatric illness, then when they come out of hospital it would be good if in some way provision could be made for chaplaincy help. It is true that not every parochial clergyman is expert in this particular task. Statutory workers, whether hostel staff or social workers, will need to initiate links with local churches. If some provision could be made for the short training of Ministers of all denominations in this work, I believe that great things could come from this.
As I see it, as was already made clear in the opening speeches, this Bill is an amending Bill to the main 1959 Bill. The Church—if I may speak from these Benches—welcomes very warmly its general thrust. It seems to me that its main provisions are ones which, as the noble Lord, Lord Elton, said, are very nonpolitical and are general, that hospitals should in future be more places of treatment and no longer so much of confinement and that patients will have many more chances to go before mental health review tribunals to seek release. I particularly liked the word that the noble Lord, Lord Elton, used when he said that no patient will ever be forgotten again because, with the review at least every three years, this will be done.
If I may descend to the realms of party politics for a brief moment—only to ascend—if we have to have Quangos (I do not quite understand who likes them and who does not) a Mental Health Act Commission is probably a very good, whitewashed, suitable and blessed-by-the-Church type of Quango. I hope therefore that the Mental Health Act Commission will receive the widest possible support.
I arise again after that above the level of party politics. I am so glad that the appointment of approved social workers is going ahead. This I believe will give chances for people who are enthusiastic amateurs to be trained in this particular and difficult area. Even such a small matter—apparently small to us in this House—of relaxation of censorship of detained patients' mail is I am sure a step in the right direction.
We seem so often to speak of the patients and not of the staff; but I believe that we ought to recognise that this Bill is going to do a lot to help the staff of our hospitals. It is so easy for them to be criticised and so difficult for them to do their work well. As I see it, there is here a balance between both freedom and control with some delicacy, particularly of course in the area of treatment without consent which no doubt will come in very much in the Committee stage when we talk in greater detail. I believe that the staff of our special hospitals deserve our support. 963 I hope that the definitions in this Bill will help them to see what they can do and what they should do, and how they can do it.
I have a quotation from Martin Luther King which I will inflict upon your Lordships. I prepared it to give at the Cambridge Union a fortnight ago in a Homeric struggle between Mary Whitehouse on the one hand and Victor Lownes, ex- the Playboy show on the other. I was the supporting middleweight round with a famous poet who had produced the Penguin Book of Sick Verse. They had a bishop there to make for respectability. I was there behind the scenes as a type of No. 2 standing in on that Homeric struggle.
I had worked out for that the following quotation from Martin Luther King:Law cannot change the heart; but law can restrain the heartless".Unfortunately, I lost it in the excitement of working among the young ladies and gentlemen of Cambridge. For the sake of your Lordships who do not follow these things, we won by 350 votes to 190 votes. I will tell noble Lords afterwards who "we" were. It was an exciting time.
I used it as a quotation simply to say that of course we cannot deal with all the problems that crop up within a confined community and with tremendous pressures on staff. But what we can do I believe—and I hope that in the Committee stage we shall do it in detail—is set the parameters within which staff work, to set the parameters within which patients can have as much freedom as possible and so to help those staff do their work carefully and well and patients to receive the very best treatment that is possible for them.
Therefore, without spending further time on that, may I simply say that we from these Benches warmly support the whole thrust of this Bill. I have to say to your Lordships that diocesan business unfortunately at 9 o'clock tomorrow morning means that I cannot stay through until midnight when the rest of you look forward to hearing the noble Lord, Lord Cullen, sum up after what will be a very good debate.
§ 5.7 p.m.
§ Lord Allen of Abbeydale
My Lords, in view of the long list of speakers, I am proposing to limit myself to two points only. In particular, I am resisting the temptation at this stage to follow the noble Lord, Lord Elton, in discussing the recent judgment of the European Court of Human Rights and the noble Baroness in what she said about mental handicap. I would just make the point that I think it is risky to place too much confidence in the prospect of consolidation. Consolidation cannot make fundamental changes in the law. I fear that it is basically cosmetic, but there will be other opportunities to discuss that in due course.
When a Bill of this kind appears, I suppose all of us look at it from the point of view of our particular interest. I confess that for my part I went through it to see whether there was any prospect of its providing an additional measure of relief to our overcrowded prisons by enabling rather more persons suffering from mental disorder to be treated in hospital rather than to remain incarcerated in gaol. The desirability of moving in this direction is a long and familiar story. 964 We were reminded of it only just a week ago by the noble Lord, Lord Mishcon, in the debate on prisons, and earlier by the May Committee which had a particularly eloquent passage on this point.
I have been looking at the figures in the White Paper—in particular, Table 1.4. I have done my best to bring the figures up to date. I understand that in 1980 the numbers committed by the courts under Section 60 of the 1949 Act, with restrictions under Section 65, totalled only a little over 100. Ten years before the total had been nearly three times this, although there were then many fewer people appearing before the courts. Again in 1980 rather fewer than 100 prisoners were removed to hospital under Sections 72 and 73, with restrictions under Section 74. I am sorry if I sound a little technical on this but I suppose it is better to try and be accurate.
There must be a number of reasons for these rather small figures, but I suppose, given the frustration expressed from time to time by the judges in individual cases, one reason has been the problem of finding hospital accommodation with some suitable degree of security. That is a problem which for various reasons has got worse rather than better in recent years and it is one explanation of why so many of us have been gravely disappointed in the delay in setting up the regional secure units to which reference has been made, which it must be recalled were recommended as a matter of urgency by the Butler Committee well over seven years ago, following up an even earlier working party which had made a similar recommendation some years before that. The noble Baroness has explained some of the problems and difficulties involved in pressing on with these new establishments, and no one will underrate the difficulties. Nevertheless, the story has not been a very good one and I do not think so far that anyone can feel particularly proud about it.
Looking at the likely impact of the present Bill in the context I have been discussing, I take the point, as the noble Lord, Lord Elton, explained, that tinder the Bill courts will not be able to make a hospital order in respect of a person suffering from a psychopathic disorder or mental handicap unless there is evidence that treatment in hospital is likely to benefit the individual. I cannot persuade myself that this provision of itself is likely to swell the number of those who go to hospital rather than to prison; but, in view of what has been happening in the last few years and of what has now in effect become accepted doctrine in the handling of psychopaths, I wonder whether it will have all that much practical effect.
Somewhat disturbing, to my mind, is what the White Paper says about the implementation of the Bill. I am afraid that the remarks made by the noble Lord the Minister have not altogether removed my feelings of anxiety. I particularly welcome Clause 27 of the Bill, giving Crown Courts and magistrates' courts the power to remand to a hospital for a medical report, and Clause 28, which gives the Crown Court the power to remand an accused person to a hospital for treatment, even though it is just a trifle obscure what happens if the treatment is of a nature requiring the individual's consent and he refuses to give it. Then there is another clause which gives the Crown Courts and magistrates' courts the power to make interim hospital orders. As has been explained, these are provisions 965 implementing the Butler recommendations, and I take the point that quite a lot of what the Butler Report recommended would involve altering other Acts and not just the 1959 Act. I do hope, though, that these clauses are precursors of legislation implementing other Butler recommendations, and I will study with great care what the noble Lord the Minister said on this particular point.
Going back to Clauses 27 to 29, reading them in the Bill does buoy up one's hopes, but the White Paper then goes on to dash those hopes by explaining that they are likely to be brought into effect only during two or three years after the Bill is passed. Painful experience suggests that that estimate is not likely to exaggerate the length of the waiting period. But I hope the White Paper means what it says when it refers to two or three years after the Bill is passed because, as I understand it from what has been said, the Bill as a whole is not likely to be implemented until well into 1983, which is getting on for two years from now.
I suppose the additional hold-up contemplated for the particular clauses I have referred to must arise in part from the delays in setting up the Butler units, and relieving the overcrowding in the special hospitals. However, it looks as if there may be other factors, too. I am just a little puzzled by this because I would have thought that the provisions in the Bill, extending the opportunities for individuals to go to the mental health review tribunal, should mean that some of them would be released, whereas under the old regime they would have stayed in hospital—or, if not, I am not quite sure what we are discussing. If that were so, some of the resources in the hospitals ought to be made available for these new demands. Anyway, this is a very important topic which is dealt with a little cursorily in the White Paper. I hope that when the noble Lord comes to wind up he may be able to say a little more about the implementation of this part of the Bill.
Now I come to my much shorter second point. Here I suppose I must declare an interest, although certainly not a financial one, in that I am president of the Friends of Broadmoor Hospital. When the noble Baroness the Leader of the House announced on 11th November 1980—I have a note to say that the Hansard column number is 1291, but I would not guarantee that—that the Government accepted the Boynton recommendation to set up a hospital review board for Rampton and explained what arrangements were in force at Moss Side and the remarkably named Park Lane, she said the Government were looking at what suitable arrangements might be made at Broadmoor for bringing in some outside interests. Nothing more has been heard of these arrangements, so far as I am aware, and I should like to ask whether the new Mental Health Act Commission is intended somehow to fill this gap as regards Broadmoor. If it is, the consequential question arises as to how the new body will fit in with the Rampton board, which is already in existence and, I believe, working satisfactorily. On the other hand, if this new body is not intended to meet the special circumstances of Broadmoor, as I suspect it is not, I wonder whether we could be told what the prospects are now of our hearing about possible arrangements at Broadmoor. If the Minister 966 cannot let us know when winding up tonight, perhaps he would be good enough to write to me about it.
In conclusion, could I say that I do greatly welcome this Bill, which cuts right across party lines and is intended to improve the lot of one of the least favoured sections of our community? We are grateful to the noble Lord the Minister for his clear exposition of the Bill, and I think it is remarkably appropriate that the Bill should be introduced and gone over in detail in your Lordships' House.
§ 5.19 p.m.
§ Lord Kilmarnock
My Lords, we on this Bench are glad to be able to extend a welcome, albeit with important qualifications, to a Bill which will be the first major revision of the law on this subject since the Mental Health Act 1959.
The history of the Bill is well known to your Lordships and was outlined by the noble Lord, Lord Elton. It deals with a subject that has been the concern of both major parties—I should say now of all parties in the political spectrum. The Butler Report on mentally abnormal offenders was published in October 1975 and the same month saw the appearance of Mrs. Castle's White Paper, Better Services for the Mentally Ill. Those were followed by the last Government's White Paper, A Review of the Mental Health Act 1959, which was published in September 1978 (a very valuable document), and by the present Government's White Paper which was published last month and on which the present Bill is largely based.
The Government's White Paper refers to the proposals made by the Rampton hospital review team, chaired by Sir John Boynton, for the establishment of an entirely new body to inspect and monitor closed institutions such as Rampton, and to oversee the very sensitive and difficult area of the treatment of certain patients detained without their consent. Paragraphs 29 to 40 of the latest White Paper set out the Government's view of the role and scope of this new body, which they will call the Mental Health Act Commission, and which constitutes one of the major innovations of the Bill which is before your Lordships' House. But before looking at this new body in any greater detail, I should like to point briefly to those provisions which, it seems to us, constitute improvements to the principal Act.
First, with due respect to the noble Lord, Lord Wallace of Coslany, we find perfectly acceptable the changes in terminology. The replacement of the term "subnormality" by "mental handicap" may be little more than cosmetic, but it is in keeping with current concern for all those who are disadvantaged in our society; though I am inclined to agree with the noble Baroness, Lady Robson, and others, that the handicapped should not ideally be lumped together with the mentally ill in the same legislation. The replacement of the word "observation" by "assessment" is a distinct improvment, with its more positive implication of a first step towards diagnosis and, where appropriate, treatment.
Then, more importantly, come those measures whose general thrust is in the direction of better safeguards for patients. It seems to be right that a 967 person making an application under Section 29 of the Act, to have a patient detained under the emergency procedure, should have to have seen that patient within the previous 24 hours, rather than three days as at present. The period within which the patient must be admitted is likewise reduced to 24 hours and the application is restricted to the person's closest relative or mental welfare officer, rather than left open to any relative. Obviously these provisions should only be used in cases where speed is of the essence and the proposals in the Bill, which derive from paragraph 16 of the White Paper, can therefore be welcomed.
Next, the general shift in the patient's favour of the whole appeal and review procedure is also to be welcomed. Paragraph 28 of the White Paper shows in tabular form the improved frequency of the right of application to the mental health review tribunals. These revised arrangements may be seen, in fact, as providing additional safeguards not only for patients, but also for staff. Long-term cases tend to get overlooked and to become resigned to their characterisation by the hospital staff, and from now on, or from the passing of this Bill if it becomes an Act, patients will be less likely to get stuck in this kind of rut. In effect, Clause 12, by halving the duration of authority for detention, doubles the opportunity for review by the tribunal.
I turn next to the Bill's main proposals concerning offender patients, which are contained in Clauses 18 to 30. This part of the Bill offers some modest but useful reforms, of which those contained in Clauses 26, 27 and 28, which were mentioned by the noble Lord, Lord Allen of Abbeydale, are the most important. On restriction orders, the Bill echoes the proposals of the Butler Committee, which recommended that such orders should only be imposed to protect the public from "serious harm", which is the phrase used in Section 26 of the Bill. There is little doubt that these orders were sometimes imposed in cases where their severity was inappropriate; for example, in cases of frequenting, soliciting, disorderly behaviour, petty theft and drunkenness. Their exclusive use for cases in which serious harm may be inflicted on the community is to be welcomed.
Clauses 27 and 28, on remands to hospital, also seem to be steps in the right direction. Hitherto the only possible forms of remand have been remand on bail or remand in custody. As remands in custody for medical reports are notoriously unsatisfactory, the new category is an improvement. But we have some reservations here. It would be preferable if two medical practitioners, rather than just one, had to advise the court under Clause 27(3)(a). Then, under both Clause 27(7) and Clause 28(7), 28 days seems an adequate time for an assessment and we question whether the 12-week maximum is excessive. In both these clauses, our concern is that safeguards should be stronger than the Bill provides, in order to prevent accused people from being remanded to hospital for longer than is absolutely necessary, and we shall want to look at this at Committee stage.
