Mental Health (Amendment) Bill [H.L.]

HL Deb 19 January 1982 vol 426 cc541-602

4.8 p.m.

House again in Committee.

Clause 1, as amended, agreed to.

Clause 2 [Other amendments of definition of mental disorder]:

Lord Elton moved Amendment No. 8: Page 2, line 8, leave out ("patient") and insert ("person concerned").

The noble Lord said: This follows Amendment No. 4. It deals with the term "person concerned" instead of "patient". I beg to move.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Lord Wallace of Coslany moved Amendment No. 9: After Clause 2, insert the following new clause:

("Patients to be informed of rights.

. All patients admitted to hospital, whether under the provisions of the Principal Act or this Act or otherwise, shall be informed of their rights under the Principal Act and this Act verbally and in writing within a period of 24 hours from the time of their admission; and such information shall be given in a form appropriate to individual patients.").

The noble Lord said: I beg to move the new clause standing in my name and in that of my noble friends. The White Paper on the Mental Health Act which was published by the last Labout Government in 1978 accepted the proposal that all patients, whether admitted to hospital formally or informally, should be fully informed of their rights. This amendment relates specifically to the provision of this information as a legal requirement within the 24 hours following admission. Just as important is a continuing duty on the hospital to keep the patient informed, particularly of any change or proposed change in his status.

Lord Elton

May I ask whether the noble Lord is intending to discuss Amendment No. 13 with Amendment No. 9 in view of the similarity of the issue? If so, it would be as well to know at the outset.

Lord Wallace of Coslany

That was not my intention. If my amendment is accepted I do not know what will happen to Lord Winstanley's amendment. I am quite sympathetic to his amendment but I am not part of the alliance so there is a problem here. In fact I definitely refuse to be a part. Perhaps the noble Lord, Lord Winstanley, can be of assistance.

Lord Winstanley

The Committee may have noticed that I have been exhibiting an uncharacteristic taciturnity hitherto in these proceedings. I must apologise for arriving with a dreadful cold. I say that merely so that the Committee will understand that doctors are just as delighted as anybody else to discuss their own ailments, and also that my contribution to these proceedings will be somewhat brief this afternoon.

On this point my noble friends and I have given some consideration to Amendment No. 9. We find it effective in certain ways and we might comment on those when we come to discussion on the amendment. Frankly, we prefer our own amendment which is similar. If it is for the convenience of the Committee that we discuss the amendments simultaneously, naturally we are only too happy to arrive at whatever solution is most satisfactory.

Lord Wallace of Coslany

I do not want to be difficult but I think that my amendment is better than the noble Lord's amendment and goes much further. I am not trying to be difficult because this is not a Bill to get difficult about; it is a question of co-operation. If the noble Lord wishes to discuss the amendment it is all right with me; but I am dealing specifically with my amendment and I will not refer to Lord Winstanley's amendment. If he wishes to bring in his amendment, it is a free country and he is welcome. The Committee I am sure will be pleased to hear him, but not for too long of course. He is not always a very lengthy speaker.

I will resume as I started because this whole matter has been reduced to a state almost of confusion. The White Paper on the Mental Health Act published by the last Labour Government in 1978 accepted the proposal that all patients, whether admitted to hospital formally or informally, shall be fully informed of their rights. This amendment relates specifically to the provision of this information as a legal requirement within the first 24 hours following admission. However, just as important is a continuing duty on the hospital to keep the patient informed, particularly of any change or proposed change in his status. No duty to provide a patient with this information at present exists, although over the years since 1959 circulars have issued guidance in vague terms.

There is no point whatever in an individual enjoying particular rights unless he knows how and through whom they can be exercised. This proposal has been supported by the United Nations and World Health Organisation studies. The necessary information for the patient would include information on (a) the right to refuse treatment; (b) the right to a second opinion; (c) susceptibility to be detained under Section 30; (d) the right to leave hospital; and (e) the right to receive correspondence, together with rights in relation to mental health review tribunal applications and the role of the Mental Health Act commission.

In many cases a patient's disturbed mental state on admission may mean that he or she is not fully receptive to such explanation; one would understand that. Therefore, there should be every opportunity during admission for regular restatement of their rights and full opportunity for the patient to ask questions and to resolve uncertainties. It does not need my words to describe this amendment as very important because the whole tenor of this Bill—and I know that the noble Lord the Minister will accept this—lies within human rights. Human rights are to some extent enshrined in this Bill. Therefore, this amendment has this in mind. In my view it should be accepted. It is fundamental to the question of human rights that the affected individuals should be made fully aware of such rights as are embodied in this Bill or will be embodied after amendment. I have already said this at the beginning and it is perfectly true.

It is of no use whatever to talk about human rights in vague terms unless the individual affected by such rights understands them exactly or has someone to ensure that those rights are afforded to him. There is nothing so far in the Bill to that effect. I appeal to the Government and the Minister to go along the road towards accepting the amendment. If the Minister says that certain words may be adjusted, then that is all right with me. What we want—and what I am sure the Committee wants—is some assurance from the Government that this very vital principle should be accepted and put into operation. I beg to move.

Lord Winstanley

After the previous brief exchange, I ought to make it utterly clear to the noble Lord, Lord Wallace of Coslany, that we are entirely in sympathy with the aims of his amendment. Anything I said before should not be taken to indicate otherwise. When I said that we had certain doubts about this amendment, they arise from drafting points. The amendment says: All patients admitted to hospital, whether under the provisions of the Principal Act or this Act or otherwise". That means all patients—including maternity patients—within the wording of the Act must have their rights explained to them. Secondly, the requirement here is that patients should be informed of their rights. It seems to me that what is absolutely essential is that there should be a requirement to make it utterly certain that patients are not only informed of but understand their rights. That is rather more important than the mere technical matter of making sure that they are informed, whether by writing or verbally, as the noble Lord's amendment says.

This amendment has certain defects so far as its wording is concerned. I shall be interested to hear comments on that point. As written it appears to me to apply to all patients admitted to hospital for any purposes and in any circumstances. If I am wrong, then no doubt the noble Lord will correct me.

Baroness Trumpington

In rising to support Lord Wallace of Coslany's amendment, I should like to ask him a question. It is also on the wording. When a patient is informed verbally, that is fine; he may or may not understand it. If he is going to be shown a written board which is then taken away from him he may not understand it. I hope that it is made clear that the rights of a person would be left in written form with each individual. That is the only question which I wish to raise.

Lord Wallace of Coslany

I thank the noble Baroness for intervening on that point. What I have in mind is that the individual shall possess the information in clear and definable written terms as well as being given it verbally. He can hand this to his next-of-kin, if necessary, to deal with it.

Lord Renton

There seems to be an omission from each of the Amendments, Nos. 9 and 13: namely, what is to happen when the patient is incapable of understanding? This may be because of his permanent mental state; it may be mental handicap, although we do not reckon that mentally handicapped people should become patients within the definition of the Act because they are not treatable. However, supposing the person concerned is not capable of understanding, however hard an attempt is made under Amendment No. 13 to ensure that the patient understands his rights. It is very difficult to ensure that the patient understands. Of course, it may be that the answer to this problem which I have mentioned is to bring in a relative, not necessarily the nearest relative— we have to debate that yet, and it may not be the right expression anyway. But I would be uneasy about each of these amendments because I think they are incomplete.

Lord Wells-Pestell

I think the noble Lord, Lord Renton, has raised an important point; but simply because a hospital may have to admit a number of people who are not compos mentis and therefore cannot have the situation explained to them, that does not relieve society from providing the provision. Therefore I think the provision has to be provided for those who can understand or have ways and means of being communicated with so that they can understand what the situation is. We may have to look round for other additional means to cater for those who are in difficulties and who would not be able to understand the situation, but it does not relieve society of the responsibility of seeing that the provision is there.

If I may turn to the noble Lord, Lord Winstanley, if he will allow me to say so, I think the difficulty is that it does not apply to every hospital. We are talking about all patients admitted to hospital whether under the provision of the principal Act or otherwise. The principal Act here is the Mental Health Act 1959, so it really must apply to mental health patients going in under that particular heading. Therefore I do not think it can be interpreted as applying to every hospital, regardless of the discipline of the hospital. It may be that neither amendment really meets the total situation, but I think that the time factor must go in, and it seems to me a weakness of this particular amendment that it has no time limit. I believe it is important that this should be done immediately. Whether or not either or both need tidying up is a matter that can be looked at between now and Report stage, but I leave it to my noble friend to decide what he is going to do.

Baroness Wootton of Abinger

I think there is a weakness in my noble friend's amendment, and it is the words "or otherwise". I think that is the point which was raised by the noble Lord, Lord Winstanley, because all the provisions here apply only to persons detained under one or other Mental Health Act, and not to maternity patients. Pregnancy is not yet considered to be a mental disorder.

Baroness Macleod of Borve

May I briefly say that it is obvious to all of us with any knowledge of what goes on in psychiatric hospitals or those who deal with those afflicted with these illnesses that in many cases they are not able to understand what are supposed to be their rights as envisaged in this Bill. But I think we will find that in this Bill there will be a guardian, a social worker, the next of kin or a relative involved, and I would suggest that people who will be in one of those four categories should in their loco parentis role be apprised of what rights are available.

Baroness Masham of Ilton

Being a member of a board of visitors, I find that in the penal institutions the inmates do have all their rights fully explained to them, it so happens by a member of staff. They are told of their right to appeal and of their right to see members of the board, visitors and so on. It really amazes me that in mental institutions the—I must not call them inmates—patients do not have the same advantages. Therefore I strongly support the spirit of both the amendments.

Baroness Robson of Kiddington

Perhaps we are talking about both amendments by now: I am not 100 per cent. sure but let us assume that we are, for the moment. As my noble friend Lord Winstanley said, I am completely behind the spirit of the amendment of the noble Lord, Lord Wallace. I think it is highly necessary that a clause of this kind is put into the Bill but I am behind my noble friend in saying that I want the word "understand" put in. I think it is important, despite the argument that has been going on about the number of patients in psychiatric hospitals who cannot understand. There will be no force in the amendment unless the word "understand" is there, whether it refers to the patient, a relative or a social worker. Just to "inform" is not enough.

May I turn for a moment to our amendment which uses the word "understand", which is the word I prefer. The reason we put it down relating to admission to hospital for assessment is that it particularly relates to that situation. I think that a great number of patients—probably the majority—who are admitted for assessment only would, because it is a short-term admission, not be aware of the rights they have to appeal to a mental health review tribunal. So I feel it is necessary to put it in to make certain that that patient too has the right to appeal to a mental health review tribunal.

Lord Auckland

I think the important thing about this amendment is that it is made firmly according to law: in other words, it must be made to stick legally. In a number of these hospitals one has patients from overseas countries where there are no relatives and perhaps no next of kin living in this country. Therefore we are up against the difficulty that it may involve perhaps the legal friends of the hospital or somebody of that kind.

I am a little worried about this 24-hour limit. I would be the very first to advocate that all inmates or patients in mental hospitals—and like many of your Lordships I have served on the committee of a mental hospital—should have as many rights as can possibly be given to them. But we must be realistic, particularly regarding those patients who are quite unable, through circumstances over which they have no control, to advocate their rights. I am very unhappy about this 24-hour limit of time, particularly in cases such as occur in Epsom, the area where I live, where we have seven large mental hospitals, with patients, and indeed staff, from all over the world, and it may be that a near relative or even a friend cannot be traced. I would hope that my noble friend would look at the length of time in the clause. But, having said that, I and I think most of the Committee would support strongly the principle behind the amendment.

Lord Elton

I think this has been a valuable debate. I do not want to say "I told you so" but it was quite useful that we should have dealt with both amendments together in the end. I should like to say that I, too, favour the principles embodied in both amendments, though I fear I find deficiencies in each. Certainly the Government accept the importance of ensuring that all patients detained under the Act are informed of their rights. One of the principal aims of the Bill, after all, is to increase the rights of detained patients, and it is important that they should know what they are. But procedures already exist to make sure that patients are informed of their rights, as the noble Baroness, Lady Masham, has assured your Lordships. A leaflet is issued to all patients detained under long-term powers when they are admitted, which explains the rights simply and clearly—of course, in cases where the patient is capable of understanding a leaflet. We intend that the leaflet will in future also be issued to patients detained under section 25, telling them of their rights, newly introduced by this Bill—if your Lordships agree to introduce it—to apply to a mental health review tribunal. Guidance about admission procedures is being prepared for health and local authorities, from which detailed local codes of practice can be constructed, and this will refer to the importance of informing patients of their rights. Therefore, I am content that what should be done is being done. But I am also aware of the feeling of the Committee, in the case of both amendments, that we should do something further.

Looking at the first amendment which has, been tabled under the names of the noble Lord, Lord Wallace of Coslany, and his noble friends, it seems to me that the amendment contains a number of deficiencies. First, the 24-hour limit for informing patients appears to me, as it does to my noble friend Lord Auckland, to be inappropriate. A patient may be unsettled or disturbed during the first hours or days after admission. He may be better able to understand the information if he receives it somewhat later. It might, therefore, be more appropriate to require that the patient be informed within a reasonable time of admission. I accept that there are difficulties, and I see the noble Lord, Lord Wells-Pestell, sagaciously shaking his head. A reasonable time is an elastic term and it may be necessary to find another term. We are becoming expert in finding terms in this department.

