HC Deb 28 July 1913 vol 56 cc179-91

"writing of two duly qualified medical practitioners, one of whom shall be a medical practitioner approved for the purpose by the local authority (in the prescribed form), stating that the person to whom the certificate relates is a defective and the class of defectives to which he belongs, accompanied by a statement, signed by the parent or guardian, giving the prescribed particulars with respect to him.

(2) Where a defective has been so placed in an institution for defectives or under guardianship the managers of the institution, or the person under whose guardianship he has been placed, shall, within seven days after his reception send to the Board of Control hereinafter constituted (in this Act referred to as the Board) notice of his reception and such other particulars as may be prescribed.

Mr. McKENNA

I beg to move, in Subsection (1), to leave out the words "writing of," and to insert instead thereof the words "the prescribed form signed by."

It is merely a formal Amendment in order to make way for the substantial Amendment which I have on the Paper lower down, and to which I have already referred in my explanation of the preceding Amendment. I hope the House will allow me to get this Amendment at once, so we can get on to the subsequent Amendment later on. I leave out the words "in the prescribed form" where they occur lower down, but that is merely verbal in order to make way for the subsequent Amendment, which is an Amendment of very much more substance, and one which I undertook at an earlier stage of our discussions to move in order to satisfy criticism raised —

Mr. RAWLINSON

What is the prescribed form?

Lord HUGH CECIL

I think the right hon. Gentleman might explain rather more fully. It is rather difficult to understand what he proposes to do. He proposes to leave out the "writing of" and to put in the words "the prescribed form signed by." In what respect is the new wording better than the old? We ought to have some explanation of what the Amendment is, even if we are not allowed to discuss the most important Clause of the Bill.

Mr. McKENNA

I am sorry if I did not make the point clear.

Lord HUGH CECIL

You very seldom do.

Mr. McKENNA

The Noble Lord need not inform me quite so pointedly. I propose to move out the words "writing of," and to insert the words "in the prescribed form" instead. Then when we come to the lines of the Clause where the words "in prescribed form" appear in brackets, I propose to leave them out. That is purely a drafting Amendment. Unless I move them out there I should not be able to move the subsequent Amendment.

Lord HUGH CECIL

What is the subsequent Amendment?

Mr. McKENNA

It is on the Paper "And where the defective is not an idiot or imbecile, countersigned by a judicial authority for the purpose of this Act." I propose to insert these words, and in order to do so, I must put in the words "in the prescribed form," instead of the words "writing of" and leave them out where they appear in brackets lower down. I hope I have made the point quite clear to the Noble Lord.

Captain JESSEL

Does "prescribed form" mean in writing? What is the meaning of the words?

Mr. McKENNA

They mean, as shown in Clause 17, prescribed regulations made under this Act.

Mr. WEDGWOOD

I suppose on this first Amendment to leave out "writing of" and insert "prescribed form," we must also discuss the Amendment to leave out the words "in the prescribed form" lower down, and that this is the only opportunity we shall have.

Mr. SPEAKER

It would be more convenient to discuss that Amendment in its proper place.

Mr. WEDGWOOD

The Clause would be made nonsense of unless the subsequent Amendment is put in. The one Amendment occurs in two different places.

Mr. SPEAKER

If the hon. Member discusses that Amendment now he cannot discuss it again on the next Amendment.

Mr. WEDGWOOD

Would it put us cut of court later on?

Mr. SPEAKER

If it is discussed now I certainly should not allow another discussion on the other Amendment when we reach it.

Amendment put, and agreed to.

Mr. MARTIN

I beg to move in Subsection (1) to leave out the word "two" ["two duly qualified medical practitioners"] and to insert instead thereof the word "three," so that a certificate of three medical practitioners must be obtained. The Government are so proficient in this matter, and so desirous of being agreeable to everyone, that I have no doubt this Amendment will be accepted.

Mr. WEDGWOOD

I beg to second the Amendment.

Mr. ELLIS GRIFFITH

I hope my hon. Friend will not persist in this Amendment, because it is carrying it too far in the case of defectives to provide for the certificates of three duly qualified medical practitioners. In the case of a lunatic there are certificates from two medical practitioners, and I do not think there is any sufficient reason for departing from that practice.