I come now to the proposed Mental Health Act Commission and the areas of the Bill where our serious disagreements begin. There is certainly a good case for arguing that very closed institutions, such as Rampton, 968 would benefit from the scrutiny function which is to be exercised by the new body. However—here is our first caveat—what provisions will there be to ensure that it is properly and publicly accountable? And what about its composition? The Bill is rather coy about the composition of the commission. The White Paper speaks in paragraph 31 of,an independent body with members who will be eminent in their different fields; it will really be a safeguard to patients when they are detained".So far, so good. But then in paragraph 32 we are told that,The Government intends that members of the proposed MHAC will be lawyers, doctors, nurses, psychologists, social workers and laymen".But it does not tell us in what proportions. And the Bill is even less explicit than the White Paper. Clause 42 simply tells us a little about the commission's functions and remuneration, but there is nothing about its composition. The noble Lord, Lord Elton, has simply told us that he envisages about 70 part-time members.
Then in subsection (3) of Clause 42 we learn—as it were, in an aside—that medical practitioners, empowered to act under the very important Clauses 38 and 39, may include members of the commission. Here I really must voice a sense of disquiet. We seem to be asked to accept a commission appointed by the Secretary of State, which may in turn appoint its own medical members to give the second statutory opinion specified in the Bill. Here I very much agree with what the noble Baroness, Lady Robson, said about the desirability of a multi-disciplinary second opinion.
I would question very seriously whether, in a free country, the Government of the day should ever be given power to decide, through their own appointees, whether someone should be treated who does not want to be treated—even though the White Paper states in paragraph 39 that these appointees,will take account of wider social and ethicalmatters. But these are areas in which they are surely no better qualified than anybody else. The whole question of the balance and composition of the commission, and, in particular, of the lay membership, is of the utmost importance, and I hope that the noble Lord, Lord Cullen, will be able to enlighten us more on this when he comes to wind up.
I want to say just a few words on Clause 38, which is by far and away the most controversial in the Bill. However good its intentions, it undoubtedly introduces a new principle into English law and triggers off, in me, at any rate, a whole battery of alarm bells. The tricky issue of consent to treatment by detained patients is very thoroughly discussed in the last Government's White Paper of September 1978, which was called Review of the Mental Health Act 1959—a most excellent document, in my view.
The first and most important point to grasp is that the 1959 Act, as it stands, confers no statutory right on a medical practitioner to treat a patient without his consent. The most that can be read into it is an implied authority in certain exceptional cases. And even this view—which, incidentally, has never been tested in the courts—has recently been increasingly questioned by bodies such as MIND and others. Because of these doubts, it was the last Government's opinion—and is, apparently, that of the present 969 Government—that the power to impose treatment in certain circumstances needs to be made specific, rather than simply left implied as at present. But this immediately raises almost more difficulties than those its sets out to solve. As was admitted in the 1978 White Paper, in chapter 6, paragraph 17,… it is by no means easy to formulate proposals which will both provide safeguards for patients and sufficient flexibility to enable staff to deal with the variety of difficult situations which confront them".How have the Government gone about it? They have, in broad terms, lifted the proposals made in the 1975 report of the noble Lord, Lord Butler, out of their original context—because it should be remembered that the Butler Committee was only concerned with offender patients—and are attempting here to incorporate them, with their safeguards, into the statute law of the land. The safeguards are, of course, important and they appear in subsection (7) of Clause 38. But they are hardly foolproof.
For example, subsection (7)(b) permits involuntary treatment,which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition".But some would argue that this is open to such wide interpretation as to be either dangerously loose or almost meaningless, or, perhaps, both at once. Be that as it may, there is, without any doubt, one paramount respect in which the Bill, through this clause, makes a revolutionary impact on our law. At present, treatment without consent is both a civil and a criminal assault. The Government have set this important principle on one side, for in order to give their safeguards some validity they have had to come up with something to safeguard against. And this they have done in no uncertain or mealy-mouthed fashion by announcing in the very first lines of the clause that:Subject to the provisions of this section, the consent of a patient detained under the principal Act or this Act shall not be required for any medical treatment given to him for the mental disorder from which he is suffering if the treatment is given by or under the direction of the responsible medical officer".Those are the words at the beginning of Clause 38. There it is in black and white, for the first time ever, subject of course to certain provisions.
But are these provisions going to be adequate? Once you have got the principle down in black and white, from which of course the safeguards are merely derogations, can one be certain that the safeguards may not be progressively whittled away or arbitrarily interpreted? And it is not only Clause 38 but the clause in conjunction with the proposed body for monitoring its application which gives rise to some alarm. We must be very vigilant, I suggest, in ensuring that something introduced, no doubt with the best of intentions, does not become the tool of future abuse. I shall not pursue this question any further in the present debate. I am simply putting down a marker for a later stage when, among other things, we shall also want to look very hard at the definition of "consent" which nowhere appears in this clause.
Another thing that is missing is any requirement for a detailed written record of the procedures leading up to and accompanying treatment. It is surely of the greatest importance that, if the state is to extend its power of administering medical treatment to its citizens without their consent and even, as is provided in 970 Clause 38(2)(b), against their will, the most meticulous records should be kept and be accessible to independent scrutiny. I think I have now said enough to indicate that this clause gives rise, among us, to some very grave misgivings.
There are some other shortcomings in the Bill. It does not provide for any change in the eixsting restrictions on legal aid, to which the noble Baroness, Lady Robson of Kiddington, referred, which prevent a patient who wants to be legally represented at a hearing of the mental health review tribunal from applying for legal aid. Without this reform, will not much of the benefit of increasing patients' access to the tribunal be undermined? We are also less than happy with paragraph 62 of the White Paper dealing with the position of restricted patients' access to court review of their detention. We feel that the necessary amendments to meet the strictures of the European Court of Human Rights should be incorporated in the Bill. I was glad to hear the noble Lord, Lord Elton, refer to this and tell us that the Government are proposing to bring forward some amendments on this point. And there is finally the question of the deprivation of 124,000 informal patients of the right to vote. How many of these are in fact unfairly deprived? This important matter is not touched on.
I said at the beginning that we give a qualified welcome to the Bill, and that remains the case, but the qualifications are very important ones and the more I think about them the larger they loom in my mind. I have said nothing about the financial effects of the Bill, referred to in the Explanatory and Financial Memorandum, but I think it is worth remarking that the cost appears to be in the region of £6.1 million in any one year. While applauding the Government's intention to spend such a sum in the area of health and social policy, for which their administration has, frankly, not been remarkable, I am sure they will agree that we must be very careful to get the Bill right if such a sum is to be warranted. I hope, therefore, that we shall have a constructive Committee stage and that the Government will accept that those of us who bring forward amendments will not be trying to wreck the Bill but to make sure that it goes to another place with significant improvements.
§ 5.34 p.m.
§ Lord Renton
My Lords, I am glad to know that the noble Lord, Lord Kilmarnock, joins the growing number of your Lordships who do not want the mentally handicapped and the mentally ill to be lumped together. My noble friend Lord Elton in his open-minded opening speech said that this Bill was a non-party measure. The noble Lord, Lord Wallace of Coslany, endorsed that. I think that this is a splendid way for us to approach this, from both sides of the House. I am so grateful to both noble Lords for the favourable advance notice that they gave of what I might now say. I must try not to disappoint your Lordships.
In the last session the Government did a splendid job, with the help of both sides of both Houses, in improving the Education Bill which we in the Royal Society for the Mentally Handicapped welcomed so much in its final outcome. I hope that the present Bill, in the capable hands of my noble friend Lord 971 Elton, will receive similarly favourable treatment, as he said it might, for although it contains useful and welcome provisions it is not acceptable in its present form so far as the mentally handicapped are concerned—as I shall explain.
My noble friend mentioned that 21 years ago when I was Under-Secretary at the Home Office under my noble friend Lord Butler, who was then Home Secretary and whose absence we greatly regret today because his report was so valuable so far as mentally disordered offenders were concerned, I had the responsibility of piloting the criminal justice provisions through another place. My right honourable and learned friend Sir Derek Walker-Smith was the Minister of Health in charge of the Bill. Those criminal justice provisions are in Part V of the 1959 Act. In Part III of this Act they are improved in various useful but relatively minor—not unimportant but relatively minor ways. At the time, the 1959 Act was regarded as a progressive measure but the advance of medical knowledge and the experience gained both within the hospital system and within the prison system, and generally, of the way that that Act has worked have revealed that we made a serious mistake in lumping together the mentally handicapped and the mentally ill. They are now seen to be radically different. After all this time we should surely deal with them differently and if possible separately.
Even today, alas! it is not always understood by the police, by magistrates, by judges (even High Court judges), and by court officials that mental handicap differs fundamentally from all other forms of mental disorder. In trying to understand why this is so—I have asked many members of my own profession and those who still practise in the criminal courts—the nearest I can get is that in the 1959 Act definitions they are all lumped together. Such distinction as is made in the definitions is not clear enough to show their different condition. As it is possible that some others still do not understand the difference, I wonder whether I might very briefly amplify it.
Mental handicap is nearly always something with which people are born, just as some other people are born with a club foot, a withered arm, a cleft palate or some other physical disability. Mental handicap is mostly due to genetic factors, but not hereditary genetic factors. Indeed, so far as present knowledge shows, it is scarcely ever hereditary. But it can also be caused by brain damage either at birth or through an accident in later life. The main point about mental handicap is that it is incurable, with one very small, unpronounceable exception, and that has to be dealt with within a few days or weeks of birth. I shall not try to pronounce it but it is familiar to those who have some medical knowledge.
It is on this point of the incurability of mental handicap that I say with respect that the Bill goes wrong. In Parts II and III it assumes that mental handicap is curable. But it is not. Mental illness, on the other hand, can happen to any of us at any time. It is generally curable to a greater or less extent, with or without admission to hospital. So there is a real difference between those two conditions. Now there are cases in which mentally handicapped people become mentally or physically ill as well as having 972 their mental handicap, and I suggest to your Lordships that that is the only time when there is any justification for sending the mentally handicapped to hospital. whether under the compulsion of a court order or under any other kind of persuasion.
This difference between mental handicap and mental illness was acknowledged in the report of Lord Butler's Committee on page 5, where it is said:Severe subnormality and subnormality, together generally referred to as mental handicap, are permanent disabilities. Care and training may, over a long period of time, to some extent improve the patient's level of performance but the disabilities are not, in the present state of medical knowledge, susceptible to cure".If we send mentally handicapped people to hospital when there is nothing else wrong with them it is a sheer waste of time, effort, money and resources within the National Health Service. But, worse than that, if we shut them up in hospital, when they have been accustomed to living in the community, either in their own families or in a hostel or elsewhere in the community, we cause them frustration and unhappiness which can have a bad psychological effect upon them.
As has been mentioned, in September 1978 the Labour Government produced a departmental report, Review of the Mental Health Act, 1978 and that went only part of the way towards acknowledging this difference between mental handicap and mental illness. It is significant that when it was debated in another place in February 1979 every Member except two (who shall remain nameless) who spoke in that full day's debate, said that there should be separate provisions and indeed separate legislation for the two types of mental disorder. Since then the DHSS and the Home Office (in which I was proud to serve for 4½ years) have had nearly three years to get this right; it could be said that they have had longer. I was looking forward to this Bill in the hope that they would do so, but I must confess that I am disappointed. No change of real substance has been made in the stringent powers affecting the mentally handicapped. They can still even be sent to prison in exceptional circumstances. I hope they never will, but they can be sent to prison. I wonder whether my noble friend who is to wind up the debate can tell us how many people suffering only from mental handicap are in prison today? I hope the answer is, nil, but if it is two, it is pretty bad.
§ Lord Donaldson of Kingsbridge
My Lords, before the noble Lord leaves that point, I was listening to him with the greatest attention in his most interesting speech and there is one point which I think we shall agree with but that I want to have cleared up absolutely in my mind. It is the question of sending the mentally handicapped to hospital. Surely in the case of mentally handicapped children beyond a certain level the normal practice is to send them to an institution which is a branch of a hospital. I only wish there to be no confusion. I have been a governor of a hospital and we had a very fine institution for purely incurable mentally handicapped children. I think it should be made clear in what the noble Lord has said that he is not speaking against that practice.
§ Lord Renton
My Lords, I am grateful to the noble Lord for inviting me to amplify and clarify the position. 973 I was coming to that, but as he has mentioned it I think I should tell your Lordships of the lamentable fact that there are no fewer than 2,000 children in large hospital institutions who are suffering from nothing but mental handicap and I am glad to say that it is the policy of the present Government to help the voluntary societies to provide alternative ways of life within the community for those 2,000 children. Only this week I am glad that my right honourable friend the Secretary of State was able to announce a pound-for-pound scheme whereby the Government will provide, over a period, a million pounds on the basis of a pound for pound spent by voluntary societies. That is partly the answer to the noble Lord, but I shall come to a further answer in a moment if he will be so good as to follow me.
The Bill makes no change of real substance in the stringent powers affecting the mentally handicapped. I have dealt with prison. There can still be compulsory hospital orders. It would help to know how many mentally handicapped offenders are compulsorily kept in hospitals of one kind or another. I think they are all in what are known as special hospital—anyway those who come through the courts are—and I understand that the number is about 600 or 700 of those just in special hospitals who have been sent there under Part V of the Act. That is in addition to the 2,000 that I mentioned just now. But surely we can do better than that, bearing in mind some of the cases—I will not give details now; I shall hope to do so at Committee stage—of children who should never have been sent to hospital. Trivial offences simply because the court did not know better and was not given better advice or opportunities.