Secondly, the requirement to give the information, in a form appropriate to individual patients", implies that a different format should be used for different patients. However, to make the process manageable, hospital authorities will need, as now, to use a standard format of written information for all patients. It does not mean that there need be no interpretation of that—

Baroness Jeger

May I make a point on that, because when we were drafting this amendment we had it in mind, in using the words, in a form appropriate to individual patients", to cover linguistic difficulties. It is no use giving someone a leaflet in English, if he speaks only Urdu There may also be other handicaps, such as deafness or blindness, which need special treatment. I thank the noble Lord for letting me explain that.

Lord Elton

Exactly. The noble Baroness and I, and my noble friend, are all addressing ourselves to the same problem; that is, getting the information, which we want the patient to have, to the patient in a form which he can comprehend—which, as my noble friend Lord Renton has said, may well verge upon the impossible.

May I draw your Lordships' attention briefly to some technical deficiencies in the proposed new clause? It refers to "All patients admitted to hospital" under the Act as amended "or otherwise". This encompasses voluntary, as well as detained, patients and is therefore outside the scope of the Act. Any rewording would need to make it clear that the provision applies only to patients detained under the principal Act, as amended.

As regards the second amendment, which stands in the names of the noble Lord, Lord Winstanley, and his noble friends, there would be practical drawbacks, also, to an amendment on the lines which he suggested. It would be difficult to define exactly what action the medical practitioner concerned is expected to take. It would be difficult for the practitioner concerned to know at what point he has fulfilled his duty, particularly in cases where the degree of understanding by the patient is difficult to assess. For these reasons, the kind of suggestion raised in the amendment is generally considered best left to guidance, rather than dealt with in legislation.

However, as I have said, I accept that it is important to ensure that patients detained under Section 25 understand their right to apply to a tribunal, and this is where the noble Lord's amendment strikes. A patient detained under Section 25, who wishes to apply, must do so within the first 14 days of detention. It is essential, therefore, that he is fully informed at the outset, particularly as there is no alternative mechanism for a patient's case to be heard by a tribunal, if the patient does not himself apply. For patients detained under long-term powers, in contrast, there will be an automatic tribunal hearing after six months' detention, and it may be for this reason that the noble Lord introduced his amendment to strike at this point in the Bill and not at another. Therefore, I accept that the amendment serves a valuable purpose and that the advantages outweigh the practical—but I am now running into the point at which I wish to speak to both amendments simultaneously—

Lord Wallace of Coslany

Why not do so?

Lord Elton

No. I do not respond to remarks from noble Lords who have not risen to their feet. We are in favour of doing what your Lordships want, which is to place a recognition in the Bill of the duty to enlighten patients as far as may be, and as speedily as may be, of their rights under the Bill. I hope that noble Lords, moving both amendments, will bear with me when I ask them not to press their amendments today if I undertake to introduce at Report stage an amendment which meets the wishes of the Committee on this point, so far as I can manage to do so.

Baroness Masham of Ilton

Before the Minister sits down and other noble Lords get up, may I just put the record straight? I said that in penal institutions inmates had everything explained very fully to them, and that is why in mental hospitals the patients also ought to have the same facilities.

Lord Elton

I am sorry. I misread the noble Baroness on that point. But it does not affect my determination to do what all your Lordships seem to want me to do, in so far as it proves possible and practical.

Lord Kilmarnock

May I make a suggestion? There is a great deal of sympathy in the Committee towards both Amendment No. 9 and Amendment No. 13, which have some merits and some demerits. The noble Lord, Lord Elton, has kindly offered to come forward with something to satisfy the general feeling in the Committee, and may I suggest that both amendments might be taken and rolled together in a more fruitful whole? I was rather attracted by the suggestion made by the noble Baroness, Lady Macleod. In a case where the understanding was very much in doubt, but where the understanding could be achieved, could there he a fall-back position? I think that the noble Baroness mentioned the next-of-kin, the social worker and various other people who might be brought in. My suggestion is that when the noble Lord takes this away, he might also consider allowing for a fallback position in a case where understanding was virtually impossible to achieve.

Lord Elton

Of course, I will do my best to meet the wishes of as many noble Lords as possible. Whether what the noble Lord, Lord Kilmarnock, proposes will prove to be practicable I could not at first blush say, but I will certainly look at it.

Lord Wallace of Coslany

I am very grateful, indeed, for the debate that we have had and for the welcome approach by the Minister. It almost made me feel that it was Christmas all over again. I would explain that this 24-hour limit is rather important and we must bear this in mind, because, under the amendment of the noble Lord, Lord Winstanley, as the Minister has suggested, a reasonable time might mean this year, next year, some time, never. It is so indefinite. So far as the next-of-kin are concerned, I certainly have it in mind that that would be a common-sense action on the part of all authorities receiving advice from the Minister. I would say to the noble Baroness, Lady Wootton, who has now disappeared from sight, that I agree that even maternity cases have rights, but I never, for the life of me, thought that maternity cases would come under this amendment. But, even so, maternity cases have rights.

The Minister very clearly accepts the principle and that is very important, indeed. What I want to know is this. He has very kindly offered to come back with an amendment. That is fine, because we shall all be very pleased to see the Government bring in an amendment. Nobody is searching at all for party likes or dislikes in this Bill. All I want to get from the Minister is that if he comes back with an amendment, making notification to the patient or the next-of-kin, as the case may be, a statutory duty, we shall not have some memorandum going around. We want this to be enshrined in the Bill in some way or another. I accept that both our amendments have frailties. That is because we are perhaps not so well advised as the noble Lord, who is blessed with such competent people. If, however, that undertaking is given, nobody will want to press the amendment at this stage.

Lord Elton

I think the noble Lord wishes me to repeat what I have already said: that if he withdraws his amendment it is my intention to come to the House at Report with an amendment which will accomplish as much as it is possible and practical for us to accomplish of what he wants. I cannot be more precise than that. Now we have to sit down and start drafting, as the noble Lord sat down and started drafting. We have to iron out the difficulties and consult those people who will have to operate it. Therefore, I do not undertake, and the noble Lord will not undertake, either, that I shall satisfy him until he has seen what I propose. I have undertaken to do my best. If he does not like it, he can persuade your Lordships to throw it out.

Lord Winstanley

Before the noble Lord, Lord Wallace, draws this discussion to a conclusion, I ought to say that, not having moved Amendment No. 13, my noble friends and I would not be in a position to withdraw it. Therefore it seems to me that this is the only opportunity we may have to say to the Minister how grateful we are to him for the assurance which he has given. This is a very important point, and I am very glad to hear that it has been taken on board by the noble Lord and that it will be met. We must make absolutely certain that the rights are fully understood. Without understanding what those rights are, they are not of very much use to anybody. If that principle is fully accepted in your Lordships' Committee, then I and my noble friends will be very happy.

Lord Elton

I must protect myself from any misunderstanding. I cannot guarantee, nor can anybody else, that any person will be made to understand anything. I can only guarantee that best efforts shall be made at the best time to achieve this.

Lord Wallace of Coslany

I fully understand what the Minister says. I have often felt the same when I have been addressing the Government Front Bench! I accept that if the noble Lord is to move an amendment it will be embodied in the statute. I was going to ask whether there would be a statutory duty, but if the noble Lord moves an amendment it will obviously be in the statute. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Admission for assessment]:

4.44 p.m.

Baroness Faithfull moved Amendment No. 10: Page 2, line 23, after ("assessment") insert ("and/or short-term treatment").

The noble Baroness said: With the indulgence of the Committee and before speaking to this amendment, may I say how sorry I am that my 12 amendments were tabled so late in the day? I realise what a great deal of difficulty and trouble this has caused the Minister. I realise also what a great deal of work it has meant for his private office and for those responsible for drafting and advising him on the Bill. Like the noble Lord, Lord Wallace of Coslany, all I can say is that there are no excuses but that there are the extenuating circumstances of the weather and the railway. May I also thank the Public Bill Office for taking down a number of amendments on the telephone and therefore undertaking a great deal of extra work?

In moving Amendment No. 10, I am very conscious that Amendment No. 11 is to be moved by the noble Lord, Lord Hunter of Newington. He probably knows much more about this subject than I. I think the noble Lord, Lord Hunter of Newington, will agree that the reality of the situation is that patients who are in hospital for 28 days receive treatment, although it is not—I was going to say legal or acknowledged. My experience, having worked as a social worker in a mental hospital, is that if it is possible for patients during those 28 days to receive treatment it is also possible to find out how they can happily be discharged afterwards. I should like to hear what the noble Lord, Lord Hunter of Newington, thinks. He inserts the words, ("and if necessary treatment"). My amendment says, "insert ('and/or short-term treatment')". I very much hope that patients going in for treatment on a 28-day order will be able to receive treatment legally during those 28 days. I beg to move.

The Deputy Chairman of Committees (Lord Derwent)

It has been suggested that the word "and" ought to come out of this amendment. Is it the wish of the noble Baroness that the amendment should read "or"?

Baroness Faithfull

No, I do not think so. Can it not remain "and/or"?

The Deputy Chairman of Committees

I am not making any suggestion. It has been suggested to me by the Clerks that that is what was intended.

Baroness Faithfull

What I had intended was that there would be some patients who would do well with short-term treatment and that there would be some who would not. Therefore, it would be "and/or".

The Deputy Chairman of Committees

I accept that. Amendment proposed, Page 2, line 23, after ("assessment") insert ("and/or short-term treatment"). The Question is that this amendment be agreed to.

Lord Donaldson of Kingsbridge

Before this amendment is agreed to, may I suggest that a very much better form of drafting would be to say "if necessary", which has exactly the same meaning as "and/or" and is less inelegant.

Baroness Masham of Ilton

May I ask the noble Baroness, Lady Faithfull, what she means by short-term treatment? Does not short-term treatment sometimes have long-term effects?

Lord Campbell of Croy

While my noble friend is considering her answer to that question, may I inquire about the drafting? The point which has been put from the Chair is that "and/or" is not normally met with in legislation. Although we all understand what is meant—and it is very helpful that my noble friend Lady Faithfull has explained that her amendment states exactly what she intends—it is not probably the form in which, if this amendment is adopted, the Bill ought finally to be drafted. So that may be in favour of another form of words.

Lord Hunter of Newington

I am in agreement with the noble Baroness on two counts. There should be an amendment in line 23 and also in line 28.

The Deputy Chairman of Committees

Is the noble Lord speaking to Amendment No. 10 or to his own amendment? I have put the question. I do not know what situation we have reached. I take it that the noble Baroness will answer?

Baroness Faithfull

I should like to be guided by the noble Lord, Lord Hunter of Newington. As a doctor, he will be able to guide me. At this moment, therefore, I wonder whether the noble Lord, Lord Hunter of Newington, would very kindly speak to Amendment No. 10?

The Deputy Chairman of Committees

First, I must put the terms of the amendment to the Committee. I am asking the noble Baroness whether she wants to say "and/or" or whether the more usual form of "or" is what she really intends?

Baroness Faithfull

At this moment I will say "or".

The Deputy Chairman of Committees

Amendment proposed: Page 2, line 23, after ("assessment") insert ("or short-term treatment").

Lord Hunter of Newington

The noble Baroness and I are in agreement. I would suggest that Amendment No. 10 should read "and necessary treatment". If we said this, then we should make it clear that treatment could be given and that it should be limited to the treatment necessary to improve the patient's mental state within the limited period.

Baroness Faithfull

I am happy—I am not sure of the protocol here—to withdraw this amendment so that the noble Lord, Lord Hunter of Newington, may propose his Amendment No. 11.

The Deputy Chairman of Committees

Is it your Lordships' pleasure that this amendment—

Lord Hughes

Before that, is it not the case that what the noble Lord, Lord Hunter of Newington, has suggested is that the noble Baroness has gone further than he, in that she has recognised the need for an amendment in line 23 as well as in line 28 and therefore has it in both places? What the noble Lord, Lord Hunter of Newington, if I understand him correctly, has invited her to do is to substitute the word "necessary" for "short-term" in both amendments. If that is done, the noble Lord is supporting the noble Baroness, and I should like to do the same.

Lord Elton

It appears to me that we are not going to get this absolutely right before Report. Perhaps we ought to debate the principles now involved and consider at the end of our discussion whether we can devise a form of words which will meet what we want to do.

Baroness Faithfull

In view of what has been said, I will at this stage withdraw the amendment, read Hansard and come back at Report stage.

Amendment, by leave, withdrawn.

Clause 3 [Admission for assessment.]

4.50 p.m.

Lord Winstanley moved Amendment No. 10A: Page 2, line 24, leave out ("and").

The noble Lord said: As will be seen, Amendment No. 10A is merely a paving amendment for Amendment No. 13, which we have already discussed, and also for Amendment No. 13A. Perhaps it would be appropriate if, when speaking to Amendment No. 10A, I speak at the same time to Amendment No. 13A, because it will be readily understood that I shall not be moving Amendment No. 13 when the time comes. Amendment No. 10A is merely a paving amendment for the later Amendment No. 13A, and with the leave of the Committee I will now speak to that amendment.

Amendment No. 13A is a simple amendment which is self-explanatory. It comes entirely within the spirit of the Bill. The Bill aims to increase the safeguards for patients who are admitted for observation or assessment in this way, and this particular amendment refers to the possible predicament of patients who are repeatedly admitted for assessment or observation. For those who are in touch with the actual practice within hospitals and who deal with these cases of people who come in for short-term periods of observation or assessment it is really rather an unhappy situation from time to time to see the same patient coming in repeatedly, at regular intervals.