Lord HUGH CECIL

I do not think the answer of the Under-Secretary is a sufficient one. The original proposal of the Government provided for the certificate of one medical practitioner, and the Government admitted in Committee that the arguments were sufficiently strong to change "one" into "two." Personally, I do not see why the same arguments should not induce the right hon. Gentleman to accept "three" instead of "two." The Under-secretary should not meet a serious argument with a quip, and hon. Members are entitled to a respectful answer, and not a few perfunctory sentences. This is not a proper way of conducting the business before Parliament. I do not understand why Bills are put before Parliament at all if, when an Amendment is put forward, there is not to be a serious discussion. I understand that this Bill was submitted to a Grand Committee from which, necessarily, many hon. Members were excluded, and this is the only opportunity they have of discussing the Bill at all. The earlier Clauses are very important and raise very difficult questions, which deserve very careful consideration. The manner in which this Bill is being conducted is in flagrant contrast with the tone in which the Prime Minister spoke about this measure. He assented to the view that it ought to be conducted in a conciliatory manner. There has been, nothing but discourtesy.

Mr. SPEAKER

The Noble Lord's remarks are scarcely relevant to this Amendment.

Lord HUGH CECIL

I bow to your ruling, and will address myself more strictly to the Amendment. It seems to me that the one safeguard in this Bill is the medical certificate, and it ought to be made as certain as it can be made. The whole Bill really rests upon medical opinion. No one is to be shut up unless a certificated is granted. The procedure, when a certificate has been granted, is such as to leave safeguards which are not entirely satisfactory. There is, for example, only one magistrate whose assent is required. It is therefore important that the medical certificate should be as strong as it can be. The hon. Member's Amendment is that there should be not merely two but three signatories to the document, and it does not seem to me to be unreasonable, this being the main protection against abuse, that three doctors instead of two should be assenting parties to the certificate. This is not the same as the case of lunacy. The case of lunacy is relatively a, very easily distinguished case. The case of a feeble-minded person is one in which it is confessedly very easy to make a mistake. Therefore, it might easily happen that there would be difficult cases in which it would be hard to determine whether a, person was or was not a feeble-minded person within the construction of the Act: and it does not seem to me unreasonable that you should require rather a stronger body of medical opinion in support of the proposition that a person is feeble-minded or morally imbecile than you do in support of the proposition that a person is a lunatic. At any rate, this is the main safeguard in the Bill, and I cannot see why you should not make it as strong and as trustworthy as it can be made by three doctors' signatures to the certificate.

Sir F. BANBURY

The Under-Secretary has advanced two arguments against this Amendment. The first was that in Grand Committee they accepted an Amendment increasing the number of doctors from one to two, and the second was that under the Lunacy Acts only two doctors were required. I would point out that a very large number of hon. Members had not the privilege of being on the Grand Committee and that they therefore cannot know what arguments were brought forward there to convince them that two was the right number. Under these circumstances, I think that the hon. Gentleman might have told us why he considered two the right number, seeing that originally he put in the number one. We do not even know whether in Grand Committee three or four was moved or whether the only opportunity of amending it was by accepting the Amendment of two. I am afraid that I am not at all conversant with the provisions of the Lunacy Acts, but I believe that the argument that there ought to be two doctors because under the Lunacy Acts two doctors, are necessary is fallacious.

I believe, though here I am open to correction, that under the Lunacy Acts there are very stringent provisions as to whether or not the certificates of the two doctors should be accepted; and I appeal to my hon. and learned Friend (Mr. Rawlinson), who has had great experience in these matters, whether I am not right in thinking that under the Lunacy laws there is the right, also, of trial by jury. If I am right in that, then I submit that it entirely disposes of the second argument of the Under-Secretary. We therefore ought to have close reasons advanced by the Home Secretary for refusing this Amendment. I myself am in favour of the Amendment, because I think the power we are going to put into the hands of two men is too great a power for so few hands. If this proposal passes we might have a Ben Allen and a Bob Sawyer of the medical profession giving a certificate consigning a person to what comes to be confinement for a very great number of years. I am the last man to say anything against the medical profession; but it is a large profession, and all the members of it are not animated by the same feelings. Anyone with experience of life and business knows perfectly well that if a witness does not desire to come before the court he has no difficulty whatever in obtaining a medical certificate that the state of his health is such that it is not safe for him to come before the court. Under these circumstances, and in view of the fact that

I have shown that the chief arguments of the Under-Secretary are gone, I think we ought to have some much stronger argument before rejecting the Amendment.

