§ 3.42 p.m.
§ Report received.
§ Clause 1 [Replacement of "subnormality" by "mental impairment"]:
§ Lord Kilmarnock moved Amendment No 1:
Page 1, line 7, at beginning insert—
(" ( ) For subsection (1) of section 4 of the principal Act there shall be substituted—
(1) In this Act, "mental disorder" means mental illness, arrested or incomplete development of mind and personality disorder; and "mentally disordered" shall be construed accordingly.".
( ) Subsection (4) of section 4 of the principal Act is hereby repealed.
( ) For all references in the principal Act to "psychopathic disorder" there shall be substituted the words "personality disorder".").
§ The noble Lord said: My Lords, in moving Amendment No. 1, I should with the leave of the House also like to speak to Amendment No. 13. I am aware that in these amendments I am venturing on terrain where angels, and even doctors and lawyers, fear to tread. However, some important guidance is available in the fifth chapter of Lord Butler's report, which is devoted to psychopaths, and I am convinced that some attempts must be made to improve our legislation in this respect. If we do not improve it now, when shall we have another occasion to do so? If the present frequency of mental health legislation is the yardstick, the answer is not until early in the next century.
It was the noble Lord, Lord Craigmyle, who drew my attention to the difficulties of treating psychopaths,
in his Amendment No. 20 at Committee stage, in which he sought to reintroduce an age limit of 18 on the grounds that the treatability of psychopaths after adolescence or early adulthood was extremely dubious.
The noble Lord said, and I agree with him:
We must be more than ordinarily careful that no subjective judgments as to who is, and who is not, a psychopath could be allowed to creep in so that anyone is detained simply because on subjective grounds his behaviour appears to be anti-social when in fact he is just a bit eccentric, or holds unpopular or unorthodox views".
For the Government, the noble Lord, Lord Elton, said that an explicit "treatability test" was preferable to the arbitrary age limit. The noble Lord, Lord Craigmyle, withdrew his amendment and I flew to Lord Butler's report. The amendment I am now proposing approaches the problem from a somewhat different angle from that of the admittedly unsatisfactory age limit.
Amendments Nos. 1 and 13 implement with one modification the recommendations of the Butler Report concerning the use of the term "psychopathic disorder". The Government chose not to introduce their own proposals on these lines into the Bill, giving their reasons in the White Paper, Cmnd. 8405, paragraph 12, page 4. This was not, I thought, terribly well argued and in fact flies in the face of much current medical opinion, which holds that most psychopaths are not likely to benefit from treatment in hospital. I recommend Chapter 5 of Lord Butler's report; starting with Hippocrates and Plato, the Butler Report gives a brief but fascinating historical survey of psychopathy. In paragraph 5.19, Lord Butler's committee said:
We have received much evidence suggesting that the references to psychopathic disorder — in the Mental Health Act should be deleted".
Among the arguments advanced by witnesses for deletion were those given in paragraph 5.20(b):
It was suggested that the concept of psychopathy is logically defective in so far as it infers mental disorder from anti-social behaviour, while purporting to explain anti-social behaviour by mental disorder".
That is a grave charge. The Royal Commission of 1954-57 had also said:
This difficulty is that with patients in the psychopathic group it is their behaviour which provides the main evidence for their mental condition".
That is in paragraph 339.
The Royal Commission held that the prospects of successful treatment were greatest when the disorder was recognised early in life. But, I quote from chapter 5.29 of Butler—and this is very important:
they did not consider that there was sufficient justification for special compulsory powers in relation to adult psychopathic patients except when their conduct was anti-social to the extent of constituting an offence against the criminal law".
This, of course, was the reason for the exclusion from compulsory admission for treatment of psychopathic or subnormal offenders over 21 in the principal Act, which this Bill seeks to reverse, disregarding paragraph 5.34 of Lord Butler's report to the effect that:
The great weight of evidence presented to us tends to support the conclusion that psychopaths are not, in general, treatable, at least in medical terms".
In paragraphs 5.37, 5.38 and 5.39 the Butler Report gave its reasons for holding that dangerous psycho
pathic offenders should be dealt with by the penal system. One does not, of course, want to overburden an already heavily burdened service, but the reasons adduced are weighty and repay reading.
§ The first of these amendments is derived from paragraph 5.24 of the Butler Report under the heading, "A possible solution". It introduces the term "personality disorder" and eliminates the term "psychopathic disorder". Those cases in which compulsory admission to hospital is indicated in the interests of the patient and the public would still be embraced. "Personality disorder" subsumes a group of disorders just as" mental illness "does, and no attempt is made to define it here any more than" mental illness "is defined in the principal Act. But, it does have the very considerable disadvantage over "psychopathic disorder" in that it is defined in the International Classification of Diseases 1968 as shown in Appendix 5(1) of Lord Butler's report.
The terms paranoid "Paranoid" "affective", "schizoid", "explosive", "anankastic", hysterical", and "asthenic" are helpful in disaggregating the group and assessing the potential for treatability. Under this classification, it is recommended that the term "antisocial",
should be confined to those individuals who offend against society ",
which seems to me to take us firmly back to the penal system.
§ The case against direct remand for treatment of loosely defined psychopaths seems to me to be pretty conclusively made by the Butler Committee. It may be asked: if Lord Butler and his colleagues were so keen on their new phrase, why did they not include a positive recommendation for its adoption? The answer is that a recommendation to amend the law in this respect was outside their remit because of the effects on Part IV. Lord Butler's committee, it will be recalled, was concerned only with mentally abnormal offenders.
§ No such inhibition need restrain us, as this Bill deals with all compulsorily detained patients, whether offenders or not. By inserting the term "personality disorder "in Sections 4 and 60 throughout the 1959 Act, the useful life of the Act can be preserved and maintained. The fact remains that there is no general medical agreement in respect of the definition or diagnosis of psychopathic disorder, and there is no effective or recognised treatment. The World Health Organisation and the World Federation for Mental Health have condemned the 1959 Act for including the term in its remit. The Government have sought to follow Lord Butler's advice in many other aspects of this Bill. I suggest that they do the same in this important matter. Another occasion may not arise for many years to come. I beg to move.
Lord St. Just
My Lords, psychopathic disorder is an extremely difficult disorder to diagnose. I personally think that if one puts it into the same grade as a personality disorder, this would be entirely wrong. Basically, a personality disorder is a neurotic condition, whereas a psychopathic disorder is not—though I quite agree with what the noble Lord has said. It is virtually impossible to treat. Occasionally it can 844 be diagnosed, and if it is diagnosed in some cases a great deal of trouble can be avoided.
§ 3.50 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Elton)
My Lords, the area with which the noble Lord's amendment deals is one which, as he rightly said, was explored in some depth by the Committee on Mentally Abnormal Offenders chaired by my noble friend Lord Butler, although, as his report recognised, and the noble Lord, Lord Kilmarnock, recognised, it was not strictly within his remit. It is a difficult area and one on which that committee did not feel able to make any firm recommendations.
I had not been aware that the noble Lord, Lord Kilmarnock, saw this amendment as a new approach to the question of the age limit. I had it in mind politely to chide him for bringing a new principle into the Bill at Report stage. He will forgive me for only just retrieving myself from that falsely based accusation if I tell him that I only received his amendment this morning and it is not very easy to take everything on board at such short notice. I know all of us have occasion to do this, and I have had occasion to do it and I was at pains to give advance notice to the principal spokesmen, including the noble Lord, Lord Kilmarnock, so that they should have a chance to digest what I have in mind.
That places me in a difficulty. Like Lord Butler's committee, I recognise that the definition of "psychopathic disorder "in our legislation can cause difficulties, but the problem is to find some alternative which does not raise difficulties. The Committee on Mentally Abnormal Offenders did not succeed in this, although they looked at the suggestion put forward by the noble Lord, Lord Kilmarnock; and all the efforts of those who have been reviewing the 1959 Act, over nearly eight years now, were equally unsuccessful. We would be unwise indeed at this stage in our discussion of the Bill to plunge into an area which others have studied so carefully before without any change resulting.
One of the objectives of the Bill which is before us is to clarify the law, and it is being proposed here that for the term "psychopathic disorder ", which is closely defined and very clear in Section 4 of the Act, should be substituted the term "personality disorder ", which is not defined. If this amendment were accepted it would bring within the compulsory powers of the Mental Health Act a whole range of people who could not at present be detained. I sometimes wonder whether I myself or any of my noble friends, and perhaps rather more people on the other side of the House, do not themselves from time to time suffer from personality disorder and might be put at risk by this amendment. It would, of course, be possible to provide some limitations to the conditions which could be regarded as coming within the term "personality disorder ", as my noble friend Lord Butler proposed. But the noble Lord, Lord Kilmarnock, has not suggested this except in the case of hospital orders. As drafted the amendment would reduce dramatically the safeguards provided in the legislation against unnecessary detention.
My Lords, the amendment makes a further change 845 in removing the term "any other disorder or disability of mind "from the definition of mental disorder. This is ground which we covered on the first day of Committee, when I explained that it is often quite impossible to diagnose the precise form of a person's mental disorder at once, so that detention for a short period—and 28 days is all the legislation permits—may be necessary to make a complete diagnosis and assessment. Our view has not changed on this, and I am afraid that I cannot go any way to meet the noble Lord on this amendment. I hope that in the light of what I have said he will feel able to withdraw it.
§ Lord Kilmarnock
My Lords, I am most grateful to the noble Lord for his reply. I apologise to him for not having given him advance notice. I am afraid I was unable to get the amendment drafted in time to put it down until yesterday. I should also like to take the opportunity of thanking the noble Lord for the notice which he has sent us of some of his later amendments which we are also now striving to digest.
I would like to assure the noble Lord that it was not my intention to press this amendment, but it seemed to me that in a reforming Bill—and this is a reforming and a progressive Bill—it was a pity not to take the opportunity to try and do a little better on this admittedly extremely tricky point. I regretted that the Government had not had a crack at it along the lines proposed by the noble Lord, Lord Butler, and his committee. If the Government did not feel able to follow Lord Butler's suggestions, I am not sure that it would not have been better to leave the law as it stands, that is to say, with the age limit, which would have excluded the very dubiously treatable adult psychopaths.
My Lords, I would like to take this away and think about it again. I still think it is a matter about which we ought to try to do something in this Bill. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Faithful had given notice of her intention to move Amendment No. 2:
Page 2, line 23, after ("observation ") insert ("and short-term treatment ").
§ The noble Baroness said: My Lords, in the light of Amendment No. 4, which is to be moved later by my noble friend the Minister, I propose not to move my amendment.
§ [Amendment No. 2 not moved.]
Lord Winstanley moved Amendment No. 3:
Page 2, leave out line 28.
§ The noble Lord said: My Lords, this amendment, No. 3, is a paving amendment for Amendment No. 6 which follows later. Therefore, I think it would be for the convenience of the House if I spoke to Amendment No. 6 in moving Amendment No. 3.
§ My Lords, this is not a new matter. It is a matter which was ventilated at the earlier stage of our discussions in Committee, I think initially on an amendment moved by the noble Lord, Lord Wallace of Coslany, coupled with other amendments moved by other noble Lords, including one moved by myself and my noble 846 friends very much in the form of this amendment. Amendment No. 6 merely seeks to give some kind of statutory form to the right of the detained patient to be given a clear account of his rights while he is a detained patient, and to be given that information in writing. It is not necessary for me to read the amendment; it is self-explanatory.
§ Noble Lords will recollect that at an earlier stage the noble Lord, Lord Elton, replied to the discussion very sympathetically; I think he indicated to your Lordships' Committee that this was a point with which he had sympathy and that he would look at the matter very carefully and see what he could do to meet the kind of anxiety expressed by the noble Lord. Lord Wallace, and myself. I tabled this amendment with my noble friends still not knowing whether the Government were coming forward with some kind of amendment.
§ A detained patient's rights are very complicated matters which would not necessarily be absorbed even by the most alert patient if given rapidly and verbally, and therefore a written account is infinitely more satisfactory, because it can be shown to others and advice on it can be sought. There is, of course, a precedent for this idea of giving a detained patient a written account of his rights. If we return to the parent Act, the Mental Halth Act 1959, Section 56 of that Act was an enabling section enabling the Minister to lay certain regulations. Under Section 56(2)(c) the Minister was empowered to make regulations ""for requiring the managers of hospitals [managers of hospitals, not the doctors]… to furnish or make available to those patients [that is detained patients] and their relatives, such written statements of their rights and powers under this Act as may be so prescribed".
§ That is in the original Act, but that particular section of the Act was never activated because the then Minister never did lay the regulations which were provided for under the section. But clearly it was then thought that it might be necessary for patients to be given a written account of their rights, and I would venture to suggest that it is still so thought by many noble Lords, and it is for that reason that we put down this amendment.
§ In view of the extremely sympathetic response of the noble Lord, Lord Elton, on the previous occasion, I have no doubt whatever that he has had further thoughts about the matter, and it may be that he has discovered further reasons why it is not advisable to proceed in the way in which we have indicated. But if he has further reasons I would be very glad to hear them.
§ I do not think that it is necessary for me to elaborate further on an argument which was discussed very fully in all parts of your Lordships' House on the last occasion, save to say that a detained patient is a patient who is particularly vulnerable and perhaps defenceless. The whole question of citizens' rights is a difficult one, and in an increasingly complex society, when all of us have increasingly greater difficulty in knowing precisely what our rights are, nowhere is that difficulty more acute than with the patient detained in a mental hospital. We think that every possible effort must be made to make sure that that patient understands his rights. They should be fully explained to him so that 847 he understands them. That can only finally be done if it is done in writing, as provided for in the amendment. I beg to move.
Lord Wallace of Coslany
My Lords, I rise briefly to support the amendment very strongly. As the noble Lord, Lord Winstanley, mentioned, I put down an amendment during the Committee stage, but I was rather rash in asking for this information to be given within 24 hours, which was an error of judgment on my part. I agree with the noble Lord, Lord Winstanley, that it is absolutely essential that patients' rights should be explained to them, and that if they are unable to understand them, then their nearest relative should, in fact, receive the information. It does not mean that the Government will be faced with innumerable court cases et cetera. It is just a question of individual rights. Indeed, let us face it, individual rights are the theme of this Bill.
§ Baroness Masham of Ilton
My Lords, what would happen if the patient has no nearest relative who is in touch with him, because there are such people? Could it then, perhaps, be a member of a voluntary organisation or a social worker?
§ Lord Elton
My Lords, as the noble Lord, Lord Winstanley, has said, I did make very encouraging noises in Committee because the Government are in favour of the general intention of this amendment. Indeed, if the noble Lord, Lord Winstanley, looks further ahead on the Marshalled List he will find at Amendment No. 72 an amendment which I hope not only embraces almost every point that he has made in his own amendment, but which also goes a good deal further.
The amendment of the noble Lord, Lord Winstanley, strikes at Clause 3(1) of the Bill, and Clause 3(1) is concerned only with patients admitted under Section 25. Your Lordships will see that the Government's amendment covers patients detained under all sections, not just those admitted under Section 25. I hope that your Lordships will appreciate that I am now speaking to Amendment No. 72 so that we may not have to recover this ground later.
Our amendment also provides that where the section under which the patient is detained changes, the patient shall be informed of his rights under the new section. That is not readily apparent, but I have checked it out with the draftsman and that is the effect of the wording of the amendment. It provides further, that such steps must be taken as are practicable to ensure that the patient understands his rights, and that this must be done as soon as practicable after the patient's admission, thus getting out of the 24-hour difficulty which concerned the noble Lord, Lord Wallace of Coslany. The patient is to be informed both orally and in writing—I hope that that will also satisfy your Lordships. Subsection (1) covers information about the section under which the patient is detained and the effect of it, and about the mental health review tribunal. Subsection (2) covers information about powers of discharge, correspondence, consent to treatment and the functions of the Mental Health Act Commission.
The amendment which is now before us also requires 848 that the nearest relative of the patient shall be informed . Here we reach the difficulty which my noble friend Lady Masham of Ilton has pointed out to us. It may not always be possible to know who is the nearest relative or to locate him. Even if located, unless some kind of interview could be arranged, it would not be possible to take steps to make sure that he fully took in the implications of the information he received. Perhaps a more serious difficulty is that the patient's nearest relative might not be the most appropriate person to inform. The need is to get in touch with the person who is presently most closely concerned with the patient, and who will continue to be so while he is in hospital. This may not, in fact, even be the nearest relative even as re-defined under Clause 14. The decision about who should be informed is, therefore, something which needs to be left to the discretion of the hospital managers who know the patient and his situation.
It is already good practice for the hospital managers, or where more appropriate the mental welfare officer or responsible medical officer, to see that the patient's nearest relative, or some other person where this is more suitable, is told of the patient's rights. The mental welfare officer is in any case already required to make contact where possible with the patient's nearest relative under the provisions of Clause 3(2). It is good practice to inform the patient's nearest relative, at the same time, of the patient's legal position. We shall certainly be making clear in guidance that this should be done, although we have no reason to believe that this is not already good professional practice. We shall also emphasise the importance of ensuring that the written information is given in a form appropriate to the individual in question so as to ensure that it can be understood where the person can, in fact, read it.
I hope that I have shown in this respect that the Government's heart is in the right place and that we have honoured our undertaking to come back at this stage. I think that we have probably met all the points that the noble Lord wanted us to meet.
My Lords, I am very grateful to the noble Lord, Lord Elton, for directing our attention to Amendment No. 72, which the noble Lord will realise was not, in fact, on the Marshalled List at the time that I tabled my amendment. Had it been on the list and had I then had an opportunity of studying sufficiently what the noble Lord has now put down in Amendment No. 72, it would not, of course, have been necessary for me to delay your Lordships' House with the earlier amendment.
I acknowledge at once that what appears to be being done in Amendment No. 72, which I take it we are now discussing although we will not now be voting on it, is precisely what noble Lords asked the noble Lord to do when we discussed the matter earlier. I should like to say in reply to this amendment that I personally am particularly glad that the noble Lord, Lord Elton, and his colleagues, do, in fact, intend to deal with this matter in this way—in other words, to lay the responsibility firmly on the hospital managers.
It has always been my view that ever since the 1959 Act the hospital managers have tended to be a little too much "off the hook ", if I may put it that way. If a patient is detained, he is not detained by the 849 doctors; he is strictly and legally detained by the hospital managers. If something happens to him, the responsibility is not necessarily solely that of the doctor, but of those who have custody of him—the hospital managers. It always seemed to me that it was the intention in the original Act, as clearly set out in Section 56, that the Minister, by regulation, would in fact set out clearly the responsibilities of the hospital managers with regard to matters such as this. But that was never activated because the then Minister and subsequent Ministers never took advantage of the section and never laid the regulations which they were empowered to make. So it seems to me, having now studied this relatively new amendment fairly carefully, that it meets all those matters very fully and that perhaps it meets them rather better than the way we suggested earlier. I would merely express my gratitude to the noble Lord and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Speaker (Lord Aberdare)
My Lords, the next amendment is Amendment No. 4. I have to point out that if Amendment No. 4 is agreed to I cannot call Amendment No. 5.
§ 4.9 p.m.
Lord Elton moved Amendment No. 4:
Page 2, line 30, leave out from ("observation ") to end of line 32 and insert ("(with or without other medical treatment) "there shall be substituted the words "detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) ".").
§ The noble Lord said: My Lords, I beg to move Amendment No. 4. If I hesitate it is because I had expected to speak to this amendment when my noble friend Lady Faithfull was moving her amendment, but she was kind enough to withdraw it and therefore the opportunity did not arise. By way of further preamble may I say to the noble Lord, Lord Winstanley, that I quite understand the situation. I do not think that he wasted the time of the House at all in speaking to his own amendment. Although it may appear to the outside world that legislation is a slow and ponderous affair, the flurry of activity which takes place between the adjacent stages of a Bill makes it very difficult to keep an eye on everything that is happening at the same time. I suppose that it has the effect that we have all had to do all our homework rather than relying too much upon others.
§ I am now speaking to the amendment in Clause 3, upon which will follow amendments in the schedule. I am getting rather confused because these notes relate to an earlier amendment. This amendment concerns admission under Section 25 of the Act. The purpose of Section 25 is to assess and then, if appropriate, to treat the patient. Experience since 1959 has shown that there may be doubt, however, as to the extent to which the wording of Section 25 allows treatment to be given other than for the purposes of assessment. The wording is therefore being amended to make clear that this is the case.
§ Your Lordships were anxious about this at the Committee stage. If the law did not admit a treatment during a relatively brief period of detention such as this, it would be most unsetting for the patient to have 850 to be in detention for up to a month, with knowledge of the person's disorder commonly held by the authorities and the authorities not being able to do anything about it until the end of that period. This seems to us to be a nonsense. In response to feelings which your Lordships expressed at an earlier stage, that is why we have inserted this amendment. I beg to move.
My Lords, I must guard carefully against the tendency to presume that I am in the Committee stage of a Bill; I am very conscious of the fact that I am not. As this is a comparatively new amendment, perhaps I could ask the noble Lord, Lord Elton—because he will have an opportunity to reply at the end of this brief discussion—to explain it a little further. We now have the words:… detention of the patient in a hospital for assessment (or for assessment followed by medical treatment)".It seems to me that part of the problem was that when a patient was admitted under Section 25 for observation and assessment, very often treatment started from the word go, and that the two were associated. Indeed, up to a point I think that the giving of treatment in certain circumstances could, in fact, be regarded as an integral part of the actual assessment. I should like the noble Lord to confirm, if he can, that this business of assessment followed by medical treatment is not just too binding; that it does not mean that the assessment has finally to be concluded, the book closed, as it were, and the line drawn before the treatment can start. Surely the two can be simultaneous and can go contemporaneously. Perhaps the noble Lord, Lord Elton, can confirm that.
§ Lord Elton
My Lords, to wind up this very short debate, I should like to say that the definition of the term "assessment "is not changed by the amendment. Therefore, it follows that anything it was proper to do in the process of assessment before, it will be proper to do in the process of assessment after this comes into law. However, there was doubt about the extent to which it was proper to treat once assessment had been completed; in other words, once one knew what was wrong with a patient, one might consider oneself to be inhibited from doing anything about it. In that case the assessment is equivalent to diagnosis, and it is proper that diagnosis should precede treatment. So I do not think that there is a difficulty here, and I hope that your Lordships will accept this amendment.
§ On Question, amendment agreed to.
§ [Amendments Nos. 5 and 6 not moved.]
§ Clause 5 [Medical recommendations]:
§ Lord Elton moved Amendment No. 7:
Page 4, line 27, leave out ("(a) one of them ") and insert—
§ The noble Lord said: My Lords, this amendment meets an undertaking given on the first day of Committee, in response to a point raised by the noble Baroness, Lady Robson, and the noble Lords, Lord Winstanley and Lord Kilmarnock. It was suggested that we should make clear that the two medical recom- 851 mendations required for an application under Part IV of the Act may be given by doctors from the hospital to which the patient is to be admitted only if there would otherwise be undesirable delay. This is already the case in practice, but we agreed that it would be useful to make this clear in legislation, and this is what the amendment provides. I hope that your Lordships, who seem to be in favour of the original amendment, will be prepared to accept this one. I beg to move.
§ Baroness Robson of Kiddington
My Lords, I should like to express my grateful thanks to the noble Lord, Lord Elton, for introducing this alternative amendment as a result of my amendment tabled during the Committee stage. I am very grateful to the noble Lord because in actual fact this amendment achieves exactly what I aimed to achieve. I thought that it would be easier to pick out as a separate clause at the end, but I am still very grateful to the noble Lord.
On Question, amendment agreed to.
§ Lord Elton moved Amendment No. 8:
Page 4, line 30, leave out ("(b) where one of them") and insert—
("(c) where one of those practitioners").
§ The noble Lord said: My Lords, Amendment No. 8 is consequential on Amendment No. 7. I beg to move.
§ On Question, amendment agreed to.
§ Clause 6 [Patients already in hospital]:
§ 4.16 p.m.
Lord Winstanley moved Amendment No. 9:
Page 5, line 4, after ("absence") insert (", having personally examined the patient within the previous twenty-four hours").
§ The noble Lord said: My Lords, I think that this too is a matter to which we paid some attention at an earlier stage of our discussions on the Bill. The amendment is a simple one and, I think, self-explanatory. It merely seeks to make absolutely certain that the other medical practitioner or "any medical practitioner "—the words used in the Bill—who is enabled to act under this particular subsection, has actually examined the patient within the previous 24 hours.
§ At the moment the provision is that the responsible medical practitioner—the medical practitioner in charge of the case—must seek this other opinion; but, as we ventilated in Committee, it is important that when he gets another practitioner's opinion or endorsement, that other practitioner should personally have examined the patient within the previous 24 hours. We do not merely want to have an automatic, rubber stamp kind of procedure where a doctor gives an opinion about a patient, about whom he knows or who he may have seen some long time previously. I think that we should ensure that this second opinion is a genuine second opinion, based on a recent examination of the patient and, therefore, on recent knowledge of the actual facts about which he is giving the second opinion. I beg to move.