Neither I nor any of my noble friends are for a moment saying that that is never necessary. Indeed, I am sure that there are circumstances under which it will prove to be necessary for a person to come in for a limited period under restriction and be observed and assessed. It may be possible, and it may even be essential, that the same patient, having returned home, may later have to be reassessed. Nevertheless I feel, as do many of my noble friends, that there are certain inherent dangers in the possible use of a device to make repeated short term admission for assessment virtually the equivalent of a long term detention and admission. This amendment merely seeks to make absolutely sure that where that situation is occurring, where a patient being readmitted under these short term provisions, then those circumstances shall at least be drawn to the attention of the Mental Health Act Commission so that consideration could be given to it in order that any necessary steps might be taken if in fact it is thought that steps are necessary.

I believe it will be clear to noble Lords and to the noble Lord the Minister that my noble friends and I might have preferred (and I say this in the light of later amendments which we are not discussing) instead of the words, "Mental Health Act Commission" the words, "Mental health review tribunal", or perhaps even "Health Advisory Service", which actually does have powers to do something. What we are doing at this stage is merely ventilating a point which we consider to be of some importance, and I propose therefore to regard Amendment No. 13A as a probing amendment on which we can perhaps have the Government's comments as to what their attitude is to the occasional use of these short term provisions to create a situation which virtually amounts to a long term admission because of repeated admission in the short term way for assessment. I am really speaking to Amendment No. 10A, which is paving, and I have now spoken to Amendment No. 13A. Noble Lords will have realised from the earlier discussion that I will not be moving Amendment No. 13 when we come to it. I beg to move Amendment No. 10A.

Lord Elton

Your Lordships will no doubt know that Clauses 41 and 42 give the new Mental Health Act Commission the duty of keeping under review the exercise of the powers of detention under the Act and the Bill. The amendment for which this is a paving amendment would require responsible medical officers to report to the commission just one particular possible occurrence, the admission for assessment of a patient who has been detained in the previous six months. This may be something the commission will wish to review in order to investigate the problems which the noble Lord has just eloquently described. I do not agree, though, that the responsible medical officer should have the onus of reporting such cases. The commission might wish to ask doctors to co-operate in reporting arrangements, as in this amendment, but they might wish them to co-operate in some other manner. They might find ways if linking their inquiries to patients' records. It is really a matter for which we are creating a specialist body. It is rather like teaching one's grandson to suck eggs when he is going to be a director of the egg sucking factory. I believe we should leave it to the commission to decide how to go about their function of reviewing the use of powers of detention.

More generally, I am not at all sure that I agree that admission for assessment of a patient who has been detained previously is prima facie evidence of misuse of the powers of the Act or of other infringement of the patient's rights—it may be that it was not the noble Lord's intention to suggest this but I would like it on the record—because there are many circumstances where this would be entirely appropriate in medical terms. Moreover, the amendment would lead to a great deal of work by psychiatrists and commission members, which would not be an effective way to investigate some of the misuses of powers. In conclusion, I believe that we should leave it to the commission to do the job.

Lord Donaldson of Kingsbridge

I am not very satisfied with that reply. I do not think it is a matter of vital importance because in most cases the hospital where the patient is received will know that he has been in before and will doubtless report the matter in a routine way to the commission. But if another hospital is involved, I believe that the commission will have no means of knowing this. It is probably desirable that this fact, if it is found by the practitioner—and there is no burden on him to find out; it is only if he knows—should be reported. I do not see how psychiatrists and the commission are going to be given a lot of work; I do not believe that they are going to be given any work as a result of this amendment. I do not think this is a terribly important matter; we do not want to divide on it, but in general I do not believe that a fairly sensible question has received an entirely sensible answer.

Lord Elton

I always strive to satisfy the noble Lord, ever since we sat on opposite sides of the House the other way around. Maybe I succeeded better then than I do now. This was not a "brush-off". This was not a frivolous reply. It seems to me that the Mental Health Act Commission is a statutory body which specialises in the welfare and handling of the patients whom we are now discussing, under the legislation we are now discussing. It is for that body to evolve an expertise in doing this. For us to identify one possible sort of miscarriage of justice and to place it in statute, and to leave the commission with the business of making all the arrangements for other abuses which may become clear later, seems to me to be an oddly piecemeal way of going about the job. To prefer this particular form of unfairness and to promote it as being so important that it has to be in the Act, whereas the practice and the experience of the body may well discover that it rarely of ever happens and that there are other things which we have never guessed at which are far more important, is not the way to treat this matter. It is not for legislation to deal with a particular foreseen probability or possibility and at the same time leave the whole of the rest of the waters uncharted.

I believe we are appointing an effective and distinguished body to operate in a narrow and specialist area, and that it is far better that they should evolve the ground rules and that they should take the consultants with them. Since the commission will be involved in visiting hospitals and talking to the consultants, I have no doubt that if cases such as this occur consultants will report them in the natural course of events. If they do not, the commission will demand that they do. I do not think it is necessary for us to lay that burden on them at this stage. I hope that I am not straining at a gnat, but I believe your Lordships will be if you put this into the Bill.

Lord Winstanley

I am most grateful to the noble Lord, Lord Elton, for his reply and I will study it more carefully at a later stage when I have an opportunity to read it. I will also, I think it right to say, seek further advice from professional colleagues and others as to the extent of a possible undesirable practice actually happening. I think the noble Lord himself said that in many circumstances it is entirely desirable, and even necessary and essential, that a certain patient be readmitted for a short term for observation. In case it was not clear, let me make it clear that I do accept that that may be entirely necessary and therefore must be provided for. But I also still have a feeling that there is the possibility of the occasional repeated use of short-term compulsory admission to such an extent that it finally becomes long-term admission. I think that is a possible abuse which perhaps ought to be looked at.

I certainly take the point made by the noble Lord, Lord Elton, that the Mental Health Act Commission would in its normal duties have a responsibility for overlooking the working of the Act in general and that matters of this kind would undoubtedly come to its notice. But I would like to seek further advice on this matter. I will certainly read most carefully what the noble Lord has said. I am grateful to the noble Lord, Lord Donaldson, for his support because I think that he, too, understands that there is a possibility of abuse which ought to be looked at, though whether it should be spelled out in the Bill I accept is a separate matter. With that I would ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11 to 13A not moved.]

5.2 p.m.

Baroness Faithfull moved Amendment No. 14:

Page 2, line 28, at end insert— ("() In section 27(1) of the principal Act, for the words "either by the nearest relative of the patient or" there shall be substituted the word "only".".).

The noble Baroness said: We now come on to a slightly different aspect. Amendment No. 14 refers back to Section 27 of the Mental Health Act 1959. Section 27(1) says: Subject to the provisions of this section application for the admission of a patient for observation or for treatment may be made either by the nearest relative of the patient or by a mental welfare officer". This amendment seeks to delete "either by the nearest relative of the patient" and leaves only "mental welfare officer", which, under the new Bill, will be an approved social worker.

Many psychiatrists in this country admit patients on the recommendation or on the application of the nearest relative, and very often, and perhaps for good reason up to date, have not consulted with the social worker. As I understand this new Bill—and the social worker world welcome it very much indeed—there is a movement towards greater partnership between social workers in the community and the doctors in the hospitals. This partnership obviously must be developed and can only be developed if it is well known what the facilities are in the community, and by that I mean perhaps hostels, perhaps group homes, perhaps special care, case-work care given by social workers, perhaps another relative who would be willing to take on the patient. If the case is not in the first place referred to the social worker the relative does not know what the alternatives are. If the case is referred in the first instance to the social worker, the social worker is able to make it clear to the relatives what are the alternatives.

Very often relatives may be absolutely desperate, at their wits end as to what to do with the patient, and therefore, very understandably, in their own interest they apply for admission to a mental hospital. They themselves would be pleased if they knew that there was an alternative in the community, perhaps in the form of a hostel or another family that would take the patient in. Therefore, in moving this amendment I am making the plea that Section 27 of the 1959 Act be amended, so that the application is to the social worker and not to the nearest relative. This would mean that the nearest relative would talk to the social worker and would learn what the alternatives were. It is for this reason that I beg leave to move this amendment.

Baroness Masham of Ilton

May I just say that I am rather surprised at the noble Baroness putting this forward and taking away the family responsibility. I feel that there should be some flexibility. I should like to see a close relative involved—maybe not the closest relative because they may not be compatible, because relationships break down; but I do think one should not hand over responsibility to the state. Some people are very proud and do not want to go to the social services.

Baroness Faithfull

What is the difference from the point of view of the state and the health service? They are both state services. Therefore you are not taking away the responsibility from the nearest relative. You are only giving a wider choice to the nearest relative, as to whether he or she wishes hospital or, say, a hostel or something in the community. My experience is that there are many relatives who do not want to ask for the patient to be admitted to a mental hospital, but because they do not know what the alternatives are they have no choice. By referring this matter in the first instance to the approved social worker they have a much more dignified position because they have a choice of hospital or community care.

Baroness Jeger

May I ask the noble Baroness a question? Surely the possibility of offering varying ways to help the patient is really a matter for the family doctor. It has been my experience that a conscientious family doctor takes the greatest care to put the alternatives before the patients and families concerned.

Lord Thurlow

May I say that I share the uneasiness expressed by the noble Baroness, Lady Masham, about this amendment. The social services have limited resources, and in my experience many social workers—and I would expect this to apply to approved social workers in the future—are overburdened and are sometimes unable to get on to cases with the speed they would wish, or to devote the necessary amount of time to them. I think it would be a great mistake to remove from the nearest relative, or indeed the close relatives, such responsibility as is at present contemplated under the Bill.

Lord Winstanley

I, too, initially had certain reservations about this amendment, but I am bound to say that some of those reservations and anxieties were somewhat allayed by the explanatory words of the noble Baroness, Lady Faithfull, that the real intention is that there should be a wider range of choice to make absolutely certain that the responsible relative—not necesssarily the next of kin, but the relative who is perhaps on the receiving end of the potential patient, if I may put it that way—is made fully aware of the various possibilities. That, I am quite sure, is admirable and is something which should be supported.

However, it seems to me that the noble Baroness, Lady Faithfull, is moving an amendment which would work very well in an ideal world—in a world in which all social services departments were fully staffed and in which all patients were under perhaps the kind of regular review and supervision that we would all hope for but as regards which in certain areas of the country, particularly at the moment in times of local authority cuts and shortages, the actual functioning of the social services departments is not, frankly, in all cases ideal.

Therefore, while I have some reservations I believe that the role of the relative, whichever particular relative it is, is crucial and clearly the relative's views have to be heard and listened to; and that is understood and accepted, I know, by the noble Baroness. I have those initial anxieties and I accept the point which has been made that it is very important indeed that the relative concerned should have the opportunity of the kind of advice which the social worker can give, and that therefore this should be a collective decision. That of course is something for which we should work. I am well aware that this is the kind of amendment which the social workers themselves would like to see included in the Bill. Indeed, so would I like to see it included in the Bill if I could be quite certain that it would work in precisely the way in which the noble Baroness, Lady Faithfull, has spelled out. If I were sure of that, then I would be sure of supporting the amendment. Perhaps the reply of the noble Lord, Lord Elton, may enlighten us a little further. However, I think it right that I should make my minor reservations known at this stage.

Baroness Faithfull

I should like to pursue the matter further. I think that from what we have heard from the Benches opposite and from the noble Lord, Lord Winstanley, we are looking at the position of the social workers now and gearing the Bill to the social worker's situation as it is at present. I believe that we shall never improve the social work service, which this Bill intends to do at a later stage, unless we get the law right and the social workers must implement the law as it is laid down. If we pass a law because there are not good social work services, then that to my mind is a wrong law and we would be doing a disservice to the patients.

Later on in the Bill—and it is not for us now to discuss it—there is a recommendation concerning the social workers and the social work service from two points of view: first, the management of the social work service—the mental health service within the social work service; and, secondly, the training of the social workers. I do not want to embark on that now, but if it is done properly and well then it will be possible, we hope, for us to work towards giving a good social work service. And in giving a good social work service we give to the relatives of patients and to the patients themselves a wider choice and a more dignified way of living rather than only that of admission to hospitals.

Lord Donaldson of Kingsbridge

I should like to join those who are expressing uneasiness about this amendment. It seems to me that what the noble Baroness has at the back of her mind is to safeguard the patient against abuse from an evil member of the family. We have all read books about this and some of us have actually met it. Clearly there must be a safeguard. It seems to me that Section 28 of the 1959 Act deals with this matter and says that there have to be two doctors, one of whom has to be approved by the local authority, and the other has, if possible, to have had previous acquaintance of the patient. That seems to me to be the kind of safeguard which is more effective than anything a mental health officer could give. So I doubt whether the noble Baroness is really making a valid point and I think that we should be rather inclined to oppose this amendment if it came to a vote.

5.14 p.m.

Lord Cullen of Ashbourne

We have had a very interesting debate on this matter with very divided views and I shall now give the views of the Government. I appreciate the weight of my noble friend's argument that mental welfare officers have a very valuable input to make in decisions about the future of a mentally disordered person, including decisions about compulsory admission to hospital or guardianship. In most circumstances I am sure that it is right that this officer should be involved in discussions with the family before the final decision is taken to make an application under the Mental Health Act. In most cases it is the mental welfare officer who makes the application. But the provision that the patient's nearest relative may be the person to make the application should, I believe, be retained for a number of reasons.

It may be the case, for example, in a crisis intervention service, that the family is already closely involved with the treatment and care of the patient and the patient's nearest relative may be the most appropriate person to make the application. It is sometimes important for the next of kin to know that he or she is in control—that may help to involve the family fully in plans for the patient's treatment, which is often a key to successful rehabilitation. Most applications are made by mental welfare officers but the present arrangements allow for flexibility, and I think that some noble Lords agree that we should maintain flexibility.