Mr. WATSON RUTHERFORD

I think the Government are running a very great risk in not accepting this Amendment. Only last week I heard two doctors say that one of the Members of the Government was an idiot, and the same doctors gave an opinion that the right hon. Gentleman in charge of the Bill was an imbecile.

Mr. SPEAKER

Those observations are not relevant to the Amendment.

Question put, "That the word 'two' stand part of the Bill."

The House divided: Ayes, 247; Noes, 24.

Division No. 214.] AYES. [11.25 p.m.
Abraham, William (Dublin, Harbour) Cullinan, John Henderson, Major H. (Berks, Abingdon)
Acland, Francis Dyke Davies, David (Montgomery Co.) Henderson, J. M. (Aberdeen, W.)
Adamson, William Davies, Ellis William (Eifion) Henry, Sir Charles
Addison, Dr. Christopher Davies, Timothy (Lincs., Louth) Higham, John Sharp
Adkins, Sir W. Ryland D. Davies, Sir W. Howell (Bristol, S.) Hills, John Waller
Agg-Gardner, James Tynte Dawes, James Arthur Hill-Wood, Samuel
Allen, Arthur A. (Dumbartonshire) Delany, William Hinds, John
Allen, Rt. Hon. Charles P. (Stroud) Denman, Hon. Richard Douglas Hobhouse, Rt. Hon. Charles E. H.
Arnold, Sydney Devlin, Joseph Hogge, James Myles
Baird, John Lawrence Dickinson, W. H. Holt, Richard Durning
Baker, Harold T. (Accrington) Dickson Rt. Hon. C. Scott Hope, Major J. A. (Midlothian)
Baker, Joseph Allen (Finsbury, E.) Dillon, John Horner, Andrew Long
Baker, Sir Randolf L. (Dorset, N.) Doris, William Howard, Hon. Geoffrey
Baring, Sir Godfrey (Barnstaple) Duffy, William J. Hughes, Spencer Leigh
Barnston, Harry Duncan, C. (Barrow-in-Furness) Isaacs, Rt. Hon. Sir Rufus
Barran, Rowland Hurst (Leeds, N.) Duncan, J. Hastings (Yorks, Otley) Jessel, Captain H. M.
Barton, William Edwards, A. Clement (Glamorgan, E.) John, Edward Thomas
Beale, Sir William phipson Edwards, Sir Francis (Radnor) Jones, Henry Haydn (Merioneth)
Beauchamp, Sir Edward Elverston, Sir Harold Jones, J. Towyn (Carmarthen, East)
Beck, Arthur Cecil Esmonde, Dr. John (Tipperary, N.) Jones, Leif Stratten (Notts, Rushcliffe)
Benn, W. W. (T. Hamlets, St. George) Esmonde, Sir Thomas (Wexford, N.) Jones, William (Carnarvonshrire)
Bennett-Goldney, Francis Essex, Sir Richard Walter Jones, William S. Glyn- (Stepney)
Bentinck, Lord H. Cavendish- Fell, Arthur Joyce, Michael
Bird, Alfred Ferens, Rt. Hon. Thomas Robinson Keating, Matthew
Birrell, Rt. Hon. Augustine Ffrench, Peter Kellaway, Frederick George
Boland, John Pius Field, William Kelly, Edward
Bowerman, Charles W. Fiennes, Hon. Eustace Edward Kerry, Earl of
Boyle, Daniel (Mayo, North) Fitzgibbon, John Kilbride, Denis
Boyle, William L. (Norfolk, Mid) Flavin, Michael Joseph King, Joseph
Brace, William Furness, Sir Stephen Wilson Lambert, Rt. Hon. G. (Devon, S. Molton)
Brady, Patrick Joseph Gibbs, George Abraham Lambert, Richard (Wilts, Cricklade)
Bridgeman, William Clive Gilmour, Captain John Levy, Sir Maurice
Brunner, John F. L. Gladstone, W. G. C. Lewis, Rt. Hon. John Herbert
Bryce, John Annan Glanville, Harold James Lewisham, Viscount
Buckmaster, Stanley O. Goldstone, Frank Lloyd, George Butler (Shrewsbury)
Burn, Colonel C. R. Goulding, Edward Alfred Lundon, Thomas
Butcher, John George Greene, Walter Raymond Lynch, Arthur Alfred
Buxton, Noel (Norfolk, North) Griffith, Ellis Jones Lyttelton, Hon. J. C. (Droitwich)
Cassel, Felix Guest, Hon. Frederick E. (Dorset, E.) Macdonald, J. Ramsay (Leicester)
Cawley, Harold T. (Lancs., Heywood) Gwynn, Stephen Lucius (Galway) McGhee, Richard
Chancellor, Henry George Gwynne, R. S. (Sussex, Eastbourne) Macnamara, Rt. Hon. T. J.
Chapple, Dr. William Allen Hackett, John MacNeill, J. G. Swift (Donegal, South)
Clancy, John Joseph Hancock, John George Macpherson, James Ian