§ Lord Sandys
My Lords, we debated this amendment; as the noble Lord, Lord Winstanley, rightly said, it was 852 introduced by his noble friend the noble Baroness, Lady Robson, in Committee. There is really very little that I can add to the arguments that were given by my noble friend Lord Cullen of Ashbourne and by my noble friend Lord Elton at that time. Nor have I been persuaded by what the noble Lord, Lord Winstanley, has just said, which really reinforced the argument as stated previously. Let us look at it again. It is Section 30 of the 1959 Act, which is about emergency detention of someone who is already in hospital as an informal patient. I think that this is common ground. Detention under that power lasts for only 72 hours, during which time the normal admission procedure will be completed, if necessary, by a mental welfare officer or the patient's nearest relative.
Clause 6 proposes that the doctor in charge of an informal patient's treatment should be able to nominate another doctor as his deputy when he is unavailable. That will help with problems which have arisen in the past, when an emergency arises while the doctor in charge is absent from the hospital. In many cases the nominated deputy is likely to be a junior doctor in the consultant's team, and so will be familiar with the patient and his medical history. If the nominated deputy has not been involved in the patient's treatment before, it would be good practice for the doctor in charge to discuss the patient's case with him before he hands over. I am sure that that is normal practice in the vast majority of cases.
A patient is detained under Section 30 only if the doctor reports that it appears to him that an application ought to be made for the patient's admission under compulsory powers. That is the safeguard which ensures that the doctor will examine the patient before he is detained. It would be very poor medical practice indeed if he did not.
Indeed, I think we should respect the professional integrity of doctors who are entrusted with these legal powers and not legislate that they should carry out good practice. There are further safeguards to ensure that the nominated deputy's power to detain the patient is not misused. The doctor reports on the patient's need for attention to the hospital managers who will ensure that power is used properly. As soon as the patient's own doctor is available he will naturally discuss the patient's condition with his nominated deputy and could discharge the patient immediately if that seemed to him to be the right course.
As I have said, detention cannot last more than 72 hours unless an application is made by a mental welfare officer or the next of kin supported by two medical recommendations. Finally, the Mental Health Act Commission is to be required to keep under review the way this and other powers of detention are used. I hope that those remarks will reinforce what my noble friends have said earlier, and that perhaps the noble Lord, Lord Winstanley, and his supporters may feel able to withdraw the amendment.
§ Baroness Jeger
My Lords, it seems to me that no law can make a good doctor out of a bad doctor. hope that the noble Lord, Lord Winstanley, for whom I have the greatest respect in all sorts of ways, including his professional expertise, will not press this amendment because it is really not helping the patient if we try to legalise many more procedures. I like to 853 think that every doctor is working for the interests of his patient, and that there would therefore not be anything to be gained by putting something like this into the Bill.
What does 24 hours mean in the life of a patient? It might be 25 hours or 23 hours. A good doctor cares for his patients all the time, all round the clock. I am speaking for myself, which perhaps is inappropriate from this Box, but I hope that this will not be pressed. I feel that there must be this confidence in the doctor's intention to do what is best for his patient, whether he saw him 22 hours ago or 25 hours ago.
§ Baroness Robson of Kiddington
My Lords, may disagree with the noble Baroness, Lady Jeger, and take issue with the noble Lord, Lord Sandys, about what he said. He asked, what is the good of legislating for good practice? That is virtually what he said. If it is standard practice and it is always done —I have used this argument before—there is no harm in saying so. What I am worried about is the few occasions where good practice is not followed.
The noble Lord, Lord Sandys, assured us that the Mental Health Commission would be permanently monitoring situations like this. I doubt whether they would find out very much about this sort of occurrence, which could happen, that a patient was detained without having been medically examined by the person who detains him. The argument was also made that it is only for a period of 72 hours, and most likely in any case his own personal doctor would be back in the hospital well within the 72 hours and be ready to remove the detention if he feels that there was a mistake. It is to my certain knowledge that quite frequently leading consultants who are likely to be the doctor in charge of a patient of this kind are away on seminars somewhere in this country or overseas, and their duties are in this case handed over ad hoc to another medical practitioner. I feel that it would be helpful for patients, it would strengthen this Act, if we wrote in what is good practice.
§ Lord Sandys
My Lords, I wonder, with the leave of the House—and one is very much aware that we are speaking on Report—whether it would be helpful to the noble Baroness if I tried to say a little more, because I think she is still as anxious as she was in Committee about this situation. She has quoted, to her certain knowledge, cases where the situation has gone wrong. She is taking this as the base for assuming that the arrangements made in the course of this Bill would be unsatisfactory and unworkable in those cases.
I have explained that the doctor who reports that a patient should be detained will, as good practice, examine him before he makes that report. I understood from Lady Robson's remarks at Committee stage that she was concerned about this point, and an alternative interpretation of the amendment is that the doctor should be able to make a report authorising detention only if he has already examined the patient earlier in the day.
The noble Baroness, Lady Jeger, referred to a question of timing. She said 22 hours or 25 hours. It is a difficult matter if we lay down statute legislation for situations which can make the situation harder than the reverse. It is a highly undesirable encroachment 854 on psychiatrists' clinical responsibility to decide how to use their time to the best advantage of their patients. It would be a grave mistake to legislate for cursory daily examinations that would only take time away from treatment that the patients need.
Further, and this is important, it could also suggest that if the doctor had examined the patient within the previous 24 hours there was no need to examine him again at the time of detention. That would not be good practice, and I am sure it is not the movers' intention that it should be so. The doctor should examine the patient at the time of the emergency to decide whether, in the light of his current state and his past history, he should be detained under Section 30. That is the time when he should be examined, and not 24 hours earlier.
§ Lord Donaldson of Kingsbridge
My Lords, I must confess that after listening to this debate I am not entirely happy about the situation. If the doctor who is in charge for some reason is not there, he appoints some-body else to carry out his function. That is how the clause reads. In those circumstances, it is not only a question of good practice but one of essential practice that the doctor who is brought in—who may be anybody; it is not defined—should have a look at the patient. I cannot see any way out of that.
§ Lord Elton
My Lords, we are not at Committee stage and I am merely relieving my noble friend of asking the leave of the House yet again to address the House. This is what we are saying. What the noble Lord, Lord Donaldson, has said is that any decent doctor examines a patient before he places him in detention or prescribes for him. One would no more wish to say that he has got to have seen him within the last 24 hours than one would wish to say that he should ask him to say, "Ninety-nine ", or take his pulse. There are certain things which are rudimentary about good medical practice, I should have thought.
The danger of Lord Winstanley's amendment is that unintentionally it implies that it may be enough to see the patient at breakfast time and then put him into detention at three o'clock the following morning without getting out of bed, and we would deplore that. The intention is to protect the patient. In answer to the noble Baroness, Lady Robson, if the Mental Health Act Commission does not rumble this sort of thing, I shall be very disappointed. It has only to ask the doctor, "When did you last see the patient? Let me see your case notes. What is this time I see written down here? "and the thing is exposed. That is what the Commission is for.
My Lords, I am bound to say that every successive bite of the Government Front Bench at this particular cherry has seemed to me to make the arguments for the amendment stronger rather than weaker. The noble Lord, Lord Sandys, began by saying that it was not necessary because every good doctor would do this. I was grateful to him for his apparent assumption that all medical practice was good practice. How I wish that the noble Lord was in fact invariably right. It ought to be good practice. There are circumstances when doctors, with the best will in the world, because of staffing difficulties and the kind of 855 pressures under which they work in some of these hospitals, are not always able to do precisely what they ought to do.
I am also grateful to the noble Lord, Lord Sandys, for his apparent sensitivity about doctors' feelings if we in any way try to tell them how they should practise. I do not think we in the medical profession are quite as thin skinned as that. Both Ministers who have spoken on this have tended to say that what the amendment proposes is precisely what will be done by good doctors, and that if they do not, they will get rumbled by the Mental Health Act Commission in due course. I am not sure that that is an entirely happy safety net and I should have thought that if it is to be good practice, no doctor would object if what is proposed were done.
I very much take the point made by the noble Baroness, Lady Robson, at an earlier stage and underlined again today. Her experience of hospital work is perhaps greater than mine, though somewhat different. I worked and lived in hospitals for many years, but she has had responsibility as a hospital manager of seeing what actually goes on. She is as aware as I am of the sort of little conversations that take place from time to time around the dining table when somebody asks, "Would you mind having a look at so-and-so? "or, "Is it all right if we do so-and-so? "and so on. I am not for a moment suggesting that improper things go on, but it is quite easy for some kind of routine, automatic, informal practice to creep in as a result of the regular association of doctors together in that sort of way, and perhaps we should not feel happy if they did creep in.
I take very much to heart what the noble Baroness, Lady Jeger, said. I agree that on the whole doctors do their best and we should not try to legislate for everything they do or do not do. Nevertheless I feel that it has been made clear from all four Front Benches, if I may call them such, that we think that what is proposed should be normal practice. It has also been made clear that it is the sort of aspect which the Mental Health Act Commission will look at in due course, and therefore will perhaps make sure it is good practice. In those circumstances, I doubt whether any useful purpose would be served in my pressing the amendment. Having made those remarks and having had the subject ventilated, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.33 p.m.
Lord Kilmarnock moved Amendment No. 10:
Page 5, line 26, leave out ("six") and insert ("three").
§ The noble Lord said: My Lords, with the leave of the House I will speak at the same time to Amendment No. 11, as the two are linked. These amendments seek to curb what would otherwise be excessive powers placed in the hands of junior nursing staff. The amendments do not undermine the purpose of the provisions in Clause 6 to prevent a voluntary patient from leaving hospital if his condition suddenly deteriorates seriously; for instance, if there were a risk of suicide. They simply place the powers in the hands of more senior staff, namely, nursing officers, who are one step removed from the day-to-day ward tensions 856 and are therefore better able to maintain their objectivity.
§ I should stress that the amendments have been drafted after consultation with senior members of the nursing profession who argue that as the Bill stands they cannot embrace these powers wholeheartedly. Their misgivings concern the extension of power to detain patients being placed in the hands of nurses who may be overworked, inexperienced and under great pressure and therefore not necessarily able to predict accurately whether the dangers with which the clause deals could be about to arise.
§ In those hospitals where inquiries have been held following incidents concerning problems of standards of care and the proper treatment of patients, it has been found more than once that when junior staff find themselves under excessive pressure they may resort to the inappropriate use of their authority. It is to guard against that possibility that the amendments are intended. By restricting the holding powers —remembering that these patients are in the hospital voluntarily—so that only doctors and nursing officers can use them, the risk of abuse can be reduced.
So far as the period of six hours is concerned, the White Paper, in paragraph 21 on page 7, admitted that the problem arose because of difficulties in contacting the doctor in charge. But the Bill has taken care of that by allowing the appointment of a deputy, as the noble Lord, Lord Sandys, pointed out. Clause 6(2)(a) reads:
after the words the medical practitioner in charge of the treatment of the patient ' there shall be inserted the words ' (or any medical practitioner on the staff of that hospital nominated by him to act under this subsection in his absence)'".
So the Bill provides that a deputy can be consulted, and whereas I suppose it might be possible to argue that it could take six hours to fetch a doctor from outside, it could hardly, even in the worst run hospital, take three hours to find a doctor on the premises. That provides a strong reason for reducing the power in the hands of junior nursing staff. The intention of the amendments, therefore, is to tighten up the Bill so that only those powers that are actually necessary in the interest of the patient shall be given where the detention of voluntary patients is concerned. I beg to move.
§ Lord Elton
My Lords, I appreciate the noble Lord's intentions. However, I cannot agree that his proposal to reduce the length of the holding power is entirely practical. The aim of the holding power is to allow a reasonable time for the nurse to obtain medical support. We have had to decide what that reasonable period should be; I believe we have got it right and the noble Lord thinks we have got it wrong. Perhaps he should recall that a period of 12 hours was originally suggested during consultation on the introduction of the power. We decided that was too long. However, I fear that three hours would probably be too short to prevent cases arising where a patient desperately needed, for his own health or safety, to be restrained from leaving hospital and where the nurse was powerless to do so. Although three hours may sometimes suffice for a medical practitioner to reach the patient, there may be other cases, in particular at evenings or weekends, when three hours is not enough. We are talking about 857 the small hours of the night and we are not always talking about very large hospitals with large numbers of doctors who can take turns to be immediately on call, and therefore this is a necessary power, and we must make sure that it can be operated effectively in cases of genuine need.
I should also stress that six hours is the maximum of the power, and if noble Lords look at the Bill they will see that the nurse's power automatically lapses as soon as the doctor arrives. In normal circumstances the nurse would of course go straight to the consultant if he felt that a patient already being treated for mental disorder needed to be prevented from leaving hospital. Only in cases of extreme emergency, when that is not possible, can the holding power be invoked, Thus, there is no question of the power being used to relieve doctors of their clinical responsibilities.
Neither, I am afraid, could I agree that any nursing officer should be able to exercise the power, and the amendment refers to "a nursing officer ". It is surely preferable that the nurse who has been looking after the patient and who has considerable experience of mental disorder should normally be the one to exercise the power. That is why we have provided that it must be exercised only by a registered mental nurse or a registered nurse for the mentally subnormal. I do not consider it right that this important power should be exercised by any nurse who is not both qualified and experienced in mental disorder, and on both grounds I hope your Lordships will not accept the amendment.
§ Baroness Jeger
It may seem strange, my Lords, but we support the Government's view on this matter. It would not be practicable to change the six hours to three. One need only think of the bad weather we had recently and—I do not know whether it is indelicate for me to mention this—the problems of the rail strike from which we have all suffered, to realise that both made communications very difficult. We feel therefore that to change the time to three hours would be wrong, and we agree that six hours is about right.
With regard to Amendment No. 11, I must say that I think it totally wrong to remove the reference to the qualifications of the nurse concerned and to insert the phrase "a nursing officer A "nursing officer "could be someone who had gained her SRN only last week, so far as I understand it, and I must confess that I never got beyond being a very sloppy VAD in the last war. If we insert in the Bill "a nursing officer", that could mean that men or women who have only just qualified would have the responsibility of making very difficult decisions. Such a person would nominally be a nursing officer, but he would not have the experience of a registered nurse for the mentally subnormal, as referred to in the Bill. So I find myself in the strange position of supporting noble Lords opposite, and I hope that the amendment will be withdrawn.
The Lord Bishop of Norwich
My Lords, from these Benches we would support both the Government and the Opposition on this particular matter.
§ Lord Auckland
My Lords, we must bear in mind that we are dealing with very highly disturbed patients; 858 at least that is my reading of the provisions. Leaving aside considerations of weather conditions and disputes affecting transport and so on, a patient might need very special care and treatment, or indeed he might need very special supervision until he can be treated. I should have thought that six hours was an eminently reasonable period, and I should also have thought it essential that any member of nursing staff who has responsibility in these cases should at least be of state registered nurse standard, in the interests of the patient himself. After all, the Bill is primarily designed to look after the patients, but concern must also be shown for the staff, so as to ensure that staff looking after this particular grade of patient have the greatest possible experience.
§ Lord Kilmarnock
My Lords, I must go back to the beginning of my remarks and say that these amendments have not just been plucked out of the sky; they were drafted after consultation with members of the nursing profession. This is a very inappropriate subject for a kind of horse-trading over the number of hours that are most appropriate in such cases. I suppose in economic terms one would call it a question of fine tuning. The noble Lord, Lord Elton, spoke of the unsuitability of "a nursing officer "as referred to in the second of the two amendments, but I should have thought that that gave added weight to the amendment by requiring a quite specific limitation of the powers of junior nurses. However, as I have said, it is a question of fine tuning as to whether it should be six, three or four hours, and at this stage I should like to take away the amendment and have another think about it. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 11 not moved.]
§ Clause 8 [Effect of guardianship applications]:
§ 4.44 p.m.
Lord Elton moved Amendment No. 12:
Page 6, line 30, after ("occupation") insert (",education").
§ The noble Lord said: My Lords, on the first day of the Committee stage my noble friend Lord Renton raised a straight forward and useful point, and this amendment is designed to meet it. Clause 8(b) of the Bill gives the guardian power to require the patient concerned to attend for training. My noble friend remarked that we should give the guardian the specific power to require the patient to attend for education, and I am glad to be able to meet him on this. I hope that your Lordships will allow me to do so by accepting the amendment. I beg to move.
§ Lord Renton
My Lords, I am most grateful to my noble friend Lord Elton for this amendment, as I am for various other amendments which he has tabled to deal with points raised in Committee; and, if I may say so, they demonstrate the great care and the splendid judgment which he has shown on so many of the difficult matters in the Bill. This amendment acknowledges that those suffering from mental illness or impairment are generally capable of some kind or degree of educa- 859 tion, and it gives the statutory guardian the power to require the patient to attend at a place of education so that that objective may be fulfilled. I am most grateful.
§ On Question, amendment agreed to.
§ Clause 18 [Power to make hospital order]:
§ Lord Kilmarnock moved Amendment No. 13:
Page 12, line 11, at end insert—
("(6) No order shall be made under this section in the case of an offender suffering from personality disorder with dangerous anti-social tendencies unless the court is satisfied:
(7) Subsection (6) above shall not apply to juveniles under the age of 17.").
The noble Lord said: My Lords, this is the second of the two amendments to which I spoke—and I referred only briefly to this one—when I was dealing with Amendment No. 1. With one modification, this amendment is taken directly from the recommendation made in paragraph 40, Chapter 5, of Lord Butler's report, in which the committee stated:
Consistently with these recommendations it appears to us that it would be advantageous to remove any ambiguity about the responsibility of the prisons to cater for offenders with dangerous anti-social tendencies which may arise from the power in Section 60(1) of the Mental Health Act to base hospital orders on a diagnosis of psychopathic disorder. To bring the statutory provision into conformity with the proposed policy, we suggest that a proviso on the following lines should be added to Section 60(1) of the Mental Health Act".
§ The proviso which Lord Butler's committee put forward was exactly as is printed in the Marshalled List which your Lordships have before you. The only difference is that in order to achieve compatibility with my earlier amendment (the one which I withdrew) I have used the term "personality disorder, "rather than "psychopathic disorder ", but I do not think that it would be an insuperable difficulty to restore the term "psychopathic disorder ", which is what Lord Butler put forward in paragraph 5.40 of his report.
It seems to me that, quite apart from whatever one might have thought about my Amendment No. 1, which was rather more sweeping, this somewhat more modest amendment constitutes a very useful safeguard for patients in this very tricky field; one might almost call it a minefield. I should like to read to your Lordships what the amendment states:
No order shall be made under this section in the case of an offender suffering from personality disorder"—
and I would suggest that, if the amendment is accepted, we can agree the term "psychopathic disorder"—
with dangerous anti-social tendencies unless the court is satisfied:
There is also a further provision:
Subsection (6) above shall not apply to juveniles under the age of 17",
where the potential for treatability is generally held to be higher.
§ I think that this is a very useful safeguard in this extremely difficult area of the Bill. Lord Butler and his committee thought so, too. Even if the Government do not accept my suggestion about "personality disorder ", I do not see why they should not accept the amendment. I beg to move.
§ Lord Avebury
My Lords, I have had one or two cases recently of persons who were alleged to be suffering from untreatable personality disorders by the psychiatrist who first examined them when they came before the courts but who, later on during the course of their sentence, may have had different opinions expressed about them by other and equally expert psychiatrists. So I rise only to enter a note of reservation, both to this amendment and to that section of the Bill that we shall come on to later where it is provided that no person shall be transferred to a special psychiatric hospital unless the persons looking after the case are satisfied that the disorder that he is suffering from is one which is properly treatable.
I do not know whether anything can be done about it at this stage, but I feel that the words that we have in Section 17, I think it is, and the words which the noble Lord has used in this amendment, following Butler, are just a little too rigid, because at the time when an order is made an assessement by expert psychiatrists may be that the patient does not have any expectation of benefiting from hospital admission, but at some date this opinion may be reversed by others who have equally valuable opinions to express. I am just afraid that if we enter words like this on to the statute book we shall deprive somebody of the opportunity of being considered as a patient and we shall relegate him to a prison system where he will never obtain the kind of treatment which will be necessary for his condition; that once he is classified in this way as being someone who is untreatable and who is suffering from a personality disorder, then that is how he will be treated during the whole of his subsequent career within the penal system.
I know many people—and the noble Lord, Lord Belstead, will be aware of some of them because he, unfortunately, for his sins, has to answer my letters on the subject—who, for example, have been locked up for over three years under Rule 43 in segregation from other prisoners because the opinion of the authorities is that these people suffer from such extreme personality disorders that they cannot be allowed to mix with other people in the penal system, even though some of the many psychiatrists who examined these particular prisoners considered that they were amenable to treatment.
Indeed, in one case that the noble Lord is well aware of, the prisoner was in Broadmoor at one time, and he was diagnosed as suffering from schizophrenia, He was being treated there, and was apparently making quite good progress, when unfortunately he killed a fellow patient; he was transferred back into the prison system, and he has remained there ever since. So I think that in considering Section 60 orders, and indeed Section 72 as well, we should be very careful that we do not 861 label a person as being untreatable and thereby relegate him permanently to the prison system, when at some later stage he might benefit from hospital treatment.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Belstead)
My Lords, the recommendation by the Butler Committee which this amendment seeks to introduce was naturally considered very carefully by the Government and, indeed, if I may say so, by the previous Government. The recommendation that psychopaths should be detained in hospital only where there was a good prospect of benefit from treatment was accepted, and has of course been introduced in respect of hospital orders for psychopathic offenders by means of Clause 18(4). Subsection (6)(b) of this amendment is therefore, I think, not necessary, because I like to think that it has been covered by that provision that I have just mentioned.
What is left, therefore, is a proposal that dangerous psychopaths should not be subject to a hospital order unless they suffer from another disorder. After widespread consultation and careful consideration, the previous Government concluded in their 1978 White Paper, and the present Government have agreed, that this recommendation is undesirable, and there is more than one reason.
The basic requirement which the amendment would impose in relation to dangerous psychopaths is that they should also have some other disorder or defect before a hospital order can be made, and that the other disorder or defect should be,relevant to the [personality] disorder".I think it is difficult to understand from this exactly how stiff the test of relevance is intended to be, or would turn out to be in practice. For example, psychopathic disorder and mental handicap can, so I am advised, co-exist in a patient, and can jointly amount to grounds for sending a patient to hospital; but it would be a matter of extreme difficulty for doctors to assert that the one was necessarily "relevant to ", or even linked with, the other.
Secondly, I think that even if that difficulty were overcome there is the rather unusual requirement in the amendment for,a previous mental or organic illness".If one were to go along this road, I think one would surely want the court to be interested in what mental illness, if any, the offender had at the time that the hospital order was going to be made, rather than looking at the previous history. Again, I think it is questionable what effect would be produced by requiring, as one of the possible grounds for making an order, a "psychological defect "relevant to the "personality disorder". These terms seem to us to say much the same thing, and I must say that I am not entirely clear whether the addition of "psychological defect "imposes a new requirement or whether it does not.
For these reasons, my Lords, the practical effect of the amendment on the number of psychopathic offenders admitted to hospital would I think be highly uncertain. Although I am not relying on the same grounds as the noble Lord, Lord Avebury, in his intervention, I share with the noble Lord, as indeed I am sure the noble Lord, Lord Kilmarnock, does, a concern as 862 to what the outcome of an amendment of this kind would be. I think that if it had a practical effect this amendment could deprive the courts of the opportunity to decide, in relation to some psychopathic offenders, in favour of hospital treatment. They would presumably have to send those excluded by the amendment to prison. Any non-offender psychopath, however, could still be admitted to the hospital under the powers in Part IV, provided the "treatability "requirement can be met.
It would, if I may say so, seem illogical to introduce, as the amendment would do, a distinction between different groups suffering from the same disorder on the basis of a degree of dangerousness or of their involvement in anti-social activities. Moreover, it would appear illogical to prevent the courts from making a hospital order in respect of dangerous psychopathic offenders and yet to acknowledge that such offenders are capable of benefiting from hospital treatment by enabling the Home Secretary to continue to transfer from prison to hospital under Section 72.
If I may finish, in case I appear to be wholly negative in the reply that I have given to the noble Lord, Lord Kilmarnock, may I try to inject a constructive remark into what I am saying? One of the concerns of the Butler Committee, I think, in the making of this recommendation, was to guard against the possibility of a dangerous psychopathic offender being made subject to a hospital order and then being found not suitable for treatment in hospital. However, I think the addition of the proviso to Section 60 on the lines of the Butler Committee, and by the noble Lord in this amendment, would not be, for the reasons that I have given, a very satisfactory way of going about that. I think a far more satisfactory way of preventing the inappropriate use of Section 60 would be to give the courts powers to make interim hospital orders: and, of course, that is exactly what we have done in Clause 30 of the Bill. An interim hospital order provides an opportunity for doctors to form a more accurate assessment of whether an offender's condition is susceptible to treatment.