The Bill merely substitutes a welcome change of name from "subnormality" to "mental handicap", and it redefines "treatment" and "treatability", but it does so in ways which are irrelevant and out-of-date so far as the mentally handicapped are concerned.
I was very surprised—and I must be frank with him and tell him that I was shocked—to hear my noble friend Lord Elton relying upon the report of a committee of the Royal College of Psychiatrists in about the New Year of 1979—a report which was discredited by many other psychiatrists as soon as it had been published. Indeed, I do not know of anyone outside the Government departments who now supports its conclusions, and it was even more reactionary in one important way than the DHSS because it said that there should be no change from the expression "subnormality" to "mental handicap", and I hope that in further discussion we shall not have this now discredited report foisted upon us.
In order to placate those many people inside and outside Parliament who want a separate and distinctive set of legislative provisions for the mentally handicapped, the White Paper (as has been mentioned) promised separation on consolidation, but as the noble Lord, Lord Allen of Abbeydale, with all his experience of the Government service so wisely pointed out, that would make no difference because on consolidation the law cannot be changed.
I do not blame my noble friend Lord Elton for the situation in which he finds himself. A few weeks ago when this Bill, which had not then seen the light of day, was placed on his table years of work had been 974 done on it. It was all crystalised, I would think, not months before but probably two years before he was appointed. I suspect that in both the DHSS and the Home Office it was crystalised in September 1978 at official level—and it was an official's report in 1978—and they, for reasons perhaps of pride or sincere conviction or what have you, have committed themselves to this wrong attitude and have declined to pay heed to informed opinion in and out of Parliament since then. Administratively, of course, it is easy and convenient to leave things more or less as they are, always, especially if change involves some complication, especially in legislation. As the White Paper says in paragraph 9, only a very small minority are involved. But they are among the saddest of our people. They cannot speak for themselves. We must speak for them. The Government must get it right, with our help.
It is not only a question of further amending the Bill; it is a question of amending the 1959 Act as well. May I say that I agree with those noble Lords who have said it does not matter very much whether we have a separate Bill or not. If we had a separate part confined to the mentally handicapped in this Bill at the end of the day, honour would be satisfied. I come further to the point of the noble Lord, Lord Donaldson. If some few mentally handicapped people must unavoidably be detained, let it be with those of their own kind. I know from experience that they always get on better with each other than if they are pushed in with psychopaths, people suffering from various kinds of mental illness, or indeed with normal people. It is rather wonderful how they do. Bearing in mind that the numbers are not great, I would have thought it would not be beyond the wit of the DHSS and the Home Office to find some way of providing more or less secure accommodation, perhaps on the lines recommended by Lord Butler's committee in their interim report in 1974, which has never been acted upon, when they suggested that there should be in each region a secure psychiatric unit. This could be an annex to the psychiatric unit, but separate from it. As I say, the numbers are not great. Perhaps that should be considered.
I hope, when my noble friend, Lord Elton professes an open mind on the part of the Government, and when your Lordships volunteer that they think that the treatment of the mentally handicapped should be different from what it has been under the 1959 Act, that we shall as a result of a combined team effort somehow get this right; but it is going to need the co-operation of the Home Office as well.
§ 5.54 p.m.
§ Lord Wells-Pestell
My Lords, having listened to the seven previous speakers in detail, it is quite clear that two things have emerged from the discussion that we have had so far. One is that there is a general opinion that the Bill is a good one and it has no party political implications at all; and, secondly. that there are a number of things which need to be done. I would subscribe to that, but, bearing in mind that there are still 15 speakers to go—and think it is fair to say that all that can be said about this Bill has already been said by the seven previous speakers—I do not intend to monopolise much of your Lordships' time. But I do want to make one or two comments.
975 It is perfectly true that basically the Bill is a good one, but it is equally true that it has got to undergo a very real reappraisal, and obviously this is a matter for Committee. The Bill, as we all know, covers a very wide field, but perhaps it does not go far enough, and I hope the Government will be prepared to keep an open mind on this. If I may say so without giving offence, I think the most important thing that has been said today is the statement made by the noble Lord, Lord Elton, that the Government's mind is not closed—something new for this House, if I may say so; something quite new. We on this side of the House know that in the last two years, when we have had to fight a whole series of complicated Bills, not only was it closed but sometimes we wondered whether it existed at all. So I do ask, quite sincerely and without being too disagreeable about it, that the noble Lord will come to the House, not only at Committee stage but at Report stage, with an open mind, because it is of supreme importance that we get this Bill right, seeing that generally speaking we are in complete agreement with it.
The Government's willingness to consider amendments is very important indeed. I find myself in some sympathy with the noble Lord, Lord Renton. I can remember being in the same place as the noble Lord, Lord Elton, when I had to introduce into your Lordships' House the Medical Act 1978, and being told in no uncertain manner that there were certain things that could not be included and in no circumstances was I to give way. The noble Lord, Lord Hunt of Fawley, came forward with a whole series of amendments, and I had to tell him, "No part of the Bill at all; no resemblance to the Bill; I could not accept them". He accepted that. They came up again on Report stage, and I was told. "You must not accept them; you must not give way". And, of course, being the lowest form of ministerial life in the department, I did as I was told. But the noble Lord, Lord Hunt of Fawley, had consulted a very eminent medical body, who established beyond all reasonable doubt that it could be done. So at Third Reading he put the amendments down again and we had to accept them—the first time. I believe, in the history of your Lordships' House that an Opposition Member had got everything he wanted.
I say to the noble Lord, Lord Elton—and I want to be perfectly serious about this now—that I hope he will not be intransigent. I understand the position he is in; I understand the difficulties. But I hope that he and his friends will not be intransigent about this Bill; that they will read first what the noble Lord, Lord Renton, said, will look at it and find ways and means of seeing whether it can be done. Many of us believe it can be done.
§ Lord Elton
My Lords, I only wanted to say to the noble Lord that, while I accept his description of myself as the lowest form of ministerial life, I would not accept it for him, particularly in view of what he has just said. I endorse that my mind will be open. Perhaps I might take this opportunity to say that the earlier amendments come to us the easier it is to discover ways to accommodate rather than reject them.
§ Lord Wells-Pestell
My Lords, I am much obliged 976 to the noble Lord I do not know whether he and or his friends have had any discussions with the noble Lord, Lord Renton. I imagine that perhaps they have. I hope that they will pursue this point because I think the noble Lord, Lord Renton, has raised an important point.
I wish to comment on two other matters. First, concerning the Mental Health Commission, I believe that the noble Lord, Lord Elton, said that it would consist of 70 people. There is certainly no mention of that in the Bill. I cannot find the figure "70" in the Bill. I wonder whether this is a figure that they are aiming at, or whether in fact it is a decision that has been taken. The noble Lord mentioned the various classes of people in our society who would go to make up the 70, and he used the word "laymen". This is the first time that I have seen it used in any document that has been published on this matter. I hope, in point of fact, that it will not be left entirely or exclusively to representatives of the few professions which are usually involved in medical matters. I hope that there will be one, two or three balanced ordinary people who, perhaps cannot subscribe to the great heights that other members might be able to subscribe to, but who can bring an everyday common sense view to the matter. I think that it would be a great mistake if the commission were, in fact, bounded by professionalism in the academic sense.
I should like to ask at some stage how the commission will work. If there are to be 70 people, then presumably England must be divided up into areas. Does it mean that a certain number of the 70 will be appointed to each area and then there will be a kind of sub-committee of the commission? I cannot visualise the structure. I think it is important that, if we are to agree in principle to these matters, we ought to be able to see clearly the structure that the Government envisage. I should be grateful if at some stage the House could be given some indication as to how the 70 will work. They cannot all be running all over England. They must put down their roots deeply in a defined area or areas somewhere. But I cannot see how they will work, and so I should like to ask about that.
The other matter relates to the social services. Clause 43 on page 30 of the Bill says:After the expiration of the period of two years beginning with the day on which this Act is passed the functions conferred by the principal Act on mental welfare officers shall be discharged by officers of local social services authorities to be known as approved social workers".I should not have thought that there was a possible chance of that coming into being in the next two years or the next three years.
Whatever we do, let us be realistic. If the noble Lord were to say that if we do not put this in the whole matter will drag on, then I could understand it. I think that it is desirable to express in an Act what we intend to do. But if we are going to say that it has got to be at the end of two years then a great deal must happen. Presumably the mental welfare officers will be transferred to the local authority social services, otherwise they may not have a sufficient number of qualified people to undertake the task. If they have to use approved social workers then the word "approved" in this case surely means qualified. It 977 cannot mean anything other than qualified. There will not be that number of qualified social workers to deal with the mentally ill. I am sorry to keep on saying this to your Lordships, but more than half the social workers in the employ of the local authority social work services that we let loose on the public are themselves untrained. It is not their fault; they are willing to be trained, but the places are not there and the money is not there.
So I say to the Government that if they are seriously minded to do something about this, then I should like them to come to the House and to say what their plans are for training people within the next two years to undertake this very difficult task—and let us make no mistake about the difficulty—of dealing with the mentally ill. Some of your Lordships who have had experience in this field will know that it is a supremely difficult job. Therefore, again at the risk of repeating myself—and that is precisely what I am doing—I want to ask the noble Lord to give the House some assurance that the means will be found, and that they will really start on the day that the Act is passed, so that the mental welfare officers can be transferred at the earliest possible moment to the local authority social work service, and, what is more important, that each local authority social work service will have the means and the money to train social workers within the service to become mental welfare officers, albeit that they will be called "approved social workers". Do not let us use words which have specific meanings as the word "approved" does—it implies a trained person—if in point of fact, when the time comes, we are not in the position to do it. I can think of nothing worse than having somebody who is untrained trying to deal with the problems of the mentally ill.
I do not necessarily expect answers to these questions tonight, but I think that the House ought to know at the earliest opportunity what the Government's thinking is on these particular matters, because it will be very difficult to put down amendments unless we know the Government's intentions. I hope that the House will be informed even if it is only by letter, or perhaps by somebody being invited to put down a Question for Written Answer.
§ 6.7 p.m.
My Lords, first may I thank my noble friend Lord Elton for the way in which he has presented the Bill and wish him every success in his new office. I feel that I must say a few words on this matter—although I suppose that I am the first amateur to speak tonight—because I was on the committee which dealt with the 1959 Bill. I should like to pay a tribute to a woman in the other House at that time—Bessie Braddock—because I think that she did a great deal to help these people; and, although she was in Opposition at the time, she worked very well with us and I think she would be very sad to see Liverpool at present. However, I think that we owe her some thanks tonight because she worked so well.
I personally think that the 1959 Act has worked well in view of the general progress of medicine and the better understanding, which is so important, of the general public in regard to mentally ill persons. Therefore, I hope that with the passing of this Bill more understanding will come in the community and more 978 people will be able to receive care in the community, which I think is something we all want, and there will be less posssibility of detained patients. I notice in the appendix, Table 3.1 of the White Paper, that since 1974 the number of compulsorily detained patients has averaged every year about the same—7,000-plus. I think that we ought to look into this matter to see whether any action can be taken.
With reference to what the noble Lord, Lord Renton, has said as regards the mentally handicapped, he may be pleased to know that on Saturday I was in Plymouth, where we have just opened two special houses for these people and we now have an assessment centre with a fully qualified woman in charge. That may give him a little encouragement and I should like to add that I totally agree with many of the things that the noble Lord said. I think that it may be a little difficult to do all that he wants done in this Bill, but I am sure that he will get the support he needs.
As I understand it, when the 1959 Act was passed it was thought that it would provide new types of psychiatric treatment and research, and that the public would accept—as I think it has—psychiatric treatment, the use of ECT and tranquillisers; and it was hoped that every patient would have the right to refuse this type of treatment. Like the Nationality Act, which does not define "nationality", the Bill does not define "mental disorders". I hope that before we complete this Bill we shall be able to get some more definite understanding of what this implies.
I shall cut out many of the points that. I would have raised because they have already been spoken to. However, I should like consideration to be given to the appointment of a medical director or medical superintendent in each hospital. Before the 1959 Act there was the post of medical superintendent. It is absolutely essential that we have some officer to co-ordinate the work in these hospitals. A hospital may have as many as eight or nine consultants and, therefore, i think it is essential to have someone who can co-ordinate their work, to whom the patients can turn (if they wish) with their particular problems—not their medical problems, but their personal fears—and who can offer advice to the staff, which is very lacking at the present time. We used to have a medical superintendent and a matron in our hospitals. I personally think that they are very much missed both by the patients and by the staff.
Patients' friends sometimes have to travel a long way to visit them in these hospitals. Therefore, when relations ring up or come to see the consultant, he may not be present and they also sometimes cannot get the information that they desire.
I should like to turn to social workers. Are they to have any other work, or will they be simply approved entirely for this type of work? In 1959 I was very interested in a recommendation of the Younghusband Report for a generic social worker—a social worker rather on the lines of the French system. I have now changed my mind, especially in regard to the appointment of social workers who need special qualifications, because I think that they have far too much work to do and have to turn their minds to far too many different problems. If they are to do this type of work, I understand that they need to visit the hospitals and to see the patients, which will be a full-time job.
979 One of the difficulties—and I hope that my noble friend Lady Faithfull will not mind my saying this—about child care is that too many burdens have been placed on social worker officers. Clause 16 of the Bill will put too heavy a burden on the approved social worker unless we make special conditions.
There is also a need to place a mandatory duty on local authorities to provide housing, care and support in their areas. Resources will be needed if we are to get people out of hospitals, either when they are cured of their mental breakdowns or the mentally handicapped, as previously mentioned. If people could be put in the care of local authorities, it would he very much cheaper than keeping them in hospital and would also give them a freer, individual life. I suggest that it would be possible to transfer some of the money from the National Health Service to local authorities to perform these duties. Regrettably, there are too many geriatric women in these hospitals. In one hospital I know there are about 50 or 70 of these old ladies. They should not be kept in such a place. In looking at this Bill, perhaps we could consider what else can be done for them.