Clay, Captain H. H. Spender Harcourt, Robert V. (Montrose) MacVeagh, Jeremiah
Clive, Captain Percy Archer Harvey, T. E. (Leeds, West) M'Callum, Sir John M.
Clough, William Hayden, John Patrick McKenna, Rt. Hon. Reginald
Clynes, John R. Hayward, Evan M'Micking, Major Gilbert
Condon, Thomas Joseph Hazleton, Richard Marks, Sir George Croydon
Cornwall, Sir Edwin A. Helme, Sir Norval Watson Masterman, Rt. Hon. C. F. G.
Craig, Herbert J. (Tynemouth) Hemmerde, Edward George Meagher, Michael
Crumley, Patrick Henderson, Arthur (Durham) Meehan, Francis E. (Leitrim, N.)
Meehan, Patrick J (Queen's Co., Leix) Price, C. E. (Edinburgh, Central) Tennant, Harold John
Middlebrook, William Pringle, William M. R. Terrell, Henry (Gloucester)
Millar, James Duncan Pryce-Jones, Colonel E. Thomas James Henry
Molloy, Michael Reddy, Michael Thorne, G. R. (Wolverhampton)
Morgan, George Hay Redmond, John E. (Waterford) Trevelyan, Charles Philips
Morrell, Philip Redmond, William (Clare, E.) Ure, Rt. Hon. Alexander
Morrison-Bell, Major A. C. (Honiton) Redmond, William Archer (Tyrone, E.) Verney, Sir Harry
Morton, Alpheus Cleophas Roberts, Charles H. (Lincoln) Warner, Sir Thomas Courtenay T.
Muldoon, John Roberts, George H. (Norwich) Wason, John Cathcart (Orkney)
Munro, Robert Roberts, Sir H. (Denbighs) Webb, H.
Murray, Captain Hon. Arthur C. Roberts, S. (Sheffield, Ecclesall) Weston, Colonel J. W.
Nolan, Joseph Robertson, John M. (Tyneside) White, Major G. D. (Lancs., Southport)
O'Brien, Patrick (Kilkenny) Robinson, Sidney White, J. Dundas (Glasgow, Tradeston)
O'Connor, John (Kildare, N.) Roch, Walter F. (Pembroke) White, Sir Luke (Yorks, E.R.)
O'Connor, T. P. (Liverpool) Rowlands, James White, Patrick (Meath, North)
O'Doherty, Philip Samuel, J. (Stockton-on-Tees) Whitehouse, John Howard
O'Dowd, John Sanders, Robert Arthur Whyte, Alexander F. (Perth)
O'Grady, James Scanlan, Thomas Wiles, Thomas
O'Malley, William Scott, A. MacCallum (Glas., Bridgeton) Williams, John (Glamorgan)
O'Neill, Dr. Charles (Armagh, S.) Seely, Rt. Hon. Colonel J. E. B. Williamson, Sir Archibald
Orde-Powlett, Hon. W. G. A. Sheehy, David Wilson, Hon. G. G. (Hull, W.)
O'Shee, James John Simon, Rt Hon. Sir John Allsebrook Wilson, Rt. Hon. J. W. (Worcs., N.)
Parker, James (Halifax) Smyth, Thomas F. (Leitrim, S.) Wilson, W. T. (Westhoughton)
Parry, Thomas H. Spear, Sir John Ward Wing, Thomas Edward
Pease, Herbert Pike (Darlington) Stanley, Albert (Staffs, N.W.) Wood, John (Stalybridge)
Pease, Rt. Hon. Joseph A. (Rotherham) Stanley, Hon. G. F. (Preston) Wood, Rt. Hon. T. McKinnon (Glasgow)
Perkins, Walter Frank Stewart, Gershom Worthington-Evans, L.
Peto, Basil Edward Strauss, Edward A. (Southwark West) Younger, Sir George
Phillips, John (Longford, S.) Sutherland, John E. Yoxall, Sir James Henry
Pointer, Joseph Taylor, John W. (Durham)
Pollock, Ernest Murray Taylor, Theodore C. (Radcliffe) TELLERS FOR THE AYES.—Mr. Illingworth and Mr. Gulland.
Ponsonby, Arthur A. W. H. Taylor, Thomas (Bolton)
NOES.
Archer-Shee, Major Martin Goldsmith, Frank Rutherford, Watson (L'pool, W. Derby)
Atherley-Jones, Llewellyn A. Gordon, Hon. John Edward (Brighton) Samuel, Samuel (Wandsworth)
Barlow, Montague (Salford, South) Gretton, John Sanderson, Lancelot
Booth, Frederick Handel Guinness, Hon.W. E. (Bury S. Edmunds) Thynne, Lord Alexander
Boyton, James Hamilton, C. G. C. (Ches., Altrincham) Wedgwood, Josiah C.
Cautley, Henry Strother Hodge, John
Cecil, Lord Hugh (Oxford University) Locker-Lampson, O. (Ramsey)
Dalrymple, Viscount O'Dowd, John TELLERS FOR THE NOES.—Mr. Martin and Sir Frederick Banbury.
Denison-Pender, J. C. Rawlinson, John Frederick Peel
Falle, Bertram Godfray Ronaldshay, Earl of
Mr. McKENNA