So, although I am resisting—and indeed I am—the noble Lord's amendment for the reasons I have given, hope the noble Lord may feel that part of the amendment is in fact already covered in Clause 18(4), and that at any rate a good deal of the rest of the noble Lord's amendment is met by the provisions of Clause 30 on interim hospital orders.
§ Lord Kilmarnock
My Lords, I am grateful to the noble Lord for the care and thought which he has given to this amendment. If I may first turn to the noble Lord, Lord Avebury, I understand his concern about the danger of labelling patients as untreatable when they may, at a later date, turn out to be treatable. My concern is that no patient should be labelled as treatable when he is not treatable. It is a very tricky path between the two extremes. I am grateful to the noble Lord, Lord Belstead, for pointing out that paragraph (b), in his view, is already covered. I am also grateful for his remarks on Clauses 18(4) and 30. I think he is right. What was the concern of Lord Butler's committee was that someone with dangerous, anti-social tendencies and with no great prospects of treatability should be sent to hospital where, in fact, nothing could be done. As one knows from contact with hospitals, 863 dangerous psychopaths are bad news as far as the hospital system is concerned. I am grateful to the noble Lord and will consider carefully what has been said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 19 [Applications in respect of patient subject to hospital order]:
§ 5.2 p.m.
Lord Kilmarnock: moved Amendment No. 14:
Page 12, line 24, leave out subsection (2).
§ The noble Lord said: This is the first time this evening that we have touched on the series of changes to the Bill made by the Government in response to the decision of the European Court of Human Rights in the case of X v. United Kingdom. Noble Lords will recall that the Government have responded to that and have sought in the Bill to confer on restricted patients the right to a tribunal hearing within the second six months of their detention. But, in so doing—this gave rise to a lively debate at Committee—in pursuance of some, I think, rather dubious principle of uniformity, they have removed an already existing right of unrestricted patients to a hearing during the first six months of their detention.
§ We have had a lot of correspondence about this and, in passing, I am grateful to the noble Lord, Lord Belstead, for the letters that he wrote to us. I do not doubt the Government's good faith in trying to give effect to the European ruling in the most sensible way they can. I still feel more than slightly unhappy about the way they have gone about this and I think that one or two other Members of your Lordships' House also expressed similar unhappiness at the Committee stage.
One of the reasons (if I understand the noble Lord, Lord Belstead, aright) that they chose this method—that is, to give restricted patients the right in the second six months and, in order to streamline the thing, to give unrestricted patients the same right, that is, to downgrade their right—is that (as I think the noble Lord implied) the Government felt that this was what the European ruling required them to do. If I may detain your Lordships for a moment, I will read from a letter to The Times written by Mr. Gostin who acted as counsel for "X "before the European Court. He wrote as follows:
I acted as co-counsel for … before the European Court and was responsible for advising the court in pursuance of Article 50 of the convention as to the measures that would have to be taken by the United Kingdom Government to comply with the Court's judgment. I am happy to say that the whole package of amendments put before the House of Lords corresponds with the Article 50 submission and fully complies with the Court's judgment. However, the further illiberal measure to withdraw the right of certain patients to apply to a tribunal during the first six months of their detention was not in the Article 50 submission and would almost certainly not be an element of the Court's final statement in the matter. Lord Belstead considers that the European Convention makes a specific requirement that domestic legislation must be entirely consistent in all respects and therefore we must treat all patients exactly alike. I can find no basis for such a conclusion in any of the jurisprudence of the European Court or in the Convention of this absolute need for internal legislative consistency. Certainly it was never alluded to in any of the arguments before the Court in X's case. Perhaps more importantly, even if Lord Belstead's amendment was accepted it
would remain an almost identical internal consistency in that Section 26 patients would still have the right to apply to a tribunal during the first six months of detention".
The author of this letter goes on to refer to Lord Renton's intervention in that debate at Committee stage
In the debate Lord Renton argued that it was against the spirit of the decision of the Court to say that merely for the sake of consistency, a strange kind of egalitarianism, in order to give one class of patient a new right we remove an existing right from another type of patient. Lord Renton's view must be the current one and one hopes that the Government will take account of his view at the Report stage".
That is from Mr. Gostin's letter to The Times.
§ The amendment does what the noble Lord, Lord Renton, suggested at Committee stage. I thought that I saw the noble Lord here, but I am sorry to note that he is not now in his place. My friends and I have studied this, and it seems to us that this suggestion was the best one to hand for restoring the rights of the unrestricted patients. For that reason, we have put down this amendment, which I beg to move.
§ Baroness Robson of Kiddington
I should like to support my noble friend Lord Kilmarnock and I should like, first, to thank the noble Lord, Lord Belstead, for his long letter and to apologise for my discourtesy in not getting in touch with him or replying to his letter. The reason was that my husband became ill and I did not attend in London so that the letter did not reach me until I returned to London yesterday. I am sorry.
I have studied it with great care. First, I agree with every word that the noble Lord, Lord Kilmarnock, has said about removing the existing right in order to have a tidy set of rules applying to both restricted and unrestricted patients. I am glad to hear the quotation from The Times—one which I missed-from a counsel who had been present at the actual court hearing.
But there is something else that worries me. It came out strongly in Lord Belstead's letter to us. As I read it, I find that the Government's concern basically is not only with their interpretation of the European Court's conclusion but that the courts, the Crown courts, will be upset if a person is sentenced as a restricted patient and that patient has the right to challenge—that is what it is, virtually—the court's decision within the first six months. I do not believe that it is a challenge of the court's decision. The court can have been perfectly correct in their judgment of what the patient needs; but, in order to safeguard the rights of patients—and particularly the rights already in existence for an unrestricted patient—I think it is something which should be allowed for the restricted patient as well as the unrestricted one, if what we want is tidiness. If that is not necessary, then I cannot see any reason why the present rights enjoyed by unrestricted patients cannot remain as they are, which they would if this amendment were passed.
What puzzles me even more, and why I mentioned the question of the courts, is in the following amendment there is a proposal that a person committed to prison, who while he is in prison is adjudged to be a mental patient and therefore transferred to a mental hospital and is without restrictions, falls into the group of unrestricted patients. He has not recently gone 865 through a court proceeding but he must have gone through a medical examination in order to be sent as a patient to a hospital and he will have the right within the first six months to apply to a mental health review tribunal.
The only difference between that patient and an unrestricted patient at the moment is that this latest group of patients have not recently gone through a court proceeding. I do not think that that is good enough as a differentiation between the two types of patient who are both unrestricted patients. As a result, I have great pleasure in supporting Lord Kilmarnock's amendment.
§ 5.12 p.m.
§ Lord Belstead
My Lords, I am grateful to the noble Lord, Lord Kilmarnock, and the noble Baroness, Lady Robson, for what they have said about the letters which I sent to them trying to put the view of the Government on this matter. I am only sorry that we still have a difference of opinion on this. The position that the Government reached at the end of the Committee stage was that we proposed that all offender patients, whether restricted or non-restricted, should have the right to apply directly to a tribunal once in the second six months of detention and then once in every 12 month period thereafter.
The right of offender patients to apply in the second six months, incidentally, is a new right. I do not think that was mentioned either by the noble Lord or the noble Baroness. That replaces, in the case of unrestricted offender patients, their present right to apply within the first six months.
Both speakers made it clear that they disagree with this. I must say a word or two as to why, having looked at it very carefully indeed, we are going to find it extremely difficult to make a move. First of all, we are talking in the general context of making a fundamental improvement to the tribunal rights of restricted patients, in that the tribunal will be able to direct their discharge as the tribunal can in respect of non-restricted patients. This is the whole point of the changes which we have made as a consequence of the judgment of the European Court of Human Rights in the case of X v. United Kingdom.
Secondly, I have to say what I said before in Committee, that in the view of the Government it would not be acceptable under the European Convention on Human Rights to provide, as this amendment does, that one category of mentally disordered offenders should be treated differently from another so far as their first tribunal entitlement is concerned, given that the powers of the tribunal will now be the same in each case.
If the noble Lord wished me to do so I shall try to give details of why we believe that the judgment of the court and the effect of the convention requires us to treat them exactly alike. The fact of the matter is that this amendment would treat offender patients with restrictions and those without restrictions differently. We believe we simply cannot do so if we are to adhere to the convention.
Thirdly, could I come to a point to which I do not think the noble Lord or the noble Baroness have made much reference today but nonetheless was certainly a point brought up in Committee. That was: Why 866 not treat both offender patients with restrictions and without restrictions exactly the same and give them the right of access to the tribunal within the first six months? Here we run the serious risk which the noble Baroness mentioned of undermining the confidence of the courts in hospital orders with restrictions.
Some of the persons sent to hospital with restriction orders have been convicted of serious offences—for instance, manslaughter and rape—and an entitlement on the part of those patients to apply immediately to a tribunal with powers to discharge them would, we think, give rise to very serious misgivings on the part of the courts. It has been a central concern in all our thinking about new arrangements for the control of restricted patients that nothing we do should have the result that offenders who were in need of hospital treatment might instead be sent to prison.
Having said those three things, I should like to digress for a moment and say we really have tried from the point of view of the Home Office to be as flexible as possible on this general issue. The next amendment which we come to on the Marshalled List, standing in the name of my noble friend Lord Elton, is evidence of that.
We recognise that what we originally proposed would have also affected certain categories of patient who, in certain circumstances, find themselves treated as though subject to a fresh hospital order without a court having been involved—I am referring chiefly to transferred patients and restricted patients whose restriction order for some reason comes to an end. The following amendment therefore seeks to restore the position of those patients. I simply say that to show that we have tried to look at this matter as carefully as we possibly could.
If I may now come back to the main issue, we should not exaggerate the value of a right to apply to a tribunal within the first six months, even in respect of "Section 60 only" patients, given that they have just had the grounds for their detention reviewed by a court. Here I am sorry but I must cross swords with the noble Baroness, Lady Robson. Such patients have a much more realistic prospect of success under the new right which the Bill gives them to apply to a tribunal in the second six months of their detention, when they are more likely to have responded to treatment sufficiently for their discharge to be considered a possibility. A right—I repeat—they simply did not have before.
If I may come back finally to the basic reason why I am resisting this amendment, it is because we believe that it is simply not possible for the Government to accept the amendment because it would treat restricted and non-restricted offender patients differently so far as their tribunal rights are concerned. We are convinced that this is a course which the judgment of the European Court would not allow us to take.
§ Lord Kilmarnock
My Lords, I have listened—as always—with the greatest of interest to what the noble Lord, Lord Belstead, had to say. I take the point that the extension of the right to a tribunal hearing to the restricted patient is a fundamental extension of the patient's rights. But it was only conceded because it was required by the ruling under the European Convention. I must confess we seem to have come to a 867 fundamental parting of the ways on the question of the requirement of consistency. I quoted, and did not want to quote twice from the same letter, but Mr. Gostin said:I can find no basis for such a conclusion in any of the jurisprudence of the European Court or in the Convention".I certainly do not pretend to be an expert either on the convention or on the jurisprudence of the court, but I certainly respect the opinion of someone who has gone into it as thoroughly as he has.
The noble Lord, Lord Belstead, sought to draw attention to the fact that some patients might be dangerous; that is the case with certain patients and obviously the tribunal would bear that seriously in mind in considering their cases. But in this case we are talking about the unrestricted patients, many of whom are not of a dangerous nature at all. As to the next amendment in the name of the noble Lord, Lord Elton, to which the noble Lord, Lord Belstead, referred, this is limited to certain categories of patients which would be subsumed in those we seek to protect, but it does not cast the net as wide as we would seek to do.
I am not going to press this amendment now, but, in seeking leave to withdraw it, T still have a profound sense of unease. I shall go back and consult with my friends and see whether another way can be found to get round this illiberal withdrawal of rights from those who previously enjoyed them. Also I should like to remind the House that the noble Lord, Lord Belstead, at column No. 595 of Hansard on 19th January 1981, during the Committee stage, said:It was perhaps always something of an oddity that even a non-restricted patient should have had a right of judicial review of the grounds for his detention in hospital immediately after the question had been considered by a court which decided to make a hospital order …".It seems to me that in this case the Government have really taken advantage of the European decision to remove what they consider to be an anomaly in domestic law. Had the European decision not taken place, one wonders whether they would have even thought about this anomaly or whether they would have put anything in this Bill to deal with it. So it seems to me quite wrong to use the convention as a back-door method of improving domestic legislation. With those remarks, I beg leave to withdraw the amendment. I may well come back to this question at a later stage of the Bill.
§ Amendment, by leave, withdrawn.
§ 5.22 p.m.
§ Lord Belstead moved Amendment No. 15:
Page 12, line 25, at end insert—
("( ) Where a person detained in a hospital or mental nursing home—
§ The noble Lord said: My Lords, I beg to move Amendment No. 15, and with your Lordships' permission, I will speak also to Amendments Nos. 80, 81 and 82. This amendment, I hope, will go some way to meet the concern just expressed by the noble Lord, Lord Kilmarnock, and the noble Baroness, Lady Robson. As your Lordships are now fully aware, we consider that to give all patients subject to hospital orders the right to apply to a tribunal within the first six months of their detention is something which cannot logically be claimed to be necessary because their cases have, by definition, recently been examined by a court. In their cases it is the court which has decided, in the light of evidence from two medical practitioners, that the patient suffers from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment. This is, of course, the very question which the patient would be asking the tribunal to examine. That is the Government's stance; I realise that we still differ on this and that the noble Lord may come back to it.
§ As the Bill stands, however, this change will also affect certain categories of patient whose cases have not recently been looked at by a court but who are, simply by reason of the way in which the 1959 Act was put together, deemed to be detained as though subject to a fresh hospital order. I am referring chiefly to restricted patients whose restrictions expire or are removed; patients transferred from prison to hospital subject to restrictions, and whose restrictions subsequently expire; and patients transferred to the English hospital system from Scotland, Northern Ireland, the Isle of Man or the Channel Islands. As a result of Clause 19, such patients, who may already have been in hospital for a substantial period, would have a six-months gap during which they were not entitled to apply to a tribunal and had not just had their cases looked at by a court. One of the objects of this amendment is to remove that gap.
§ In addition, the amendment seeks to meet the concern which has been expressed during the passage of the Bill, and earlier, about the position of patients immediately after they have been transferred from prison. Again, the grounds for their detention in hospital will not previously have been considered by a court. The Government now accept that such people should have an immediate right to a tribunal hearing, and this the amendment provides.
§ The later amendments refer to those who are dealt with under the Criminal Procedure (Insanity) Act, which is in some ways similar. This matter is dealt with in Schedule 1 of the Bill. We believe it would be better to bring these matters forward in a tidier way, and that will be the effect of Amendments Nos. 80, 81 and 82 when we come to them. I beg to move.
§ Lord Avebury
My Lords, I should like to express my gratitude to the noble Lord, Lord Belstead, for the care and consideration he gave to the proposals I put before your Lordships in Committee in Amendment No. 46 on 19th January, when I suggested that patients who were to be transferred from prison to a special hospital under Section 72 and Section 74 of the 1959 Act should have the right to apply to a 869 mental health tribunal prior to their transfer. The noble Lord has gone as far as he can towards meeting the spirit of that amendment. However, I think we still have a difference here regarding patients who are committed under a Section 60 order and, as he has pointed out, have just had their cases examined by a court of law with the help of two doctors—a process which, of course, they are able to contest. They are also able to be represented and to have all the other privileges that a person has in having his case looked at by the judicial system. But in the case of the patients we are talking about now, although the noble Lord's amendment materially improves their situation, it is a post hoc review, when they have already been transferred from the prison to the hospital. So it does not go quite as far as I would like, but it is a great improvement on the situation prior to this Bill where, first, a patient transferred under Section 72 had to wait until the latest release date before he could be discharged; he did not qualify for remission in the same way as if he had remained in hospital. The Home Secretary only had the power to discharge him when he would have been eligible for release on parole or with remission. He might have transferred him back to prison but he was not in any circumstances obliged to do so.
Under this amendment, a patient may go to the mental health tribunal during the first six months after his transfer and the tribunal will then have the power, as I understand it, to direct his immediate release, or if his earliest release date from prison has not yet been reached, the effect of the tribunal's direction would be that he would be transferred back to the prison system. Perhaps the noble Lord would be good enough to confirm that my understanding of the amendment is correct.
I do not want to seem ungrateful, but I should like to raise another point with the Minister while I have the opportunity. What happens to the patients who have only just been transferred from prison to hospital, and who, in many cases, as the noble Lord is aware, feel a sense of grievance because they had some reason to suppose that they were going to be released? The particular case which the noble Lord wrote to me about is one in point. He seemed to be doing fairly well and the reports on him from the psychiatrist in prison were good. But then he may have deteriorated—no doubt, he did deteriorate—and, fairly late on in his sentence, it was decided that he should be transferred to a special hospital.
One thing that very much worried me about the noble Lord's letter was when he said:It would be fair to say that the imminence of Mr. X's release from prison made him a priority for admission".Then he said very much the same later in the letter. He repeated that, because of the pressures on the special hospitals, it may be that it is not till right at the end of a person's sentence that a place can be found, miraculously, by the doctors in charge of the special hospitals. That makes me feel extremely worried, because if a psychiatrist in the prison service believes that a person would benefit from treatment, then the question of the proximity of the end of his sentence should be entirely irrelevant. It is not a clinical consideration. The noble Lord has confirmed what everybody knows, that there is a severe shortage of places in the special 870 psychiatric hospitals, and that there are persons within our prison system who would do well out of a transfer, but who nevertheless are kept within the prison system.
Returning to the point I was making about this particular patient, how does he benefit from what your Lordships will, I hope, be about to agree to? If we have established the principle that a patient who is transferred from prison to hospital at the end of his sentence should be entitled to some review in the first six months after the transfer, so that he is not in a far inferior position to the patient whose condition has been looked at in the course of proceedings by a court of law, then, in all fairness, we should extend the same privilege to the prisoners who are now being transferred. I do not know whether it is possible to accomplish this by some extra-statutory means, but in the spirit of the noble Lord's amendment I think it would be only right and fair that the prisoners being transferred, once this amendment is agreed, should have some access to the mental health review tribunal within the first six months after their transfer.
§ Lord Belstead
My Lords, the noble Lord asked me a specific question about transferred prisoners and wanted to know whether his interpretation was correct. The noble Lord's interpretation of that particular point was absolutely correct.
§ On Question, amendment agreed to.
§ Clause 21 [Removal to hospital of persons serving sentences of imprisonment etc.]:
§ 5.34 p.m.
§ Baroness Robson of Kiddington moved Amendment No. 16:
Page 13, line 11, at end insert—
("(2) After section 72(1) of the principal Act there shall be inserted—
(IA) This section shall give the person concerned the right to see the medical reports and the opportunity to commission a further medical report from an independent medical practitioner (complying with the provisions of this section) of his choice; if he wishes to make representations based on this medical report the Secretary of State must take the representations into account before making any direction under this section.".").
§ The noble Baroness said: My Lords, this amendment is in many ways similar to an amendment moved by me in Committee at a different place in the Bill, and basically it has the same intention. I was told then that a person always has the right to get his own independent medical report. But, so far as I understand, he does not necessarily have the right to have that report considered for the purpose of action being taken; for example, if someone is being transferred from prison to hospital. It is important that a person —particularly one who is already in prison—should feel that his interests are being truly represented, by allowing him to choose his independent medical practitioner and by making it mandatory for the Secretary of State to take that medical report into account in any representations made to remove a person to a mental institution. My Lords, I beg to move.
§ Lord Avebury
My Lords, before saying a few 871 words on my noble friend's amendment, may I draw the Minister's attention to the fact that he did not answer the second point which I made on the previous amendment, concerning the right of a patient who has been transferred prior to the coming into force of this Bill. I should indeed be most grateful if he would let me have an answer to that point. Otherwise it will simply mean that we have to engage in further correspondence, and people who want to know about these matters will not be able to read it in Hansard, so I shall have to send the correspondence to them when I ultimately hear from the Minister. So it would be very convenient if the noble Lord would rectify that omission.
As to the medical reports which are made on persons who are in the prison system, and who may be eligible for transfer under Section 72, I believe that my noble friend has an extremely good point here. She puts her finger on something which is a matter of dispute between the Law Society and those who advise doctors, because I have in mind a case at the moment where the prisoner was the subject of psychiatric reports at the time of his trial. He saw the reports then, so there is no secret about them. But subsequently, because of the lack of space in his cell, he destroyed the reports and, when he wrote via his solicitors to the two psychiatrists who submitted those reports to the court, they rested on medical confidentiality and said that they were not prepared to divulge them.
So I wrote to the Law Society, and the opinion which they expressed was that the doctors had an absolute duty to make available copies of those reports, unless it could be shown that some harm would be done to the psychiatric health of the patient by the revelation of the contents. There was no suggestion of anything of that kind in the reports in question. Nevertheless, even when the opinion of the Law Society was drawn to the attention of the two consultants, they still rested on their previous refusal and we have reached an impasse. I do not know whether to go back to the Law Society to advise that my correspondent should seek an order of mandamus or something like that, which seems a heavy sledgehammer to crack what is a small nut, and if my noble friend's amendment were to be accepted it would solve the whole problem.
There is also a point about patients who have been released from prison, and who are continuing to undergo psychiatric treatment in a hosptial administered under the National Health Service, and whether they are entitled to have sight of copies of their reports. Here I think the noble Lord will be familiar with the case about which I have written to him, where the patient had requested such reports and was refused them. In answer to me, the noble Lord, Lord Belstead, said that if the doctor who is now treating this patient were to apply to the prison department for copies, then that request would be considered. He did not actually say that the consultant treating the patient would be given copies of the report, but said merely that he would be able to apply for them, which is fairly obvious.
Anyone can write a letter and the consultant would be able to approach the prison department, if he thought that that would be productive. But the Minister was 872 very careful not to say that copies of the report would be divulged. I believe it is a fairly important principle which my noble friend wishes to see established, and that it could enormously benefit the patients and the doctors who are treating them. So I very much hope that the noble Lord will give the amendment favourable consideration and that it can be written into the Bill.
§ Lord Belstead
My Lords, before I reply to the noble Baroness's amendment, perhaps I may answer the question of the noble Lord, Lord Avebury, on the previous amendment which I did not answer, about prisoners who are transferred after the passage of the Bill but before it comes into effect. It is the noble Lord's wish, I think, that the benefit of an immediate tribunal entitlement by some means—and the noble Lord said he thought it would be difficult to find the right means—should be accorded to such people. Patients of that kind will be able to request my right honourable friend the Home Secretary to refer their case to a tribunal. I am sure that such a request would be considered sympathetically.
§ Lord Belstead
My Lords, to turn to the amendment moved by the noble Baroness, Amendment No. 16, it really has three legs. The first leg would give a prisoner in respect of whom reports had been made recommending transfer to hospital under Section 72 a right to see those reports. I must tread carefully here, because the noble Lord, Lord Winstanley, and other noble Lords are medical men, and I am not a doctor. Speaking, however, as a patient, those of us who are not detained in hospital but who nevertheless are patients do not have any right to see the notes which our doctors make about us. Nor do we see what the doctor may say in any letter which he may send to a hospital consultant on our behalf. Especially in a prison, where neither the prisoner nor the doctor can voluntarily end their relationship, I think that we must seriously consider the possible effects on that relationship of a requirement to disclose the terms of a medical report on a prisoner's mental condition in cases where the Secretary of State does not order a transfer direction and where the prisoner does not move out but remains with the doctor.
Let us consider, however, the difficulties which could arise in the doctor-patient relationship if the transfer to hospital does in fact take place, since the second Section 72 report is frequently provided by a doctor in the receiving hospital who will subsequently be the transferred patient's responsible medical officer. There again it could he difficult, to put it at its lowest, if the medical report from that doctor had been seen by the patient. A further point, which I am sure will not be lost upon your Lordships, is that for a person whose mental state is in question to have the right of sight of the medical reports prepared on him might be very upsetting indeed.
The second leg of the amendment would give a prisoner in respect of whom Section 72 reports have been prepared, a right to commission a further medical report from a doctor of his own choice, presumably after a sight of the reports in accordance with the entitlement that he would be given under the first leg. 873 Here I am bound to say that I am satisfied that already there are adequate safeguards to prevent the inappropriate transfer of prisoners to hospital. Section 72, after all, requires two medical reports to be prepared, each of which must support transfer. One is normally provided by the prison medical officer and the other by a doctor from outside the prison service—very often, as I have said, the doctor in the receiving hospital. When this happens, the effect is that a prisoner in respect of whom a Section 72 report has been prepared has already been examined by an independent doctor for the purposes of making that report. There is nothing to prevent a prisoner, or his solicitors, asking the prison medical officer to agree that a further report should be obtained from another doctor of his own choice. And if this report was brought to the attention of my right honourable friend, he would certainly take it into consideration before agreeing to transfer. But there would, I suggest, be no need to put my right honourable friend under a statutory obligation to do so, which would be the effect of the third leg of this amendment.