A separate consideration is that it may not, regrettably, always be possible to involve mental welfare officers. That is more likely to happen in an emergency, and we shall be discussing a separate amendment on the emergency admission procedures. But some local authorities do not find themselves able to provide an out of hours service over weekends, or may have temporary operational difficulties, for example, because of staff illness. In such cases it may be appropriate, and best for the patient, that the nearest relative should be able to make an application.

As the noble Lord, Lord Donaldson, mentioned just now, there may be a fear that the nearest relative has the power to "put the patient away". We must remember all the other safeguards—for detention for more than 72 hours there must be two medical recommendations from doctors who have to be satisfied that the patient needs to be in hospital and needs to be detained. After an application is made the patient can apply to a mental health review tribunal. We will be setting up the Mental Health Act Commission to keep under review the way powers of detention are used. I do not think therefore, that there is any danger of misuse of the provision that the nearest relative may make an application. As the Act stands the nearest relative does not have to make the application but he or she may do so. I hope I have satisfied my noble friend and the Committee that this should continue to be the case.

Baroness Masham of Ilton

Before the noble Lord sits down, I should like to ask him whether he thinks that "a close relative" would be more satisfactory than "the nearest relative"? It just might not be practicable to get hold of the nearest relative; he or she may be in America, Kuwait or anywhere. A close relative might be the one that had a better relationship with the mentally ill patient or person.

Lord Elton

Perhaps I may reply to the narrow point which the noble Baroness has raised. Quite apart from the difficulty of getting hold of somebody who may be a long way off, I would draw the attention of the noble Baroness to the provisions of Clause 14 which seek to do exactly what she is seeking to do, which is to substitute for the closest relative the person who has acted as if they were the closest relative in the table of what I call kindred and affinity which appears in the principal Act.

Baroness Masham of Ilton

Thank you, my Lords.

Baroness Faithfull

I should like to thank my noble friend Lord Cullen for his reply. I should like to pick up just one point because I think he said that there would sometimes not be an approved social worker available. If this Bill goes through and if the managerial background is set up (which is envisaged, I think, in the notes which we read) and if the social workers are to be trained—many of them at the moment are not—there would be a full weekend, around-the-clock service. Perhaps I might add that, as with the doctors, many social workers—and I certainly have done so—get up in the middle of the night, night after night to deal with these cases. We reckon to do that. It is obvious that this idea has sent a kind of rippling shock through the Committee. I still believe that it was the right amendment to move, and I still believe that it should be carried into effect. However, I should like to think on this matter, read Hansard tomorrow and, if necessary, bring it forward again at the Report stage. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.20 p.m.

Baroness Faithfull moved Amendment No. 15:

Page 2, line 40, at end insert— ("() After subsection (1) there shall be inserted— (1A) No compulsory admission shall be made without interview by an approved doctor and an approved social worker except in respect of a patient whose current condition is such as to give reasonable grounds for believing that there is an immediate risk of harm to himself or to others or of damage to property, or that he is likely to abscond before he can be examined by an approved doctor.".").

The noble Baroness said: In some ways we are on the same subject again because this amendment deals with emergencies. Virtually the recommendation is that in an emergency the first application should be made to an approved social worker. I have dealt with many emergencies before they have reached the hospital and in a number of cases I have been able to offer an alternative, so that the patient has, in fact, never gone to the hospital.

In this case I should like to draw your Lordships' attention to what is known as the crisis intervention service, a service which I hope will grow throughout this country. It is run, from St. Margaret's House, Bethnal Green, by the social services department of Tower Hamlets and the mental hospitals in that area. It provides a 24-hour service on the part of social workers as well as on the part of doctors. Very often the first referral goes straight to the social worker, who investigates and, if necessary, spends time with the family; sometimes the social worker is even able to save the doctor being called and prevent a case going to the doctor directly. If the social worker is not going to refer the case on, he must of course give reasons, I think in writing.

However, this amendment poses the same principle as the last amendment, which is that relatives should be helped at a moment of crisis by someone who can give them the alternatives. I have read and dealt with many cases where the relatives have become distraught and where, with help, they are able not to make an application, even in a case of an emergency. I beg to move.

Lord Cullen of Ashbourne

This amendment seems to me to repeat conditions which are already in the 1959 Act. First, Section 29 provides for an emergency application for admission for assessment. The applicant and the doctor who makes the supporting medical recommendation must be satisfied that: the patient ought to be detained in the interests of his own health or safety or with a view to the protection of other persons". The amendment would limit the conditions which apply already only by delaying admission which was needed urgently in the interests of the patient's health. My noble friend spoke earlier about the importance of recognising that Section 25 is a treatment power, and I made clear our agreement with that principle. It therefore seems strange to provide that a patient could be admitted quickly it he was likely to damage property but not if he urgently needed treatment to prevent a deterioration of his mental condition.

Secondly, Section 29 can be used only if the applicant and the doctor are satisfied that admission for assessment is of "urgent necessity" and that it would cause "undesirable delay" to comply with Section 25; for example, by waiting for a second medical recommendation from a doctor who is approved under Section 28 as having special experience in the diagnosis or treatment of mental disorder. I am at one with my noble friend that if admission can reasonably be delayed until two medical recommendations have been obtained, one from a doctor who knows the patient and one from a "Section 28 doctor", then that should be done. That is exactly what the Act provides. But there are cases where "undesirable delay" would be caused by waiting for an interview with a Section 28 doctor, and I believe that emergency admission should then be possible if the conditions in Sections 25 and 29 are satisfied. I hope my noble friend is persuaded that her amendment would not add to the existing safeguards.

Baroness Faithfull

I thank my noble friend Lord Cullen for that reply. I should like to think about this and reconsider the situation and, if necessary, come back to it at the Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

On Question, Whether Clause 3 shall stand part of the Bill?

Lord Craigmyle

This is the only part of the Bill which amends Section 25 of the principal Act. It occurred to me to raise the question as to whether Section 25 is really necessary at all. The amendments which we were considering a few minutes ago seem to indicate quite clearly that it is very difficult indeed to separate completely assessment from treatment. If that is so, then the whole point of admission for assessment only seems to lose its validity. The other point that strikes me is that in the equivalent Scottish Act there is nothing to match Section 25. There is no admission for assessment procedure at all. If we do not need it in Scotland, why do they need it in England and Wales?

Lord Elton

I was most interested to hear what the noble Lord said about the Scottish legislation. There are a number of differences between our Act and the Mental Health (Scotland) Act 1960. In this case there is an important similarity. If a patient is admitted for treatment under Section 24 of the Scottish Act, under criteria which are broadly the same as those in our own Section 26, he may be detained for up to one year. But the Scottish Act provides that the responsible medical officer must examine the patient before the end of 28 days' detention and must inform the Mental Welfare Commission if he does not discharge the patient. Therefore, the principle of a review after 28 days is common to both Acts.

I should also say that a short initial period is important for a number of reasons, and that is recognised on both sides of the Border. It reassures the patient that he will not be held in hospital indefinitely. It ensures that thorough consideration is given at an early stage to deciding whether long-term detention is appropriate at all. In most cases it is not necessary and the patient is detained for no more than four weeks. Conversely, detention for assessment enables the two doctors and the mental welfare officer to get the information they need in order to decide what long-term plans to make for the patient's treatment and welfare. Without Section 25 it would be more difficult for those concerned to decide whether the patient really needed to be detained for detention. I hope that that answers the point that the noble Lord raised, and I must thank him for giving me notice of it because I confess that there are small gaps in my knowledge of Scottish law.

Lord Craigmyle

I am much obliged to my noble friend.

Baroness Faithfull

While we are discussing whether the clause shall stand part of the Bill, I wonder whether I could draw attention to the guidelines on page 30 which were submitted to some of us, in which it is stated: A person may be mentally ill or may need the definition of mental handicapped or severe mental handicapped or psychopathic disorder and yet not be in need if medical treatment in a hospital, for instance, can be treated in the community". On this question of community care, very little money has been given to community care as compared with hospital care. The Green Paper, Care in the Community, has been published. I think I am right in saying—and perhaps the noble Baroness, Lady Robson, will correct me if I am wrong—that in the Kings College Hospital area £44 million is spent on hospital care and £3½ million on community care. In the Guy's Hospital area even with a smaller population I think it is the same proportion.

If it is intended that we should develop community care for patients who are mentally—the new word—impaired, or who are ill—and many can be cared for in the community—are we going to have the resources? I would also draw attention to the crisis intervention service which has kept so many patients out of mental hospitals, which is in need of financial help from both the health and social services. Under Clause stand part, I would draw attention to the need for much more resources for community care as compared with hospital care.

Lord Elton

I hardly think that your Lordships will want to use this occasion for a debate on Government policy on Care in the Community. I can only reaffirm that it is the Government's policy to get as many people as possible out of institutions and into either smaller institutions or into the community direct, and to take note of the priorities which the noble Baroness thinks there should be. I am tempted to launch into a defence of our policy, indeed into a promotion of what we are doing and propose to do, but in view of the number of amendments down I think I should resist this opportunity and merely say that I hear what the noble Baroness says.

Clause 3 agreed to.

Clause 4 [Admission for treatment]:

Lord Elton moved Amendments Nos. 17, 18 and 19:

Page 3, line 30, leave out first ("handicap") and insert ("impairment").

Page 3, line 30, leave out second ("handicap") and insert ("impairment").

Page 3, line 34, leave out ("handicap") and insert ("impairment").

The noble Lord said: Amendments Nos. 17, 18 and 19 follow on Amendment No. 3, and I gave notice to your Lordships that I would be moving the consequentials en bloc, and I now beg leave to move Amendments Nos. 17, 18 and 19 together.

On Question, amendments agreed to.

5.33 p.m.

Lord Craigmyle moved Amendment No. 20: Page 3, line 34, at end insert ("in a patient under the age of 18").

The noble Lord said: I am not at all sure that this amendment is what I wanted to say or that it is in the right place, but it will serve as a probing amendment. Possibly what I intended was a proviso at the bottom of this subsection. In the White Paper Cmnd. 8405, in paragraphs 12 and 13, particularly 13, the Government state that the origin of the age limit in these matters of psychopathic patients lay in the medical opinion that mentally handicapped or psychopathic adults were unlikely to benefit from hospital treatment. They go on to say that recent medical advances have negatived that argument.

Those with whom I have consulted—and your Lordships will have realised that I am not a doctor myself, so I am going on secondhand information—are not convinced that such medical advances have been made. The difficulty with psychopaths is of course the uncertainty of diagnosis; the very large number—dozens, I believe, if not scores—of categories or sub-categories of psychopathic illness; and the very high proportion of untreatable, or virtually untreatable, patients. Some psychiatrists would say that there are very few, if any, who can be treated, although I gather that there are others who say that that is too extreme a view.

The difficulty of deciding how a psychopath should be treated springs from the points made in an article admittedly many years ago, but which I believe is still valid, by a leading consultant psychiatrist in which he said that the psychiatrist sees in the psychopath a conjunction of patterns of behaviour each of which is almost entirely beyond clinical comprehension". If that is the sort of people they are having to deal with, the borderline between who is treatable and who is not treatable, who should be detained and who should not be detained is bound to be extremely difficult to define.

Moreover, as we define psychopath in subsection (4) of the principal Act in very wide terms—which again I am given to understand are considerably wider than the terms which would normally be clinically used—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.

It is an extremely difficult matter, and I am certainly not going to press it, but it seems to me that the only justification for holding someone, unless of course he has committed a criminal offence, would be that he is still legally a child. That is why I suggest that the age of 18 be inserted here. I beg to move.

Lord Kilmarnock

I should like to support the noble Lord, Lord Craigmyle, in this amendment. I agree that it is possible that he may not have got the age right. Maybe 21 is better than 18. It has to be admitted—in fact it was pointed out in the review of the Mental Health Act 1959, paragraph 2.38—that an age limit is arbitrary and leads to anomalies. Then in this document it was accordingly proposed that the requirement to certify a likelihood of benefit from treatment should apply on admission only to those suffering from mental handicap and psychopathic disorder, and that the age threshold should be dropped.

However, as the noble Lord, Lord Craigmyle, pointed out, the question of treatability is of great importance here. It is quite possible that it would be impossible to treat an adult psychopath beyond a certain age. My eyes fell recently on an article in the British Medical Journal by a professor of forensic psychiatry. He directed some remarks precisely to this clause in the Bill and raised very severe doubts about it. He said: The Bill proposes that psychopaths and subnormals will be eligible for compulsory detention, whatever their age, provided they are 'treatable'—a proposal, that would warm the cockles of the heart of a dictator having trouble with dissidents". That may be a rather excessive way to put it, but it certainly points up the danger on which the noble Lord, Lord Craigmyle, has put his finger. We have no amendment down at this stage, and so I have risen simply to ask the noble Lord, Lord Elton, if he can tell us whether the Government have considered, or actually perceived, this danger in their proposal to remove the age limit.

The author of this article, Professor John Gunn, goes, on to say: Presumably the assumption is that Britain is a democracy and that, as in practice no psychiatrist here would wish to put an unwilling psychopath or subnormal on an order, and that as 'treatability' would have to be claimed anyway, this safeguard so carefully inserted by Parliament in the current legislation may be dropped". The question is whether this safeguard, so carefully inserted by Parliament, should be dropped. I am simply putting these ideas forward at this stage to enable the Minister to give us an idea of the Government's thinking on this, I submit, rather important matter.

Lord Richardson

I am not a psychiatrist but I have been informed by psychiatric opinion that, although the likelihood of effective treatment of psychopaths cannot be expressed as very hopeful—in fact, perhaps it is diminishing—it is nevertheless thought that the age bar is no longer relevant and it was a mistake that it was ever put in. The informed view that I have received is that attempts should be made to treat psychopaths of all ages, albeit despite the not very hopeful feelings in regard to the prognosis.