I beg to move, in Subsection (1), to leave out the words, "in the prescribed form," and insert the words, "and, where the defective is not an idiot or imbecile, countersigned by a judicial authority for the purposes of this Act."

The words are inserted here in order to carry out a pledge made in Grand Committee that where a defective is dealt with at the instance of his parent or guardian and is under the age of twenty-one, some judicial authority should be given to the proceedings and they should not merely be commenced on the certificate of two doctors. The words I have proposed carry out exactly, I believe, the pledge given in Grand Committee.

Mr. ELLIS DAVIES

I am not quite sure that the Amendment really carries out in any way the understanding on which my Amendment was withdrawn upstairs, because it is not quite clear what is meant by the word "countersigned." I should like to know whether the judicial authority under the Amendment will have power to make any inquiry as to the conditions under which the application is made, and as to the nature of the evidence on which it is based, because the object of my Amendment upstairs, which was practically accepted in substance by the Home Secretary, was that protection should be afforded as between the child and the parent, and that when an application is made by the parent for an order for the removal of the child to a home, some judicial authority or other should intervene. It might be suggested that the parent is unlikely to make an application, but by Clause 17 the word "parent" is given a rather wide definition, and may include any person who is doing the duty which ought to be performed by the father or mother. Under the circumstances, I ask the Home Secretary whether he could not see his way to alter the words and let the Amendment read, "where the defective is not an idiot or imbecile he cannot be removed except on the order of a judicial authority." That would mean that the judicial authority acting under this Clause would have the same power and the same duty as under any other Section in the Act.