And there is a little bit more to it than that. To lay a statutory duty on my right honourable friend the Home Secretary to take into account a third medical report before making a transfer direction could lead to delay in cases in which a prisoner has suffered a severe mental breakdown or has become extremely psychotic. Such a delay in transfer arrangements could well have a serious effect on the health of the patient. That is why, although I am saying that the Home Secretary would certainly consider medical reports, I think that this statutory obligation could be extremely detrimental.
Perhaps most important of all, there is the safeguard which the amendment just agreed to has added to Clause 19. It provides that once a prisoner has been transferred to hospital under Section 72 he will have an immediate right of application to a tribunal with a power to discharge him from hospital. If therefore he is aggrieved by his transfer, he will be able to have the substantive grounds for his continued detention in hospital considered by an independent body which will be able to terminate his detention in hospital if it agrees with the patient's contention. For those reasons, although I understand the reasons which have prompted the noble Baroness to move this particular amendment, I find it difficult to accept it.
§ Baroness Robson of Kiddington
My Lords, may I thank the noble Lord, Lord Belstead, for his long reply. It is perhaps a little unfair to compare medical reports made on people with a physical disability with medical reports made on people suffering from a mental disability. By the nature of things, their own attitude of mind is one of suspicion of society. That was the reason behind my amendment: the fact that the patient should have the right to go to his own medical practitioner and have a report made. In 99 cases out of 100, it is true that that type of person is more suspicious of his surroundings and of what is being done to him than are people with rational minds. I believe that certain safeguards could be helpful and, therefore, helpful in the ultimate treatment of the patient, once he himself has agreed that what he needs is the assistance of being a patient in a psychiatric hospital. However, 874 I gather from what the noble Lord, Lord Belstead, has said that there is not much hope of the Government agreeing to this extra safeguard. Therefore I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.48 p.m.
Lord Kilmarnock moved Amendment No.17:
After Clause 27, insert the following new clause:
§ ("Restricted Patients Compensation Board
§ .—(l) In furtherance of the provisions and obligations of Article 5(5) of the European Convention of Human Rights there shall be established a special authority to be known as the Restricted Patients Compensation Board (in this section referred to as "the Board") whose function shall be to assess and award compensation to patients subject, or who have been subject, to restriction orders imposed under the principal Act who have thereby been victims of a violation by the United Kingdom of Article 5(4) of the said Convention.
§ (2) It shall be the duty of the Board upon application being made to them by any person subject, or who has been subject, to a restriction order imposed as aforesaid—
- (a) to determine whether that person has just cause to claim that he has been a victim of a violation of Article 5(4) of the said Convention having regard to the judgment of the European Court of Human Rights given on 5th November 1981 in the case of X v. United Kingdom; and
- (b) where the Board are satisfied that a person is eligible for compensation as aforesaid, to assess and award such compensation as appears to the Board to be fair and just, taking account of any principles of common law which appear to be relevant.
§ (3) The Lord Chancellor shall by regulations specify the manner in which application may be made to the Board, and the procedure to be adopted.
§ (4) In making application to the Board a person shall he eligible to receive legal aid.
§ (5) The Board shall be constituted within 28 days of the passing of this Act, and shall consist of three of Her Majesty's counsel learned in the law appointed by the Lord Chancellor.").
§ The noble Lord said: My Lords, in moving Amendment No.17,I should also, with the leave of the House, like to make a brief reference to Amendment No. 78 which I shall be moving in due course. In introducing a new clause at this stage of the Bill, I felt that it would be improper to do so without advising the noble Lord, Lord Belstead, of my intention. I hope that he had time to see a copy of it before coming to the House this afternoon.
§ The group of amendments introduced by the Govern-ment to comply with the judgment of the European Court of Human Rights in the case of X v. United Kingdom, to which a considerable amount of reference has been made this afternoon, is designed to bring our law into line with Article 5(4) of the convention. I am here concerned with a different but related point. The court's judgment makes clear that any patient who is denied the right of access to a court is the victim of a contravention of Article 5. it may well be that a patient who has only been placed under a restriction order in the recent past may not yet be able to claim that he is a victim. His right of access to a court arises after a reasonable interval. Whatever that should be taken to mean, there will obviously be some restricted patients who are not yet victims. But they may become such.
Also, by any reading of the court's judgement, which I have here in my hand, a considerable number of patients may be liable to claim, as of now, that they are victims of a violation of Article 5(4). If the Government's planned amendments do not take
effect until 30th Septemver 1983, then more will be able so to claim. I shall later be moving, in Amendment No. 78, to bring the European provisions of this Bill into action as from the passing of the Bill, which will obviously reduce the number of people who could so claim. But that is not the immediate point at issue. Article 5(5) of the convention states:
Everyone who has been a victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation".
This must be enforceable in domestic law and no right exists for the contravention in question under our present law, and that is why this amendment is required.
§ The amendment would create machinery to award compensation. In assessing how much compensation should be awarded, the board would apply any relevant common law principles. It may not be easy to determine how much compensation should be given, but Article 5(5) imposes a clear requirement whatever the difficulties might be. I would imagine that a patient who was unlikely ever to be discharged, whatever procedural rights he enjoyed, might not be able to claim very much, whereas those who could claim that the contravention in question may well have denied or delayed their discharge would have more substantial claims. I have in mind cases in which the Home Secretary received advice from a mental health review tribunal urging discharge but where he rejected it. The reference to the "relevant principle of common law" is intended to enable differences such as this to be taken into account.
§ With some justification, the Government have claimed credit for responding to the court's judgment on Article 5(4) and thereby honouring our convention obligations. It would be a pity if the way was left open for further complaints to the Commission and court that we are in breach of Article 5(5). It happened, fortunately, that this Bill was available as a vehicle for implementing the ruling on Article 5(4). This will not be the case if we are caught out in breach of Article 5(5). Let us not miss the bus while the bus is still at the bus stop, if that is a proper way of describing your Lordships' House. We must finish the job. The United Kingdom has been found to be in breach of the convention on seven occasions since 1975. ft damages our reputation for respect for human rights. Whenever we can, we should strive to achieve compliance. Article 5(5) is an obligation which applies unless a country has specifically derogated from its provisions, which the United Kingdom has not.
§ Finally, may I again voice the hope that the Government will bring amendments forward to bring into effect the European provisions of this Bill before 30th September 1983? There may be administrative problems, but surely not such as to overwhelm the resources of the departments of state. It would be better to comply with the convention than to have to pay for our breach of its provisions. I accept, of course, that there may be other, better ways of meeting the requirements of Article 5(5), so I will not seek to push this particular model if the Government, for good reasons, wish to adopt another. The need for some compensation scheme along the lines of this amendment will, however, arise whatever date is chosen for implementation of the European sections of this Bill. I beg to move.876
§ Lord Wade
My Lords, I would like to say a few words in support of the amendment moved by the noble Lord, Lord Kilmarnock. I do so partly because he has put the case very reasonably and persuasively, and also because the amendment recognises the need to uphold the European Convention on Human Rights, which Britain has ratified. This is a subject on which I have spoken on other occasions but not during this particular debate.
I noted the observations made by the Government, of their willingness to try and ensure that this country will conform with the convention. I have in mind the observations of the noble Lord, Lord Belstead, at Committee stage of this Bill on 25th January. Then he quoted Article 5(4), which was also referred to by the noble Lord, Lord Kilmarnock. We are now discussing a slightly different point, but the principle is the same. It illustrates the difficulties which arise from the fact that Britain is bound by treaty obligations but not by statute. That is to say, we are not bound by, and citizens here do not have the benefit of, an Act of Parliament covering the terms of the convention as a whole. It has to be dealt with piecemeal under the present state of affairs. That was the subject of most of the discussions on the question of incorporation during the course of the Bill of Rights—which, I mention in passing, passed through this House twice and reached the Commons; there was an interesting Second Reading debate in which most of the speakers spoke in support but the Government evidently were undecided as to what course to adopt and were not able to find time for it to proceed. I mention that by the way.
The convention is still not the law of the land—and that is really the trouble. Therefore, we have to rely on issues relating to the convention point by point as they arise. I would like to ask the noble Lord the Minister who is to reply whether individual citizens in this country can be satisfied that Clauses (4) and (5) of Article 5 are in some way covered by this or some other statute so that the citizens have the benefit and protection which is expected by our ratification of the convention? In other words, must we rely on some clause being put into the Bill and not on the ratification of the convention on human rights? The convention on human rights was something that we promised to observe. It gives the right for individuals to go to the European Court if they can prove that they have a case but cannot go to any court in this country. Clause (5) of Article 5 is an example of the kind of problem that arises. As the noble Lord, Lord Kilmarnock, has said, the words of Clause (5) are as follows:Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation".I hope that there will not be many cases like that. I have no desire to see cases of arrest or detention which give rise to a claim for compensation—the fewer the better—but the right should be there; and yet I cannot find a clause in this Bill that provides the right which we have promised to give under the European Convention.
I am afraid that this kind of problem will continue to arise from time to time. Somebody will say, "What about the convention? What about the article which Britain has promised to observe? Can you put this into a statute?" Because unless it has been put into a 877 statute it is of no benefit to the citizen, and that is really the problem. I have already said that I hope this situation will not often arise, but it is an illogical situation that we should he bound by treaty but not by statute. That is the main basis of my comments on this particular amendment. I believe that it sets out what in effect Britain has promised to do. It attempts to provide machinery for compensation, and I have not been able to find any alternative already in the Bill. I hope the Minister will be able to tell us that the Government still have in mind some way of meeting this criticism. It seems to me to be a fair one. We should be carrying out our obligations in this respect. It is for that reason that I have risen to support the amendment moved by the noble Lord, Lord Kilmarnock.
§ 6 p.m.
§ Lord Renton
My Lords, Amendment No. 17 moved by the noble Lord, Lord Kilmarnock, raises a difficult as well as an important point with regard to our obligations under the European Convention on Human Rights. It is quite clear, especially in view of the experience to which the noble Lord, Lord Wade, has referred of our being brought before the European Court, that we should observe the convention and not incur ignominy by appearing not to have proper arrangements for performing our duties under the convention. That is so and nobody can gainsay it. But, on the other hand, we have to bear in mind that there are a vast number of matters which are covered by the convention. I mention only one, the case of the three railwaymen who raised the question of their dismissal under a closed shop agreement when they were employed by British Railways. There are many other circumstances that can arise. It seems to me that if we were to have a special board for dealing with just one of those many circumstances we would be creating a precedent in our legislation for a very wide and differing range of matters. It would seem to me that we would have many different types of board. I do not really see that there should be a need for that.
The truth is that public authorities, as well as individuals and companies, in this country should in any event observe the requirements of the European Convention on Human Rights, to which we are a party. Also, by establishing a special board we would, of course, be overlapping the jurisdiction of the European Court, and that is a matter that perhaps we should be chary of doing, the more so as it is at least conceivable that the proposed compensation board in this particular case, and other boards in other cases, might build up by way of precedent ways of dealing with these matters which would conflict, and we do not wish to invite conflicts between boards of our own creation and the jurisdiction of the Court of Human Rights. So that, although one has great sympathy with the noble Lord in what he has put before your Lordships, I must confess that I feel it necessary to draw attention to the difficulties which I have mentioned.
My Lords, before I sit down, I wonder whether I may make a brief apology and explanation to the noble Lord, Lord Kilmarnock. I understand that on his earlier amendment—I think it was Amendment No. 13—he referred to support that I had given him at Committee stage on a point which he was making. 878 I was in fact absent from the Chamber, by a strange coincidence attending the European Communities Committee of your Lordships House.
§ Lord Avebury
My Lords, one hesitates to disagree with so distinguished a lawyer as the noble Lord, Lord Renton, but I wonder whether he would care to reconsider what he has just said about the creation of a board of this kind overlapping the jurisdiction of the European Commission and Court. In many cases it will be necessary for the litigant in the European Court to show that he has exhausted the domestic remedies, whatever they may be. He goes through the domestic courts, he goes through tribunals, and he must establish to the satisfaction of the Commission, before any proceedings can be set in motion there, that these domestic remedies have in fact been exhausted. So the presupposition of the Commission is that we will have created some sort of machinery for implementing our obligations under the convention.
If I may turn to another point which the noble Lord made, he said that if we were to do this, if we were to single out the obligations that we have assumed under Article 5.5 of the convention, where is it going to lead? Are not there a vast number of other matters that we would have to take into consideration every time we brought a new Bill before this House, to see whether it did not somehow affect the obligations we have assumed under the convention? This is precisely the reason why my noble friend has on several occasions tried to integrate the convention into our domestic law, and why your Lordships have agreed that that would be a sensible course of action. If that were done we would not have any need for amendments of this sort, because a litigant would be able to go straight to the Court and argue on the basis of Article 5.5 that he is entitled to compensation.
§ Lord Renton
My Lords, if I may intervene, I am most interested in the argument the noble Lord is advancing, but, if I remember rightly, the Bill to which he referred, and which did in fact pass your Lordships' House in a previous Session, while bringing into our own law the European Convention on Human Rights, did not purport to establish a series of boards in order to implement that convention in this country. As I understand it, the underlying implication of the Bill was that the existing courts of this country would implement the convention.
§ Lord Avebury
My Lords, the noble Lord is quite right. It would have been a much better procedure, if I may say so, if your Lordships in your wisdom had been allowed to press forward with that legislation. The person who was wrongfully detained under the Mental Health Acts would have had a right of action in the domestic courts and would have been able to ask for compensation from the domestic courts under the provisions of Article 5.5. It is the fact that we have not got those provisions in our domestic law that has required the establishment of some sort of alternative machinery, such as proposed by the noble Lord, Lord Kilmarnock. I must say that if I had to choose between a series of special compensation boards to be established to suit the purposes of each article where the European Convention gives a right to somebody and the general provisions such as my noble friend Lord Wade sought 879 to enact, then I would very greatly prefer the latter. But we are not dealing with that.
We are trying to cope with a situation in which we know that there is an obligation on the Government to comply with a particular article; we know indeed that the Government have been found in breach of another sub-clause of the same article. I would suggest to your Lordships that it would be extremely dangerous, having had this matter drawn to your attention, for you now to reject it, because if there were to be litigation in the European Commission subsequently for compensation under Article 5.5 and the litigant were to be able to point to this debate—which he could do because the European Commission and the Court are not subject to the same barriers against quotations from Hansard as are our domestic courts—surely the European Court would be entitled to award him exemplary damages to teach the Government a lesson for their failure to bring into the law some provision to enable them to comply with their obligations under Article 5.5. So I believe the provision which is suggested by the noble Lord, Lord Kilmarnock, although it may not be perfect, is better than not having any provision whatsoever for compensation in these cases.
§ Baroness Jeger
My Lords, while it is impossible from our point of view to support this amendment, and it may be unseemly for Her Majesty's official Opposition to be interfering in this argument that concerns parties other than our own, I should like to say that we strongly support that section which provides that a person shall be eligible to receive legal aid. However, as we have Amendment No. 31 down on the subject of legal aid we shall be returning to that matter later. In opposing the amendment we do not want it to be thought by your Lordships that we are against the question of legal aid. That is the only point that we would wish to make on Amendment No. 17. We shall return on Amendment No. 31 to the question of legal aid.
§ 6.11 p.m.
§ Lord Belstead
My Lords, the amendment of the noble Lord, Lord Kilmarnock, begins with the words:In furtherance of the provisions and obligations of Article 5(5) of the European Convention of Human Rights".Article 5(5) is concerned with persons found to be victims under the convention by the court or the Committee of Ministers. Until such a finding has been made, a person is not a victim for the purposes of that provision. The noble Lord's amendment seeks to meet the claims of persons who allege that they are victims of a violation of the convention but in respect of whom no such finding—indeed, up to now, no application—has been made. The noble Lord talked about not missing the bus while it is still at the bus stop. With respect, I do not think that the bus has arrived—indeed, I do not think that the bus is yet in view.
What has happened is that following the case of X v. United Kingdom, in which of course X was found to have been a victim of a violation of Article 5(4) of the convention, there is a claim to the court for compensation. This claim is currently being considered by the 880 court under the terms of Article 50, under which provision the court has a duty to afford just satisfaction to the injured party. I agree with my noble friend Lord Renton that in this situation I am sure that noble Lords would agree that it really would be premature to establish a statutory board to entertain applications for compensation—incidentally, by reference to Article 5(5)—from restricted patients until such time as the court has adjudicated on the issue of compensation which is before it. Otherwise we may well find that there is, to say the least (in the words of my noble friend), overlap. It is to be hoped—and I say this quite genuinely—that the court's judgment as well as deciding the question of whether compensation is appropriate so far as X himself is concerned, will provide some guidance to the United Kingdom Government on the question whether compensation is appropriate in similar cases, and, if so, what criteria might be relevant in determining its amount.
The noble Lord, Lord Wade, asked whether individuals can be satisfied that Article 5(5) is covered in our domestic law. In so far as that article as a whole is concerned with unlawful deprivation of liberty generally, the answer certainly is, Yes. After all, not only is there habeas corpus, but there is a right to sue for assault or false imprisonment in our civil law and damages may be awarded. If the Government had not felt satisfied that there was domestic remedy in terms of Article 5(5) the Government would not have ratified the convention.
However, I should like to return to what I think is the basic point. The issue in this case is purely whether someone should have a right of compensation simply because he has not had access to a court with power to discharge, as required by Article 5(4), in circumstances in which there is no good reason to believe that he had been unlawfully detained. That was the issue in the case of X v. United Kingdom.
§ Lord Wade
My Lords, I should like to make a point for the sake of clarification, because I am sure that all this may sound rather confusing. I am looking at column 760 of the Official Report for 25th January, to which I have already referred. There is reference there to the case in the European Court. It says:The European Court of Human Rights' view, therefore, was that the availability of habeas corpus proceedings was insufficient to meet the requirements of Article 5(4)".So at least there is a doubt.
§ Lord Belstead
My Lords, with respect to the noble Lord he is referring to Article 5(4) although the question which he asked me, and to which I was replying, referred to Article 5(5). Where we do have common ground is that what actually we are talking about so far as the case of X v. United Kingdom is concerned, is a breach of Article 5(4). I would suggest to the House that the most sensible course would be to wait for the European Court to reach a decision on the arguments which are being put before it at present so far as Article 5(4) is concerned under a claim which is being made under Article 50. For that reason I would ask the noble Lord, Lord Kilmarnock, to withdraw the amendment.
§ Lord Kilmarnock
My Lords, I am grateful to all 881 noble Lords who have taken part in this short debate. Taking first the point of the noble Lord, Lord Renton, I must say that, of course, I fully sympathise with his aversion to the idea of seeing boards set up here and there to consider this and that contravention of the European Convention of Human Rights. Of course, as the noble Lord, Lord Avebury, pointed out, and in particular the noble Lord, Lord Wade, none of these problems would have arisen if the convention had been incorporated in our domestic law as the noble Lord, Lord Wade, proposed to do in his Bill of Rights. It is became that did not become law that we are faced with these difficulties. I should like to point out to your Lordships' House that this is not the last of the difficulties that we are going to face. Further contraventions and claims for compensation as a result of those contraventions are going to take place.
I was very interested in the intervention of the noble Baroness, Lady Jeger. I must say that the official Opposition today is showing a very great deal of fellow feeling for the Government which is rather unusual in either House of Parliament. It certainly shows that the official Opposition does not take the acceptance of our European responsibilities seriously, and that, of course, is one of the things which divide them from us.
Lord Wallace of Coslany
My Lords, the noble Lord is completely and absolutely mistaken. He is a little bit muddled.
§ Lord Kilmarnock
My Lords, I am sorry but I am afraid that I did not hear the noble Lord's intervention. The noble Lord, Lord Belstead, took issue with me on my metaphor of the bus at the bus stop. I should have thought that that analogy is a very accurate one. The Bill is the bus and it is at the moment at a bus stop in your Lordships' House. This, I should have thought, would have been a good opportunity to load on another bit of necessary baggage.
The noble Lord, Lord Belstead, said that there had been no claims as yet under Article 5(5) and therefore it would be premature to set up any statutory board. That may be the case. I am not entirely wedded to the idea of this board. As I said at the end of my speech, I would he quite happy if the Government would propose their own mechanism and perhaps they may, indeed, see fit to do so at the Report stage.
The noble Lord, Lord Belstead, said he felt that the domestic remedies are already adequate. But obviously I would need to study that in conjunction with my legal friends, not being a lawyer myself. But there does seem to be some doubt about that as long as Article 5(5) is not incorporated in our domestic law. There is certainly little doubt—in fact I know this to be so because a little bird has told me—that there are some claims on the way, or there will be if the Government do not accede to this, under Article 5(5) of the convention. So, although the noble Lord may feel that it is premature to do something about it at the moment, there is little doubt that the Government will have to do something about it in the near future.
Therefore, I shall not press this because, as I have said in my opening remarks, there may be better way of meeting the requirements under Article 5(5). But there is no doubt that we shall have to do something 882 about it. Therefore, I shall certainly be thinking about it between now and Third Reading, along with some of my noble friends. I very much hope that the Government will also be thinking about it and may possibly come forward with something of their own at the final stage of the Bill. If they do not, it is almost certain that we shall have to come back in some form or other. Therefore, for the moment, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Clause 28 [Remand to hospital for report on accused's mental condition]:
§ 6.21 p.m.
§ Lord Belstead moved Amendment No. 18:
Page 17, line 10, leave out paragraph (a) and insert—
(a) in relation to the Crown Court, any person who is awaiting trial before the court for an offence punishable with imprisonment or who has been arraigned before the court for such an offence and has not yet been sentenced or otherwise dealt with for the offence for which he has been arraigned;").
§ The noble Lord said: I beg to move Amendment No. 18 and, with permission, I shall speak to Amendment No. 20. I undertook in Committee to consider the amendment proposed by the noble Lord, Lord Hunter, to extend to persons accused of murder the powers of the Crown Court under Clause 28 of the Bill to remand an accused person to hospital for a report on his mental condition. I explained the reasons which had persuaded the Government to exclude persons accused of murder from the scope of Clause 28. Briefly, these were that as it is to be a prerequisite for the exercise of the court's power for remand for report for mental condition that there should be reason to suspect that the accused person is suffering from mental disorder, a decision to remand to hospital might prejudice any consideration which had later to be given to the question of diminished responsibility.
This consideration has, however, to be balanced against those mentioned by the noble Lord, Lord Hunter. On looking at the matter again, we have concluded that the possible benefit to the courts in having this power available should, even in murder cases, carry the day. In essence we have accepted the advice which the noble Lord gave to the House. The requirement in subsection (3)(a) of the clause is only that the court should be satisfied that:
there is reason to suspect
that the accused person is suffering from mental disorder. Even after an accused has been remanded for a report, it should not be too difficult for a jury to decide eventually, on the evidence actually given at the trial, that the accused is or is not, in fact, entitled to be acquitted of murder by reason of diminished responsibility. Therefore, we have introduced the first of these two amendments, which is similar in this respect to the one moved in Committee by the noble Lord, Lord Hunter, to remove the exclusion of persons accused of murder from the provisions of the clause.
§ The second amendment—Amendment No. 20—however, prevents a court from remanding a person who has been convicted of murder for a report. There 883 can be no point in enabling the court to remand such a person, because the sentence for murder is fixed by law and no medical report available only at that stage can therefore affect the outcome of the trial.
§ Finally, we have taken the opportunity of amending this clause to broaden slightly the circumstances in which the Crown court may remand an accused person to hospital for a report. The principle underlying the remand provision in Clause 28 is that the courts should have the power to remand to hospital only in circumstances in which they would have power to obtain a medical report by remanding in custody. A report may be obtained for the Crown Court concerning an accused person at any time while he is in custody within the court's jurisdiction—that is to say, at any time having been committed for trial by the magistrates. As presently drafted, however, the clause empowers the Crown court to remand an accused person to hospital for a report only after that person has been arraigned before the court.
§ In order to enable the fullest advantage to be taken of the change—which has been urged on us by the noble Lord, Lord Hunter—towards reports which will assist the court, we, therefore, propose to amend the definition of "accused persons" to provide that the Crown Court will be able to use its powers, not just after arraignment, but also after committal. We hope that this will increase the value of the clause to the Crown court. I am most grateful to the noble Lord, Lord Hunter, for the advice which he has given us on this matter. I hope that the noble Lord will feel that we have met the point which he has made and, indeed, perhaps gone even a little further. I beg to move.
§ On Question, amendment agreed to.
§ Lord Kilmarnock moved Amendment No. 19:
Page 17, line 31, leave out paragraph (b) and insert—
("(b) the court is satisfied that the accused person would not be prepared to present himself as an out-patient at a hospital if he were remanded on bail,").
The noble Lord said: My Lords, this amendment seeks to correct the rather imprecise wording of Clause 28(3)(6) on page 17 of the Bill, which reads:
(b) the court is of opinion that it would be impracticable for a report on his mental condition to be made if he were remanded on bail" .
The amendment strikes this out and seeks to replace it with the words on the Marshalled List.