Lord Elton

This is one of those amendments about which I must give very careful thought to what is intended and what is achieved, so I hope your Lordships will bear with me. The amendment strikes at Clause 4 of the Bill and that clause relates to Section 26 of the Act. Section 26 deals with admissions for treatment and in subsection (2) it sets criteria for admissions for treatment. Subsection (2) of the clause which the noble Lord now seeks to amend sets out new criteria, the second of which is the treatability criterion. The noble Lord, by inserting the words at the end of line 34: in a patient under the age of 18", restricts the operation of that criterion to people under the age of 18; anybody over the 18-year-old criterion, therefore, is not covered by the criterion set out.

We put the "treatability" test in Clause 4 because we wanted to make sure that mentally impaired and psychopathic patients are not detained in hospital unless they are likely to benefit from treatment, because hospitals are not places of detention per se. They are places for treatment for which detention may be a necessary prerequisite. Extra safeguards are needed for patients with one of these forms of mental disorder because they are in some senses nearer, as some noble Lords have said, the borderline of "normality" than severely mentally impaired or mentally ill patients. I do not think it right to withdraw the "treatability" test from adults, as the amendment proposes.

"Treatability" replaces the age limit in Section 26 of the 1959 Act. At present, a subnormal or psychopathic patient aged 21 or over may not be admitted for treatment under Section 26 at all. As some noble Lords will recall, the age limit of 21 years was based on the recommendation of the Percy Commission—that was the Royal Commission on the Law relating to Mental Illness and Mental Deficiency—which sat from 1954 to 1957 and led to the 1959 Act. The Percy Commission noted the general agreement, at the time, that treatment or training for subnormal and psychopathic patients was most likely to be successful if it could be given in adolescence and early adult life and drew parallels with the compulsory provision of education for children.

Experience since then suggests—the noble Lord, Lord Richardson, referred to this—that such patients may be able to benefit from treatment at any age, and that is why we decided to replace the somewhat arbitrary age limit with an explicit "treatability test". I still think that is the right approach. I am satisfied that Clause 4(2)(b) provides the right balance between ensuring that patients can be admitted for treatment they need, and safeguards to ensure that they are not admitted inappropriately. I hope therefore that the noble Lord will withdraw the amendment.

Lord Craigmyle

I was much interested in what the Minister said. I do not think I can guarantee not to return to the charge at a later date, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Baroness Wootton of Abinger)

In calling the next amendment, No. 21, I have to call your Lordships attention to the fact that if that amendment is agreed to, I shall not be able to call Amendment No. 22.

Baroness Faithfull moved Amendment No. 21: Page 3, line 37, leave out from ("necessary") to ("and") in line 39 and insert ("that he should receive such treatment to prevent or to arrest a deterioration in his mental state or to improve his mental state or to protect him from harm or to protect others from harm,").

The noble Baroness said: In a way, this follows the last amendment in the name of the noble Lord, Lord Craigmyle. It does not in any way alter the meaning of the Bill; it is simply more specific and understandable. While the Bill states, that it is necessary for the health or safety of the patient or for protection of other persons that he should receive such treatment", we are amending that to read: that he should receive such treatment to prevent or to arrest a deterioration in his mental state or to improve his mental state or to protect him from harm or to protect others from harm". In a way, it is exactly what the Minister said when replying to the last amendment, though the wording is more specific. I beg to move.

Baroness Masham of Ilton

The first part of the amendment is very good indeed, but what worries me is the phrase, to protect him from harm or to protect others from harm", and what might be done to him against his wish which would protect others from him.

Lord Donaldson of Kingsbridge

Is there confusion between treatability and curability? It seems to be perfectly clear that one can treat psychopathic cases with very little prospect of success, but one can treat them and give them better conditions. We know from prison work that many of our clients who are considered to be psychopathic give less trouble in certain conditions than in others. One does not cure them and make them fit to go out, and therefore it seems to me that the whole discussion is rather confused in that everybody is treatable but not everybody is curable. I just throw that in to add interest to the discussion.

Lord Elton

The noble Lord speaks as if he were making a Christmas pudding. Whatever charms there are about the amendment, I could not agree with the noble Baroness, Lady Masham, about the beginning of it being the most attractive part because if the Committee looks at the way in which it matches in, the Bill would then read, "that it is that he should", which is perhaps a rather biblical approach, but of course I do not wish to delay the Committee on that sort of point.

I appreciate why my noble friend has chosen to look closely at this clause in that it concerns the grounds for admission for treatment under Section 26 of the Act. It is clearly important that we get the whole balance of the clause right, so that the people who need to be detained in hospital for treatment can be detained only where there is a genuine need. I do not consider, however, that the amendment is necessary. Indeed, I think it is rather restrictive in its effect.

The purpose of the amendment appears to be to spell out one of the alternative grounds for admission in Clause 4(2)(c). Instead of one ground for admission being that the treatment was necessary for the "health" of the patient, it would be that the treatment was necessary to prevent or to arrest a deterioration in his mental state or to improve his mental state, all of which are included in the words "for the health of the patient". However, it would not cover cases where care and treatment are needed but where the prospect of the condition improving or being arrested may be limited, and here I take the noble Lord's charm out of the pudding and demonstrate it before your Lordships.

The effect of Clause 4(2)(b) is that a patient who is mentally handicapped—or, as we now say, mentally impaired—or suffering from psychopathic disorder may be admitted only if treatment is likely to alleviate or prevent a deterioration in the patient's condition. The amendment would extend the same requirement to cover the severely mentally handicapped—or severely mentally impaired, as we now call them—and the mentally ill. I appreciate that my noble friend's concern is to see that no one is detained unless he is likely to gain positive benefits. Indeed, that is one of the thrusts of the whole Bill and what we are here for. We are improving the safeguards to make sure that only those who need treatment in hospital, and who would not otherwise get it, are detained.

However, for the severely mentally impaired and the mentally ill there are cases where there is little prospect of the patient's condition improving. It may not even be clear whether it can be prevented from deteriorating. The main, and very important, purpose of admission here is to ensure that the patient receives care and support in a therapeutic environment. I do not need to remind the Committee that the only alternative to hospital in such cases would probably be a life in the outside world with which the patient would be patently unable to cope, and I think that Clause 4 as it stands accurately reflects the intention of admission in such cases. I think that I might well have said enough; at least I shall sit down in order to see whether I have.

Lord Wallace of Coslany

I am rather intrigued about this. Personally, I would rather support Amendment No. 22 than the present amendment. I am very concerned about the words inserted in the amendment of the noble Baroness: or to protect others from harm". That can have sinister implications, or perhaps it is meant to cover the kind of situation in which my wife found herself some years ago when a patient leapt out from a bathroom and nearly strangled her when she was a visitor. Alternatively, does it refer to some medical treatment which would remove the possibility of the person committing harm to others? This is very serious and rather sinister, and I am concerned about it. Perhaps the noble Baroness can explain what she means.

Baroness Faithfull

There are a very few cases where the mental state of a patient at a given time—it need not be continuous—is such that he harms other people. We have all known of the patient who takes a bread knife to another member of the family. There must be a balance here so as to consider both the patient and what he might do to someone else at any given time. I have listened to the Minister with interest. I shall consider what he has said and I shall also consider what the noble Lord, Lord Winstanley, says in regard to the next amendment. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.52 p.m.

Lord Kilmarnock moved Amendment No, 22: Page 3, line 38, after ("persons") insert ("from serious harm").

The noble Lord said: On behalf of my noble allies and myself I beg to move Amendment No. 22, and with the permission of the Committee I should at the same time like to speak to Amendment No. 35 as well. The case for the amendments may be stated very briefly. In our view the phrase "the protection of other persons" that appears in Clause 4(2)(c) is simply inadequate without some further qualification. The question arises: Protection from what? It could be interpreted as protection from mere nuisance, giving rise to applications in a mere fit of irritability. The phrase "from serious harm" which we propose to add is drawn from another part of the Bill. In Part III, in Clause 26, on page 16, in regard to restriction orders, it is proposed after the words "the protection of the public" to insert the words "from serious harm". That is actually proposed in the Bill. I support that, and to myself and my colleague it seems only reasonable that for those who are to be treated under an application there should at least be parity of safeguards with those available to offenders under Part III. So it is the simple object of the amendment to correct the imbalance.

As I stated earlier, these remarks apply also to Amendment No. 35, relating to page 8, line 35, where we should also like to see the words "from serious harm" inserted for the same reasons in the clause dealing with duration of detention. This is a simple amendment involving the insertion of three words, but I believe that it is an important one. It is possible that what we propose is not already in the Bill simply because of an oversight on the part of the Government. I beg to move.

Baroness Phillips

I have listened with great interest to the debate which now seems to have moved into a realm which perhaps we have not discussed enough; namely, that involving people who can be affected by those individuals who are mentally handicapped. If we insert the phrase "serious harm", there will be some difficulty in defining it. I can think of at least two victims who had the misfortune to live next door to people who, in the words of one noble Lord who has now left the Chamber, might be described merely as indulging in anti-social behaviour. I shall not tell the Committee of the kind of anti-social behaviour in which the individual indulged, but he was never at any point detained because he was described by a social worker merely as a nice, eccentric, old gentleman.

If we make it impossible for anyone to be held, or to be dealt with in any way, unless it is shown that he has actually caused serious harm, many people will be placed in quite uncomfortable circumstances which they do not deserve. That would be simply because the Bill had tidied up the situation so firmly. We shall have much argument about what is anti-social, what is eccentricity, and what is serious harm. It seems to me that the Bill quite clearly defines the point in the phrase "health or safety", and I do not think it is necessary to change it.

Lord Sandys

In introducing the amendment the noble Lord, Lord Kilmarnock, said that it was a simple one, and the noble Baroness, Lady Phillips, has informed the Committee that she feels from much experience at the Home Office that he might be mistaken. I must agree with her; I think that the noble Lord is mistaken in this regard. The amendment would mean that someone could be admitted for treatment only if he satisfied the other conditions in Section 26(2)—I think that that was referred to by the noble Lord, Lord Kilmarnock—and needed to be in hospital for his own health, his own safety, or to protect other people from serious harm. This is a more stringent condition than what is now in the Act or the Bill, and I believe that it is too stringent both for the patient, for whom treatment is considered essential, and for the public generally.

It is important that patients should not be kept in hospital against their will without good cause, but the public also need to be protected from the behaviour of mentally disordered people. I believe that we have the balance about right in the Bill, which refers to the protection of other persons but does not specify the degree of danger from which they are to be protected—and this is an important point.

For the patient's benefit it is important to be able to provide treatment at an early stage in an illness without waiting until there is a risk of "serious harm" and possibly penal consequences. If I may draw on some examples, I would say that the amendment would make it impossible to admit for treatment a patient who had, for example, a history of persistent minor assaults or sexual advances which were very distressing to the subject of his or her attentions but did not amount to a risk of "serious harm", unless it could be shown that the patient needed to be in hospital for his own health or safety. These are important criteria, and we should consider them most carefully. We are talking about the kind of behaviour which none of us would want our families to be exposed to, We are also talking about people who need medical treatment. All the other conditions in Clause 4 must be satisfied, including the "treatability" test for persons with mental impairment or psychopathic disorder. So there is no question of people being shut up just because they are social nuisances. Detention is for treatment which may remit those symptoms of mental disorder from which the public need protection.

There is a further serious objection, and I believe that it should be drawn to the attention of the noble Lord, Lord Kilmarnock. It is that the amendment would make the conditions for admission for treatment for a non-offender patient the same as those for a restriction order on an offender whom a court considers dangerous. A restriction order is made if it appears to the court to be "necessary for the protection of the public from serious harm". I am anticipating Clause 26, which adds the words "from serious harm" to Section 65 to make sure that restriction orders are used only when they are really needed. If we add the same words, "from serious harm", to Section 26, it would have very strange consequences for the distinction between unrestricted and restricted patients.

Those consequences are seen most clearly in relation to renewal of detention, and so I shall reserve my comments on them for the debate on a similar amendment to Clause 12—and this, of course, was the one to which the noble Lord referred. For the moment I shall merely point out the anomaly of making the test for admission for treatment for someone who may never have been convicted of an offence and may need to be in hospital only for a short time exactly the same as for a restriction order made by a Crown court taking account of the nature of the offence, the offender's antecedents and the risk of his committing further offences if set at large.

Lord Donaldson of Kingsbridge

I should feel happier about this if it went through the courts. I would be quite happy if one could say that the courts are to decide when the protection of the public is required. I do not think it is necessary to specify that. But there is no test of that kind in the Bill, is there? There is simply a series of words. What about somebody who regularly sexually exposes himself? We all know cases of this kind; at least, if you live my life you do. This is not doing any harm to anybody, except in the nature of nuisance, On the other hand, that is the sort of chap, I should have thought, who would normally be dealt with under this provision. I think that, as it is, the position is not entirely satisfactory, although I do not myself think that we ought to divide on it. This is up to my noble friends, of course, but I should like to hear what other noble Lords think.

Lord Winstanley

Following the noble Lord, Lord Donaldson, I am bound to say that it seems to me that we have now finally arrived at the situation when the happy, convivial spirit in which, hitherto, we in your Lordships' Committee have all been so anxious to agree with everybody is at an end. I am bound to say personally that I regarded the reply of the noble Lord, Lord Sandys, to this amendment really as distressing in the extreme. It seemed to me that he showed a total inability to understand the feeling behind this particular amendment. He used some very strange words. In his reply the noble Lord, Lord Sandys, said this—and I quote him, I think, accurately. He said that "the public are entitled to be protected from the behaviour of mentally-disordered people". The public are entitled to no such thing. There is all manner of behaviour that I personally find offensive, whether it is by mentally-disordered people or otherwise; but I am not entitled to be protected from it.