I should like to know whether there will be a general practitioner on the commission. I think that general practitioners should be brought in much more than I anticipate, from the Bill, will be the case, because they know their patients. As regards abnormal offenders, Cmnd. 6244 says that the courts may remand an accused person to hospital for medical reports and treatment in cases of mental illness or severe mental handicap. That is why I should like general practitioners to be on the commission, because in all probability he has known his patient for many years and should have a real say in that person's future.
I should like to pay a tribute to the League of Friends, which has done so much in particular for the mentally handicapped. On Saturday, when I was in Plymouth, they were there collecting £10,000 for a new roof on a hostel (which they have already bought) for the adult mentally-handicapped whose parents do not know what will happen to them when they themselves unfortunately die. I have not gone into the details of the Bill, and I intend to study the Bill and consider amendments very carefully, but I hope that it will provide future happiness for many people. This is what we are all striving at in dealing with this Bill today.
§ 6.15 p.m.
Lord Campbell of Croy
My Lords, I, too, should like to thank my noble friend Lord Elton for having introduced this Bill and explaining it so clearly today. The Bill aims at reforming the law in England and Wales applying to mentally disordered people who need special protection and control. I welcome these proposals to improve safeguards for those people; for example, to provide greater opportunity to appeal against continued detention. That is an area where there has been some public concern. I also hope that in future it will be more clearly visible that opportunities are available. I also commend the drawing up of a code of practice concerning special treatment; for example. electro-convulsive therapy—ECT as it is known, the electric shock treatment. That code 980 would be a guide to individual doctors. Again, this should improve confidence where some sections of the public have had doubts about what is known as "hazardous" treatment.
One reason why I am taking part today is that most, if not all, of these mentally disordered people have a mental disability. They are some of the disabled for whom 1981 is the International Year and, as some of your Lordships know, I am the chairman for the Year in Scotland. Indeed, I flew from Scotland this morning, having taken part in two of the substantial events there in the year, in Inverness on Saturday and in Glasgow yesterday. The other three chairmen for the other three parts of the United Kingdom—England, Wales and Northern Ireland—are not in Parliament. I do not seek to speak for them; nonetheless I am sure that they would join me in expressing pleasure that this Bill has been introduced during the International Year.
Where we consider disabling mental illness we must recognise that prodigious progress has been made in medical science and treatment during the past 30 years. As a result, many more disabled people are, fortunately, able to live outside hospitals and institutions. Often this can be done with a régime of drugs and medical supervision. In some cases a protected environment is also required so that the disabled person does not need to be subjected to the hurly-burly of ordinary life. I suggest that this is all to be encouraged. It coincides with the similar aim that physically disabled people should, if possible, live outside hospitals and institutions.
In future this means that more severely disabled people, with various kinds of handicap, will be in circulation in the community. This is to be applauded and encouraged for several reasons. In almost all cases this is what they, the disabled people, want. They wish to be as independent as possible. It is also good for their condition, psychologically; and it is also the best use of the taxpayers' resources. It relieves burdens upon the Treasury rather than adding to them.
One can do more with the same money. Living in the community costs less, with a sensible range of allowances, benefits, and services, than occupying a place in a hospital or institution. So it is not necessarily a matter of asking for more public expenditure but of asking for imagination and flexibility in the ways in which the resources are used. In the case of mental disability it also relieves pressure on our scarce resources of mental nurses—and mental nurses who are qualified.
Many mentally disordered people 30 or more years ago were simply locked up or put in an institution for their own good, or for the good of the public. Now drugs can enable them to live ordinary lives. This means that there must be procedures for handling quickly situations which can arise from a relapse or failure to take the prescribed drugs. I am glad to note the new arrangements in the Bill which include a six-hour holding power for certain staff. In general, the clarification of duties of hospital staff in these matters will be helpful.
The fact that many more mentally disabled are now living in the community, and we hope that more will in future, requires a matching increase in knowledge and understanding on the part of the general public. This is especially so of those disabled people who are 981 not obvious to strangers. For example, the deaf and dumb, as well as those suffering from a mental illness.
There is still a lot to be done in spreading knowledge about mental disability. May I give one example. There is a serious and disabling illness, schizophrenia, for which the cause and cure are still being sought. But it is widely thought by many of the public simply to be a Jekyll-and-Hyde phenomenon. The name of the illness is misused and does not evoke the care, sympathy and consideration which it should. Some parliamentarians are to blame. A number of achievements have already been obtained in this international year. Another which I should dearly like to see would be that Members of both Houses of Parliament should refrain from applying the word, "schizophrenia" when they are being derogatory about the behaviour of their political opponents. Such self-imposed restraint would be a very useful advance during 1981.
Mentally disabled, like the deaf and dumb, hope for improvement in public awareness. Most are not immediately recognisable to strangers. All of us hope that members of the public will be more ready to assume that someone who does not reply immediately or sensibly to a question or a remark may be disabled mentally. Then there will be fewer incidents where mentally disabled people are misunderstood or shouted at on the pavement or on public transport.
I should like to make comments on two points in particular in the Bill. First the commission to be set up under Clause 42 for England and Wales, and to be known as the Mental Health Act Commission. This is clearly part of a new system to improve the safeguards, which I welcome. There is already such a commission in Scotland. It is known as the Mental Welfare Commission. The 1978 White Paper referred to it on page 77, and suggested then that there should be a commission on similar lines established for England and Wales. That was discarded by the Government at that time, but it has now been accepted by the present Government and is in the Bill.
I would just contribute this, if I may, to your Lordships' House. It is generally agreed that the commission which has been operating in Scotland has been working well. I hope I can say this with appropriate modesty as someone who has been concerned with it over the years as a Minister and a Member of the other place. That commission was established in 1960 by the Mental Health (Scotland) Act, which was of course the counterpart of the 1959 Act for England and Wales, which has been referred to many times in this debate. From experience of the Scottish Welfare Commission I have high hopes that the new commission now proposed for England and Wales will contribute to safeguards and also contribute to confidence, which is so important in these matters.
The second point to which I should like to refer is the question of hazardous treatment, with or without the permission of the patient, and I would add also the question of such treatment for children when the parents have to give permission, or are consulted. I should like in particular to refer to the electric shock treatment, ECT. This is normally given under an anaesthetic. It can affect, and usually does, the memory of the patient for several weeks. Clearly people will also worry about other possible effects. But someone who is thoroughly disturbed, wildly 982 suicidal, or in a very distressed and distressing state can be brought to a normal state, and this is often later accepted, I understand, by the patients themselves. They find that the burdens which had oppressed them mentally have either been removed or greatly lightened. But these are difficult decisions to be taken, especially for parents who find themselves facing this for the first time. The code of practice which the Bill proposes should be helpful and should reassure.
In supporting the principles in the Bill, I see them as trying to achieve a proper balance between the freedom of the individual to live a normal life and powers to detain, or control, someone in the interests of his treatment and safety. At the same time the Bill should be buttressing confidence in a revised system and its procedures.
§ 6.27 p.m.
§ Lady Kinloss
My Lords, if I do not follow other speakers but confine myself to a few remarks I hope I may be forgiven, as I have rather severe catarrh and find it hard to speak clearly. My noble friend Lady Loudoun also regrets that she is unable to be here today to speak in this debate.
Of course there is very much to praise in this Bill. I am a member of the all-party Parliamentary Mental Health Group, and the National Association for Mental Health, MIND, have always been most helpful in keeping one up to date and informed on mental health matters. MIND applauds the Government's decision to devote parliamentary time to the subject of the mentally ill and the mentally handicapped, and warmly supports the recognition accorded in the Bill to the need for increasing the rights of the detained person.
I still think that the confusion caused by the 1959 Act needs clearing up. That Act tried to deal in a portmanteau fashion with both mental handicap and mental illness at the same time, as if these two things were the same. Mental handicap cannot be cured and therefore medical treatment does not arise, but on the other hand a mentally handicapped person can be helped to gain a certain independence where possible. Mental illness is an illness, like any other, and can be treated medically, which often results in a complete cure.
In answer to a Written Question in another place, in the Official Report of 19th November 1981, col. 50, the Government replied that they recognised,the need to distinguish between mental handicap and mental illness and intend to provide for the legal powers affecting mentally handicapped patients to be grouped separately in a consolidation Bill, to be introduced as soon as possible after the passage of the Mental Health (Amendment) Bill".I wonder why mental handicap cannot be removed from this Bill now? Would it not save time and money? MENCAP has collected evidence that psychiatrists and psychologists have recognised the vast difference between mental handicap and mental illness. It is clearly a mistake to lump the two together, as they have only the word "mental" in common.
Last Friday I was able to visit Yearsley Bridge, an adult training centre in York for mentally handicapped people of all ages. I noted that many of those concerned were eager that mental handicap and mental illness should not be legislated for in the same Bill. In that centre, as I am sure in others, they are very con- 983 cerned with their role of helping their trainees, as they are called, to reach the full potential of such talents as they have. They are determined to make them as independent as possible so that eventually they can live in sheltered hostels; that is, so that those who are able should stand on their own feet as far as possible. I cannot praise too highly the patience and dedication of the staff, and I should like to thank the manager and staff for their kindness to me. I wish your Lordships could have seen the joy and happiness of those persons of limited capacity in the achievements they are able to reach. One trainee took me round and introduced me to each group and the staff. He was kind and helpful and waited patiently while I was shown round the various groups. He was clearly not to be placed in the same category as a person who was mentally ill.
There are very many in hospital who need not be there, although there will always be a few who will need special care and attention. The DHSS has produced an estimate of the numbers who could be transferred from hospital to the community if there were sufficient hostels or some other form of sheltered accommodation for them, and adequate supportive help in the community. I hope very much that when we see the consolidated Bill it will show that steps have been taken in that direction. In the meantime, I wish this Bill a speedy and happy passage through your Lordships' House.
§ 6.32 p.m.
§ Baroness Faithfull
My Lords, with others, I support this amending Bill to the successful Mental Health Act 1959. I am the twelfth speaker and all the points have been covered. However, not having the generous nature of the noble Lord, Lord Wells-Pestell, I propose not only to pursue my speech but to add briefly to it, and I hope I shall have the indulgence of the House.
Before coming to the four questions which I have to ask the Minister, I wish to take up the point of the separation of mental handicap from mental illness. In principle I agree with that, but there are difficulties over it. I see that my noble friend Lord Renton is not in his place, so I shall ask him about this at a later stage. While I see that mental illness and mental handicap are different, nevertheless the services are the same, but the point needs thinking about to appreciate it. I speak as an ex-director of social services. I look back and think of our services to the mentally handicapped and mentally ill. The same social workers dealt with the two groups of people. We did not, in certain degrees of mental handicap and mental illness, separate them, and the day centres which we ran accommodated all sorts of conditions of men; our day centres were not only for the mentally handicapped, mentally ill or physically handicapped or normal lonely people, but they were for everybody. That brought great wealth both to the mentally handicapped and to the mentally ill, in that they were at a centre where there were all sorts of conditions of people, and I should be sorry, so far as the services are concerned, if they were divided, giving a separate service of one group of people from another. Therefore, while in principle the point made by my noble friend Lord Renton is accepted, in practice when it comes to giving a service by a social services department and 984 by voluntary organisations, I should be sorry to see the two sides separated. Indeed, I am not at all sure that we could afford it.
My first question concerns social workers (Clause 43). This aspect was dealt with by the noble Lord, Lord Wells-Pestell, and my noble friend Lady Vickers. Perhaps your Lordships will allow me to go into the history of this matter. In 1970, the Local Authority Social Services Act was passed, amalgamating the mental health department of the local authority, the welfare services department of the local authority dealing with the elderly and handicapped and the children's departments. At that time, when they were amalgamated—it was based on the Seebohm Committee Report—we all agreed with that amalgamation, setting up local authority social services departments, and I still agree with that law that was passed at that time.
As my noble friend Lady Vickers said, there was a move towards generic social workers which we have now recognised is simply an impossibility. However, I wish to speak briefly about the training. Before the passing of the Local Authority Social Services Act 1970 there were two forms of training for social workers. There were the Younghusband courses which trained for working with the handicapped and the elderly, and the mental health officers, and that was a two-year training. There was also, separately, two-year training for childcare staff and children's departments.
An extraordinary thing happened in 1970. Social workers were given a two-year course, but it combined all the departments so that they had to cram into two years what before had been done in two years separately. That really meant that the basic training of social workers has been very unfair on the social workers, very hard for the tutors and, I would add, unjust on our clients. I think it is now fully recognised, and thus my first point is that the basic training of social workers should be longer, even if we must train fewer of them. I would rather have fewer well trained social workers than a number of them thought to be trained but not well trained. I therefore believe that the Minister will be in a real dilemma because the approved social workers in mental health under this Bill will receive extra training on top of the basic social workers' training.
There are two points here: first, where will he find throughout the country enough social workers who have had the basic training? Secondly, would my noble friend Lord Cullen say what training it is proposed to give the approved social workers in the mental health field? Will it be in-service training or additional training? Inevitably one must ask: From whence are the resources coming? Quite definitely they will not come from the local authority. I think that is definite with the position as it is today.
In fairness to the other branches of social work, children's work, the work with the elderly and the work with the handicapped, it is fair to say that social workers in these fields must be trained also, and there are not enough trained social workers for all sides of the work of social services departments.