§ As it stands in the Bill, it seems to be so vague that the police could easily argue that the accused person should be remanded to hospital without having sufficient regard to the willingness of the person to cooperate in arrangements for the assessment. The amendment would oblige the court to take into account his willingness to go to hospital on bail as an outpatient, so that unnecessary detention in hospital is avoided, with all the delays that that could involve.
§ In essence, in fact, this simply provides an alternative to remand to prison and to remand to hospital. It would allow remand on bail for attendance as an outpatient in certain cases. I beg to move.
My Lords, I support the noble Lord, Lord Kilmarnock, on this amendment; it really 884 is a simple matter. I do not think that it is a matter which would arise very frequently, but it is one which ought to be provided for while we have an opportunity—as we have now—to provide for it. As the noble Lord, Lord Kilmarnock, pointed out, Clause 28 of the Bill provides for a court to remand an accused person to a hospital specified by the court for a report on his mental condition. Subsection (3) of the clause specifies the circumstances under which that power can be exercised. Subsection (3)(b) of Clause 28 is the matter which we now seek to delete. It says:(b) the court is of opinion that it would be impracticable for a report on his mental condition"—that is, the mental condition of the person concerned—to be made if he were remanded on bail".All that I should like to say before the Minister replies is that in the vast majority of cases, or in many cases, it would, in fact, be impracticable for a report on the mental condition of the person concerned to be made while the patient is on bail. In many circumstances, it would be impracticable.
§ However, I think that there are circumstances when it would not be impracticable. As the noble Lord, Lord Kilmarnock, has rightly pointed out, at the moment we merely provide the possibility that the person can be remanded in prison, where he can be examined by the prison doctor and by others and then a medical report could be obtained; or he could be admitted to hospital, as provided for in this clause, where medical reports could be obtained. Those are the only provisions which Clause 28 makes. There are circumstances in which it would be possible for the person to be properly examined and for proper medical opinions to be obtained while the person was, in fact, on bail, and that these procedures could he pursued as an outpatient.
§ If it is possible for bail to be given in circumstances of this kind and for proper medical reports to be obtained—it may not be very frequent, but I think that there are circumstances in which, with a willing patient, it might be perfectly possible for the court to provide itself with all the medical information it needs without necessarily incarcerating the person either in prison or in hospital—then I think that we should do it, and this amendment enables us to do so.
§ Lord Belstead
My Lords, I agree with the noble Lord, Lord Winstanley, as regards this amendment tabled by the noble Lord, Lord Kilmarnock, that there is one simple matter to be considered; that is, that I should have thought that anyone would want to encourage the court to consider bail instead of remand to hospital. Certainly, the Government agree with the noble Lord in subscribing to that intention. But that lies behind the existing wording of sub-section (3). There are tactical and strategic difficulties in this amendment. in the first place it would be difficult for it to be clear as to how the court is to be "satisfied", in the words of the amendment, that the accused person will not be prepared to present himself for the preparation of a report.
The question whether he can be relied upon to turn up before a doctor in the outpatients' department of a hospital is one of the first considerations which the court would take into account when deciding whether 885 to exercise its power under the clause, but it cannot be, as the amendment suggests, the only consideration. The court also needs to consider, and I think would require medical evidence on this, whether his condition is such that it is feasible for the doctor concerned to prepare a report on the accused person without an opportunity to observe that person over a period of time. For this reason alone the effect of the amendment would therefore be very largely to nullify the advantage which the courts would otherwise derive from the introduction of Clause 28.
The amendment seems to contemplate that the court has a choice only between a remand to hospital and a remand on bail. But of course that is not so. What we are in fact driving at in Clause 28 is not to enable an accused person to be detained in hospital for a report when he might have been on bail, but to enable the court, if it thinks fit, to remand a person to hospital in circumstances when that person would otherwise have to go to prison. That is the kernel of the point in Clause 28.
It is for that reason that the wording of subsection (3)(b), at which this amendment is directed, has been modelled on the wording of the Bail Act 1976. If the amendment were made, courts would continue to have power to remand a person to prison whom they could not remand to hospital, and for good reason, because there would be some people in respect of whom the need for a medical report cannot be met simply by their attending as an out-patient.
I hope that that explanation shows that although I entirely agree with what I am certain is the intention behind the amendment, which is that there should be encouragement to consider bail instead of remand to hospital, I fear that the effect of the amendment could well be the very opposite of the intention, and that we would find that the advantages of Clause 28 are nullified, and in consequence that more people would be remanded to prison for reports to he made than would otherwise he the case.
§ Lord Kilmarnock
My Lords, I am most grateful to the noble Lord, Lord Belstead, for his explanation of the Government's view. I think he is right that there is not a great deal between us on this. It is perhaps merely a drafting question. It seemed to me as it read that subsection (b) is slightly imprecise and that the option of bail really depends on a mere implication that stands in the clause, and I wanted to spell it out more firmly and clearly. The noble Lord is happy with his wording. Perhaps, as a result of this debate, he might have a thought before Third Reading to see whether there is any possible way of improving this subsection, but, in view of his assurances, I withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Belstead moved Amendment No. 20:
Page 17, line 33, at end insert—
("but those powers shall not be exercised by the Crown Court in respect of a person who hss been convicted before the court if the sentence for the offence of which he has been convicted is fixed by law .").
§ The noble Lord said: My Lords, this goes with Amendment No. 18, and I have already spoken to it. I beg to move.
§ On Question, amendment agreed to.886
§ 6.34 p.m.
Lord Kilmarnock moved Amendment No. 21:
Page 18, line 11, leave out ("twelve") and insert ("eight").
§ The noble Lord said: My Lords, this amendment returns to some ground we had a run over at Committee stage. It seeks to protect the rights of accused people remanded to hospital for assessment, not for treatment. Twelve weeks seems to be too long a maximum period, given that the person is being assessed and not, presumably, being treated. As 12 weeks is also the maximum period prescribed under this section for treatment it seems odd that the maximum period for both treatment and assessment should be identical. It seems to imply that they are one and the same thing, whereas they must in logic be different procedures, even if during the assessment period certain things are possibly being tried out.
At Committee stage the noble Lord, Lord Belstead, said:
I think the Committee would accept that it would be very awkward and contrary to the best interests of the accused person if circumstances materialised in which it had not been possible to complete the purpose for which an accused person had been remanded, and yet the legislation made it impossible to extend the period of that remand for even a few days".
The present amendment is designed to meet the noble Lord on that point.
§ It provides for a maximum period of eight weeks instead of for a maximum period of 12 weeks. If you are going to have 12 weeks for treatment it cannot be correct, and does not follow in logic, that you should have 12 weeks also for assessment, and this differentiation is desirable. A reasonable period is now allowed by this amendment; that is to say, 28 days in the first case and a further renewal for another 28 days if there should seem to be good grounds for a continuation of assessment prior to a decision on treatment. On those grounds, I beg to move.
§ Lord Renton
My Lords, I hope that my noble friend Lord Belstead will give serious consideration to this amendment. It raises a practical point of substance which should command attention. Here we are not dealing with remand for the purpose of further inquiries as to the circumstances of the offence, or as to whether the accused person committed it. This is a remand for the more limited purpose of ascertaining the accused's mental condition. Surely eight weeks altogether should be long enough, and justice should not be delayed by prolonging the matter for as long as 12 weeks altogether. The noble Lord, Lord Kilmarnock, has made an important point which deserves sympathy.
§ Lord Belstead
My Lords, perhaps I ought to emphasise that we are dealing here with a maximum period of detention in hospital for a report, and not the period of time which would be accepted as being the norm. By subsection (7) of the clause the court may not remand an accused person for more than 28 days at a time. It is the combined length of such remands that must not exceed 12 weeks. Thus, before an accused person is detained for more than eight weeks under the clause, the period of time which my noble friend feels would be about right, the court will have had at least two occasions to consider the progress of the remand in open court, with the benefit of repre- 887 sentations from counsel, or a solicitor, and of evidence from the doctor responsible for making the report.
The court may not renew a period of remand unless it appears,that a further remand is necessary for completing the assessment of the accused person's mental condition".Even where a further remand is necessary, it does not have to be as long as 28 days, the point to which the noble Lord, Lord Kilmarnock, referred; and by subsection (7) the court may terminate the remand before it is due to expire if satisfied that the assessment has been completed.
As I said in Committee, this is essentially a matter of judgment and the Government consider that the present proposal for a maximum of 12 weeks is about right. I say that realising that my noble friend Lord Renton, with all his experience, is agreeing with the noble Lord, Lord Kilmarnock, who also has taken such a deep interest in this Bill and has taken up a lot of important points.
I shall look carefully at what has been said in this debate, but without commitment, and T say that for two further reasons. The first—it is always a good thing to call in aid a distinguished source when it suits one—is that in his committee's report, my noble friend Lord Butler of Saffron Walden recommended that this would be the right period of time. That is important; that committee looked at this, along with other matters, in detail, and that is a genuine and serious reason. The second is the danger that if, with an eight-week maximum, one found that the assessment period had not been finished, then of course it would be necessary to remand the person back into custody again, something which I do not think anybody would want. Having made those two extra points, certainly I shall look carefully at what has been said, but I am afraid I cannot give any commitment to the noble Lord.
I have no doubt, my Lords, that the noble Lord, Lord Kilmarnock, will respond in the perhaps expected manner following the Minister's sympathetic reply, but first perhaps I might remind the House that we are, in a sense, in a negotiating position here; when we debated this issue in Committee we said four weeks and the Government said 12, whereas we now say eight and the Government say they are sympathetic. 1 therefore hope they will return with some subtraction from 12, rather than the movement being in only one direction. I am sure the Minister accepts the point made by the noble Lord, Lord Renton, that one should not prolong the pet iod unnecessarily purely for assessment. On other matters different considerations apply. I urge the Minister, when giving further consideration to this subject—which he has promised to do, without giving a firm undertaking—to try to find the shortest possible period which he regards as satisfactory.
§ Lord Kilmarnock
My Lords, I am grateful to the noble Lord, Lord Belstead, for his most sympathetic response. We are aiming at the same thing—we want to get it right—and I appreciate that the Minister finds himself in rather a quandary in having to decide 888 between the, noble Lords, Lord Butler and Lord Renton, both of them weighty figures.
§ Lord Renton
My Lords, I spent four and a half years at the Home Office working in the next room to my noble friend Lord Butler and there were occasions when we agreed to differ.
§ Lord Kilmarnock
I am grateful for that intervention, my Lords. As there has been a considerable degree of feeling that we may have got it right with eight weeks, I hope the Government will be able to meet us, and I look forward to seeing what they bring forward at the next stage. Meanwhile. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.44 p.m.
Lord Belstead moved Amendment No. 22:
After Clause 31 insert the following new clause:
(2) After subsection (6) of section 3 (conditions of bail) there shall be inserted—
(6A) In the case of a person accused of murder the court granting bail shall, unless it considers that satisfactory reports on his mental condition have already been obtained, impose as conditions of bail—
(6B) Of the medical practitioners referred to in subsection (6A) above at least one shall be a practitioner approved for the purposes of section 28 of the Mental Health Act 1959.
(3) In subsection (7) of that section (obligations of parent or guardian in respect of conditions of bail) for the words "subsection (6) above" there shall be substituted the words "subsection (6) or (6A) above".
(4) In paragraph 8(3) of Schedule 1 (exceptions from restriction of conditions of bail) after the words "shall not" there shall be inserted the words "apply to the conditions required to be imposed under section 3(6A) of this Act or ".").
§ The noble Lord said: My Lords, this amendment is concerned with arrangements for enabling the courts to obtain reports on the mental condition of persons charged with murder. But it deals with a rather different point than similar amendments relating to this subject, since it is concerned with difficulties which may arise when the accused person is remanded on bail, as does sometimes happen. The Bail Act 1976 creates a presumption in favour of bail which may be withheld only in certain specified circumstances. It is normal for reports to be prepared to show the mental condition of a person charged with murder both at the time of the alleged offence and at the time of trial. These reports, which are normally prepared in the prison to which a defendant is remanded in custody, are of considerable assistance to the court, to the prosecution and to the defence in deciding how best to proceed in cases of homicide, where the accused person's state of mind is crucial to the determination of the question of criminal responsibility. It is there- 889 fore in the interests of all parties to the trial, including the defendant, that these reports should be prepared.
§ Difficulty arises where the defendant is committed for trial on bail. Such a defendant will often agree to co-operate by attending for this purpose at the appropriate prison hospital. But I am advised that, under the law as it stands, if the defendant's co-operation in this matter cannot be gained, it is doubtful whether a magistrates' court, on committing a person charged with murder for trail on bail, has power to make such attendance a condition of bail. In those circumstances, it is likely that some persons eligible for bail will simply be kept in custody for reports to be prepared and given bail only afterwards. The effect of the new clause will be to ensure that persons who are suitable for release on bail are not remanded in custody simply so that reports can be prepared. Instead, they are to be given bail on condition that they attend any place specified by the court for reports on their mental condition to be prepared. Really, this is making explicit what we are not certain about in the law as it stands, and I hope your Lordships will think the intention is correct and that it is desirable that we should make it explicit. I beg to move.
§ Lord Elwyn-Jones
My Lords, there cannot be many occasions when a person accused of murder is granted bail. I know that with the generosity and humanity of noble Baronesses in this House who are magistrates it could conceivably happen, but I cannot really see it happening. However, in the rare eventuality of its taking place, it is desirable that this potential lacuna should be remedied, and we on this side support the amendment.
§ On Question, amendment agreed to.
§ Clause 35 [Powers and procedure of tribunals]:
§ 6.47 p.m.
§ Lord Hooson moved Amendment No. 23:
Page 24, line 3, at beginning insert—
("(A1) The Lord Chancellor shall in exercise of the powers conferred on him be section 2A of the Legal Aid Act 1974 extend the provision of assistance by way of representation to include representation before Mental Health Review Tribunals.
(A2) The Lord Chancellor shall lay the regulations required for the implementation of subsection (A1) above before Parliament within ninety days of this Act receiving Royal Assent.").
Lord Wallace of Coslany
My Lords, before the noble Lord proceeds, may I ask whether it would be convenient to the House if Amendment No. 31—I accept that there are certain differences between the two—was discussed at the same time?
§ Lord Hooson
My Lords, the purpose of Amendment No.23 is to ensure that patients will be able to be represented before mental health review tribunals. Subsection (A1) would create eligibility for legal aid and subsection (A2) would provide that the Lord Chancellor should lay the necessary regulations to implement the first subsection within 90 days of Royal Assent. The noble Lord, Lord Wallace, referred to Amendment No. 31. The difference between Amendments Nos. 23 and 31 is that, although they have the same objective—namely, the provision of legal 890 aid—we require the Lord Chancellor to lay the necessary regulations before the House within 90 days of Royal Assent. The reason for that is based on our experience of the Children Act. I had something to do with an amendment which led to a provision in that Act that legal aid should be provided for parents in care proceedings. That Act was passed in 1976 and nobody who supported that provision—it had general support on both sides—ever expected that in 1982 we should be in the position of implementation still not being provided for. Therefore, our amendment goes rather further than Amendment No. 31 and provides that the regulations must be laid within 90 days.
There was a very important debate in Committee and a Division resulted in a close vote when the then amendment was defeated by 82 votes to 77, and I shall refer briefly to the history of the matter. The Lord Chancellor's Advisory Committee for Legal Aid in its 1980 annual report urged that regulations be made under Section 2 of the Legal Aid Act 1974 to enable "assistance by way of representation" to cover mental health review tribunals.
The Lord Chancellor did not respond to this matter until yesterday, if his observation of yesterday can be regarded as a response. In the course of a debate yesterday on the Legal Aid Bill, which solely concerns criminal legal aid, reference was made to an article, and a leading article, in The Times yesterday, which attacked the Lord Chancellor. The article was not apposite, as the writers claimed, to the debate yesterday, but it was very apposite to the debate now taking place before your Lordships, because in the article the Lord Chancellor was criticised for not implementing the provision under the Children Act to provide legal aid for parents in care proceedings, and also for not extending legal aid to mental health tribunals.
The Lord Chancellor was drawn to make some observations on both those points, although they were outside the ambit of the main debate. I quote from column 783 of Hansard of yesterday's proceedings in your Lordships' House. I shall quote only briefly from what the Lord Chancellor said. For the full report one has to refer to Hansard itself. The Lord Chancellor said:The mental health tribunals do try to peer into the future. I am not myself quite sure how far either the advocate or the judicial procedure is suitable for that kind of inquiry, but I am advised that there is a case for representation before mental health tribunals and I will certainly convey to those who are rseponsible for them the views which have been expressed in this regard".It will be noted that the Lord Chancellor was saying that he would refer the views expressed in yesterday's debate to those responsible for the mental health tribunals, and so I hope that this evening we do not have an argument that this is a matter for the Lord Chancellor's Department and not for the DHSS, since in yesterday's debate the Lord Chancellor was firmly putting it in the compartment of the DHSS.
There are many reasons why patients need representation before mental health review tribunals. The proceedings inevitably tend to take the form of a dispute between a patient and his responsible medical officer. It is very rare (is it not?) for a patient to be able to question his own doctor effectively, even if he is an articulate patient. The latter is in a position of authority and power over the patient, and if the application to the 891 tribunal fails, the patient's prospects of securing his discharge depend entirely upon the doctor's view of the patient. Inevitably that must create nervousness about querying the doctor's judgment.
Many patients are under medication when they appear before mental health tribunals and may not be best placed, indeed are not best placed, to conduct difficult proceedings. Quite frequently, the doctor, possibly on proper grounds, might decide that the patient should not see any, or all, of the medical report that he submits to the tribunal. The tribunal has a discretion to show the patient the report or part of it and to overrule the doctor's objection, but very often the tribunal upholds the doctor's view.
Obviously it is very difficult for a patient who his been denied sight of the medical report submitted upon himself to make out a case on his own behalf. It would be very different if the report is shown to his advisers, and advisers and advocates are able to refer to the report and are best able to deal with the matter. At this stage I should like to point out that legal advisers, solicitors, can under the green form scheme give advice to a patient, but a mental patient is least equipped to take advantage of advice given by a lawyer. Such a patient is unable to assimilate the matter.
With the distinguishable exception of the immigration appeal tribunals, which are of a differen-character, mental health review tribunals are the only proceedings concerned with the liberty of the subject in which currently there is no right to legally-aided representation. Because they are detained patients cannot usually secure employment to finance their own representation. And perhaps most significantly the trend of decisions by the European Court of Human Rights would appear to be towards insisting that mental patients be able to secure representation by some form of legal aid if they lack the necessary private means.
Today it is reported on page 3 of The Times newspaper—we are avid readers with a threat over our heads—that the organisation MIND has lodged an application with the European Commission of Human Rights, on behalf of a Mr. William Collins, which apparently alleges a violation of Article 5(4) of the convention on the grounds that he has been forced to conduct proceedings himself. In this case, which is likely to become the lead case, the patient was apparently never able to see the medical reports on himself submitted to the tribunal by his doctor, nor was he allowed to be present when his doctor gave evidence to the tribunal. In support of his application the following passage from a recent decision of the European Human Rights Court will undoubtedly be cited:…it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded the 'fundamental guarantees of procedure applied in matters of deprivation of liberty' … Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right. Indeed, special safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves .".That quotation was from the decision of the Court of Human Rights reported in 1979 in the case of Winterwerp v. The Netherlands.
892 In another case, Airey v. The Republic of Eire, the court has held that failure to provide legal aid for the purposes of a judicial separation constituted a violation of the convention. There is thus a precedent for holding that a contracting party must in some circumstances extend a legal aid system to its nationals. If anything, the arguments for mentally disordered patients must be considerably stronger than those for Mrs. Airey in the case that I have just cited.
At the present time patients, or rather their lawyers, do the best they can by seeking extensions to the legal advice and assistance scheme. The scheme allows a basic £40 of legal assistance for advice, but under the relevant statutory provisions extensions cannot be granted to cover representation at the hearing itself. In so far as patients have been represented, it has always depended upon solicitors or barristers undertaking to appear at the hearing on a purely charitable basis. Increasingly they are finding that they cannot accept this task because of pressures within their firms or partnerships or from chambers. As a result patients will go unrepresented.
There is, I believe, widespread agreement on all sides of your Lordships' House that some form of state-aided representation should be provided. The Lord Chancellor's Office has said in the past that the money is not there. Although it is inevitably difficult to guess the cost because of the problem of assessing likely take-up, it would not be very great. We learnt yesterday of the current legal aid budget. We were told that expenditure on criminal legal aid is now over £100 million per annum. The truth is that the worst villain in the country may have committed the worst kind of offences, but as a community we think he is entitled to legal representation. Are we as a civilised country to refuse legal representation to a person who is mentally handicapped, who is unable to put over his own case before a tribunal? It seems to me a very odd sense of priorities which we are demonstrating in this country.
It is estimated that about 4,500 hearings a year will take place, but I was informed by the Law Society when I telephoned this afternoon that the likely additional cost of providing this service to patients would he about £60,000 per annum. That was the Law Society's estimate—£60,000, which is 0.06 per cent., if that, of the legal aid bill. The highest estimate I have ever heard on this subject is £250,000.
Perhaps I may conclude my moving of this amendment by quoting from a paper I received from a solicitor, Mr. Laurence Shuman, who has sat on two mental health review tribunals. On this particular subject he said this:Whatever increased right may be granted to patients to apply to a Tribunal, it should not be overlooked that despite representations from almost every quarter and near promises of action by Government, legal aid is still not available for representation before Mental Health Review Tribunals. Unless the right to legal aid is made fully available the right to more frequent hearings will be largely negated".There is, if the truth be said, an overwhelming case for extending legal aid to these handicapped people, and I would have thought that that case is overwhelmingly made out. I beg to move.
Lord Wallace of Coslany
My Lords, Amendment No. 31, in my name and that of my noble friends, 893 deliberately differs from Amendment No. 23 in that we feel that to insert such a tight time factor as 90 days after Royal Assent is not reasonable or helpful, and that time should be given to the Government to prepare and bring in the necessary regulations or legislation. I agree with the noble Lord, Lord Hooson, that the words of the noble and learned Lord the Lord Chancellor in yesterday's debate (Hansard, column 783) appear to an extent to support the general principle of representation before mental health review tribunals, and in this regard our Amendment No. 31 would appear to meet the case. It also meets, may I add, the main requirement of the Law Society, to the representations of which the noble Lord, Lord Hooson, has referred.
Criticism might be made of the form of the amendment requiring the Lord Chancellor to lay down regulations. We note, however, that Clause 42 of this Bill requires a Minister to use his powers under Section 11 of the National Health Service Act 1977 to establish a special health authority. By Section 11 the Minister does this by order. By Section 126 of the National Health Service Act 1977 any powers to make orders arc exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. This proceeding looks remarkably like that required in this amendment.
I would agree with what the noble Lord, Lord Hooson, has said about the need for representation; and it is true to say that I assume quite definitely that the House feels that it is the case that there should be representation. I again repeat some of the arguments that were advanced in the earlier debate, which led to a narrow vote and a defeat for the amendment by only five votes. It is true that the claim of a detained patient, whether made in an interview with a tribunal or in writing, that he is not suffering from any mental disorder, or that he represents no danger to himself or others, will be weighed against the opinion of his professionally qualified responsible medical officer. However lucidly the patient makes such a claim to the tribunal, the probative value will be minimal on its own and very much greater weight is likely to be given to the responsible medical officer's views. Simply being interviewed by members of the tribunal is therefore, practically speaking, of very little value in contesting detention.
A hearing before a tribunal is bound to centre upon the case against discharge made by the responsible medical officer himself. A responsible medical officer's opinion, set out in a report which he is required to present to the tribunal, will draw partly on his own impressions of the patient and also to a great extent on reports and assessments of the patient made by previous doctors, nursing staff currently looking after the patient, psychologists, therapists and other mental health professionals.
The question of cost has been raised. Although I say the question of cost, balanced against the overwhelming principle involved, is a minimal one indeed, at the Committee stage the Government stated that it was very difficult to estimate the cost of the proposed extension of legal aid. However, the Law Society have estimated that the additional cost over and above that paid under the green form would be £150 per patient; and they further estimate that the total cost would be about £50,000. The Government have said that 894 complex calculations have to be done to work out the total cost, but let us look at it in the most pessimistic way.
In the most recent White Paper, on page 9, the Government estimate that the number of tribunal hearings will rise to 4,500 per year as a result of the Bill becoming law. Admittedly these calculations are rough, ready and crude, but 4,500 multiplied by £150 equals £675,000, which is approximately 0.45 per cent. of the current legal aid bill. This figure is based on the assumption that all tribunal applicants will get legal aid for representation before tribunals—an assumption that is clearly incorrect.
We shall be dealing later on with Section 141, but it is a fact that lack of representation before tribunals—representation being a right which we in this House accept, on principle, is correct—could lead to more expensive Government expenditure in the Court of Human Rights. Representation would avoid a lot of people going forward; and thanks are due to those publicly-minded people outside the voluntary organisations, the charity organisations, which have fought these cases. The House owes them a debt of gratitude; and I sincerely hope that tonight, whichever amendment the Government prefer, we shall definitely place on record in this legislation the right of individuals to receive legal representation before a mental health review tribunal. That is the very least we can do, and I think the country would look askance at a Government refusing such a facility.