Here we are talking about people being compulsorily admitted to hospital for treatment under Section 26, which is a very serious deprivation of personal liberty, and one of the tests of whether a person should be treated in that way is, under Clause 4(2)(c), that it is necessary for the health or safety of the patient or for the protection of other persons …", and then we suggest that the words "from serious harm" should be added. There are all sorts of aberrational behaviour which we find distressing or irritating. Let us take the mentally-disordered person who has a habit of peeping through windows, which is perhaps upsetting and disturbing and may very well prompt certain people to say, "This person must be locked up", or, "He must go in for treatment". That is not a road down which I can go very readily; and when the noble Lord said that we should not perhaps divide on this amendment I am bound to say that I would not necessarily take that view, because I think the attitude to this particular amendment is pretty crucial to one's attitude to the Bill as a whole.

Lord Elton

I must apologise for having been out of the Chamber briefly. I can only say to noble Lords who are medically qualified that it is not only mental disorder which we sometimes have to cope with, and I had to leave the Chamber. I am confident I know the line which my noble friend took, and we are looking at questions of degree. The noble Lord, Lord Winstanley, is talking about "serious harm". It seems to me that there are many things from which, I entirely agree, the public cannot be protected. The public cannot be protected from the society of anybody simply because it does not like the society of anybody. The public has to put up with the company of your Lordships and myself without any such protection, and many of us are eccentric. But there are degrees of behaviour which fall short of inflicting serious harm" which are entirely anti-social and which really cannot be permitted to continue.

Lord Winstanley

On that particular point, surely the noble Lord, Lord Donaldson, replied to that matter by saying "these particular matters", and I wholly agree with him; there are items of nuisance which should be dealt with. But does the noble Lord not agree that the proper place for those to be dealt with is in the courts, and not in the hospitals?

Lord Elton

Of course, the courts have a power to order the detention of a patient in a hospital. What the noble Lord appears to be seeking to do is to limit that power to cases where "serious harm" results—not where serious harm may perhaps be expected but where it is necessary to protect the public from serious harm which, as I read this amendment, is imminent and predictable. I take a more cautious view than he does. I think I am more protective of the public good. I do not think this militates against the interests of the patient, because it is in the interests of the patient to be detained and treated before that catastrophic event. Because in his life it will be catastrophic; and it may be that it will be catastrophic in the life of some young adolescent who finds himself addressed in a manner which cannot be said to produce serious harm but is very disturbing and leaves a mark for many years.

Lord Avebury

The noble Lord, Lord Elton, has just referred to the interests of the patient. I do not know whether he was here during that part of his noble friend's remarks when he was referring to the comparison between this subsection and Section 65, but I should like to point out to your Lordships' Committee that there is a very real and important distinction in that Clause 4(2)(c) contains alternatives: that it has to be necessary for the health or safety of the patient or it has to be for the protection of other persons", as we should like to insert, "from serious harm"; whereas in the case of a court restriction order made under Section 65, of course, it has to be established that there is a possibility of serious harm arising before the court can make the order. A court cannot make a restriction order under Section 65 if it is solely apprehended that the patient will benefit from treatment in a secure environment.

So the point made by the noble Lord, Lord Elton, is already covered. If it is found to be in the interests of the patient that his health or safety could be improved by a Section 26 order, then that can take place irrespective of whether we add the words "from serious harm" to this particular subsection. Therefore, I hope the noble Lord, Lord Elton, will have a further discussion with the noble Lord, Lord Sandys, and that they can get their act together a little better than they have during this discussion.

Lord Sandys

I do not think the noble Lord, Lord Avebury, is going to be successful in driving a wedge between my noble friend and myself because I think my noble friend got it exactly right on the last amend- ment when he referred to getting the balance within this clause correct. We believe that the clause does not need this amendment, and we feel that it would be undesirable for it to be admitted. I therefore hope that the noble Lord, Lord Kilmarnock, will withdraw his amendment.

Lord Kilmarnock

I am sorry I was not in my place, but, yes, consultation among members of the Alliance was taking place. I am grateful, of course, to the noble Lord, Lord Sandys, for his very full reply to this amendment, but I should like to put him right. I was not trying to suggest that those admitted for treatment should be considered on a par with offenders: what I was trying to show was that in this particular case they have less protection from abuse of their rights than offenders have. That was the point. In effect, the offenders have a slightly greater safeguard.

When the noble Lord, Lord Sandys, suggested, I am sure quite genuinely, that there was no question of people being shut up because they are a nuisance, this is exactly what, by means of this Bill, we are trying to make absolutely sure can never happen. Obviously, we cannot conceive among ourselves that procedures of this sort such as have happened in other countries can take place in this country; but when we have a Bill like this in Committee we must do everything we can to plug all the holes in that direction. This was another motive behind the amendment of my noble friends, myself and our allies. However, as we have had an interesting debate, we should like to read Hansard and reserve the right to come back at Report stage. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4, as amended, agreed to.

6.10 p.m.

Baroness Masham of Ilton moved Amendment No. 23: After Clause 4 insert the following new clause:

("Restriction of admission for treatment

.—(1) No patient may be detained under section 26 of the principal Act unless he has previously been detained under section 25 of the principal Act.").

The noble Baroness said: The purpose of this amendment is to remove any situation whereby a patient is detained for treatment for six months or longer under Section 26 of the 1959 Act when, in fact, a physical examination with subsequent treatment, general nursing care and rest for up to 28 days under Section 25 of the 1959 Act might suffice. Section 25 gives power for a person to be detained for observation, for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained thereafter unless, before the expiration of that period, he has become liable to be detained by virtue of a subsequent application, order or direction under any of the following provisions of the principal Act. Section 26 gives power for the person to be compulsorily admitted to hospital for treatment for a period of one year. Is it not reasonable, except in the emergency of a life or death situation, that always there should be a period of observation so that the patient can be fully assessed and home contacts and contacts with the social services can be made? I hope the Committee will find this acceptable. There is nothing to stop a patient from being detained for a longer period than 28 days should this be necessary. I beg to move.

Lord Cullen of Ashbourne

I appreciate the concern of the noble Baroness that no patient should be detained for six months or more under Section 26 without a thorough initial assessment by the responsible psychiatrist to see whether detention is really appropriate. I do not agree, though, that this amendment is necessary to achieve that aim. The purpose of Section 25 is to provide for short-term assessment and treatment of patients when it is not clear whether or not long-term detention is needed. There are other cases, though, where there is no doubt about a patient's need for long-term treatment in hospital. A patient may have been detained in hospital on a previous occasion, then discharged because his responsible medical officer thought he had made enough progress under treatment to manage successfully outside hospital. If events show that the patient cannot manage outside, and the mental welfare officer and doctors who are familiar with his case are satisfied that an application under Section 26 should be made, it is quite unnecessary for an application to be made first under Section 25.

Another case might be a patient with a long history of mental disorder who was in hospital as an informal patient. The doctors and mental welfare officer (or nearest relative) might reach the conclusion while the patient was receiving treatment voluntarily that detention under Section 26 was necessary, and so there would be no need for assessment under Section 25. I hope that that answers the point raised by the noble Baroness and that she will be able to withdraw the amendment.

Baroness Masham of Ilton

The amendment reads: No patient may be detained under section 26 of the principal Act unless he has previously been detained under section 25 of the principal Act". I do not think that in many cases they would have been in hospital before and it would be a first time, as it were. But as this is totally and completely new to the Committee at this stage, I think I should like to take it back, discuss it further and bring it back at another stage—

Lord Winstanley

If the noble Baroness is likely to seek the Committee's consent to withdraw the amendment, I wonder, since we may return to it, whether it will be possible for the Minister at a later stage—because I doubt whether the knowledge will come to him now or quickly enough—to be able to find out something about the actual practice at the moment. I should be interested to know what proportion of persons at the moment detained under Section 26 are persons who have been detained previously under Section 25. Those are figures which the Committee might find helpful. I use this opportunity of dropping that thought in the mind of the noble Lords opposite.

Lord Cullen of Ashbourne

We will try to give that information to the noble Lord.

Baroness Masham of Ilton

I should be grateful if the noble Lord would give that information not only to the noble Lord, Lord Winstanley, but also to me. With that, I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Medical recommendations.]:

Baroness Robson of Kiddington moved Amendment No. 24:

Page 4, line 25, at end insert— ("Provided that this subsection shall not be relied upon unless there would otherwise be unreasonabletdelay in arranging for two medical practitioners to examine the patient with a view to considering whether to make medical recommendations.").

The noble Baroness said: I beg to move Amendment No. 24 which stands in the names of my noble friends and myself. I am a little concerned at the change in attitude on medical recommendations contained in Clause 5(3). I can see the reason for them. There are, obviously, very few occasions, but they do exist, when it would perhaps be a lengthy procedure to obtain a second medical opinion from outside the hospital in question. It could be because of the geographical situation, it could be because of such weather as we have had over the last fortnight. It is right that the possibility should exist for medical recommendations to be made even if it is not possible to get an outside medical opinion as the second opinion.

I believe that it is essential that it should be stated that that is for emergencies only, when there are no other ways of dealing with it. This is why we want to add, at the end of subsection (3A), paragraph (b) or, perhaps, as (3A)(c): Provided that this subsection shall not be relied upon unless there would otherwise be unreasonable delay …". I think it would be detrimental to the whole of the assessment and medical recommendations if it became commonplace practice for two doctors in the same hospital—even though one is not working under the directions of the other—to be reuglarly using this section to make their medical recommendations. We hope that the Government will accept that it should be used only in exceptional circumstances and that in normal circumstances the medical opinion should come from two different sources.

Lord Cullen of Ashbourne

I understand the concern which lies behind the amendment, that the two medical recommendations necessary for detention should always be completely independent of each other. It would be a serious matter if this were not so, because it is a person's liberty which is at stake when the making of a recommendation for admission under the Act is considered.

Clause 5(3) of the Bill already restricts the circumstances in which both recommendations may come from doctors at the hospital concerned. The only circumstances in which this may be done are listed as follows: first, where one of the doctors wants the majority of his sessions elsewhere; and, secondly, if one of the doctors is a consultant, where the other doctor is not working under his direction. These limited circumstances were introduced precisely because delays have arisen in some areas in obtaining the recommendations required. This is because of the limited numbers of doctors approved under Section 28 of the Act to carry out this function.

The restrictions to which I have just referred will ensure that the medical recommendations do not both come from doctors who are on the staff of the hospital to which the patient is to be admitted in circumstances where it is likely that they may not be independent of each other. We also intend to issue guidance to health authorities which are hospital managers to monitor procedures for making the medical recommendations. This would include checks to ensure that the restrictions set out in Clause 5(3) were complied with. I consider therefore that there will be adequate safeguards to make sure that the power in certain circumstances to receive both medical recommendations from doctors at the hospital in question is not misused.

However, the noble Baroness has made her case extremely well. This is an important matter and I accept the view that the view that the extra safeguard on the lines she suggested should be included. I will therefore undertake to introduce at Report stage an amendment which provides that both medical recommendations should not be made by doctors at the hospital concerned unless there would otherwise be undue delay. I hope therefore that the noble Baroness will be content to withdraw her amendment.

Baroness Robson of Kiddington

I am most grateful to the noble Lord for that very helpful reply. Of course I am delighted to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 25:

Page 4, line 31, at end insert— ("(6) After subsection (5) there shall be inserted— (6) Any medical recommendations which appear to be correctly made may be acted upon by the nearest relative or the Mental Welfare Officer without further proof of the signature or qualification of the person by whom the recommendation is made or of any matter of fact or opinion stated therein or of compliance with this Act by that person."").

The noble Lord said: Before speaking about this amendment perhaps I could invite your Lordships to correct a printing error which appears on the Marshalled List, where we read: the nearest relative of the Mental Welfare Officer". It should read: the nearest relative or the Mental Welfare Officer". The relationship, if this amendment as printed is accepted, makes the mind boggle.

There are safeguards for persons acting in good faith in complying with the principal Act, and indeed with the principal Act amended as it will be by this Bill. This is provided for by Section 141 of the 1959 Act. I welcome the fact that this is confirmed by Clause 49(3)(e) of this Bill. However, recent experience has shown that some persons acting in good faith are not always wholly protected from public implications of failing to do their duty to the utmost.

On the other hand, because their actions are governed by different legislation, other groups of persons do seem to be so protected. The difference seems to arise because, although both groups are public servants, one group of people are in the employ of elected local councils whereas the other group are responsive to appointed bodies. For some reason those who are in the employ of elected local councils have turned out in practice not to be as well protected from public accusation as those who are responsive to appointed bodies. This I am sure the Committee will agree is an unfair situation which clearly Section 141 of the 1959 Act sought to avoid.

The object of this amendment is to underpin the purpose of Section 141 under conditions where a nearest relative or a mental welfare officer might reasonably assume that the recommendations made by a medical officer are not only made in good faith professionally but can also be relied upon to conform in all important points of details of the law and of the principal Act in particular. I beg to move.

Lord Renton

May I ask my noble friend—bearing in mind he has referred apparently with approval to Section 141 of the principal Act—whether he has seen on the Marshalled List Amendment No. 96? That would repeal Section 141 of the principal Act and replace it by a provision of a much more familiar and more suitable kind to the effect that: 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. Many of us feel that would be an adequate safeguard. If that amendment were accepted by the Committee—and I say that advisedly because I do not know whether the Government will accept it or not but it seems to me to be a very sensible amendment—then the foundation of the amendment which my noble friend has moved would seem to be somewhat different. I do not think that we should consider Amendment No. 25 without at least applying our minds to Amendment No. 96.