Mr. RAWLINSON

I think this is one of those most illusory safeguards which sometimes we come across in Acts of Parliament. Under this Bill the parent has the power of shutting up his child, or in the case where there is a judicial separation the father, separated from the mother, has the power of taking the child away from her and shutting it up. Therefore it has to be safeguarded very carefully. That being the state of affairs, he can have the child shut up on the certificate of the two doctors referred to; and then there is this safeguard. Two certificates are to be granted by the medical authority in the prescribed form. The House of Commons has not the slightest idea what that prescribed form is going to be. It is one of the most important things in the Bill, and it is left to be settled by rules by some other tribunal. They have got the prescribed form, which may be a good or a futile one, signed by two doctors. It then has to be countersigned by a judicial authority—that is a magistrate. So when the two certificates are taken to the magistrate, he will probably be sitting in his own house, and not in a Court, and all that he can do is to satisfy himself that the certificate is in proper order, namely, properly signed by two doctors. If properly signed, he has no power to send for the two doctors, and no power to cross-examine them. It can be and must be done in his own house, and he has no power to do otherwise. I submit that this is quite an illusory safeguard. The proper course would be to bring these cases before a judicial authority. There is no reason why it should not be done by petition brought before a magistrate in open court, or in a court of some kind, and that he should have power to deal with the medical people. What is proposed here is merely the ministerial office of countersigning by a judicial authority. It is certainly necessary that some further power should be given to him under the Bill. I am glad to see one of the law officers of the Crown present. I do not think he will question what I have said.

Mr. WEDGWOOD

I do not see the object of the Amendment. It does not appear to be a safeguard for these people at all. The medical certificate is taken by the parent or guardian to the magistrate in his private house, and he, without seeing either the doctors or the defectives, or making any inquiry whatever, can sign the medical certificate. It appears to me that there is no safeguard there. The alteration proposed by my hon. Friend (Mr. Ellis Davies) does make it a little bit better. You have got to remember that the doctors in cases of mental deficiency are the same as in cases of lunacy. In cases of lunacy there is some sort of judicial inquiry. Here you are proposing no judicial inquiry at all. You are trusting entirely to the supposition that the parent or guardian must always act in the interest of the child. If you get a parent or guardian not acting in the interest of the child, I do not think the safeguards in Clause 3 are worth the paper they are written on. The suggestion as to subsequent inquiry is not correct. From, the beginning of Clause 5 you will see that the application is made in private and from the beginning of Clause 6 you will see that it will be held in private. There is no open trial. If there is a case of a parent or guardian trying to shut up children without due cause there will be no possible safeguard for the liberty of the individual. We all know that cases might occur such as pointed out by the hon. Member for Cambridge University, where the parents quarrel, and might avenge themselves on each other by having the children locked up under this Bill. How would the Amendment proposed by the Secretary of State meet a case like that? It would not be possible in the circumstances for a magistrate to do anything but countersign the order in ignorance of the facts and have the child sent to one of these institutions. I think that possibly it might be worth while to have the Amendment if it was amended as proposed by the hon. Member for Kilmarnock. Otherwise it is not worth while having it.

Lord HUGH CECIL

I would suggest as an Amendment to the proposed Amendment, after the word "countersigned" to insert the words "after due inquiry." I think that the right hon. Gentleman's Amendment is designed to meet a defect in the Bill, but I am not quite clear as to what the process of countersigning implies. It is very important that the judicial authority should not sign merely formally, but should first satisfy himself as to the propriety of the transaction. I do not see how that can be done unless you by your words insure that he makes some sort of inquiry. My impression is that countersignature normally means a signature certifying the accuracy of the previous signatures—in this case the signatures of the two duly qualified medical practitioners. If what is intended is something more than that, that the judicial authority should really inquire into the matter before giving the counter-signature, then it should say so, so that the judicial authority should only sign where he thought that the certificate was properly given. The words which I suggest would make the Amendment better designed to carry out that object.

Mr. SPEAKER

We must first get rid of the words "in the prescribed form."

Question, "That the words 'in the prescribed form' stand part of the Bill," put, and negatived.

Mr. McKENNA

The Noble Lord perhaps would, instead of the words, "after due enquiry," move the words, "after such inquiry as he shall think fit."

Lord HUGH CECIL

I beg to move in the proposed Amendment, after the word "countersigned" to insert the words, "after such inquiry as he shall think fit."

Amendment to the proposed Amendment agreed to.

Words proposed, as amended, inserted in the Bill.

Mr. McKENNA rose in his place and claimed to move, "That the words—

'stating that the person to whom the certificate relates is a defective and the class of defectives to which he belongs, accompanied by a statement, signed by the parent or guardian, giving the prescribed particulars with respect to him.

(2) Where a defective has been so placed in an institution for defectives or under guardianship the managers of the institution, or the person under whose guardianship he has been placed, shall, within seven days after his reception, send to the Board of Control hereinafter constituted (in this Act referred to as the Board) notice of his reception and such other particulars as may be prescribed.'"