§ Lord Elton
My Lords, the noble Lord, Lord Hooson, has advanced with great eloquence his own amendment; he has been backed up loyally by the noble Lord, Lord Wallace, advancing his own amendment; and the Government have been asked, in a sense, to choose between them. I recognise the strength of feeling that there is in this House. Indeed, I hope I made it clear at Commtitee stage that I recognised this, and I know not whether or not my words then were those which Lord Hooson's correspondent took as a near promise of action—a nice turn of phrase, 1 thought, if a some what pejorative one.
Of course, in considering action one must consider cost, and we have heard a wide range of estimations. The bidding was opened, a little late in the day, at £50,000; Lord Hooson had £60,000, advancing to £250,000; and that was topped by the noble Lord, Lord Wallace, at £675,000. I fear there is another bid—my own. I would estimate it—and it is a very difficult thing to estimate—at three-quarters of a million pounds, £750,000. That is a speculative figure, I entirely accept, being based on assumptions about how many patients will exercise their new rights under the Bill and how many will apply for legal aid. In addition, it cannot be considered in isolation from other calls for extra aid expenditure.
At this stage I can tell your Lordships no more than that the matter is under urgent consideration. I hope to he able to enlighten your Lordships in the not too distant future. I would ask your Lordships to stay your hand. I would hope not to have to ask your Lordships to stay your hand too long. Whether that is a mere promise of action, I do not know. But the Bill is not yet out of this House and I hope that I 895 may persuade your Lordships to be patient on the matter.
Before the noble Lord sits down, could he make it clear that the Government's only present objection to this amendment is on the grounds of cost? Are there any other objections at all?
§ Lord Elton
The noble Lord, Lord Winstanley rises with his pin to skewer me like a butterfly to the board. I have said that the matter is under urgent consideration. The Times—not in its penultimate publication, one hopes—drew attention to the wide area of Government interest in this. It is not easy to get these things brought to a conclusion in the time that one would want. I think that I can be confident that I can satisfy or dissatisfy your Lordships before the Bill is out of this House. If your Lordships think it prudent to rest on that assurance, then your Lordships will be able to put me right if I fail to meet your wishes. I do not think I can be more concrete than that. It will read as a very lengthy, tortuous speech, but I think that your Lordships know what I am trying to say.
§ Lord Elwyn-Jones
But this is the first time. I have not spoken before, but I am always willing to be corrected by the Chief Whip. We are as clay in the hands of the potter—but not quite this time. I was about to say, when I was so helpfully interrupted, that I am not sure that we are very gratified by the assurance of the Minister that either he would satisfy the House or dissatisfy the House before the Bill leaves the House. That is an assurance which, on further reflection of his astute mind, he will think to be valueless. In the sense that he is opening out the possibility still of a negative response, perhaps the noble Lord can give an assurance before the Bill leaves the House—and the noble Lord, Lord Renton, tried to extract this assurance last time round; but we are getting nowhere very fast or very slowly. We argued this thoroughly the last time. The only reason why the amendment was not carried on that occasion was that we were given fairly specific assurances of good things to come.
Since then, as the noble Lord, Lord Hooson, has said, the noble and learned Lord the Lord Chancellor indicated his approval last night of this principle and concept. I should have thought, at any rate, that, while I see there may be difficulties about the 90-day provision, if the noble Lord were to give an assurance that the first part (A1) would be agreeable and acceptable to the House, and we had that assurance, then perhaps the noble Lord, Lord Hooson, would be willing, in order to establish the certainty of acceptance of the principle, to stay his hands on a Division. But it does not prevent my noble friends and I from moving again the new clause of Amendment No. 31.
When the noble Lord, Lord Hooson, made the powerful observation that the vilest man accused of the vilest murders can receive legal aid and yet a poor, 896 sick person faced with a deprivation of liberty is denied it, then it really does not make sense in a civilised community like this. I hope that we can get something better than what we have had from the Minister so far; in which case we can all rest upon the assurance that the passing, for instance, of Amendment No. 31 (or, better, if he is so disposed, Amendment No. 23) will ensure that this serious omission from our legal aid arrangements will be remedied.
§ Lord Renton
I think it may be that the noble Lords who moved each of the amendments have overlooked the fact that the Bill is not to come into force until 30th September 1983. Therefore, it seems to me that their amendments do not help us very much, because one would hope that in view of what my noble friend Lord Elton has said, the Government will use their existing powers under the Legal Aid Act, to ensure that we have legal aid before mental health tribunals long before 30th September 1983. If we have to accept either of the amendments which have been moved, then we shall certainly have to wait, and wait all that long time. Therefore, it seems to me that on any view of the matter, the Government are right.
§ Lord Hooson
The noble Lord, Lord Renton, is adept at getting the Government off the hook. If he reflects for a moment, I am sure that he was a great supporter of the amendment to the Children Act in 1976 which provided that legal aid should be provided for parents of people in care proceedings. But here we are, six years later, and it still has not been provided.
I am sorry but I take a cynical view of Government promises, whatever the complexion of the Government. I think it is important that the Committee should declare itself on this matter of principle. What the noble Lord, Lord Renton, has said reinforces my view that it is necessary to provide the 90-day limit for the noble and learned Lord the Lord Chancellor to lay the regulations before the House after Royal Assent. I would seek to divide the Committee on this amendment.
§ 7.17 p.m.
§ On Question, Whether the said amendment (No. 23) shall be agreed to?
§ Their Lordships divided: Contents, 58; Not-Contents, 60.897
|DIVISION NO. 1|
|Airedale, L.||David, B.|
|Amherst, E.||Davies of Leek, L.|
|Avebury, L.||Davies of Penrhys, L.|
|Aylestone, L.||Donaldson of Kingsbridge, L.|
|Bacon, B.||Elwyn, Jones, L.|
|Barrington, V.||Foot, L.|
|Beaumont of Whitley, L.||George-Brown, L.|
|Bishopston, L.||Glenamara, L.|
|Blyton, L.||Gosford, E.|
|Broadbridge, L.||Hall, V.|
|Brockway, L.||Hooson, L.|
|Brooks of Tremorfa, L.||Hughes, L.|
|Chitnis, L.||Jeger, B.|
|Cledwyn of Penrhos, L.||Jenkins of Putney, L.|
|Clifford of Chudleigh, L.||John-Mackie, L.|
|Darcy (de Knayth), B.||Kennet, L.|
|Kilmarnock, L. [Teller.]||Ross of Marnock, L.|
|Kinloss, Ly.||Stewart of Alvechurch, B.|
|Llewelyn-Davies of Hastoe, B.||Stewart of Fulham, L.|
|Lloyd of Kilgerran, L.||Taylor of Mansfield, L.|
|Loudoun, C.||Thurlow, L.|
|Mackie of Benshie, L.||Tweeddale, M.|
|McNair, L.||Wade, L.|
|Masham of Ilton, B.||Wallace of Coslany, L.|
|Molloy, L.||Wells-Pestell, L.|
|Oram, L.||White, B.|
|Pitt of Hampstead, L.||Willis, L.|
|Ponsonby of Shulbrede, L.||Wilson of Radcliffe, L.|
|Robson of Kiddington, B.||Winstanley, L. [Teller.]|
|Alport, L.||Macleod of Borve, B.|
|Auckland, L.||Mancroft, L.|
|Avon, E.||Mansfield, E.|
|Belhaven and Stenton, L.||Margadale, L.|
|Bellwin, L.||Marley, L.|
|Beloff, L.||Mersey, V.|
|Belstead, L.||Mottistone, L.|
|Blake, L.||Mowbray and Stourton, L.|
|Brookeborough, V.||Murton of Lindisfarne, L.|
|Burton, L.||Northchurch, B.|
|Cathcart, E.||Nunburnholme, L.|
|Coleraine, L.||Orkney, E.|
|Colwyn, L.||Pender, L.|
|Cork and Orrery, E.||Portland, D.|
|Cowley, E.||Renton, L.|
|Cullen of Ashbourne, L.||Rochdale, V.|
|Denham, L. [Teller.]||St. Just, L.|
|Elliot of Harwood, B.||Sandford, L.|
|Elton, L.||Sandys, L. [Teller.]|
|Faithfull, B.||Sempill, Ly.|
|Fortescue, E.||Sharples, B.|
|Fraser of kilmorack, L.||Stanley of Alderley, L.|
|Gisborough, L.||Stodart of Leaston, L.|
|Grimston of Westbury, L.||Strathcona and Mount Royal, L.|
|Hailsham of Saint Marylebone, L.|
|Home of the Hirsel, L.||Swinton, E.|
|Inglewood, L.||Trefgarne, L.|
|Lane-Fox, B.||Vaux of Harrowden, L.|
|Long, V.||Vivian, L.|
|Lyell, L.||Young, B.|
§ Resolved in the negative and amendment disagreed to accordingly.
§ 7.26 p.m.
§ Lord Denham
My Lords, I think this is probably the moment that we should adjourn for dinner. Therefore, I beg to move that this House do adjourn during pleasure until ten minutes past eight.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.27 until 8.10 p.m.]
§ Lord Elton moved Amendment No. 24:
§ Page 24, line 11, leave out from ("for") to end of line 20 and insert ("the words from "and shall so direct" onwards there shall be substituted the words "and—
- (a) the tribunal shall direct the discharge of a patient liable to be detained under section 25 of this Act if they are satisfied—
- (i) that he is not then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or
- (ii) that his detention as aforesaid is not justified in the interests of his own health or safety or with a view to the protection of other persons;
- (b) the tribunal shall direct the discharge of a patient liable to
898 be detained otherwise than under section 25 of this Act if they are satisfied—
- (i) that he is not then suffering from mental illness, psychopathic disorder, mental impairment or severe mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; or
- (ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or
- (iii) in the case of an application under section 48(3) of this Act, that the patient, if released, would not be likely to act in a manner dangerous to other persons or to himself.").
§ The noble Lord said: My Lords, this amendment is largely technical and it is consequential on Clause 3(4)(b) of the Bill, which gives patients who are detained for assessment the right to apply to a mental health review tribunal. That is a new right, but the Bill did not distinguish between the criteria for discharge of patients under that right and the criteria for discharge of other patients. The criteria which tribunals apply to all other detained patients are not entirely appropriate for patients who have only been admitted for assessment. This amendment ensures that a tribunal have to discharge a patient only if the grounds for admission for assessment are not satisfied at the time they see the patient. They may discharge him in any case; that discretion is not affected by this amendment. I regret that this material was not introduced at Committee stage, but, as it is a fairly straightforward matter, I hope your Lordships will accept it. I beg to move.
§ On Question, amendment agreed to.
Lord Elton moved Amendment No. 25:
Page 24, line 24, leave out from ("patient") to first ("of") in line 25 and insert ("detained otherwise than under section 25 of this Act in a case not falling within paragraph (b)").
§ The noble Lord said: My Lords, this amendment follows on from the previous one. It ensures that, when the tribunal consider the case of a patient who is detained for assessment, they are not required to have regard to matters which are appropriate only to patients detained under the long-term powers; that is, "treatability" and "grave incapacity". Again, I must emphasise that the tribunal have discretion to discharge the patient if they wish and to take account of any matters which seem relevant to them. All this amendment does is to remove an inappropriate obligation on them to consider certain matters. I beg to move.
§ On Question, amendment agreed to.
§ 8.13 p.m.
§ Lord Kilmarnock moved Amendment No. 26:
Page 24, line 36, at end insert—
(" (1C) The tribunal may direct that a patient who is due to be discharged under subsection (1B) above may only be discharged on conditions specified by the tribunal if, in the opinion of the tribunal, the patient's condition warrants a course of action other than the discharge on the date specified under subsection (1B) above ".).
The noble Lord said: My Lords, this amendment arises out of the anomaly which I pointed out at Committee stage; that is, of the mental health review tribunals having the power—as they will have from now on—of conditional discharge for restricted patients. I sought at Committee stage to extend that power to
unrestricted patients and I think I adduced some fairly weighty reasons for the desirability of that extension. In his reply to me on 25th January at column 784 the noble Lord, Lord Sandys, said this:
Experience since 1959 has demonstrated that it would be helpful for mental health review tribunals to have a wider range of options open to them in considering a case and not to be confined to directing discharge or making no direction at all".
He then went on to say at column 785:
It is only in those special cases where a patient is subject to restrictions on his discharge that conditional discharge may be necessary".
§ I found it difficult to follow the logic of that at the time, and I am afraid I still do. The amendment I am moving this evening is not as wide-ranging as that which I moved at Committee stage: it simply seeks to introduce an area of flexibility in the case of a delayed discharge. If, owing to a change in the patient's condition, a tribunal wanted to qualify or reverse or to attach other conditions to a delayed discharge, they could not now do so as the law stands. This amendment would give them this power, and I beg to move.
§ Lord Elton
My Lords, I find myself in a slight difficulty because I have not had a great deal of time to consider this amendment. Although the noble Lord has gone some way towards explaining its purpose, he does not actually elucidate its effect, as I read it on the Marshalled List. The power for a tribunal to direct delayed discharge has been welcomed by your Lordships, and I am sure it is helpful to extend the range of options open to the tribunal when they consider a case. As I explained to your Lordships in Committee, we intend to widen the options still further by means of the rules made by my noble and learned friend the Lord Chancellor, so as to permit tribunals to recommend transfer to another hospital or to guardianship or trial leave of absence subject to conditions under Section 39 of the principal Act. This meets what I think to be the intention underlying the noble Lord's amendment and, if that is the case, I hope that he will not press it any further at this stage.
§ Lord Kilmarnock
My Lords, I am most grateful to the noble Lord, Lord Elton. He has spoken about the rules and no doubt they will be helpful, but there is a certain amount of concern among tribunal members that they should have equal powers for unrestricted patients as they are to have under this Bill for restricted patients. I am not going to press this amendment and it is getting rather late in the evening. To be frank with the noble Lord, I am not sure that I am entirely happy with it and at Third Reading I would like to table a further amendment which may be rather more ample in scope than this one. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Faithfull had given notice of her intention to move Amendment No. 27:
Page 24, line 40, at end insert ("whereby he or she, on discharge from hospital, may receive such assistance, guidance and support from the local authority social services, department or a relevant voluntary agency in order to rehabilitate the patient in the community").
The noble Baroness said: My Lords, first may I thank my noble friend the Minister for putting into the Bill the word "welfare", for which I am very grateful. I am in some difficulty over this amendment because, reading Amendment No. 32 by the noble Baroness, Lady Masham, there are some points where I think that her amendment is better than mine and there are other points where I think my amendment is better than hers. If only we could have put the two together we might have had a better amendment altogether. Therefore, I should like just to make a few points on Amendment No. 27. One is that there the words are more specific, stating,
May receive such assistance,"—
I would suggest taking out the word "guidance"—
… and support from the local authority social services department …
I specifically put that in, because if you are a director of social services it is necessary to be able to point to a specific statement in an Act that a city treasurer can see and therefore can agree to. That was why the phrase was put in. I also put in the words "voluntary agency", which do not appear in Amendment No. 32 by the noble Baroness, Lady Masham.
§ I agree that in her amendment she has brought in the district health authority, and I was going to say in my amendment that we have not really clarified the whole position with regard to the Green Paper, Community Care, whereby there should be a spread of resources from the hospital side to the community side; and that is very important. Having made those few remarks, I think it would be wise not to move Amendment No. 27 and then to debate Amendment No. 32. Therefore, I shall not move the amendment.
§ [Amendment No. 27 not moved.]
§ 8.20 p.m.
§ Baroness Robson of Kiddington moved Amendment No. 28:
Page 24, line 40, at end insert—
(" ( ) After section 123(3) of the principal Act there shall be inserted—
(3A) Any patient who is currently detained in a hospital not being a special hospital shall not be transferred by the hospital managers to a special hospital unless application is made to a Mental Health Review Tribunal and the Tribunal is satisfied that the transfer is in the interests of the welfare of the patient.".").
§ The noble Baroness said: My Lords, I have pleasure in moving this amendment in the names of my noble friend Lord Winstanley and myself. We have in this Bill increased the powers and responsibilities of the mental health review tribunal, and in Amendment No. 15 we have made special provision for people who are removed from prison and sent to hospital. The Government have agreed to make an exception in the case of such persons, so that they can have access to a mental health review tribunal within the first six months of detention in a hospital.
§ I am dealing with the kind of person who has been detained in a hospital, not being a special hospital, and one of the most frightening things that can happen to a patient of that kind is to be told that he, or she, is to be sent to a special hospital. Unless we accept this amendment, such a patient will not have a chance to appeal to a mental health review tribunal for six months 901 after arriving at the special hospital. In his or her case, the same argument applies as in the case of a person going from prison to a hospital, to whom the noble Lord, Lord Elton, referred. No court has heard his or her case.
§ I hope that, on that basis—the same basis as Amendment No. 15—the Government will be prepared to accept that the mental health review tribunal should be satisfied that the transfer is in the interests of the welfare of the patient. That would safeguard that patient and would give the opportunity of having his or her case heard by the mental health review tribunal before entry to the special hospital. He or she would then have to abide by the six months' rule, as does every other patient in the hospital. I apologise for this being a late amendment. Nevertheless, I hope that the noble Lord the Minister will accept it. My Lords, I beg to move.
§ Lord Elton
My Lords, it was not as late as some. Special hospitals are provided under Section 4 of the National Health Service Act 1977, which imposes on the Secretary of State, as part of his general duty to provide health services, a specific duty to provide special hospitals for persons subject to detention under the Mental Health Act who,in his opinion require treatment under conditions of special security on account of their dangerous, violent or criminal propensities".The proposal in this amendment would thus conflict with a statutory obligation laid upon the Secretary of State in the National Health Service Act, for it would require the transfer of a patient, from an ordinary mental hospital to a special hospital, to be approved by a mental health review tribunal. It would also cause considerable practical problems.
Every application for a place in a special hospital is considered by a specialist panel of officers in the department, which includes a psychiatrist of consultant status. Unlike the mental health review tribunal, the department's panel is not concerned in any way with the question whether the person concerned should be subject to detention. By the terms of Section 4 of the National Health Service Act, it is concerned only with people for whom the question of detainability has already been decided. If the person is not subject to detention, then the question of his admission to a special hospital cannot arise.
Decisions on the special hospital admission are thus quite different in kind from decisions on whether a person should continue to be detained, which is what a MHRT exists to deal with. Every application for a special hospital place is subjected to a very close examination. A decision to admit is taken only where the circumstances clearly indicate that the care and treatment of the person concerned cannot be undertaken in any other hospital. This is essential, if the very specialised national facilities which special hospitals can offer are to be available at any time for an urgent case.
From my own experience, I can say that the criticism that is most frequently made to me in individual cases is not that somebody has been admitted to a special hospital who ought not to have been, but that people who ought to have been admitted to a special hospital, in the view of my correspondents, have not been. It 902 is not very easy to get in. Thus a transfer from a National Health Service hospital to a special hospital will normally arise only where all other solutions within the National Health Service have been tried and have failed.
The circumstances in which these decisions are taken often involve the risk of grave immediate danger to the public generally, to the staff or other patients in an ordinary mental hospital, or, sometimes, to the patient himself. Indeed, the problem which the department usually faces is pressure to admit to a special hospital a person who does not, in the opinion of the Secretary of State, fulfil the strict criteria for this.
Against this background, I believe that the bringing in of the mental health review tribunal in the way proposed would cause severe practical problems. First, there is often a high degree of urgency about such admissions, which could not be satisfied if the matter had first to be referred to a tribunal. Sometimes, this arises on first admission to a special hospital, but it can also arise on readmission. It is important to move out of special hospitals patients whose condition no longer seems to require them to be detained in conditions of very high security.
The usual pattern for such patients is for them to be transferred to a National Health Service hospital, while being still subject to detention. The special hospital normally gives an undertaking to the receiving National Health Service hospital, for reasons which your Lordships will readily understand, to readmit the patient to the special hospital if this should prove necessary. Sometimes, it does prove necessary, and, where it does, there may be a need to act very quickly. If some impediment were to be introduced to readmissions in these circumstances, that would inevitably serve to discourage National Health Service hospitals from accepting patients from special hospitals, and this would be a very undesirable development.
In other words, we want to encourage National Health Service hospitals, or normal hospitals, to accept patients from special hospitals, even when they feel a little doubtful about it, because, very often, that proves to be in the patient's interest. If it is not, it is in the hospital's interest to be able to return that patient quickly to the special hospital, and the intervention of a tribunal could do quite a lot to alter the judgment of the ordinary hospital, the National Health Service hospital, about accepting such a patient.
Secondly, there is the problem of what would happen when the mental health review tribunal decided that a patient should not be transferred to a special hospital. There would then be a situation where a National Health Service hospital had found that the patient was beyond its capabilities to look after, and the department had agreed that the strict criteria for admission to a special hospital had been met, but the patient would have to stay in the local hospital to be managed by staff as best they could. This really would present grave difficulties, and it illustrates the problems which arise in asking a body which has been set up for one purpose to undertake a separate task.
Perhaps I should add at this point that all detained patients, including those in special hospitals, are able to appear before a tribunal about their detainability. A patient who is transferred to a special hospital would, under the Bill, be able to put his case on that to a tribunal 903 within, at the very most, 12 months after his last tribunal hearing, if he had already been detained for more than 12 months. If he had been reviewed by an MHRT on 10th January and was then transferred to a special hospital on 11 th January, which is highly unlikely, he would still have only 364 days to wait, unless it was a Leap Year. If it was in the first 12 months, he would have six months less one day, and in the normal course of events he would have a good deal less, because the hearing would have been some time before.
In conclusion, the function of the mental health review tribunals is to decide questions of detainability. They are not appropriate bodies for considering management questions about individual patients for whom the question of detention is not currently at issue. Where such a management decision concerns admission to a special hospital, the duty for exercising that responsibility is imposed by statute on my right honourable friend the Secretary of State. This is clearly, in my view, where it should remain. On grounds of principle, therefore, the Government cannot accept this amendment. However, I hope I have demonstrated that there would be serious practical objections to it, even if there were no issue of principle.
In a nutshell, the position is this: that the review tribunal decides detainability. That review takes place at regular intervals. If the management of a patient requires him to be moved from one hospital to another for urgent reasons, then to ask the review tribunal whether his detention should be continued in another place earlier than you would ask it as to whether his detention should be continued in the normal process of events, does not seem to me to be what the tribunal was instituted for. In the circumstances, I think it could act very much against the interests not only of the individual patient concerned but also of a number of patients, by reducing the relatively ready access which improving patients have from special hospitals to hospitals in the National Health Service. Therefore I cannot advise your Lordships to accept this amendment.
§ Baroness Jeger
My Lords, I am not sure whether this is the right moment to raise a particular point. In view of the statement made yesterday about payment by overseas visitors to this country for National Health Service treatment, may I ask what would happen if someone were taken mentally ill in this country? Under which part of the Bill would they come? Would they be asked to pay full fees for hospital care? This is a very important question. Many people might come here who need mental health care as much as physical health care.
§ Lord Elton
My Lords, I trust that the effects of taking a holiday in the United Kingdom will not always be as disastrous on those who do so as the noble Baroness seems to expect. If the patient were detained —and the patient cannot go to a special hospital unless detained—that would not apply. Therefore, the noble Baroness may remain assured on that point. I should have asked for your Lordships' permission to speak a second time on this matter. I see from the noble Baroness's expression that she may require me to speak 904 for a third time, but I do not think that your Lordships would be sufficiently patient for me to reply.
§ Baroness Robson of Kiddington
My Lords, may I thank the noble Lord, Lord Elton, very much for his reply. I realise that some of the arguments put up by the Government are difficult to defeat. However, I do not see why the argument that because a mental health review tribunal had supervised the decision to move a patient from a hospital which is not a special hospital to a special hospital would mitigate against the National Health Service hospital receiving the patient back. I was not proposing that every time he goes in and out it should happen—only in the first instance, when he is first deprived of his freedom to the extent of being put in a special hospital. Within six months after that he is entitled to go to another tribunal.
I believe that it is an enormous change to a person's rights in society to move him from an ordinary hospital to a special hospital. If the Government are not prepared to accept my suggestion, may I ask them whether, at a later stage in the passing of the Bill, they would be prepared to accept exemption for a person of that kind which is equal to the special exemption suggested in Amendment No. 15 for a patient moved from prison to a hospital; in other words, access to a mental health review tribunal within the first six months? If that has greater hope of success, I will attempt to put it forward at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.35 p.m.