I look back on my own training long ago. I trained to be a social worker. I did not train to be anything else—a welfare rights officer or whatever else is sometimes done in social work departments. It was a 985 disciplined training. For instance, I am bound to mention, particularly in the light of the Bill, that we had throughout my two year course at Birmingham University a lecture on law from a barrister brought from London, and we had a paper to write every week for two years. Nowadays social workers are fortunate if they have three lectures in two years on the law, and I believe that it greatly behoves us all to look at the quality of training that is being given at the moment, in fairness to everyone all round.
I should add that at the moment the Barclay Committee is sitting, looking into the role of social workers in social services departments. I very much hope that following the publication of the report of the committee we shall look into the training of social workers and this time get it right. But I must say that I believe my noble friend the Minister will have some problems over the training of approved social workers to administer the Bill when it becomes an Act.
My next point concerns Clause 43(3), which states that social services authorities,shall have regard to such matters as the Secretary of State may direct".I wonder what that means. I should like to think it means that there should be a code for the structure of management. At the moment some mental hospitals have their own social workers based on hospitals. In those cases there is a relationship between the mental hospital staff, both nurses and doctors and the social workers. Work of this nature cannot be done well without a good relationship and understanding between the staff. But when it comes to night duty and to dealing with the different sections, in particular Section 29, the rota is such that social workers who have to deal with sections are not always those who work in the hospitals. Therefore, doctors find themselves sectioning a case, perhaps at two o'clock or three o'clock in the morning, with a social worker whom they do not know and with whom they do not have a relationship. I have done section work and I know what it is like to deal with a case which one does not know and to work with a doctor whom one has never previously met, in a hospital which one has not previously been in. Therefore, I very much hope that under the provision guidance will be given to local authorities, asking them to look at their structures.
My next point concerns the Mental Health Act Commission. I have kept a tally and I see that three noble Lords have spoken for the commission, two noble Lords have spoken against it, and the noble Lord, Lord Allen of Abbeydale, has asked questions about it. I have to ask: Will the setting up of yet another structure really solve a problem? I understand from the noble Lord, Lord Campbell of Croy, that this has helped in Scotland, and therefore perhaps I am wrong, but consider—
Lord Campbell of Croy
My Lords, I apologise for intervening and I am grateful to my noble friend for giving way. Perhaps I should have added a little more when I spoke earlier, to say that conditions and the system in Scotland are different and that there could be overlapping in England and Wales because there are more organisations already working in the field South of the Border. But what I wanted to 986 say was that, on the whole, the commission has been regarded as doing a good job in Scottish conditions.
§ Baroness Faithfull
My Lords, I could not be more grateful to my noble friend Lord Campbell of Croy for intervening because I was going to come on to the point about overlapping, to which the noble Baroness, Lady Robson of Kiddington, referred. Consider, my Lords, the number of people with whom psychiatrists will have to deal. Are they ever going to be able to work? There will be the Mental Health Review Tribunal. There are the area, region and district health authorities and the hospital advisory service. Will there not be serious overlapping? Therefore, despite the Boynton Report, I question the setting up of the commission as another structure. I would rather see us get the grass roots work properly organised. I shall perhaps put down an amendment at the next stage of the Bill suggesting that the commission be set up for five years only, to be reviewed at the end of that priod; but I have yet to consider that.
My final point concerns mentally handicapped children in hospital. The noble Lord, Lord Renton, and the noble Baroness, Lady Vickers have already referred to these children. The deepest concern for these mentally handicapped children is that they are permanently being brought up in hospitals and this is less than worthy of our caring society. The children perforce suffer in silence. They cannot strike to make known their rights to a normal life. They cannot riot to make known their needs and because they cannot protest, our society acquiesces and allows them to be brought up in a hospital, away from a community setting, and very often away from emotional relationships so necessary to the development of personality.
That is not to say that the nurses who look after them do not look after them well but, judging from my experience and knowledge, the children cannot possibly lead a normal life. Many children who are mentally handicapped can make a great contribution to life, as was said by the right reverend Prelate. I would add that this point has been looked at by the King's Fund, and I would commend to your Lordships' House the project paper which gives all the details of the position of mentally handicapped children being brought up for many years in hospitals, when they could as well, as happily and more profitably be brought up in the community.
I am privileged to be the vice-chairman of the council of Barnado's. I am also a vice-president of the British Agencies for Adoption and Fostering and I serve on the Committee of Parents for Children. I have worked in a social services department. I would suggest that with a partnership between the voluntary sector and the statutory sector it should be possible to get children out of hospitals, perhaps by adoption. Your Lordships would be astonished if you knew the number of people who in the last two years have adopted mentally handicapped children. It is possible happily to foster the children. It is possible for the children to be looked after in an integrated children's home, and it is possible, as is being done by Barnado's at the moment, to run community-based centres for the mentally handicapped. I ask the Minister, the noble Lord, Lord Cullen of Ashbourne, whether, in order to deal with this position, we should 987 set a time limit, and say that within two years every mentally handicapped child who is fit and healthy should be brought out of mental hospitals.
I would ask: what is the status of treatability? We heard earlier the noble Lord, Lord Elton, say that one of the principles of the Bill was that no one should remain in hospital, except under the status of treatability. Fit, healthy mentally handicapped children do not need treatment. Therefore, under the Bill would it not be illegal for children to remain in hospital and be brought up in such conditions? If the Bill means that many children at present being brought up in mental hospitals are moved into the community, to a richer life, where they can work, and live and have training and education, then indeed it will have been a great success.
§ 6.50 p.m.
§ Lord Auckland
My Lords, a longstanding engagement at New Zealand House will mean my leaving your Lordships' Chamber almost immediately after I have spoken, but I shall try my utmost to return for the final speeches. I should like to add to the congratulations extended to my noble friend Lord Elton on his appointment to this important if relatively lowly office—an office which I think he will fulfil with distinction. It is certainly not going to be an easy passage for him; and, having been involved in a very small way with mental health legislation in your Lordships' House over a number of years, I cannot see this Bill presenting any less problems than any other Bill on the same subject, notably that which became the very important 1959 Act, which of course this Bill largely consolidates. Indeed, I remember that after my speech on the 1959 Bill—and I had been in your Lordships' House for only a short time—I was summoned to the Woolsack by the late Lord Kilmuir. I wondered what transgression I had committed. He said to me, "I enjoyed your speech very much, but would you please speak up in future?"
Since those days there has been a good deal of progress in the field of mental health. But, of course, one of the main problems is that there is still a great lack of knowledge, even among those who are really interested in mental health, as to the real difference between mental illness and mental health; in other words, the various degrees of severity among those who are severely handicapped and those who merely enter hospital for a short time, possibly for a nervous breakdown. Therefore, I think the amendment of the term "subnormality" to replace "mental handicap" may well be a good move. At least, this is the view of some members of the medical profession.
On Sunday night my wife and I spent some four hours with the chief nursing officer and administrator of one of the seven mental hospitals near the town where I live in Surrey. We went through this Bill (it was on a Sunday night, when one's brain is not as active as it might be) as far as we could. As a result there are a few points that I should like to make at this stage, because this a is Second Reading—an occasion for short speeches. When we come to Committee stage, bearing in mind that this Bill, laudably, is starting in your Lordships' House, we shall have some very detailed examination to do because there is much 988 definition to confirm and a great deal of information which we shall need to know.
We shall need to know who does what and, above all, where the staff is going to come from and where the money is going to come from; because many of the schemes provided for in the Bill are in themselves totally praiseworthy but they are going to lead to expenditure; and it is my contention, and I think the contention of most of your Lordships, that even in these austere times there must be expenditure upon these people, or at least an improvement in their conditions. Because, my Lords, we are talking about people; we are not talking about inanimate objects. We are talking about people who, through no fault of their own, are mentally handicapped or mentally ill, whatever the case may be, some with Down's syndrome, another very distressing condition, and others who are able to speak and to work, albeit to a limited extent.
Clause 16 of the Bill has been discussed a great deal, and I think the question one must put to the Government is this. As I understand it, the mental welfare officer has to interview the patient to satisfy himself that detention in hospital is appropriate. But how many doctors, psychiatrists or other experts on the therapeutical side of mental health are going to be needed to confirm (or otherwise) this situation? I speak hearing in mind particularly an area such as where I live, where we have seven mental hospitals; and another such area is the St. Alban's-Watford area, where there are another seven mental hospitals. In some cases there is overcrowding and in some cases there may not be so much overcrowding but there are a very large number of patients who may have to be seen. One wonders just how many qualified people there will be to see these people in a reasonably short time, without intolerable delays.
Here we obviously have to come to a decision as to not only how far the Bill should serve the rights of patients—and, of course, this is the main object of the Bill, and an admirable object it is, too—but also how far it is to ensure that in the case of those patients who are not able to decide for themselves and who have no parents or relatives to decide for them, their rights are going to be protected. Not being a social worker myself or a magistrate, or any expert of that kind, I shall not, certainly at this hour of the evening, try to adumbrate upon that. But one thing is quite certain, it seems, from a number of the clauses in this Bill: the work which the courts face is going to be tremendous. Some very difficult decisions are going to have to be taken by magistrates—and here I declare an interest (a completely non-financial interest) because my wife is a magistrate and serves on a bench which, naturally, from time to time has to deal with cases which involve people from hospitals of this kind—and this is an important point to remember.
The other point we have to remember, I think, is that the mental handicap services remain the Cinderella services in 1981. In so many of these hospitals, still, not only is there a desperate shortage of staff to look after patients, some of them very severely handicapped, but salaries are often inadequate. This Bill does not deal with that specifically; that is a matter for negotiation. I completely accept that point; but we do have, perhaps, a cart-before-the-horse situation here, because 989 unless and until we have really first-class staff and a sufficient staff, all these recommendations are going to be in danger of falling by the wayside.
One suggestion which I should like to put forward and perhaps develop in Committee stage is this. Many of these long-stay hospitals do not have such relative luxuries as a minibus, by which patients can be taken to the seaside or other places of entertainment and beauty or a swimming pool for therapeutic purposes. Many of these patients have funds of their own, but in many cases they are not able to administer them. I am not advocating the setting up of another Quango but there could, surely, be a committee set up to look at a situation where one or more of these amenities were needed, perhaps having a representative of the DHSS acting as chairman and representatives of the League of Friends. I would associate myself with all the tributes paid to the League of Friends who have contributed so much to the schemes; but in inflationary days even the League of Friends are not able to be as generous as they would like. This is an idea which the Government might think about. Funds could be raised without the taxpayer's pocket being hit too hard to provide amenities for these patients, particularly in hospitals in the greyer areas where they do not have minibuses, swimming pools and other things which are helpful therapeutically, not only for those who are what I might call high-grade but for those who are very much less fortunate.
My Lords, inevitably, the Second Reading of a Bill of this kind is an opportunity for discussing a large number of points. I have thrown a few, to so speak, to the House; but I submit that the value of your Lordships' House at the Committee stage of this vital Bill will be very substantial.
§ 7.2 p.m.
§ Baroness Masham of Ilton
My Lords, I should like to contratulate the Government on bringing in this amending Bill. I should like also to add that I hope that your Lordships may be able to improve the Bill during its passage through this House. I was pleased to hear the noble Lord, Lord Elton, say that he was open to suggestions. I was moved some years ago while watching the remarkable film, "One flew over the Cuckoo's Nest". This was a film which showed how attitudes of staff in a hospital for mental patients can become so orientated to automatic treatment of patients not for their individual well-being but for the convenience of the staff and the system. Also, while visiting hospitals for the mentally ill and handicapped I have been made aware by patients who have called out my name; and I have realised that they need friendship and individual recognition. There are many desperately lonely people in our society.
The subject of this Bill is not easy. I hope that we can help to open up the real fear that often is connected with hospitals which detain patients. I know, too, that sometimes ill patients who might benefit from being in-patients for a time in hospitals refuse to go for fear that things will be done to them against their wishes. Some of the recent television programmes on this subject have been very revealing. The lack of privacy and being deprived of personal effects has always worried me when I have visited some hospitals, and also the mixing of ages and illnesses. Parliament 990 now has before it a Bill which we have the great responsibility of being able to change and thus to help some unfortunate people who are not able to help themselves.
There are questions which I should like to ask the Minister. I have given advance warning of some of them to the noble Lord, Lord Elton. Because there is a lack of hospital secure places, I believe that some patients have been sent to prisons. Are these patients then classed as patients or prisoners? Under this Bill, when it becomes an Act will they have the same benefits as patients in hospital? Do they come under the care of the Department of Health and Social Security or of the Home Office?
I am going to visit a secure unit in Middlesbrough in two weeks' time. I believe this is the first such unit in the country. I believe that the North of England is further advanced than the South in building these units. Is it going to be possible to send patients from the South to the North if they need treatment in a secure hospital unit?—which might be better for them than the holding process and drugs which may be the only facilities that the prison can offer.
I should like to hear from the Minister on the matter concerning the mobility allowance which is paid to some patients in mental hospitals. I brought this up some time ago, and I believe Sir George Young is looking into the matter. Apparently some patients are not able to make use of this money and it mounts up in their accounts. As the law stands now, when they die it goes to whoever is their nearest relative. This may be someone who has never been near them or even visited them in hospital. I think this is a monstrous waste of public money. I gather that the total sum now accumulated is in excess of £25 million. It seems to me that if the money is not used to benefit the individual concerned, then if it were to be paid into a patient's "No. 2 Special Mobility Account" so that it would not be muddled up with any other money the patient might have, then, if the mobility money was not used by a certain time—and certainly when they die—the DHSS might claim back the money.
The DHSS keep on saying that they are short of money and yet the Government allow £25 million to lie idle and then not be used for its original purpose. I am sure that many of the hospitals dealing with mental illness or handicap could benefit from more money. When visiting one hospital I found the last meal of the day was sent to the wards at 3.30 in the afternoon. I do think that the quality of life could be greatly improved in many hospitals, even though great efforts in some hospitals have been made in the last few years. I was delighted this year to receive a cheque for £5,000 on behalf of one hospital. The money had been raised for upgrading a psycho-geriatric ward by the efforts of a police college. I think that the community often does care but, in many instances, raising money is the only way it knows how to help.