Lord Mottistone

Perhaps I may respond immediately to that. I am afraid that I had not noticed Amendment No. 96. But Amendment No. 96 only allows Section 141 protection to apply in the case of criminal proceedings. The circumstances about which I am talking relate to civil proceedings. So Amendment No. 96 certainly would not do for me in any way and it would be even more important to proceed with Amendment No. 25 because of any threat of anybody accepting Amendment No. 96.

Lord Cullen of Ashbourne

I sympathise with my noble friend in his view that the Mental Health Act 1959 often places a very heavy burden on mental welfare officers. We must remember, however, that under this Act people are being deprived of their liberty so that every possible step must be taken to ensure that the procedures set down by Parliament are carefully and properly followed. Ensuring that this is so undoubtedly places sometimes difficult responsibilities on the professional staff concerned, whether they be the social workers who are acting as mental welfare officers or the doctors concerned. While every profession must assume responsibility for the way in which they practice, in this case there is also an additional responsibility for ensuring that procedures set down in law to safeguard the interests of individuals whose liberty is in question are properly observed.

I am sure the Committee will share my reluctance to commit myself to any undertaking that might lead to the patients' interests being overlooked by an over-rigid allocation of responsibility. I would therefore ask the noble Lord to withdraw this amendment on my assurance that I will give more thought to how best to meet his proper concern and report back to the Committee.

Lord Mottistone

That is a most reassuring remark by my noble friend. I would be happy to withdraw my amendment on that basis. I look forward to hearing what my noble friend has to tell me in this connection.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Patients already in hospital]:

6.30 p.m.

Baroness Robson of Kiddington moved Amendment No. 26: Page 4, line 40. at end insert ("having personally examined the patient within the previous twenty-four hours)").

The noble Baroness said: I beg leave to move the amendment standing in my name and that of my noble friends. We wish to insert at the end of subsection 2(a) the words on the Marshalled List. Again, this amendment is meant, as my previous amendment was meant to be for the safeguard of the patient. I have had much experience, as have many other noble Lords, of the working of mental hospitals and of other hospitals, and the kind of rapport that exists between consultants and doctors. We are desperately anxious to ensure that the medical practitioner who has been nominated to take action in the absence of the medical practitioner in charge of the patient has in fact examined the patient within the previous 24 hours. It is not uncommon for the rapport to be such within the medical profession that one will take on the work of another, and I think the safeguard is highly necessary in this case to make certain that the practitioner who detains a patient for three days should have personally seen the patient and examined him within the last 24 hours before taking that action. I hope the Government will be able to accept the amendment.

Lord Cullen of Ashbourne

The first point I should like to make is that we were a little confused by the placing of the brackets in this amendment. There is an odd number, which seems hardly possible, and so I think the amendment may be slightly defective in that way. However, that is by the way.

My main concern is that we are talking about an emergency. Section 30 of the 1959 Act is used when an informal patient suddenly tries to leave hospital when his mental condition and circumstances are such that, if were he not already in hospital, compulsory admission would he necessary in his own interests or for the protection of others. Section 30 is used when there is no time for an application by a mental welfare officer and a second medical recommendation. We are proposing in this clause to resolve problems which have arisen when the doctor in charge of the patient's treatment is unobtainable. If we weigh the emergency procedure down with provisos like the one suggested in this amendment, we may make doctors reluctant to use it even when it is in the patient's own best interests that he stays in hospital.

I appreciate that the amendment is intended to ensure that the doctor in charge of the patient's treatment may report that he should be detained only if he personally has examined the patient within the previous 24 hours. The doctor in charge will usually be a consultant. As is usual medical practice, he is likely to have less day-to-day contact with the patient than some other members of the professional team, but will give overall direction to the patient's treatment based partly on his own observations and partly on the reports of others. I do not think it is necessary that the consultant himself should have examined the patient within the previous 24 hours. Section 30 already has the safeguard that the doctor in charge must consider, at the time he makes the report, that an application for compulsory admission ought to be made so the doctor must himself be satisfied that the patient's condition is serious enough to justify detention. The amendment might lead to daily cursory examinations which did not benefit the patient and were not the best use of the consultant's time.

The proposed amendment suggests that the power to detain a patient for three days may be used arbitrarily in that a doctor who is unfamiliar with the case may be persuaded to make the report. While I share the concern of the noble Baroness that an informal patient should not be prevented from leaving hospital unless the doctor who has the responsibility for deciding that he should be detained for three days has first-hand knowledge of the patient, I believe the noble Baroness' fears are misplaced. First, we have to bear in mind that the doctor in charge of the patient will have had to nominate a particular doctor to act in his absence. The nominated deputy is likely to be a junior doctor in his team and will therefore already be familiar with the patient and his medical history. The nominated deputy may, however, be any other medical practitioner on the staff of the hospital—for example, another consultant. As a matter of good practice, the doctor in charge of a patient's treatment would discuss the patient's case with another doctor whom he was nominating as his deputy, and might invite the deputy to examine the patient.

Secondly, the nominated deputy may only detain the patient if it appears to him that an application ought to be made for the patient's admission to hospital under compulsory powers. The doctor who makes the report must himself be satisfied, in the light of his knowledge of the patient's case history and his present condition, that compulsory admission is justified. The nominated deputy would therefore, as good practice, examine the patient before making a report, and he would have to account for his action when a decision is made about the patient's treatment when the 72 hours have elapsed. Thirdly, an additional safeguard for patients will be provided by the proposed Mental Health Act Commission which will be responsible for looking at the way in which doctors exercise powers such as these. I hope the noble Baroness will feel able to withdraw the amendment.

Baroness Masham of Ilton

May I ask the Minister this? If the patient is not seen during 24 hours, who prescribes drugs? There is great concern about the prescribing of drugs to patients who have mental problems.

Lord Elton

Prescriptions often run for more than 24 hours. If a new prescription is needed at the end of 24 hours, I do not doubt that the proper doctor is there to do it, but very often it happens that a person's course of drugs can last for some weeks.

Baroness Masham of Ilton

But if he has not been seen by a doctor?

Lord Elton

I think neither the noble Baroness nor anybody else in this Committee would expect to be seen by a doctor every day they take drugs that have been prescribed. The noble Baroness looks dissatisfied but I assure her that I take drugs under medical supervision on occasion, for instance, when I have 'flu and so on. I expect to see a doctor only once and he expects to see me barely then.

Baroness Masham of Ilton

But you have not been admitted to hospital.

Lord Elton

This is becoming a very informal exchange and also a very personal one. No, I have not, for the purposes of this debate. However, even when I have been in hospital I have not seen a doctor every day.

Lord Auckland

Presumably the patient would go straight to a very senior consultant, who would have the power to order an injection of Largactil or whatever the drug is if it is part of an emergency procedure. Not being a doctor, like others of your Lordships who are taking part in this debate, I am not medically qualified, but I should have thought from my own very limited experience of a committee of a mental hospital that there is a senior medical officer on call who could prescribe a suitable drug in emergency. Perhaps my noble friend would confirm that.

Lord Richardson

Briefly, I am certain that would be the case in any well-ordered hospital. There could be no question of a patient's being left without some medical supervision with the ability to prescribe drugs that are necessary in an emergency, or indeed to prescribe drugs the order for the dispensing of which has lapsed.

Lord Elton

This has been a fascinating and illuminating exchange, but not altogether relevant. What we are discussing is whether somebody else, who it has been decided by the responsible medical officer is appropriate to exercise this power if an emergency takes place, shall then exercise that power. I am confident that the responsible medical officer will be competent to decide who can, and who cannot, exercise this power and I hope that your Lordships will decide accordingly.

Baroness Robson of Kiddington

May I thank the noble Lord, Lord Cullen, for his long reply. He said that it is his view that no responsible medical officer would take a decision of this kind without knowing and examining the patient. I think that I am quoting him correctly. If that is so, what harm is there in putting that into the Bill so that we can be certain that it happens? However, I am conscious of time and I should not want to press this amendment until I had read that very full reply which the noble Lord gave. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Faithfull moved Amendment No. 27: Page 5, line 4, leave out subsections (3) to (5).

The noble Baroness said: This is a probing amendment which is asking for information on a position which I do not quite understand. Nurses currently have a common law duty to restrain patients from leaving a ward, if they are a danger to themselves and to others. I can quite well see that it is a very good thing, if there is not a doctor anywhere near, for a nurse to be able to restrain a patient. If it has to be an approved nurse, may I ask, first, whether there are enough approved nurses for there to be one available and near at hand for every ward? Secondly, if only approved nurses are to be able to restrain a patient for six hours, will that not give a sense of inferiority, or of a lack of responsibility, to the other nurses who, as I said earlier, have a common law duty to restrain patients from leaving a ward? I do not propose to press this amendment, but I just want clarification. I beg to move.

Lord Elton

I believe that my noble friend does not intend to press this amendment and merely seeks information. We have introduced the powers given in the subsections with a very definite end in view. The legal position of nurses who wish to prevent a mentally disordered informal patient from leaving the hospital in which he was receiving treatment has, in fact, up to now been uncertain. My noble friend referred with confidence to the common law, but I think that that confidence is not shared by those people whose only protection it was. This made it difficult for a nurse who felt the need to prevent such a patient from leaving the hospital, but was not sure whether he or she had the protection of the law in so doing. The holding power will make the position clear for everybody. It will provide protection and will make sure that no nurses hesitate to prevent a patient from leaving, because of fear of the consequences for themselves.

At the same time, though, we had to make sure that the power which we are introducing is not misused or abused, as throughout the Bill we are anxious to protect the rights of the patient. That is why the power will extend only to nurses who hold recognised qualifications in nursing the mentally ill or the mentally handicapped. This will ensure that the serious decision to prevent the patient from leaving, to stand between the informal patient and the outside world and say "No, you may not leave", will be based on a sound understanding, at least, of mental disorder. The nurse who is looking after a patient where this situation might arise would invariably, in any case—I may reassure my noble friend—be so qualified.

I hope your Lordships will agree that the power which we are introducing is a necessary and useful one—it is hedged about with sanctions, as your Lordships will see—and that the restrictions which we are placing on it are also necessary. To remove this power could throw us back into some confusion, but I understand that it is not the intention of my noble friend so to do.

Baroness Faithfull

May I thank my noble friend the Minister for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 [Guardianship applications]:

6.45 p.m.

Lord Elton moved Amendments Nos. 28 and 29:

Page 6, line 8, leave out ("handicap") and insert ("impairment").

Page 6, line 9, leave out ("handicap") and insert ("impairment").

The noble Lord said: Amendments Nos. 28, 29, 30 and 31 all relate to the amendments which I moved at the beginning of the Committee stage, and your Lordships were happy for me to move the consequentials en bloc. By leave of the Chair, I think that I may move them only in pairs, because Nos. 28 and 29 are in Clause 7 and the others go elsewhere. Therefore, I beg to move Amendments Nos. 28 and 29.

On Question, amendments agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Effect of guardianship applications]:

On Question, Whether Clause 8 shall stand part of the Bill?

Lord Renton

There is a small but important point on this Bill. I have not tabled an amendment, because I spotted it only today. But I suggest that in line 25 on page 6, after the word "occupation", the word "education" should be inserted, because there will be cases when a patient may be required to receive not only training but also education. The two things have a different meaning in our statute law, and I suggest that education should be covered. Perhaps my noble friends would look at that between now and Report stage.

Lord Elton

I am obliged to my noble friend for recognising that I cannot answer him at once. Of course, I will look at it and will speak to him in the interim between now and Report. He will then do as he thinks fit.

Clause 8 agreed to.

Clause 9 agreed to.

Clause 10 [Re-classification of patients]:

Lord Elton moved Amendments Nos. 30 and 31:

Page 7, line 10, leave out ("handicap") and insert ("impairment").

Page 7, line line 11, leave out ("handicap") and insert ("impairment").

The noble Lord said: These are the other two amendments which I was eager to move en bloc, and I now so do. I beg to move.

On Question, amendments agreed to.

Clause 10, as amended, agreed to.

Clause 11 agreed to.

Clause 12 [Duration of authority for detention and guardianship]:

Baroness Faithfull moved Amendment No. 32: Page 8, leave out lines 20 to 22 and insert ("then he will consult an approved social worker who will interview the patient and satisfy himself that detention in hospital is the most appropriate means of ensuring that the patient continues to receive the care and treatment he needs and the responsible medical officer and approved social worker shall furnish to the managers of the hospital where the patient is liable to be detained reports to the above effect on the prescribed form").

The noble Baroness said: I am in some difficulty in moving this amendment, because the debate which we had earlier on Amendments Nos. 14 and 15 applies also in slightly different circumstances, though the principle is the same, to Amendment No. 32. Your Lordships will remember that I stated that I thought that approved social workers, and indeed the social work service, should take a partnership responsibility with the doctors in dealing with admissions and that, in the first instance, the social worker should be enabled to see what were the community facilities and to ensure that the patient's needs were met.

We debated earlier the need for patients to understand—and the noble Lord, Lord Winstanley, was very anxious that patients should understand—what was happening to them, and I submit that, if an approved social worker were put in touch with the patient and interviewed him and the relatives, the social worker would be able to help the patient understand at a very early stage. In this amendment I am recommending that application for detention in hospital should in the first instance go to the approved social worker. I do not want to waste your Lordships' time on this matter. The arguments are exactly the same as those put forward on the two earlier amendments. However, I feel very strongly that we must build up the social work service and the community service and that we shall not do this unless social workers are in partnership with the medical profession. In the light of our earlier debate, I ought to say at this stage that having heard the Minister's reply I shall not be pressing the amendment. However, I should like to hear what the Minister has to say on it.