§ Baroness Masham of Ilton moved Amendment No. 29:
Page 25, line 7, at end insert—
(" (7) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under the principal Act or this Act, the Tribunal may in any case (except where the patient has been ordered to be detained in a special hospital by a court) direct that the patient be transferred to a different hospital and shall so direct if they are satisfied—
§ The noble Baroness said: My Lords, this amendment, if it becomes law, would give the power to mental health tribunals to transfer a patient from one hospital to another if they felt there was a need. It is sometimes the case that hospitals want to hold on to patients even though another hospital might be more suitable to the needs of that particular patient. Mental hospitals vary enormously. For example, some hospitals are predominantly geriatric, and young people will not do well in them. Some hospitals have a very strict discipline, due to a high proportion of antisocial or aggressive patients which make them unsuitable for those patients who are much less mentally ill than their fellow patients.
§ After special treatment in a hospital far from the patient's home, it may be very important to move as near to his own environment as possible to make visiting easier for friends and family. This is particularly important when relatives are old and infirm and public transport is scarce and expensive. Another reason might be that a patient requires specialist 905 services not available at the hospital in which he is detained, and another hospital might be able to help him more. It might even be necessary to be able to send a patient back to a hospital that he was in during a previous stay because the specialist at that hospital is familiar with the patient's case. It might be found by relatives and the mental health review tribunal that the treatment a patient is being given is causing him not to get better, and he may deteriorate in a particular hospital. This amendment would give the tribunal the power to do something about this situation.
§ Following on from what the noble Lord the Minister said in answer to the noble Baroness, Lady Robson of Kiddington, on the last amendment, may I ask him this question: if the mental health review tribunal cannot deal with management matters, how does the matter come to the notice of the Secretary of State when all is not well? I beg to move.
§ Lord Renton
My Lords, may I ask my noble friend whether she could enlighten me, at any rate, and perhaps other noble Lords as well, about one particular point. I had always thought of after-care as being the responsibility of—
§ Baroness Masham of Ilton
My Lords, with the leave of the House, the noble Lord is on the wrong amendment.
§ Lord Sandys
My Lords, in response to the amendment moved by the noble Baroness which deals with a very important matter, may I say that we are thinking along virtually the same lines. We touched on this issue in Committee. As I made clear in response to an amendment then, the Government accept that in the light of experience it would be helpful for the mental health review tribunals to have a wider range of options open to them when considering discharge. One relevant passage has already been quoted by the noble Lord, Lord Kilmarnock. We therefore intend to provide, in the rules made by my noble and learned friend the Lord Chancellor for the procedure of the mental health review tribunals, that tribunals may recommend a transfer to another hospital. We also intend to provide that where the tribunal's recommendations are not met within a certain period the tribunal may reconvene to consider why and what action should now be taken.
The noble Baroness asked me a particular point. I do not have a definitive answer and in the circumstances I think it would be best to write to her and give her details in the form of a letter rather than answers off the cuff now.
I believe it is important to refer back to what I said at a previous stage, on the second day of Committee stage, 25th January (col. 784). In this particular context I said:This question was discussed in the previous Government's 1978 White Paper (paragraph 6.5), and in the discussion document published at the same time by the Lord Chancellor's Committee on Mental Health Tribunal Procedures (paragraphs 3.5 and 3.6) the discussion recognised that where the tribunal took the view that transfer from one hospital to another, for example, was the best outcome for the patient, this would have to be a matter for 906 recommendation rather than direction. The appropriate hospital might be quite unable to accommodate the patient at once so that the tribunal's direction could not immediately be implemented".I believe there are practical difficulties here and I am sure that the noble Baroness, Lady Masham of Ilton, who has such experience through her contacts in a whole range of hospitals, will appreciate that. I do hope therefore that the noble Baroness will accept that we are very much at one on this issue and that the matter is already in hand. Perhaps she may therefore agree not to press her amendment.
§ Baroness Masham of Ilton
My Lords, I should like just to bring to the notice of the noble Lord, Lord Sandys, and of the House the fact that the amendment states in paragraph (b) that the hospital shall have undertaken to accept the patient. However, I would like to thank the noble Lord for his reply. I am pleased that the amendment has helped to bring these points to the notice of the House. The Minister's remarks will give encouragement to people outside this Chamber, and with that I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 36 [Duty of managers of hospitals to refer cases to tribunal]:
Lord Winstanley moved Amendment No. 30:
Page 25, line 35, leave out ("vary") and insert ("reduce").
The noble Lord said: My Lords, this is a very simple and straightforward amendment. Frankly, if it is not accepted by the noble Lord the Minister I shall be a little bit suspicious. Clause 36(2) states:
If the authority for the detention of a patient in a hospital is renewed under section 43 of the principal Act and a period of three years (or, if the patient has not attained the age of sixteen years, one year) has elapsed since his case was last considered by a Mental Health Review Tribunal, whether on his own application or otherwise, the managers of the hospital shall refer his case to such a tribunal".
Subsection (4) of the same clause states:
The Secretary of State may by order vary the length of the periods mentioned in subsection (2) above".
Those periods were, of course, three years normally or, if the patient has not attained the age of 16 years, one year. The subsequent clause says that the Secretary of State may by order vary the length of those periods. This amendment merely deletes the word "vary" and inserts the word "reduce".
§ I accept that to reduce a period is to vary it, but if we change the wording from "vary" to "reduce" we then have a situation whereby a Secretary of State would not be able by order to increase the period. The noble Lord the Minister may say that the Secretary of State would not wish to increase the period. If he Secretary of State does not wish to increase the period, then perhaps he would accept the degree of flexibility which is allowed by this amendment. It seems to me entirely reasonable that the Secretary of State by order should be able to reduce the period if he feels that is necessary, but I do not think it is quite so reasonable that the Secretary of State by order should be able to increase the period. If we are at one—and the intention is to enable the Secretary of State to reduce that period—why not say so, instead of leaving the rather flexible word "vary"? I beg to move.907
§ Lord Elton
My Lords, I will try to allay the suspicions of the noble Lord, Lord Winstanley, by referring him to the image of a ratchet. The noble Lord makes the charitable assumption, and rightly, that the Secretary of State would not be expected to increase the period initially but only to reduce it. But the Secretary of State would wish to be able to reduce the period and then, if he got it wrong, to feel that he could revert either to the original length of time or to some shorter period of time. It is because we do not want my right honourable friend and his successors to be deterred from experimentally reducing the period that we would prefer to keep the wording in the Bill as it is.
The alternative would have a ratchet effect because the Secretary of State would be able, under the Bill as amended, to reduce the period and, having done so, if he had made a mistake the period would have to stay reduced because he could only vary it by reducing it still further. I hope that the noble Lord's suspicions are allayed. Certainly they should never have been aroused.
My Lords, it appears that I have been caught in the noble Lord's ratchet and it is not awfully comfortable. If I understand the noble Lord, what he has in mind is that a Secretary of State might on some occasions reduce the period and then, having reduced it, would want to increase it. I understand that and it seems entirely reasonable. If that is reasonable, then of course one does have to leave the word "vary". I would be happy to withdraw my amendment on the assumption that the word "vary" remains. But my understanding is that the use of the word "vary" means that the Secretary of State, having first reduced the period, will still have an opportunity to increase it later; that appears to he the message behind the noble Lord's ratchet. On that understanding, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Wallace of Coslany moved Amendment No. 31:
After Clause 37, insert the following new clause:
§ ("Legal aid. 1974 c. 4.
§ The Lord Chancellor shall in exercise of the powers conferred upon him by section 2A of the Legal Aid Act 1974 lay before Parliament regulations extending the provision of assistance by way of representation to include representation before Mental Health Review Tribunals.").
§ The noble Lord said: My Lords, the House will recall that I spoke to this excellent, acceptable and moderate amendment earlier, when we were discussing the amendment that was forced to a division. All I do now is to move the amendment in order that the House might give leave to the noble Lord the Minister to speak again, so that he will have an excellent opportunity to accept the amendment and avoid any further discussion. I beg to move.
§ Lord Elton
My Lords, I cannot detect from the House whether it is giving me leave to speak or not. In order not to trespass on your Lordships' territory I can only say that I cannot really add to the not very veiled things I said at an earlier stage. I have nothing jingling in my pocket after dinner any more than I had 908 before. Therefore, I decline the noble Lord's invitation to proceed further.
Lord Wallace of Coslany
My Lords, I had hoped that an excellent dinner would have modified the Minister's approach. However, in view of the fact that we might get our generous bonus on the next stage of the Bill I will withdraw the amendment now and will have the opportunity no doubt, if the noble Lord the Minister does not come clean, to put my amendment down again.
§ Amendment, by leave, withdrawn.
§ 8.49 p.m.
Baroness Masham of Ilton moved Amendment No. 32:
Before Clause 38, insert the following new clause:
§ .—(1) This section applies to persons who, having been detained under section 26 of the principal Act, or having been admitted to a hospital in pursuance of a hospital order made under section 60 of the principal Act, cease to be detained and leave hospital.
§ (2) It shall be the duty of the District Health Authority and of the local social services authority to provide after-care services for any person to whom this section applies.
§ (3) The duty laid down by subsection (2) above shall continue until the District Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services.
§ (4) In this section the District Health Authority. 'means the District Health Authority within whose District the person concerned is resident; and "the local social services authority" means the local social services authority within whose area the person concerned is resident.").
§ The noble Baroness said: My Lords, in moving this amendment I must begin by explaining to your Lordships that I was greatly surprised when I found that there was no statutory obligation to provide aftercare for patients who have been detained in mental hospitals. Patients detained under Section 26 are the most severely mentally ill patients. They also suffer from severe mental impairment or psychopathic disorder. Patients detained under Section 60 are mentally ill patients with a criminal record who are sent to mental hospitals by the courts. The more secure the hospital, the more rehabilitation and adjustment is needed to help them back into the community.
§ A few weeks ago I visited the secure unit of St. Luke's Hospital, Middlesbrough. I think I am right in saying that even the noble Lord the Minister has not yet had this opportunity. This unit is very secure, with the necessary high percentage of staff. I was very impressed that the staff were making every effort they could to rehabilitate the patients. The staff know that unless these patients get adequate after-care they will not survive in open conditions.
§ I am a member of the board of visitors of an open borstal. These boys are in an open condition, not locked in by day or by night. None of them are mentally ill. They all receive a year's statutory probation on discharge. Are we, as a nation, going to try to rehabilitate some of these very young people who are detained under Section 26 and Section 60, or are we going to shut them up in hospital for the rest of their lives?
§ This Bill was welcomed by your Lordships, but so 909 much of it is to do with detaining patients. The most difficult task of getting them out again is woefully neglected. I have discussed after-care with several psychiatrists. They have told me that after-care is an essential.
§ In this amendment the duty to provide after-care is shared by the district health authority and the local social services authority. This is so that the patient when discharged gets the appropriate help and does not fall betwixt the two. He may well be on continuing drug treatment. Therefore, the nurse trained in community mental health who works with the doctor will be the appropriate person concerned. If he needs help with finding a place to live, or the family needs advice, it might be the social worker.
§ If these unfortunate people are to be helped and the community are to be more at ease with coping with the problems, these two caring professions have got to work closely together. I am very much in favour of volunteers, but helping this particular group needs trained personnel who have a statutory duty. There is nothing to say that volunteers cannot also help, but I do not think that they should have a statutory duty laid on them. If we allow this Bill to go to another place without providing the necessary community support I think we will be letting the patients down, as well as the staff in the hospitals who work so hard, and the members of the public who need the security of knowing that there is somebody to contact when problems arise. I beg to move.
Lord Wallace of Coslany
My Lords, I rise to support very strongly the noble Baroness's amendment. Noble Lords may recall that on Second Reading of the Bill I brought up this point and quoted an example that I discovered in the City of Norwich. One of the difficulties the Government may advance is that of financial support, beset as local authorities are at the moment with instant and constant demands to reduce their expenditure. But this expenditure is worthwhile. In addition, of course, it is possible that there are voluntary agencies willing and able to co-operate. I think if the initiative lies with the district health and local authority services they can and must call upon the voluntary services who are only too willing to give assistance. We must remember that if the tribunals and the commission work as they are expected to there will be quite a number of cases to cope with. This is what we have to face up to, the results of our actions in passing this Bill into law. I have great pleasure in supporting this amendment.
§ Lord Thurlow
My Lords, I should like to suggest that this amendment, which is in fact a modest amendment in its scope, is important as a safeguard against dangers in the future even more than to remedy deficiencies at present. In the best areas local authorities and the local health services are already providing these necessary services, but at present conditions are patchy. As has been pointed out in the White Paper of 1975, we are dealing with a prospect of deficiencies in services for the next 20 to 25 years. In confronting this lengthy period what is likely to be the financial background? As the noble Lord, Lord Wallace of Coslany, has said, local authorities are running into increasing stringency. 910 The problem of priorities for their services is going to become more and more acute.
This particular section of the community is perhaps the section that has the least political muscle or popular appeal. Therefore, in this amendment we are providing that it should not be left to the caprice of local authorities desperately short of funds for competing services; for this particular section of the mentally ill, those discharged after detention, there should be a statutory duty on the health services and the local authorities together to ensure in all areas, areas well serviced at present and areas ill serviced at present, that this gap is filled.
§ Baroness Elliot of Harwood
My Lords, I should like to support this amendment, and to refer to what the noble Baroness, Lady Faithfull, said, on her Amendment No. 27. I think it would be a good idea if we could have a combination of the responsibilities. The district health authorities are, after all, not local authorities, they do work under a different jurisdiction. On the other hand, the importance of the social work department and the possibility of social workers being able to undertake the care and supervision, as it were, of people coming out of mental hospitals would avoid a tremendous amount of trouble. It would probably save quite a lot of money. It would enable these people to live in the ordinary community, but with someone to whom they can talk and who can help them.
The answer if they do not do that, is that they will probably find themselves back in a mental hospital or a special hospital, where the expense is far greater for the state than it would be if they were getting care from the social work department, or in some cases the health authority. We are always being told there is no more money, and we know that money has to be spent on many things. If you can save money by caring for people so that they do not go back to institutions, that surely is one of the best ways of proceeding. Also, it is much better for the people themselves. As your Lordships know, I was chairman for many years of a social work committee. We must have saved a tremendous number of people from having to go into institutions because we did care for them. We had day centres and so on to which they could go. I would like to see the same type of thing available for these people who have been in hospital but who could now, with additional assistance, be able to live in the community.
§ 9 p.m.
My Lords, I would endorse every single word that the noble Baroness has just said. I think that everything that she has said is highly relevant and I hope that it will be listened to. But my guess—and, of course my guess may be wrong—is that we shall shortly hear from the Minister that the primary purpose of this Bill is to increase the safeguards for detained patients. Of course he will also point out that patients who are at large in the community requiring after-care, help and supervision are, by definition, not detained patients. However, be that as it may, if one looks at the Long Title of the Bill there is nothing there that makes it impossible for us to include some kind of a provision of this type in this Bill. Whether we are 911 actually to include it as part of the statute I do not know, but we must certainly try to achieve that provision.
As has been said by the noble Baroness, Lady Masham of Ilton, the noble Baroness, Lady Faithfull, and others, it really is an appalling waste of public money to expend highly expensive technological resources on improving the mental condition, the mental state, of a patient and then to discharge that patient into the community with no kind of support, so that he very quickly relapses and has to go back into hospital all over again. That is pouring public money down the drain, and at the moment we are doing rather too much of it in, for example, other fields with highly expensive centres for alcoholism. There we dry out an alcoholic at a considerable public cost; then out he goes into the community with almost no support and then, as sure as night follows day, he breaks down and is back in hospital, if he is lucky enough to get in. It is a great waste of public money.
The noble Baroness, Lady Masham, has purposely left out the voluntary sector and explained why, although the noble Baroness, Lady Faithfull, did include the voluntary sector in her earlier amendment. Frankly, I think that she was right. In the present situation there is little doubt that some of this work will have to be undertaken by voluntary bodies, and I think that some of those voluntary bodies undertake that work extremely well. It is a fact that volunteers are forthcoming in large numbers, but the experience of organisations like MIND and the Richmond Fellowship, which do so much work in after-care for patients of this kind, is that for something like every seven or eight volunteers you need at least one professional in the field in order to organise their work and to make proper use of their work. Those professionals can, perhaps, come from the organisations themselves out of the type of grants they may receive—or prehaps may not receive—from central funds. But they can also come from a very close liaison with the social services department and, I think, with the people from the district health authority.
This is where one wants a tripartite partnership between the social services, the people working for the district health authority and the voluntary sector in order to ensure that we have effective and continuing after-care for people who are discharged from hospital, whatever the circumstances. If we do not do that we shall continue to waste a great deal of public money. Whether or not this is the appropriate place in which to take some such step I am not sure, but I am waiting to hear what the Minister has to say. I think that both noble Baronesses have done us a service in drawing attention to the importance of after-care in this whole field which otherwise was a subject which we were perhaps beginning to neglect.
§ Lord Renton
My Lords, the need for after-care is, of course, clear to everybody. The question is, under what powers it shall be done and who shall do it. We have a probation and after-care service for dealing with offenders of various kinds and the Section 60 hospital orders—to which reference is made in the amendment of the noble Baroness, Lady Masham—are in respect of those who have been convicted. As I understand it, in the normal way the probation and 912 after-care service would regard it as part of their responsibility to look after people discharged from hospital under a hospital order made by the court, if they were called upon to do so. But I do not know that they always would be called upon to do so.
It may be my ignorance, but I am not aware of the hospital authorities at present having any responsibility for providing after-care. They do have arrangements for out-patients to re-visit hospitals and so on, but that is rather different. In my experience, however, the local authority social services department, with its welfare officers are the people who, perhaps, would be most suitable to perform the duties as regards those who had been detained under Section 26 of the principal Act—namely, those admitted to hospital for treatment, but who had not come before the courts.
I am speaking in this rather non-committal way because I am genuinely in search of knowledge which I do not possess. All that I do know is that under the amendment of the noble Baroness, Lady Masham, it is most essential that we should know exactly who would have to provide the services, under what powers, and in what circumstances; and I think that we should also have to ensure that there was not an overlapping with services already provided.
Lord St. Just
My Lords, I should like very much to support the noble Baroness, Lady Masham, in what she has said. One point which the noble Baroness has already mentioned concerns the question of people who are on drugs coming out of mental hospital. These days they are nearly always people who have suffered from bad mental illness and who will probably be on drugs certainly for a year after discharge.
The other point which I think is most important is that there is still, certainly in the minds of mental patients who come out of hospital, a stigma that mental illness is not understood and that, whether people say so or not, there is among the general public a feeling of strain. If they have in the local authority a counsellor with whom to talk this over, it certainly will help them very much.
§ Lord Auckland
My Lords, I believe that this is a very important amendment, particularly in regard to areas where there is a concentration of these hospitals, because many of these patients have become separated from their families, particularly those who may not have been born in this country but who have come here to settle. Their families may be in their country of origin, and when they are released they have no close relatives to whom to go.
Where one has a concentration of these hospitals these days it is very difficult for the local authority to provide the trained personnel to give the very vital time needed for this purpose. Therefore, I think that subsection (2) of my noble friend's amendment is of particular importance. All this makes it very difficult to assimilate as to how this care can be provided. But unless there is far more concentration on aftercare—particularly for those who, as my noble friend Lord Renton mentioned, have had a long stay in hospital but who have become sufficiently well, if I may put it that way, to be released in the community—unless there is 913 the follow-up to keep the morale of these patients going, much of this work will be wasted.
§ 9.10 p.m.
§ Lord Elton
My Lords, I think that both noble Baronesses have done a service to the House in bringing forward this matter for discussion and calling forth this very useful debate. I hate to disappoint the noble Lord, Lord Winstanley, but I shall not take the ground that he told your Lordships I would in this position; I shall not take ground which shall altogether please him—at least, it should if he bears with me to the end of what I have to say.
It is certainly true that after-care is of very great importance, and that if after-care is absent, very often care is wasted. I was very glad that a number of your Lordships emphasised the importance of the social work service, the health service and the voluntary agencies, co-operating in this vital field. Your Lordships will know that the Government are committed to bringing patients closer to the community. Although I do not have the advantage of the noble Baroness who moved this amendment, of having been at St. Luke's, Middlesbrough, I have been to a good many secure accommodations, both of the health service and of other sorts.
But, if I may digress for a moment, what impressed me most was, for instance, the demonstration in the Wessex region that the reduction of units of management to a small size is feasible and does bring people closer to the community. We are not talking about the people who are under treatment at the moment. The noble Baroness has directed our attention to those people who have received treatment. I do not think that she is convinced—and I shall now try to convince her—that the powers and duties which she wishes to exist already exist, and if there is a difficulty, it is not a difficulty of legislation.
Existing law already lays a duty on health and local authorities to provide after-care for mentally disordered persons. As regards health authorities, this duty is encompassed in Section 3(1) of the National Health Service Act, 1977, which states that my right honourable friend the Secretary of State must provide for such after-care as he considers appropriate as part of the health service. Paragraph 2 of Schedule 8 to the same Act specifies the relevant functions of local social services authorities. They may provide after-care and, what is more, they must so do to the extent that the Secretary of State directs.
If we then move on from the Act to Circular No. 19 of 1974 to local authorities, which concerns provisions for the mentally disordered and which is still in force, we find that it gives such a direction. It states that the local authorities must provide as follows: first, residential accommodation for mentally disordered persons; secondly, facilities for training and occupation, including training centres and day centres; and, thirdly, social work support and other domiciliary and care services. The term "mentally disordered persons" embraces all the categories to which I heard the noble Baroness refer in her speech.
In addition, Section 28 of the National Health Service Act, 1977, lays a duty on local social services authorities to provide social work support for the health services. Hospital-based social workers are part 914 of the clinical teams looking after patients and they share in decisions about their discharge and after-care. They work outside the hospitals as well as in them. As employees of the local social services department they have access to the facilities provided by their own authority. If the patient is to be discharged to the area of a different local authority—and noble Lords have pointed out that in some areas there are concentrations of patients who are not drawn from the immediate catchment area—then they contact their colleagues and pass on the advice of those who have treated the patient during his stay in hospital. A lot of difficult work is done by these people working at a distance from the hospital in which they are based to secure the reception of the discharged patient in the area to which he is going or returning.
The arrangements which we have proposed in the guidelines on approval of social workers who will undertake duties under the Act should help to ensure better co-ordination of social services to help patients and their families to obtain the assistance they need when discharged to live in their own homes or in residential accommodation. We also hope that local authorities will continue to develop the various kinds of after-care provision which they already provide.
Progress has been made in the last few years. The number of places in local authority homes and hostels for the mentally ill rose from 2,198 in 1974 to 3,724 in 1980. The number of places taken up by the local authorities in accommodation provided by voluntary or private bodies has more than doubled in this period. We share the noble Baroness's concern that suitable after-care arrangements should be made in every case. That is why the Bill provides a new power for the mental health review tribunal to recommend delayed discharge. This would allow time, probably a period of up to three months or so, for the necessary after-care arrangements to be made.
The difficulty in the past has been where a patient has been discharged perhaps by a mental health review tribunal, or has discharged himself or herself, and has instantly said, "I am free. I am going". If the person who is free and going finishes up 250 miles away in a distant city, it is no mean task for the social service workers in the hospital to locate him and alert the receiving authority. In these cases there will be time, and that is the purpose of this power in this Bill. Powers are also being introduced for the tribunal to recommend trial leave of absence. This will mean that the patient's needs for care and support can be tested before he is finally discharged.
A tribunal will also be able to recommend discharge to guardianship. The addition of these various options will give the tribunal more flexibility and so make it easier for the most suitable kind of after-care following discharge to be identified. I mentioned guardianship. If the noble Baroness's concern—I do not think it is—were principally with detained patients, then there will be occasions where powers are needed to enable the patient to receive the care and after-care he needs directly; and they exist in the form of guardianships.
Can I persuade your Lordships, therefore, that the legislative powers that both noble Baronesses and others of your Lordships wish to exist, do exist, and that that is not the difficulty. Practice is improving. My im- 915 pressions from my travels about institutions in this country—and they would have been much more frequent were there not so much legislation in your Lordships' House—convince me that this is something of which people are very much aware; more aware than they were, and the awareness is increasing.
I do not think that to reimpose an already existing duty upon the authorities will achieve anything. That is not the way to do it. This has been a useful occasion for us to ventilate the issue, and for me to put on record the concern which the Government have and which they will pursue in this matter.
§ 9.18 p.m.
§ Lord Avebury
My Lords, it could be even more useful if the noble Lord the Minister would tell us not only what these various Acts and circulars provide that the local authorities ought to be doing, but what they are actually doing. Is there not something inconsistent between what the noble Lord says about the increase in provision of homes and hostels and the necessity for a power to delay the release of a patient because nursing and after-care facilities are not available?
Is it true, as we are informed by MIND, that 43 local authorities provide no after-care facilities whatsoever? If that is so, is it also a fact that these local authorities are ultra vires, that they have not carried out duties which have been laid on them by Parliament, and that an action for mandamus would lie against the particular local authority which has failed to provide any of these after-care facilities? If so, why has the Secretary of State not done anything since the circular came into force in 1974, which the noble Lord has told us about, to ensure that these responsibilities are properly undertaken?