It has been found by research in America that many patients admitted for psychiatric treatment have been suffering from undiagnosed physical illness. This could well be found to be the same in Britain. Therefore, I think it seems wise and necessary that all patients detained under Section 25 should have a full 991 physical examination by a consultant physician during the first three days. What is stated on page 6, paragraph 18, of Reform of Mental Health Legislation, (Cmnd 8405) is vague and inadequate.
When we are dealing with such a serious matter I will be very surprised if the Government do not agree with this suggestion and I would ask the Minister, the noble Lord, Lord Elton, to look into this carefully. I have met serveral psychiatrists from time to time and I have found some to be most excellent doctors; but on occasions I have seen some who were so tired, over-worked and drained of energy that they could easily miss some vital clue through their own exhaustion and not looking for what a general physician would look for in their complementary assessment.
Undiagnosed physical illness may cause or exacerbate patients' psychiatric symptoms. I think many people will welcome the provisions in the Bill by which patients have increased access and opportunities to be heard by mental health review tribunals. I think that these provisions should be improved upon. May I ask the noble Lord the Minister: Who will represent the patient? It may be very difficult or impossible for him to represent himself. Will the patient be able to have the benefit of legalaid?
I believe that the mental health review tribunals have the power to recommend either continued detention or discharge. People who serve on these tribunals have told me that it is an impossible choice. In many cases they do not want to detain the patient but the facilities for him to cope in the community are non-existent. The tribunal should have a third choice so they could indicate the type of resources the patient would need outside the hospital. For example, hostel accommodation, sheltered workshop, social worker support or day centre facilities. Mental health tribunals will then be able to pinpoint the lack of facilities and something may be done about improving the areas which are now inadequate.
There is considerable worry about Clause 38 which contains provisions for the involuntary treatment of patients. With the doing away of forced feeding in prisons is it not time that we did away with the indignity of patients being forced to have treatment that they do not wish to have and which may not benefit them? Many of the treatments such as psycho-surgery, ECT and heavy psychotropic drug treatments can be hazardous, experimental and irreversible. On a recent television programme that I saw it was said that patients now having electro-convulsive therapy (ECT) do so under a general anaesthetic. I should like to ask the Minister: Who signs the consent form for the patients who are having this treatment and other operations against their will?
I hope that we will have our questions answered if not at the end of this debate, before the Committee stage. I end by saying that many community health council members, when discussing the Mental Health Act, felt that mentally handicapped people should not come within the scope of the Act as they do not at present and that it should be concerned solely with mental health. No doubt there are grey areas where the two merge and some mentally handicapped people may be mentally ill, but this could apply to any of us at any time.
§ 7.15 p.m.
§ Lord Hooson
My Lords, the Mental Health Act 1959 was in its day regarded as a thoroughly enlightened piece of social legislation. Its greatest achievement was to remove needless formalities in the admission process. But as the years have passed—as the noble Lord, Lord Renton, has mentioned already—its reputation for far-sightedness and liberalism has become to look a little exaggerated. It did not, after all, actually cause the fall in the use of compulsion; that trend was well under way in the years preceding it. Although it established mental health review tribunals, which at their best provide an admirable review, only those patients detained under the longer-term powers could apply to them. The very large number of patients detained for 28-day periods have had no remedy.
In so far as this Bill remedies that situation, it is very much to be welcomed. I extend the welcome which has been given to the Bill generally. It is high time that the 1959 Act was amended. Having said that, I want to come to a most important reservation that I have about it. It has already been touched upon by the noble Baroness who has just spoken and by the noble Lord, Lord Kilmarnock, in an earlier speech. The most worrying part of the Bill is its proposed scheme for the imposition of treatment on unwilling or non-consenting patients. It introduces an entirely new principle into our law.
This aspect of mental health law is clearly ripe for reform. At the moment doctors, nurses and patients are quite unable to obtain any authoritative legal guidance on their legal rights. On the crucial issue of whether a psychiatrist can impose treatment on a detained patient, practitioners have been forced to rely upon counsels' opinions. But opinions differ and those obtained by, COHSE and the Royal College of Psychiatrists have conflicted. Indeed, my information is that the two medical protection societies were also given conflicting counsels' opinions. Parliament must therefore accept its duty to enact clear principles into law in this amending Bill.
But the provisions set out in the Bill are inadequate, misguided and unbalanced. I do not think that Parliament should allow them to go through unamended. I freely accept that most psychiatrists dislike resorting to force majeure and would far prefer to have their patients' agreement to any treatment. It is probably quite rare for treatment to be given to a patient in the face of his or her implacable opposition and physical resistance. Of course, there are circumstances in which it is justified; that is not in dispute. In genuine emergencies there may be no other compassionate alternative.
However, if no emergency has arisen, the views of the detained patient should be respected if he or she is capable of understanding what is involved. That principle is vitally important; but the truth is that this Bill casually ignores it in Clause 38. That would allow a competent detained patient to be treated against his will—subject only to one qualification; a second psychiatric opinion—by ECT or long-acting phenothiazines or any other treatments likely to be listed in the code of practice. It ignores the principle of no treatment to the non-consenting despite the clear recommendation of the Butler Committee on Mentally 993 Abnormal Offenders, which recognised that mentally abnormal offenders detained under the Mental Health Act were not necessarily unable to appreciate what a treatment involves.
What is true for patients detained under Part V of the Act (which provides the legal powers in respect of offenders) is just as true for patients detained under the civil powers contained in the Act. The Butler Report (in paragraph 3.54) quite rightly did not countenance the imposition of treatment on a competent patient except in emergencies.
A major defect of the proposed scheme is therefore that it fails to uncouple two concepts: the concept of detainability on one side and on the other competency to decide on treatment. Among the 7,000 patients who at any one time are detained under the Act there are many—a great many—whose faculties of reasoning and understanding are quite sufficient to comprehend a treatment proposal. For example, the diagnosis of psychopathy does not depend upon the observation of any intellectual defect—it is regarded as a moral or emotional defect—and the White Paper recently published shows that nearly 10 per cent. of detained patients are classified as suffering from psychopathic disorder.
Among the much larger number of patients diagnosed as being mentally ill (nearly three-quarters of all detained patients) there are undoubtedly many with quite adequate capacity to decide on treatment for themselves. Mental illness, after all, is manifested in almost every shade or gradation of insight. The fact that a person is properly diagnosed as mentally ill does not mean that he or she is disabled in all his or her powers of judgment. And, of course, detention may cover periods when a mental illness has gone substantially into remission. The Percy Commission, which reported in 1957, which was of course before the 1959 Act, recognised this fact when they said:We do not think it right that it should be assumed in law or in administrative practice that mentally disordered patients who are admitted to hospital under compulsory powers are necessarily incapable of managing their financial affairs".What is true about a patient's ability to make financial decisions is just as true about treatment. Indeed, we should be more concerned about overriding a patient's wishes on treatment since it touches the core and essence of a person's right to be regarded as a self-determining human being.
The White Paper entitled The Review of the Mental Health Act 1959 (Cmnd. 7320) which the last Government put out in September 1978, accepted the Butler Committee's view which I previously quoted. It specifically noted that it had the advantage that—I quote:it distinguishes between patients who can appreciate what is involved and those who cannot".Why, then, have this Government thrown this important principle overboard? I think the White Paper which has been published alongside the present Bill certainly does not provide any answer. I recognise of course, as the Butler Committee and the last Government must have done, that if a detained patient who is competent to understand chooses to refuse treatment he may suffer continuing detention without receiving the treatment which his doctor believes in. The decision to invoke compulsory detention under 994 Sections 26 or 60 of the 1959 Act is made on the basis that the patient's condition warrants treatment; but this is now to be very broadly defined and will include nursing care or care, habilitation and rehabilitation under medical supervision.
Just because a person has been detained it does not follow he should be unable to refuse a particular treatment on a subsequent occasion when circumstances, including his own state of mind, may have changed. And it certainly should not mean that he has lost his right to refuse treatments which would constitute assaults at common law in the absence of consent. For better or worse, it is the patient's right to choose if he is capable of choosing. That seems to me to be a fundamental principle and we are faced with its abrogation in this Bill. I would therefore hope that the Government will be receptive to amendments to Clause 38 which would restore the position of the competent patient to that which the Butler Report and the last Government in their White Paper proposed. As it stands, I believe that this Bill provides unacceptably wide powers over a vulnerable group of people.
In my view, it will not be enough simply to amend the Bill to protect the freedom of choice of the competent detained patient. Inevitably one must ask: who will decide whether a patient is competent or incompetent to make the choice for himself? Is it to be the doctor whose proposal on treatment has been refused? I would hope not, because his judgment would be bound to be coloured by the reaction, and he may think the unreasonable reaction, of the patient concerned. No patient would have confidence in such a system. There must be a second opinion from a multi-disciplinary panel.
The 1978 White Paper discussed in some detail the form that second opinions should take, and noted that there had been considerable support for the idea of a multi-disciplinary panel, and I would entirely agree with that approach. I need not go into it now: I can go into it more at Committee stage. But one is hound to feel that the Government have stood in awe of psychiatric opinion on this issue and have discounted in the end all other views. I hope they will reconsider and that your Lordships' House will make them reconsider. The way in which society adjudges an individual to be in a state of mind justifying his subjugation to medical treatment is significant beyond the walls or the confines of psychiatric hospitals. Doctors alone cannot decide whether an individual is fit to plead to an indictment in court; doctors alone cannot decide whether somebody should be deprived of control of his or her property. The length of detention in mental hospitals is, by virtue of the 1959 Act, subject to review by tribunals and it is going to be subject to even greater review now. I would respectfully submit to your Lordships that the decision to compel treatment is quite as serious and solemn an issue as any of the three I have mentioned and should not be left to doctors alone.
I have already taken up a great deal of your Lordships' time and I will make the other points I wish to make on this Bill at a subsequent stage. Suffice it to say that, with one or two important reservations—and here I would entirely agree with the point made by the noble Lord, Lord Renton, about the clear distinction 995 between mental handicap and mental illness, which one would have thought, as it is over 20 years on from the 1959 Act, should now be capable of separate definition and separate treatment—some of which have been dealt with in this debate, I would say that I generally welcome the Bill. But I think that the matter I have raised in relation to Clause 58 goes to the very root of a most important principle enshrined in our law.
§ 7.28 p.m.
§ Baroness Lane-Fox
My Lords, at this late stage of the debate I put it to your Lordships that in this pressurised existence many of us find ourselves treading the tightrope of mental health, from which tightrope crashing falls too easily occur. What a blessing it is that over the last four decades such real progress has been made in breaking through the awful barrier that formerly surrounded these hazards. Then it really was a case of "them" and "us", where little publicly was done about the lot of, for example, the cerebrally palsied or spastic, except possibly to label them "the village idiot" The only refuge that could be offered to them was the old, gruesome asylum. Society was so patently mistaken about these people, and I am grateful that in this Bill the term "subnormal" is substituted by "mental handicap", for in today's more humane and emancipated climate we could not expect less. It is almost today's climb-down to concede how little we once knew about the troubles of our fellow men.
What worries me is the point which was put so strongly by the chairman of the Royal Society for Mentally Handicapped Children, my noble friend Lord Renton. This is that through the Bill as it stands a small minority of mentally handicapped people will continue to be detained in hospital despite the fact that their handicap cannot be cured. For them, treatment is irrelevant. Certainly forceful detention is of no benefit to them and can lead to serious psychological damage and physical deterioration, we are told. Research in many countries has shown that progress for them can be made through suitable education, social training and psychological support, geared to the specific needs of each mentally handicapped person. This, I am reliably informed, can best be given away from the atmosphere of a hospital ward. No other handicapped person, such as the blind, the deaf or the crippled, can by law be forcibly detained in hospital just because of his or her handicap. To me, it seems obsolete and wrong to hold a person in hospital solely because of his or her intellectual handicap.
This is not the kind of attitude that we look for in this International Year of Disabled People. The IYDP appears to have increased the public's understanding and awareness, not only of the problems of those of us who are so obvious and so easy to identify, with our sticks, crutches and wheelchairs, but also of those who suffer from the large numbers of unseen handicaps, distressing and isolating as they often are. Mental handicap and illness must rank high among these.
I believe that openness and frankness alone can improve the life situation of such cases. Yet even today there is still a bias and prejudice which can so damage the lot of ex-mental patients. For this reason, I want to relate that, pre-1957, I spent two nights on the 996 wards of a mental hospital. The cause with me was difficulties and frustrations at work, which had left me sleepless and in a miserable mental muddle. But that short visit certainly taught me the anguish of being incarcerated in a ward, with just one nurse on duty and 14 other mentally disturbed patients. Let me repeat that this took place nearly 25 years ago, and my reason for encroaching on your Lordships' time with my experience is that I believe there should be no more shame attached to such setbacks and disorders than to any other illness.
I now turn to the much discussed Clause 38 in Part VI of the Bill. There is opposition to this, on the grounds that patients and lay people should be allowed more say as to the treatment administered to the mentally ill. I simply cannot go all the way with that view, because I have been in very close contact in the community with people who were so mentally confused that they were utterly incapable of making a sound judgment for themselves. What is more, despite the dramatic connotation of ECT treatment, I have seen those cases quite remarkably and successfully treated by those means.
Far be it for me to suggest what, if any, treatment could suit everybody, but it is my firm belief that decisions on treatment are beyond any doubt a matter for the psychiatric experts. Patients should not be denied this chance of escape from their intense misery, because of judgments made by frightened and unqualified people. My experiences have taught me that, when such advanced forms of treatment are given, there should be a uniformly high standard of equipment, accommodation and immediate after-care, so that cases may derive the fullest benefit.