I agree with the noble Lord on one thing he said. There is no point in having legislation on the statute book unless it is enforced. If what the noble Lord has said is correct, that the powers are there, that the Secretary of State has the right to tell a local authority what kinds of after-care services it should provide, and that the Secretary of State has advised the local authorities in a circular issued as long ago as eight years as to what provision they should make, yet still in 1982 there are 43 local authorities which provide no day-care facilities whatsoever, and it is necessary to delay the discharge of patients from hospitals because the authorities cannot be satisfied that the proper care arrangements have been made for them, then the noble Lord needs to get on his bicycle, do a little more travelling around the local authorities, find out which ones are not doing their job and bring actions against them in the courts if they still refuse to carry out the responsibilities which Parliament laid upon them eight years ago.
§ Lord Elton
With the leave of the House, my Lords, I shall again do something improper and speak a second time, though I should not be doing so. The noble Lord referred to the introduction of the power to give a delayed discharge as though that was in order to allow the local authority to build a new hostel or produce some new institution to receive the patient. That is not the intention. The intention—as I tried to make clear, but I think the noble Lord was directing his attention elsewhere at that moment—is that where a 916 patient, for instance, is discharged from Rampton or a secure provision somewhere in the Midlands, and that patient's home happens to be in Exeter, then it is no good saying, "You are a free man" and he gets on the nearest train and disappears. It is essential that the receiving authority shall be notified and the next of kin, or whoever is playing that role—we discussed that earlier—should be aware of the change in the person's circumstance and be prepared to look after him.
The noble Lord says it is disgraceful and so on that our provision is not better. I will not bandy individual cases with him without being familiar with them. He asks what the Secretary of State—the term embraces all Secretaries of State since 1974, I take it—has done. In local authority homes and hostels there were in 1974, 6,473 places and there are in 1980, now, 12,062 places; in voluntary and private organisations, the base year have is 1972 (this is not a direct responsibility, of course, of my right honourable friend and his predecessors) the figure was 2,457 whereas in 1980 it was 3,746; for mental illness (I was referring then to mental handicap) places in local authority homes and hostels rose from 2,198 in 1974 to 3,374 in 1980; places taken up by local authorities in accommodation made available to local authorities by voluntary and private organisations more than doubled between 1972 and 1980; as to day care places, adult training centres rose from 29,483 in 1973 to 42,337 in 1980; as for day centres and places made available by voluntary and other organisation for mental illness, in 1973 there were 5,374 whereas in 1980 there were 7,740.
§ Lord Elton
I am already answering, as it were, an interruption, my Lords, and we must not degenerate into a Committee stage. I have given the full list of figures, which will appear in the Official Report, and the noble Lord can dissect them and return to savage me with them at Third Reading if he so desires, or through the post if he does not. The fact is that provision has increased. It may not be perfect, but it is a great deal better than it was. There is a greater awareness now than there was of the need for it and of the need to integrate these people into the community, both during care and during after-care, and I am not unhappy to defend the record of my right honourable friend and his predecessors. In any case, we are talking about legislation and the point of this debate is not to vindicate records but to talk about powers and duties placed by legislation. I have told your Lordships that those powers which the amendment seeks already exist and therefore there is no point in relegislating them. If something needs to be done, it is not legislation.
§ Baroness Masham of Ilton
My Lords, I should like to thank all noble Lords who have supported the amendment. I am not sure whether the Government are really in touch with the realities of what is happening on the ground. In this country we do not place enough emphasis on rehabilitation—on that I am quite clear. Psychiatrists have told me that when they write reports for the review tribunals they sometimes have to recommend that a patient stays in hospital because 917 they cannot be certain that aftercare will be forthcoming if he is let out.
The noble Baroness, Lady Faithfull, has put her name to an amendment on after-care. She is an ex-director of Oxford social services department. The director of Leeds social services department says that when a matter is statutory it receives priority, and where priorities have to be dealt with when resources are lacking what can be more important than this very needy group of the most difficult patients that we have in our society?
Why should the amendment not go through to another place for their Committee stage to discuss? The right reverend Prelate the Bishop of Norwich had to return to Norwich today because tomorrow is Ash Wednesday. The right reverend Prelate is a very strong supporter of after-care and of this amendment. If what the noble Lord, Lord Elton, has said is true—and I do not at all doubt him—what is the harm of having the amendment in the Bill? The Bill appears to be lacking when one looks through its clauses and does not see a provision on after-care.
I suspect that there are many noble Lords taking the Government Whip who are sitting in the bars and have not listened to this very important debate. In view of that, and bearing in mind that there is a shortage on this side of the Chamber, I shall not divide the House this evening. Instead I consider the amendment so important that I shall take it away and bring it back at Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.28 p.m.
Lord Wallace of Coslany moved Amendment No. 33:
Before Clause 38, insert the following new clause:
§ ("Criminal and civil proceedings.
§ .—(1) Section 141 of the principal Act is hereby repealed.
§ (2) No criminal proceedings shall be brought against any person in any court in respect of any act done or purporting to be done in pursuance of the principal Act or this Act without the consent of the Director of Public Prosecutions.
§ (3) No civil proceedings shall be brought against any person in any court in respect of any act done or purporting to be done in pursuance of the principal Act or this Act without the leave of the High Court and the High Court shall not give leave under this section unless satisfied that there is a prima facie case that the person to be proceeded against has acted in bad faith or without reasonable care.").
§ The noble Lord said: My Lords, I beg to move the amendment standing in the names of my noble friends and myself. We again enter an important discussion on Section 141. We discussed this matter very fully in Committee, when amendments were withdrawn for various reasons, and I now place before the House an amendment which I hope represents a genuine attempt at compromise. We recognise that staff at hospitals are concerned about the possible repeal of the statutory safeguard against the commencement of legal proceedings, civil or criminal, by patients. At the same time we cannot accept the Government's picture of mental illness and handicap hospitals as being full of ardent litigants only awaiting the removal of Section 141 before commencing numerous actions which as a result will require staff having to walk about in pairs. There is absolutely no evidence that that will happen, and it is very interesting to note that so far as we know no 918 country in Western Europe, North America or Australasia has similar provisions.
§ The Government White Paper of 1978 recognised that this section would have to be amended. Among other things it recommended that criminal actions should be removed to the DPP and that the word "substantial" should be replaced by the word "reasonable". In this amendment that has been done, save that we have followed the wording of the Northern Ireland Mental Health Act for civil cases.
§ MIND has brought a case at the European Court of Human Rights in Strasbourg challenging the legality of this section. The hearing before the Commission took place recently. No result has yet been announced—last week Reuters put out a story from Strasbourg indicating that the finding would be against the Government—but it is interesting to speculate whether the Government, in their role as avid pupil awaiting instruction from the headmaster in Strasbourg (a stance indicated by the noble Lord, Lord Elton in Committee), would in the event of the Commission finding against them forgo the sometimes interminable grinding of the decision through the Council of Ministers and ask the court to give its definitive judgment on the issue immediately.
§ At this time of night I will not prolong your Lordships' proceedings any further on the point, but there is a great deal of strong feeling about it. We have attempted to be reasonable; and we have attempted to cover the staff in both eventualities. I trust the Government will accept it in the same helpful spirit as that in which I have moved this particular amendment.
§ Lord Mottistone
My Lords, your Lordships will remember that at Committee stage I did my best to persuade the Committee that Section 141 was very important; and I suppose the best wording on it was in column 804 of the report of the proceedings on the second Committee day by my noble friend Lord Elton, who summarised it very well. What I find difficult now—and I fully appreciate the compromise that the noble Lord, Lord Wallace, referred to—is why indeed he needs to open his amendment by saying, "Section 141 … is hereby repealed", because he then proceeds to put back, first of all, subsection (3) and then subsection (2). They are admittedly not precisely as worded—that is understandable, and I hope there are no hidden nasty points that have been omitted—but as I read them they are virtually subsections (3) and (2).
Why do not noble Lords, if they wish to do it, say, "Delete subsection (1) of Section 141"? I do not know why they want to delete subsection (1), having put in subsections (2) and (3); but that is effectively what they are doing. I would have thought that in principle they had got pretty well all that the original Section 141 has, and there was no need to appear to hit it with a sledgehammer and then somehow mark the sledgehammer and not actually do it.
Having said that, I should like to repeat that the important thing is not entirely to safeguard the people who are working in the hospitals (although that is important in itself) but also to safeguard people who are outside the hospitals and are working in this area, like the mental welfare officers and the nearest relation, 919 all of whom, under certain circumstances, could be vulnerable to legal attack. I am talking really of civil legislation, which of course the noble Lords have covered in their subsection (3), at the top of the second page, because it is the civil cases that I am particularly concerned about. I think that the criminal cases are pretty well admitted and well taken care of in one form or another in both this amendment and in Amendment No. 63, which comes up later. But we really do need to strengthen the civil cases to protect all the people who operate in this area, and I hope that this particular amendment is seen as being a move in the right direction but not the final answer. Perhaps noble Lords would agree with that.
§ Lord Elton
My Lords, I had been going to suggest that it would be convenient to discuss this amendment with Amendment No. 63, but looking at the Liberal Front Bench it would appear not to be. As I explained when we discussed this matter in Committee, the intention of Section 141 is to protect staff who are going about their duties under the Act, often in difficult circumstances, from the threat of malicious litigation. We must recognise that for staff caring for the mentally disordered this threat can be a particularly real one. Patients may suffer from severe and persistent delusions which may make them quite unreasonably antagonistic towards a member of the hospital staff.
The problem is particularly severe in the case of detained patients. These patients are in hospital against their will and so it is very likely, at least in the early days, that they will harbour resentment towards the staff whose duty it is to prevent them from leaving hospital. It is unreasonable to expect staff to work in constant fear of malicious litigation. If we expect caring people to go on doing this difficult work we must continue to provide them with proper protection from the risks associated with it. If we do not, it will be the patients themselves who will suffer, both from a reduction in the quality of the staff who are willing to work with them and from an understandable preoccupation on the part of staff with protecting their legal positions.
I cannot, therefore, accept that Section 141 should be repealed. Nor can I accept that there should be no requirement to seek leave before bringing civil proceedings. The suggestion that the Director of Public Prosecutions, rather than the High Court, should act as the sieve in the question of criminal proceedings, as the amendment proposes, was discussed at some length in Committee. Since then, I have reflected further on the matter, and indeed I have taken further advice. My view remains that, whatever merit the suggestion may have, we cannot accept it now. As the House knows, the European Commission of Human Rights are considering an application which, in part, concerns Section 141. Less than three weeks ago the Commission declared that that application was admissible after an oral hearing. What access to them Reuters have that my colleagues and I do not, I could not say. I would not invite noble Lords to anticipate the judgment they will now consider on its merits. I do not consider it sensible to amend our law at the very moment when the Commission—which does stand in some sense not as a headmaster but as a prefect outside 920 the headmaster's door; the master, I think, is the court—has the opportunity to consider it in relation to an individual's application to them.
I must take that view about another part of the amendment moved by the noble Lord, Lord Wallace; that a prima facie case rather than substantial ground be shown before leave is given for civil proceedings. This proposal amounts to a weakening in the protection accorded to professional staff. A "prima facie case" may be shown more readily than "substantial ground". I think it would take a great deal of consideration to arrive at the view that it was right to do this. My view remains this is not the right time to do either things and I hope I can persuade noble Lords not to do it now.
§ Lord Mottistone
My Lords, before my noble friend sits down, will he not agree that, as the noble Lord, Lord Kilmarnock, is in the Chamber and the noble Lord, Lord Winstanley, has joined us, we could debate Amendment No. 63 at the same time.
§ Lord Elton
No, my Lords. The noble Lord, Lord Winstanley, has not heard the argument and I should be deprived of the chance of speaking to the amendment.
Lord Wallace of Coslany
My Lords, the noble Lord mentioned that he was a humble prefect outside the headmaster's door. Was it not the headmistress's door?
§ Lord Elton
Not I, my Lord. But the Commission stands perhaps as a deputy headmaster outside the court who sits inside the headmaster's study. I think I used too many analogies.
Lord Wallace of Coslany
My Lords, it is complicated. I thought the noble Lord was talking about his headmistress at No. 10. I thank the noble Lord for having gone into negative detail at such length. I do not intend to proceed further tonight. That is obviously a sensible thing to say. Therefore, I should like to withdraw the amendment, possibly to return to it on Third Reading. May I say, too, that I shall not move Amendment No. 34.
§ Amendment, by leave, withdrawn
§ [Amendment No. 34 not moved.]
§ 9.40 p.m.
Lord Kilmarnock moved Amendment No. 35:
After Clause 38, insert the following new clause:
§ ("Right of patients to rote.
§ .—(1) In section 4(3) of the Representation of the People Act 1949 (as amended by the Mental Health Act 1959), the words "who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or other form of mental disorder, or" are hereby repealed.
§ (2) The Secretary of State shall issue guidance to the electoral registration authorities to enable the people enfranchised under this section to be entered on the Electoral Register prepared in October 1983.").
§ The noble Lord said: My Lords, at the Committee stage on this Bill I moved an amendment to the same effect as this one. It was tabled in slightly different terms. We had a very ample debate. As this is the 921 last amendment due to be discussed this evening, I do not intend to detain your Lordships. However, it is necessary to go back over a little of the ground.
§ The Speaker's Conference in 1972–74 concluded that voluntary patients in mental hospitals should have the same right to vote as other hospital patients. Following the Speaker's Conference an interdepartmental working party was set up with representatives from political parties to study the obstacles that there may be in the way of implementing the recommendation of the Speakers' Conference. The essence of the problem is that many people are obliged to remain resident mental in hospitals as suitable accommodation for them in the community is not available. It is obviously difficult to quantify but it may well be the case that some tens of thousands of our fellow-citizens are thereby disenfranchised. Disenfranchisement comes not by virtue of the condition or the incapacity but simply because of the lack of address. The special hospital or mental hospital is not accepted as an address for the electoral register.
§ The working party which studied this matter went into it all in considerable detail. Of course, they immediately identified two major anomalies. The first was that a patient in a general hospital psychiatric unit is able to register as an elector in respect of the hospital's address, whereas a patient in a mental hospital cannot. The other major anomaly is that a patient in a mental hospital who has a home address may be registered in respect of that home address; but a patient in a mental hospital who has not a home address cannot be registered. So the whole area of the law in this respect is bristling with anomalies.
§ The working party recognised the difficulties of implementing a right to vote for patients in special hospitals. It studied the whole question of the guidance to health authorities on the completion of Form A. It studied the problem of publication of names of patients in the electoral register. It studied the problem of political activities in mental hospitals, and it studied the question of polling stations—whether patients should vote at polling stations or by postal vote. In paragraphs 22 to 25 it discussed the argument that making residence in a hospital an additional qualification for a postal vote would simplify many of the problems resulting from the implementation of the Speaker's Conference recommendation. The postal vote may well seem to be the indicated way. It also discussed the position of the detained patients. The working party went into this thoroughly, and although there were some difficulties in the way, it did not come up with any fundamental objections which could not be resolved if the political will existed.
When we debated this matter in Committee a number of points were made. The noble Baroness, Lady Jeger, spoke of the anomalies in this respect which she had encountered in her own constituency. The noble Lord, Lord Underhill—who I had hoped would be in his place, but he has not been able to stay—was one of the political representatives on the working party. At the Committee stage, at column 813 of Hansard for 25th January, he said:
I was the representative of one of the political parties who attended the meetings of the interdepartmental committee which considered the representations made by the various organisations. Without going into all the details of the problems which they dealt with, I was thoroughly satisfied that the problems of registration,
voting at polling stations, postal voting, were all dealt with satisfactorily by the working party, and I was able to give my name to the report which it put forward.
So although no one is denying there are certain difficulties, they have not been identified as insuperable ones.
§ When I raised this matter at Committee the noble Lord, Lord Belstead, was kind enough to give me a full reply, which of course I have studied. First, I should say that the noble Lord, Lord Renton, had suggested that this House was not the proper place to consider the question of the enfranchisement of people to vote for Members of another place. I had some sympathy with that view; but the fact is that the Bill has started in this House, and any discussion that we have on the matter here can be valuable to another place when they come to discuss it. I do not believe there is any total debarment from discussing it here.
The noble Lord, Lord Belstead, in his reply to me at column 814, recognised that there is an anomaly in the law, and he said:
As the noble Baroness, Lady Jeger, explained from personal experience, we have the anomalous position of a mentally ill or mentally handicapped or mentally impaired patient who is in a general hospital who can be included in the electoral register, but not those who are in a hospital for the mentally ill or the mentally impaired".
He went on to refer to the Speaker's Conference and the working party, to which I have referred. He was very concerned about the position of the electoral registration officer, and asked how that officer was to know which individuals to include and which to exclude if all the rules were swept away. In this amendment we have gone some way to meeting that point, and subsection (2) seeks to provide the electoral registration officer with some guidance on these matters.
The noble Lord, Lord Belstead, went on to say at column 815:
I think that there are a number of problems which we simply would have to settle and we could not just sweep the rules away".
He used that phrase three times:
However, to sweep away all rules about the voting rights of the mentally disordered surely cannot be wise.
The analogy of sweeping leads me on to the analogy of the broom. If a new broom is not brought in at some stage, tens of thousands of citizens will remain disenfranchised. That is incontestable.
§ This is, frankly, a problem that I think the Bill has "walked round". In many ways, as I think Members of all sides of the House recognise, this is a good Bill and seeks to do many things for patients in mental hospitals; but there are just one or two things it has jibbed at, and this is one of them. I think that is rather a pity. I am not in any way denying that there are difficulties in the way of providing a satisfactory solution to this problem, but I do not think we can sit down, fold our arms, and simply accept, without any attempt to correct it, that some tens of thousands of our citizens who would, in common law, be perfectly well able to exercise the franchise, shall remain disenfranchised. I think we ought to do better than that, and that is why I have put down this amendment. I beg to move.
§ Lord Mottistone
My Lords, in the absence of my noble friend Lord Renton, I should like to direct your Lordships' attention to what he said at col. 813 at the 923 Committee stage. This seems to me an unanswerable point: this is a matter for the other place and not a matter for us at all. I think it would be most presumptuous of us to seek to include an amendment of this sort in the Bill, at this stage. I have no doubt that another place will look at what we are saying and they will pick up the point if they think it is a reasonable one. I think the matter should be left there.
§ Baroness Macleod of Borve
My Lords, I should like to add just one point—I have a terrible cold, which is why I have not spoken earlier—because I have always understood that prisoners have not had a legal right to vote for a very long time. A great number of the people we are talking about under one of these two sections are actually prisoners within the law. Therefore they would not in any case have the vote. But as regards the other people, those who have not come from the courts under either section, that may be a matter for the other House, as my noble friend says.
§ 9.50 p.m.
§ Lord Belstead
My Lords, the first part of this amendment is, as the noble Lord, Lord Kilmarnock, has said, the same as the amendment which he put down on this subject at Committee stage. As he recognised, we had a full discussion then, and it would not be right if I tried to reply to the noble Lord point by point this evening on arguments which we exchanged on the previous occasion. All I should like to say is that I think my noble friend Lord Mottistone has a point on this. Whether or not my noble friend is right—I think he is right —I am also genuinely concerned as to whether an amendment of this kind would fall within the scope of the Long Title of the Bill. Again, that is debatable. I would just say, in passing, that the noble Lord, Lord Kilmarnock, covered this point in Committee, when he said that the Mental Health Act 1959 amended the Representation of the People Act 1949. So it did, but only to replace an old reference to "mental defectiveness" with the term "mental disorder ". It did not make a substantive amendment to the 1949 Act. Anyway, that is as may be.
The point on which I ought just to say a word is the second part of the amendment, which did not form part of the noble Lord's amendment in Committee. When we discussed this matter, I emphasised that the Speaker's Conference, on whose recommendation this amendment is founded, did not believe that this provision of the Representation of the People Act could be repealed, without putting something else in its place. In fact, the Speaker's Conference recommended that an interdepartmental working party should be established to try to resolve the difficulties.
No one would more readily agree than I that, if we were to repeal this provision, then my right honourable friend the Home Secretary would have to step in and give advice to electoral registration officers about it. He would be absolutely bound to do this. The difficulty is that there is no clear view as to what advice electoral registration officers should be given. The noble Lord, with charming naivety, said that he had overcome that problem in this amendment, by putting all that in the second part of his amendment. But the second part of his amendment says that the Home 924 Secretary shall give advice to electoral registration officers. It does not help the Home Secretary to decide what that guidance should be.
The fact of the matter is that when that inter-depart-mental working party, which was set up in 1974, finally came up with its recommendations in 1978, it conceded that it did not know either what advice should be given to electoral registration officers. I have said to the House previously, and I repeat it again this evening, that my right honourable friend has this subject under review, although it would be quite wrong to suggest that we shall have been able to sort out this problem by the end of this year.
There is little more that I can add to what has been said, and to the points that I made in Committee. I absolutely recognise that we are dealing with a very difficult subject, which cannot be wished away by an amendment of this kind—because, if the noble Lord will not mind my saying so, his amendment would sweep away all the rules in respect not only of voluntary patients, as the rubric to the amendment says, but, also, as my noble friend Lady Macleod quite rightly said, of detained patients as well.
As I said in Committee, as a consequence of the judgments, in the Winwick and Calderstones cases in the courts a few years ago, the Home Office has circulated electoral registration officers, advising them that they should now exclude from the register only those patients in mental hospitals who are suffering from mental disorder, as defined in Section 4(1) of the 1959 Act. I hope that that shows that we have done everything we can, in the light of those very humane judgments of the courts, to see that as much certainty and help as possible is brought to those who are affected. I think that I must leave it there. The Bill makes no change to the scope of the provisions in the Representation of the People Act. Arguably, this amendment is possibly outside the scope of the Long Title of the Bill. For the future, I repeat the assurance that we are doing our best to review the matter. I hope that the noble Lord will see fit to leave the matter there.
My Lords, I doubt very much whether the noble Lord, Lord Kilmarnock, will wish to pursue the matter further. However, I am bound to say that I am very glad that he raised it again, if only to extract once again the somewhat qualified assurances we have had from the noble Lord, Lord Belstead, which we did in fact have in a perhaps slightly less direct form at the earlier stage.
I have risen to my feet for two reasons. First, the noble Lord, Lord Belstead, made much of the support which he had received from the noble Lord, Lord Mottistone, who, he said, was wholly correct. I should not like the noble Lord, Lord Mottistone, to go home under the impression that we all think that he was correct. He quoted the speech of the noble Lord, Lord Renton, at col. 813 and said, "My Lords, that is unanswerable". If the noble Lord, Lord Mottistone, looks at Hansard, he will see that the noble Lord, Lord Underhill, answered it imemdiately afterwards by pointing out that within the last year or so a Bill to amend the Representation of the People Act had started in your Lordships' House. The reply of the noble Lord, Lord Renton, was merely, "That I did not know". So I am not quite sure that we should 925 go away thinking that that particular argument had been wholly accepted.
If I may make one further point, I think that the noble Lord, Lord Belstead, confused the point which the noble Baroness, Lady Macleod of Borve, made. The noble Baroness referred not to detained patients but to convicted patients. A moment or two ago the noble Lord, Lord Belstead, referred to detained patients. I do not think that we would want to convey the impression that there is no difference between the two or between the right to vote of those two groups. They are surely different.
§ Lord Kilmarnock
My Lords, I am most grateful to the noble Lord, Lord Belstead, for having once again addressed himself to this thorny issue with his usual care. I would also say to the noble Lord, Lord Mottistone, that we are talking about the rights of citizens, not about the rights of another place. I do not think it is out of order in your Lordships' House to talk about the citizens of this country and their rights.
I was also going to say to the noble Baroness, Lady Macleod of Borve, what the noble Lord, Lord Winstanley, said to her: that we are talking not only about prisoners transferred to hospital and detained patients but also about informal and unrestricted patients who may well be in special hospitals or places of that nature simply because of lack of provision for them elsewhere in the community. Those are the people whose rights we are striving to restore.
The noble Lord, Lord Belstead, again picked up his broom and used the phrase, "sweeping away". I hasten to assure him that it is not my intention to sweep anything away. I do not think that this amendment, even in its modified form, is necessarily the right one. What I wanted to do, though, was to prompt the Government into action. The fact remains that, whatever the difficulties which have been pointed out, a major anomaly exists which affects a quite considerable number of people. In a year when we are thinking about the reform of mental health legislation, which we may not think about seriously for another 20 years, this is a matter to which we should address our minds.
I was glad therefore that the noble Lord referred to the review which his right honourable friend is making. I shall have to accept his advice. We shall have to wait and see what his right honourable friend comes up with. If, however, nothing is done, whether in this Bill or in some other, more appropriate vehicle, then this is something that we shall have to come back to. This is not a group of anomalies which we can leave indefinitely. Too many people are concerned. It simply means that we are not putting our heads to how we can rectify this injustice which is being done to quite a large number of people. With those words, for the moment I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Denham
My Lords, I think this is the moment that we agreed we should interrupt the day's proceedings. I beg to move that further consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.