Finally, the Bill does not deal with that all-important matter of the co-operation of statutory and voluntary bodies in mental after-care. This so much affects the person, the family and the results of the treatment. Perhaps most of all, provision through the voluntary organisations is needed for those unfortunate people who are not lucky enough to have friends and family to care for their welfare. May I hope that my noble friend the Minister will find it possible to include this aspect in the Bill, so that the whole unhappy situation is given the fullest support?
§ 7.34 p.m.
§ Baroness Fisher of Rednal
My Lords, to those noble Lords who are not aware of the fact, may I say that I am the last speaker before the winding-up, at which some of your Lordships might breathe a sigh of relief. Listening to noble Lords this afternoon, there appears to be an enormous range of local variations in the quality of mental hospital care, and if "care" includes not only nursing and medication, but habilitation and rehabilitation, then there is a need to avoid inconsistency in what is a National Health Service.
I particularly noted the point made by the noble Baroness, Lady Masham, regarding television programmes, two or three of which I have watched and been horrified by, because they bore no comparison with the hospitals that I know near my home, in the environs of the City of Birmingham. I can quite candidly say that I am pleased with the very fine training facilities that there are and especially—I make 997 this point because handicapped children have been mentioned so many times—with the excellent schools which are now being set up, or are in operation, and which come under the Act dealing with special schools.
We have to make sure that these inconsistences in the National Health Service are avoided, because only the highest standards are acceptable. Therefore, I should like to pay tribute to Professor Mittler and Dr. Simon on their involvement in the national development group, and on the work which they have been doing in mental hospitals throughout this country. With the encouragement of the Minister and the department, they have tried to lay down a basic national general policy of management and training in mental hospitals. I look upon this Bill as a furtherance of national general policy, but not encroaching upon the work of Professor Mittler or Dr. Simon, whose work has to do with administration and management. But this Bill will mean a furtherance of better services for the mentally handicapped, because it concentrates on the patient as an individual.
In saying that, one has to recognise that the Bill represents significantly new departures from existing procedures. Therefore, the Mental Health Act Commission will carry a very heavy responsibility in safeguarding and protecting the interests of detained patients, and in making quite sure that the spirit and the letter of the law are strictly operated, while recognising, quite clearly, that its responsibility will be to the patients or, as the noble Lord, Lord Auckland, said, to the patients who are people.
Therefore, I am particularly concerned with the composition of the commission, as other noble Lords have been this afternoon. I should like to ask the noble Lord the Minister whether he feels that any difficulties might arise between commission members who are not medically qualified and those who are? Can he foresee an occasion arising when the commission, because it was being guided by medical observations, would not, perhaps, act as impartially as we think desirable?
I have very mixed feelings about the commission, because I am not sure whether it is supposed to be acting as a policeman in the mental hospital, seeing that the law is upheld and protecting the patients' interests, or whether it will be judge and jury and be brought into play if the law is broken. Therefore, the work description will have to be spelled out clearly, because it is not sufficiently clear in the Bill at the moment.
The other point which I want to raise has been mentioned by the noble Lord, Lord Allen, and the noble Baroness, Lady Masham. I should like to take it a little further. While I welcome the safeguards for patients detained in hospitals and their right and opportunity to apply to a tribunal for a review of their case, I am concerned, as are the noble Lord, Lord Allen of Abbeydale, and the noble Baroness, Lady Masham of Ilton, about whether those safeguards will apply equally to mentally sick persons who are placed in prison because there is not available a sufficient number of secure hospitals. Just because there is not a sufficient number of secure hospitals and therefore we cannot classify them as patients, what will be their rights?
A recent newspaper article quoted from the judg- 998 ment of Lord Lane in the Court of Appeal concerning a mentally sick person who came before him. According to this press report, the Lord Chief Justice observed:We are forced to do what we know to be wrong, put her in prison, because not enough secure hospitals are available".He went on to say:We see this type of case every week and nobody has done anything about it".Mr. Justice Taylor, sitting with him, is reported to have said that it was a public scandal that this mentally sick person who was before him in the Court of Appeal had to go to prison. I wonder whether noble Lords agree that it would be a public scandal twice over if that type of patient, committed by the courts, who is not allowed to have hospital treatment, whether medical or rehabilitation treatment, because there is no place in hospital for him should have to forgo the privileges, rights and opportunities that he would have if he were a patient in a hospital. The noble Lord, Lord Elton, said that no patient will be forgotten. But if you are a general practitioner, patients who cannot be admitted to hospital are still patients.
All Acts of Parliament are very difficult for the average person to comprehend. They are even difficult for Members of this noble House to comprehend. Therefore, I should like an assurance from the Minister that the patient's nearest relative, who is specified in many clauses of the Bill, will be issued with written information in easy to understand language and not, I beg the indulgence of learned Members of this House, in legal mumbo-jumbo—information that the nearest relative will hold on behalf of the patient which clearly sets out the protection under the Bill. This is most important. We have heard today that patients might not be able to make decisions for themselves. Therefore their nearest relative must know about all their rights and privileges under the Bill.
The noble Lord, Lord Kilmarnock, and the noble Lord, Lord Hooson, illuminated in great detail the concern which I, too, feel regarding consent to treatment. At this late hour I shall not elaborate upon that point. All I would say is that I shall refer to it when the matter is raised in Committee.
It has been said today that the mentally handicapped, those who are mentally ill in society, and mental hospital provision have been the Cinderella of the National Health Service for very many years. For a decade or more there have been conferences, committees, blue papers, white papers, green papers—every-colour-of-the-rainbow papers—and Government reports without end upon this Cinderella service. Therefore I welcome the Bill. If, however, one looks at the White Paper which accompanies the Bill, the "meat in the sandwich" consists of those points which cannot be put into operation for three, four, five or six years. I feel, therefore, that the powers which the Bill will give and the progress made in putting those policies into operation must commence as quickly as possible after the Bill becomes law. There is no need for us to have to consider when to set up courses for approved social workers. One hopes that at the beginning of their next session at college or university a course will be provided for them, which would mean that immediately after their training they could put this into operation.
999 I welcome the Bill. It is a non-party issue. Therefore we on this side of the House support the Bill. However, we want there to be more emphasis upon the resource implications in terms of manpower and buildings as well as money.
§ 7.47 p.m.
§ Lord Elystan-Morgan
My Lords, my first task—indeed, a pleasant task it is—is to join with all those who have extended their sincerest congratulations to the Minister, the noble Lord, Lord Elton, on the distinction with which he introduced his first Bill. It is his legislative baptism. Baptism in adult age is a time undoubtedly for conversion. We shall look forward with very great zeal to many conversions on his account at a later stage of the Bill.
There have been two themes which have totally dominated the debate. Everyone who has contributed has. I believe, endorsed both of those themes. The first, clearly, is the most genuine welcome for this humane and enlightened reform. I confirm what was said a moment ago by the noble Baroness, Lady Fisher of Rednal, that this is in no way a political issue. It will be possible for everyone to commit himself and herself to the speedy passage of the Bill, provided that it is consistent with certain improvements which I believe all Members, to some degree or another, would wish to see brought about. This is the second attitude which has been voiced by many: that the Bill, though good, is most certainly capable of improvement. May I quote in the ancient language of Wales, which will be understood by one or two in this Chamber, an old Welsh proverb:Mid dâ Lle Ellir Gwell".Nothing is good that is capable of being improved uponI am sure that it will be in that spirit that we shall try to achieve for this Bill as speedy a passage as is reasonably consistent with the putting forward of those matters which we believe are utterly vital to its improvement.
I am sure that all Members of the House will agree that in putting forward these proposed improvements they will not be put forward in any spirit of carping or childish motivation but from a sense of the significant opportunity that will be presented to us at Committee and Report stage. It may well be that such an opportunity will not occur again for some decades. It is now almost a quarter of a century since the Mental Health Act 1959 was planned and drafted, and it may well be 25 years hence when again there will be a major review of this basic legislation. It is vital, therefore, that we should not only seek to interpret the progressive views that have developed over the last 25 years, but that we should also to a certain extent seek to anticipate their further development in the future.
I join with so many others in extending the warmest congratulations to all who have been concerned with the bringing about of this legislation: Ministers of the present Government, those who were concerned with the White Paper of 1978, particularly my right honourable friend David Ennals, who in addition to his work in the Department of Health and Social Security was in fact a national official of MIND for many years 1000 and indeed, if I may also mention Mr. Gostin, the legal director of MIND in his two volumes A Human Condition, which have proven to be an inspiration to many, and indeed of course the report of the noble Lord, Lord Butler of Saffron Walden.
The Bill now presented follows honourably a path that was pioneered a long time ago. It was at the end of the 18th century that Pinel, the head of the Paris asylum for men, horrified his colleagues by removing restraints and shackles from hundreds of patients. His example was soon followed in England by Tuke, who led the Quaker movement in that noble direction. His example was paralleled in America by people like Benjamin Rush.
The weaknesses of the Bill have been dealt with fairly comprehensively by many, including my noble friend Lord Wallace of Coslany. I believe that future generations looking back at our efforts may well say that the most significant weaknesses of the Bill at this stage were weaknesses that were attributable to the Bill seeking to fly in the face of its own philosophies and to defy the conclusions of its own logic.
May I say that, like all other noble Lords, I greatly welcome the fact that Her Majesty's Government were so thoughtful as to publish concurrently a White Paper that has been most helpful in understanding all parts of the Bill. The White Paper stresses as one of its main themes, that of treatability; that mental hospitals are there to cater for people who can be treated or who can reasonably be expected to be treated by them for their sickness. It is on that basis therefore that, on the face of it, there must appear to be the severest condemnation for the inclusion of the mentally handicapped in mental health legislation.
In 1959, as the noble Lord, Lord Renton, has said, it was not thought incongruous to include the mentally handicapped in that legislation. He need not chastise himself. No doubt those decisions were made in the light of the medical knowledge then prevailing in relation not only to mental handicap but to mental illness as well. A great deal of progress has been made in the last two decades.
Now, with the benefit of hindsight—and we should all be Solomons of good judgment if we were always able to judge everything from that perspective—we can say that it is unfortunate that it should have been so included. In a debate in another place on the 16th November 1979—a debate which has already been referred to—it is noteworthy that two honourable Members of that other place, Dr. Gerard Vaughan and Mrs. Chalker, who since have suffered a sea change to be Ministers in Her Majesty's Government, and indeed in the Department of Health and Social Services—spoke very strongly for excluding those who suffered from mental handicap from the provisions of the Act of 1959.
In reply to a question by an honourable Member in another place a Minister, Mr. Geoffrey Finsberg, said these words in relation to mental handicap:I think that question in fact was answered a few months ago. The needs of the mentally handicapped cannot be served by the Mental Health Act 1959";and he then went on to say that the Government proposed in a shortly forthcoming Consolidation Bill to remove mental handicap from mental health legisla- 1001 tion and to deal with it separately. That of course is not done in this Bill. Although there will be superficial cosmetic changes it will still remain part and parcel of that fundamental legislation.
I do not think that I need say anything at all to add to the arguments that have already been so splendidly put forward by so many, particularly by the noble Lord, Lord Renton, whose efforts in this whole field are the subject of admiration in this House as they were in another place; and indeed no one who read that powerful cri de coeur by Mr. Brian Rix in The Times of today can fail to be moved, not only by his own experience but, it seems to me, by the overwhelming and unremitting logic of his argument. It seems to me there is no earthly reason why a child or young person or older person suffering from mental handicap should be dealt with in any way in law that is different from a condition of blindness or deafness or the stunted growth of a limb. I accept totally what the Minister has said about the Government having an open mind on this matter, and I am sure that the Government will be prepared to give urgent reconsideration to this most vital part of the Bill.
Another dominant objective on the part of the Government was of course the protection of mental patients and to see to it that that protection should be real and that, above all, so far as the public is concerned, that it should be manifestly seen to be effective. It is in the light of such a principle that we look at the Mental Health Act Commission, and if I may at this late hour I will confine my remarks purely to its function in relation to non-consented treatment.
On the face of it, the case here seems to be a very clear one in favour of a decision being made by a multi-disciplinary body. Almost all the institutions and bodies that have been canvassed in this matter, I understand—and I am sure that the noble Lord who is to wind up the debate will correct me if I am wrong—have been unanimous in their view that it should be decided by such a body. The 1978 White Paper was strong on the question that the second opinion should be a multi-disciplinary one. It appears that the only dissentient voice of note was the Royal College of Psychiatrists, and they appear, at the moment at any rate, to have got their way. That, I suggest, is totally unacceptable.
The noble Lord, Lord Hooson, made a very pertinent point, that in many cases persons who are detained in mental hospitals will indeed still be able to exercise a balanced view in relation perhaps to financial affairs. I would not pose as an expert on probate—far from it—but I believe I am right in saying that the test whether a person has testamentary capacity or not is whether he is able to know who his family are, what his duties are, and what the effect of certain dispositions might be. So there may well be thousands of people under restraint who have testamentary capacity, the capacity to dispose of tens or thousands of pounds, but have not the capacity to make the decision as to whether they shall be subjected to certain treatment or not. That irony in itself, I believe, is a very crushing phenomenon in this particular connection.
This is not the way to gain confidence, the confidence that is utterly necessary for the success of the system. This is not the way to gain confidence from patients 1002 and from the public at large. If one may faintly parody the words of Clemenceau, "Medical treatment on certain occasions is too important to leave to the medics alone".
The decisions that would have to be made by the multi-disciplinary body, as the noble Lord, Lord Hooson, has pointed out, will not be different from decisions that have to be made by juries in relation to medical evidence, by judges in relation to medical evidence, day in and day out in our courts. And indeed the decisions that are made now in relation to treatment, in relation to the disposal of patients, are not confined to the medical profession but are made upon a multi-disciplinary basis. One does not challenge the integrity of psychiatrists, but on the other hand this House can never be blind to the fact that the community of psychiatrists is a very narrow and a very select and a very distinguished family. Most of them know each other well. That in no way affects their independent judgment, but it is asking a great deal to expect that a decision made or ratified by a so-called independent doctor in the context of Clause 38 will be manifestly seen by the public at large to be independent.
§ Lord Elton
My Lords, if the noble Lord would be kind enough to allow me, I do not want to anticipate the Committee debate, but equally there is a point which seems to be eluding us, or eluding me, every time this matter is raised. A second opinion to be multi-disciplinary presumably must embrace more than one person, and I envisage that the occasions when a second opinion is needed will very frequently be occasions of considerable emergency. I hope, therefore, that when the noble Lord comes to the Committee with an amendment, where we can thrash this matter out, he will consider the difficulty, if there is one, of getting together a multi-disciplinary second opinion—and how multi it will be remains to be seen—in the sort of circumstances where it will be urgently needed. That is the only point I wanted to intervene on.
§ Lord Elystan-Morgan
My Lords, the point made by the noble Lord is a fair one. It is, however, qualified to some extent by the fact that there is already provision in the Bill to deal with situations where the patient's life is in danger. There are many situations covered in the Bill—I will not seek to quote them now at this late hour—where it is obvious that the commission, to do the work that the Bill requires it to do, will have to act within a fairly confined space of time; two, three or four days at the most. It is a point; but, with the greatest respect, I do not believe that it is a point that undermines the basic principle that concerns noble Lords in every part of the House. It may well be that the body that should exercise that multi-disciplinary decision should not be a body such as the commission itself. I know not; I am very prepared to be swayed by argument.
It may be that a body such as the present review tribunals would be more appropriate and avoid certain clashes and certain difficult areas of distinction. But of one thing I am certain, and it was very strongly put by the noble Baroness, Lady Masham; it is vitally necessary that there should be proper representation before these bodies. If the only way that basic human 1003 rights can be preserved is by an articulate presentation of a case, that case must be so articulated, and any funds required for payment must be provided out of public resources. One remembers the famous words of Mr. Justice Darling when he said: "The courts of our land are open to everybody, exactly the same as the Ritz Hotel". There is no point in saying that the tribunals which will have to decide will be open to everybody, unless there is provision for representation to present a case on its merits.
There are a number of other matters I would have wished to deal with—the treatment of offenders, questions arising out of the most informative speech, as one would expect of course, of the noble Lord, Lord Allen of Abbeydale, who comes to this House with a wealth of distinguished experience in the Home Office. May I quote what the noble Lord, Lord Butler of Saffron Walden, said in this House on 22nd March 1978 in a debate which touched upon the condition of affairs, among other things, in Broadmoor:The situation concerning bed room, sanitation, and health is probably the most intolerable in the world. It is intolerable that this should be going on and on".I ask the question, though I know what the answer will be, how better is the situation at the present moment, how much progress—this is not a political point for I well appreciate the difficulties spelled out by many who have taken part in this debate—has been made with the secure wings to be built in local hospitals, a plan that has now been in train for many years?
There are so many other matters that will have to be left to the Committee stage, and I know that every Member of this House looks forward immensely to that, for it will undoubtedly be a Committee stage that will bring out the very best from all parts of this House. Since this Bill is about the legal status and position of patients under mental health legislation, its terms do not allow us to discuss wider issues. Many of us would have welcomed the opportunity to look in some detail at such profoundly important matters as the massive needs of mental patients in general, whose number represents a high percentage of National Health Service beds but who receive a disproportionately meagre share of the revenue and capital resources. This is not a matter of political issue but stems rather from the condition of ignorance and complacency which has surrounded mental health in Britain like a fog for so long. The humane and enlightened proposals of this Bill, which the House will undoubtedly wish to improve upon, in addition to bringing about many changes that are much needed, will, I trust, also serve to quicken the conscience of the whole community and thus lead to the greater spiritual and material commitment that is demanded of it in this most deserving field.
§ 8.10 p.m.
§ Lord Cullen of Ashbourne
My Lords, as the noble Lord, Lord Elystan-Morgan, said just now, we seldom get the opportunity to debate this subject and it is very important that between us all we should get it as right as we possibly can. I am most grateful to the many noble Lords who have welcomed this Bill. It is, as many have emphasised, not a party political subject and I 1004 look forward to the opportunity for further and more detailed discussion and for working together to make this legislation as sound as it can be. From my own point of view it is rather refreshing to be involved in a non-political Bill of this kind after some of the social security Bills that we have had in the last two or three years.
We have heard from the widest possible range of expert opinions—from an ex-Minister, a former senior civil servant in the Home Office, and also from the chairman of the League of Friends of a special hospital to those who have administered such hospitals, those who care for the chaplaincy in them and a former patient. All agree that the Bill is a step, whatever its size, in the right direction. Even with a list of speakers impoverished by the departure of three of our number, a wealth of questions in matters raised by 16 noble Lords is before me. I can only, I fear, address myself to the larger issues and on the others I shall write to noble Lords as soon as possible.
Perhaps the principal issue raised today has been that of the feasibility of separating mental illness and mental handicap in legislation. My noble friend Lord Elton and I will read with the greatest attention and care everything that has been said by noble Lords and noble Baronesses on the subject. This is a matter of considerable difficulty, not for want of goodwill but for reasons of legislative complexity. The Act that we are amending itself places the various conditions of mental illness and the condition of mental subnormality—as it is there described—together and does so throughout. That naturally imposes a certain pattern on the Bill that amends it. However, in view of the opinions already expressed, so strongly, so carefully and so well on this subject, we shall examine very carefully whether we can break out of this situation. We stand by our undertaking not to close our minds to what is difficult; only to exclude what is not practicable. My noble friend has our goodwill, and our efforts to find a way forward will be genuine and urgent. How far we can go I cannot yet foretell.
A very wide range of points has been raised by the many noble Lords who have spoken and I cannot hope to deal with them all tonight. Much has been said about the details of the proposed Mental Health Act Commission—which has also been given the blessing of the Church—and about the thorny issue of consent to treatment. The amendments to the emergency powers in the Act and the introduction of the nurses' holding power have been welcomed, as has the increase in opportunities to apply to mental health review tribunals. Many of the points which have been raised will be more readily answered in Committee, but I shall try to answer some of them now.
The noble Lord, Lord Wells-Pestell, asked about the content of the code of practice to be drawn up by the Mental Health Act Commission and the membership of the commission. The code will set out certain treatments which in the commission's view give rise to special concern and which should, therefore, not be given without both the patient's consent and a concurring second opinion. The code will also provide a source of advice and guidance for staff on the complex ethical and other issues which arise in the care and treatment of detained patients.
The noble Lord, Lord Wallace of Coslany, also 1005 asked about the commission's membership. They will, as my noble friend Lord Elton explained, be from many disciplines. The membership will not, I recognise, be large, but then there are only some 7,000 detained patients in England and Wales. However, we agree that sufficient members should be appointed to enable the commission to work effectively. The Bill provides for remuneration for members of the commission—
§ Baroness Jeger
My Lords, I hope that the noble Lord will forgive me for intervening but he just said—I think I heard him correctly—that the membership would not be large. At an earlier stage of the debate it was suggested that there might be 70 members. Can the noble Lord confirm that?
§ Lord Cullen of Ashbourne
Yes, my Lords, there will be 70 members for the whole country. The intention is that they should be split into five groups around the country. We can go into any detail on this matter in Committee. If I have in any way misled the House I shall certainly ensure that I clear the matter up before I sit down.
I was saying that the Bill provides for remuneration for members of the commission as well as for expenses and other allowances. The noble Lord, Lord Wallace, also referred to the need for patients to be fully informed of their rights and legal position. That is a matter of crucial importance, but is not one which can readily be dealt with in legislation. We shall, however, be making clear to hospital managers and staff their responsibility to ensure that detained patients are given all the information and help which they need.
The noble Lord, Lord Wallace, also asked about the provision of resources for the training of approved social workers. The basic principle is that details of training schemes and approval procedures should be determined locally over the next two years in the light of authorities' own assessments of the number of social workers requiring to be approved and the additional training which individual social workers may need in order effectively to discharge their legal responsibilities.
Lord Wallace of Coslany
My Lords, I am sorry to interrupt the noble Lord, but there is a very important point here. Where is the money coming from? Are the local authorities to get additional grants?
§ Lord Cullen of Ashbourne
My Lords, I am afraid that I do not know the answer to that question. It is something that we shall have to go into during the later stages.
The noble Lord, Lord Allen of Abbeydale, referred to the problem of finding hospital places for offender patients. We fully accept that it is wrong that any mentally disordered person should be imprisoned when his condition permits his detention in hospital under the Mental Health Act. But there is a good deal of misunderstanding on this subject. The noble Lord, Lord Allen, explained that the number of hospital orders made by the courts had fallen in the last 10 years, but this fall is no greater than the fall in the use of the powers of the Act as a whole. It is almost wholly attributable to the drop in hospital orders in respect of the mentally handicapped, reflecting the view of 1006 the professionals who care for them that, with few exceptions, mentally handicapped people are inappropriately placed in hospital. This view has been echoed by many in this debate today.
The noble Lord referred to the drop in the numbers of prisoners transferred to hospital under the provisions of Section 72 of the Act. Again, this is part of the picture of reduction in the use of the powers of the Act overall, and it is, too, a reflection of the fact that on 30th June 1981 prison medical officers took the view that only 94 sentenced mentally ill prisoners needed transfer to hospital under Section 72 as compared with 201 on 31st December 1977.
I suggest that all of this must be seen in the context of the fact that over 2,000 of those in our hospitals at any one time have come there by way of the courts or prisons. As the noble Lord recognised, the provisions in Clauses 27 to 29 of the Bill will be of some help here, but we must allow time for the National Health Service to provide the facilities which will be required.
The noble Lord, Lord Allen, and the noble Baroness, Lady Robson, referred to regional secure units. The much speedier progress which we are now making in establishing regional secure units will help to expand the range of provisions available for the mentally disordered. The noble Baroness described, most helpfully, the difficulties which can arise in establishing regional secure units, but, happily, the programme is now well under way. She also referred to the question of legal representation for those appearing before mental health review tribunals. The noble Lord, Lord Elystan-Morgan, touched on many of the points which have attracted particular attention in our debate today. I have already referred to the position on mental handicap and consent to treatment, and what he has said makes it clear that we shall have a full consideration of these matters in Committee.
My noble friend Lady Faithfull and the noble Lord, Lord Wells-Pestell, referred to the training of social workers. The draft guidance which the department is preparing on the training needs of approved social workers is very nearly ready. It will be issued early in 1982 for consultation with professional bodies, local authorities and interested individuals. I hope that the draft will stimulate much interest and many comments. My noble friend will be most welcome to contribute her comments then and, indeed, I cordially invite her to do so.
My noble friend Lady Faithfull also asked whether resources would be available for the training of approved social workers. The basic principle is that details of training schemes and approval procedures should be determined locally over the next two years in the light of authorities' own assessments of the numbers of social workers requiring to be approved and the additional training which individual social workers may need in order, effectively, to discharge their legal responsibilities.
Noble Lords have referred to the Mental Health Act Commission and as to whether the Health Advisory Service could fulfil that role. There are certainly a number of bodies—for example, the Health Advisory Service, the Development Team for the Mentally Handicapped, community health councils and, of course, the ombudsman—which do valuable work in protecting patients and advising them. However, the 1007 Mental Health Act Commission will have a role which is quite distinct from these bodies. It will be a highly specialised body and will be able to build up a fund of knowledge and experience of considerable weight about mentally disordered detained patients. It will be able to attend to all detained patients. For example, a community health council meets only very few such patients at any one time and is not, therefore, able to build up a depth of experience in this specialised area. The MHAC will also be able to deal with all categories of mentally disordered detained patients. Other bodies, such as the Health Advisory Service, whose remit covers only the mentally ill or geriatric, or the development team, which is concerned only with the mentally handicapped, are not able to build up the same breadth of specialised experience and knowledge in this narrow area.
Another feature of the Mental Health Act Commission is that its organisation into regional panels will enable it to visit regularly and frequently all hospitals where patients are detained. Other bodies which visit patient in hospitals have to do so on a longer cycle, with bigger gaps between visits. The commission is not intended to usurp the role of existing bodies which have various advisory and executive responsibilities towards patients. Rather, it is intended to devote attention in depth to a small group of patients who are particularly vulnerable, and hence in need of a body like the commission to take a continued and informed interest in them.
I should like to add a few words to what I said previously about regional secure units. Sir George Young opened the first permanent unit at St. Luke's Hospital in Middlesbrough last November. Of the 14 RHAs in England, only one has yet to submit formal plans for an RSU. Four RSUs, providing 160 places, are already under construction and another two, providing a further 140 places, should be by the end of the year. By 1985 there are expected to be over 500 permanent places available. There are also increasing numbers of places in interim secure facilities which RHAs were asked to make available until permanent RSUs were available. I think that I have probably gone as far as I should at this stage. I shall certainly write to noble Lords on any points with which I have been unable to deal.
§ Lord Renton
My Lords, before my noble friend sits down, may I say how much we welcome his statement that the Government will consider how far they can go in having the mentally handicapped dealt with separately. In the event of the Government deciding how far they can go, can he say whether they will then table the necessary amendments?—because they will have all the expertise at their command and it would make for better progress if that were done. Then, if we want to carry the Government a stage further, we can see what we have to build on.
§ Lord Cullen of Ashbourne
My Lords, I am sure that that is exactly what we should like to do if we were able to, but, of course, we shall have to have discussions with my right honourable friend and go into this matter. No doubt the noble Lord will join us in discussions after this debate.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.