Lord Sandys

I am obliged to my noble friend for the way in which she has introduced this amendment. I can only speak on the information we have relating to both Amendments Nos. 14 and 15, which the noble Baroness has rightly said apply in somewhat the same context, and this amendment. I agree completely with the view that the role of the mental welfare officer should not stop once an application for compulsory admission has been made. The social worker will be involved—the noble Baroness has referred in this amendment to the social worker—in plans for the patient's discharge. It is the social worker's role to resolve the problems at home or to look for alternative accommodation for the patient, including group homes or hostels provided by the local authority or other agencies. But I do not think it is possible to involve the mental welfare officer formally in renewal of detention, as this amendment proposes. One of the conditions which the responsible medical officer must be satisfied about before detention can be renewed is that—perhaps I may paraphrase it—it is necessary for the health or safety of the patient or for the protection of other persons that the patient should receive medical treatment in a hospital and that it cannot be provided unless he continues to be detained. It is good practice that the responsible medical officer should take account of advice from a social worker in considering alternatives to detention before he makes his report.

Clause 16 provides that a mental welfare officer must consider whether detention is appropriate before he makes an application. At that stage the mental welfare officer is the applicant and the doctors are only providing supporting recommendations. The social worker has to be satisfied that an application should be made. Once the patient has been admitted, though, he becomes the responsibility, as the name shows, of the responsible medical officer, and it is that psychiatrist who has the key responsibility of deciding whether or not detention should be renewed on grounds which are essentially matters for his clinical judgment. I hope that the noble Baroness will agree to this particular point.

Other professional staff, including also nurses, make a contribution to the responsible medical officer's review of the case, but the decision is his—that is, the psychiatrist's—alone. Doctors cannot require a mental welfare officer to make an application for admission. I believe it is right that a mental officer should not be able to prevent the responsible medical officer from renewing detention. We must also remember that patients will have more opportunities to apply to a mental health review tribunal and this will provide additional safeguards for them. With those remarks, I hope that my noble friend may feel able to withdraw her amendment.

Baroness Faithfull

While thanking my noble friend Lord Sandys for that reply, I should like to make one comment before withdrawing the amendment. So far as medical matters are concerned, I accept that a medical decision must be taken but, as so often happens with patients, there is another side. The home side, the family side, the community side also have to be considered. It was for that reason that I wished to draw attention to the fact that although, where medical decisions are concerned, it is the doctor who takes the decision, the doctor, if he is wise, will want to know about the social and community backgrounds to the case. If he does not know what those backgrounds are, he can do a great disservice to the patient. Having said that, I will read Hansard and, if necessary, come back at Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.55 p.m.

Baroness Faithfull moved Amendment No. 32A:

Page 8, line 43, at end insert— ("() Except in extreme cases of mental handicap, children who are mentally handicapped or severely mentally handicapped shall not be brought up and live their lives in hospitals; and finance is to be made available to voluntary organisations and local authorities to provide for their upbringing in the Community.").

The noble Baroness said: In moving this amendment, I ought to say that I am a little surprised that children have not been mentioned at all in the Bill. Those of us who are concerned with children have been worried for a considerable period of time about children in hospitals. The Department of Health and Social Security have also been worried—so much so that I would draw your Lordships' attention to the King's Fund project paper which deals with bringing mentally impaired children out of hospital.

I speak with very great feeling about this problem. I am the vice-chairman of Dr. Barnardo's. One of the things which Dr. Barnardo's do is to care for mentally impaired children not only in the community but in hostels and homes, and to provide education and training for them. This is something which children cannot always get in hospitals. I do not decry for one moment the care which these children receive in hospitals, but it is beyond the bounds of possibility for these children to be given anything like a normal life in hospital. I am not going to weary your Lordships with statistics and figures. They can be seen here. However, we as a country should move towards getting impaired children who are cared for in hospitals out into the community and leading a much more normal life. I beg to move.

Lord Elton

The noble Baroness has touched on ground in which I have a close interest. I have great sympathy with her views. I was interested that she prefaced her remarks with a reference to the excellent booklet which shows ways of getting children out of institutions and into the community. It was commissioned by the department from Ann Shearer. I applaud also the admirable work being done by Dr. Barnardo's and I congratulate the noble Baroness on the part she plays in it. I would be the last person to deny the importance of the matter which my noble friend has raised, but the amendment has nothing whatever to do with Clause 12, which relates to the duration of authority for detention and guardianship. As very few mentally handicapped children are detained in hospital under the Mental Health Act, my noble friend, I presume, intends the amendment to apply also to mentally handicapped children who are informal patients. The amendment refers to cases of extreme mental handicap. But under the operation of the Bill this will not be an acceptable way of defining this condition, apart from the definition of severe mental impairment.

It is a question for the family of the child and the health authority, in the light of relevant professional advice, to decide whether the medical needs of a mentally handicapped child, who may be severely physically handicapped as well or who may be suffering from severe behavioural disturbance, make it appropriate for him to have long-term treatment in a mental handicap hospital.

My department has quite recently asked health and local authorities to look at the needs of the approximately 2,000 children now in mental handicap hospitals, to decide whether there should be any alternative forms of care, what form that alternative care should take and how it might be provided. It has been made clear that those children who require health care should receive this in small, homely units outside the large mental handicap hospitals.

I do not want to spend too long on this amendment because I feel it falls outside the Bill, but my view is that local authorities are reluctant to earmark funds for particular services but that Care in the Community, the document which was issued in July 1981, did discuss ways and means of transferring resources with patients from hospitals into the community. Then again, the £1 for £1 scheme made available £1 million over four years to match funds raised by voluntary bodies, to help get children out of large mental handicap hospitals and this has raised a great deal of interest. There are a number of promising schemes coming into the department and I hope that the noble Baroness, having given me the occasion to drum up some more interest in that, would have done us a service. I must say that the amendment is inappropriately placed where it appears on the Marshalled List.

Baroness Masham of Ilton

Before the noble Lord the Minister sits down, may I ask him how many children there are in long-stay hospitals? I know of one hospital in Yorkshire, which is called Claypenny, which is a very large hospital for mentally handicapped patients. There are many children there and it is very sad to see them. The staff do the very best they can for them. There is also a school, which is excellent. But still I agree with the noble Baroness, Lady Faithfull, and with the noble Lord the Minister, that it is no place for children.

Lord Elton

We are all agreed that we want wherever possible mentally handicapped children to be taken out of large institutions—out of all institutions if possible, but out of large institutions in particular. I believe the scale of the problem is about 2,000 children. It sounds therefore as if the noble Baroness has personally seen a great proportion of the problem. I welcome her support in this, and perhaps we can pursue it further outside your Lordships' House.

Baroness Faithfull

I apologise to my noble friend Lord Elton for popping this in, but I had to put it in somewhere because I simply had to get it off my chest. I am sorry to be so personal but it was very difficult to know where to put it. I do realise, of course, that the children are not detained patients; but although they are not legally detained patients they are morally detained patients because in a way there is no other alternative. Perhaps the noble Lord the Minister will forgive me for putting this in on moral grounds and not on legal grounds. It is quite obvious that my noble friend the Minister has sympathy for this matter and I am sure his department will pursue and will give thought to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elton moved Amendments Nos. 33 and 34:

Page 8, line 27, leave out ("handicap") and insert ("impairment").

Page 8, line 28, leave out ("handicap") and insert ("impairment").

The noble Lord said: Amendments Nos. 33 and 34 follow Amendment No. 3, and I beg to move them together.

On Question, amendments agreed to.

[Amendment No. 35 not moved.]

Lord Elton moved Amendments Nos. 36, 37 and 38:

Page 8, line 38, leave out ("handicap") and insert ("impairment").

Page 9, line 5, leave out ("handicap") and insert ("impairment").

line 6, leave out ("handicap") and insert ("impairment").

The noble Lord said: Amendments Nos. 36, 37 and 38 are all consequential on Amendment No. 3 and I beg to move them together.

On Question, amendments agreed to.

Lord Elton moved Amendment No. 39: Page 9, line 25, after ("officer") insert ("or the patient's nominated medical attendant").

The noble Lord said: There is a slight difference in this amendment, but nonetheless it is also consequential and I beg to move.

On Question, amendment agreed to.

Clause 12, as amended, agreed to.

Clauses 13 to 17 agreed to.

Lord Elton

May I crave the leave of the House because I did say that Amendment No. 39 was consequential. It is in fact technical. If noble Lords wish me to return to this point at Report, then of course I will, but I trust that your Lordships will bear with me.

Clause 18 [Power to make hospital order]:

7.5 p.m.

Lord Elton moved Amendments Nos. 40, 41 and 42:

Page 11, line 31, leave out first ("handicap") and insert ("impairment").

Page 11, line 31, leave out second ("handicap") and insert ("impairment").

Page 11, line 41, leave out ("handicap") and insert ("impairment").

The noble Lord said: Here together, with Amendments Nos. 41 and 42, we do have consequential amendments and I beg to move them en bloc.

On Question, amendments agreed to.

Lord Avebury moved Amendment No. 43:

Page 12, line 5, leave out subsection (5) and insert— ("(5) For subsection (3) there shall be substituted— (3) Where a court is of the opinion that the most suitable method of disposing of a case is by means of an order under this section, the court shall have the power to direct that an offender be admitted to a suitable hospital, and the effect of such an order shall be to impose a duty on the Minister to make the appropriate arrangements to comply with the order.".").

The noble Lord said: The existing subsection (5) of Clause 18 modifies the conditions for a hospital order to be made by the courts so that in Section 60 of the principal Act the court, in satisfying itself that arrangements have been made for the admission of the defendant, which has to be done within 28 days, shall have evidence of the medical practitioner who would be in charge of the case if the patient was admitted, or of some other person representing the management of the hospital. What we are doing is perpetuating the veto of the hospital on an order made by a court of law. The judges have expressed themselves on this matter, and I believe that the public at large would agree that it is highly unsatisfactory to have a power which is in the statute yet which cannot be carried into effect because we have so far failed to provide the resources to the Department of Health which would enable the courts to carry out their responsibilities. So we are removing this veto of the hospitals in the amendment we now propose and placing responsibility firmly on the Secretary of State to provide appropriate accommodation.

I would draw your Lordships' attention particularly to the word "suitable" because it may be argued, if this amendment were agreed to, that what would happen would be that the courts would invariably have to send the patient to a special psychiatric hospital. This might be deplorable, because many of them might be patients who could benefit from treatment in some other kind of institution. That is why the word "suitable" appears in this amendment. I believe it is essential that Parliament should make its voice clear at this opportunity and that we insist that resources are made available for the Department of Health and Social Security to provide the accommodation which is necessary for the courts to carry out their powers. I beg to move.

Baroness Macleod of Borve

I should like to support this amendment because over many years, although not over very many cases, we in the magistrates' courts have had occasion to refer somebody who has been before us to a psychiatric hospital. The result of that has been that we have been told there are no places and that the beds are full—in fact, that they will not be admitted. The result has been that the offender has had to go to prison for a psychiatric assessment—which the prisons are able to do, but in my submission it is not done as well as it would be done at a psychiatric hospital. Therefore, this amendment, from the way it is worded, will, I am sure, help the courts a very great deal. The Minister is to make the appropriate arrangements and this will underline and perhaps bring out into the open the difficulties courts have had for many years. I for one am certainly very much in favour of this amendment.

Baroness Robson of Kiddington

I too support this amendment from the point of view of the health authorities. I am aware of many occasions in the evenings when my regional medical officer has had to spend a whole evening in the office ringing round from one hospital to another, trying to find a hospital that would agree to take a convicted patient or a patient from a court. The power not only of the medical profession but also of the nursing staff to refuse to take difficult patients is very great today. I do not blame them because we have changed the psychiatric hospitals to the open-door principle and it is difficult to create new conditions and suddenly to take maybe just one patient or a small number of patients and give them the security that is necessary. In many cases but not all it is very often a question of being able to provide the right form of security. Not always, but quite often, it is a question of being able to provide the right form of security. Until we have regional secure units for assessment of these patients so that we can properly assess which unit they should go to, we shall never be able to solve this problem, and it is quite wrong that as a result some of these patients remain in prison.

7.10 p.m.

Lord Belstead

I am acutely aware of the reason why concern has been expressed by the noble Lord, Lord Avebury, and others of your Lordships on this particular amendment, because although the numbers of those in prison who should be in hospital are assessed by prison medical officers as being small in number, any number is too many. But, with respect to the Committee, I am not sure that this is the way to go about it. May I first of all ask your Lordships to look at the way in which the amendment is framed.

The Fourth Report of the Select Committee on Home Affairs recommended that a court should be able to override objection from a hospital and direct that the hospital should admit any offender who in the view of the two doctors who had given evidence to it meets the criteria for admission. I thought when I first saw this amendment that this was very much along the same lines. But the present amendment proposes a slightly different approach, but a significant one, from that of the Select Committee.

As I understand it, instead of making an order specifying a particular hospital to admit the person concerned, under this amendment the court would simply make a hospital order and it would then be the responsibility of the Minister concerned to put that order into effect by finding a suitable place for the offender. The terms of the proposed amendment do not, however, make it clear what powers the Government would then have, that is to say the Minister would have, to enable him to discharge this duty. What I am really saying is that the trouble with the amendment is that it does not end up by placing any duty on the hospital specified, and therefore I think as it stands this amendment would be unworkable and is therefore defective.

But I know that Committees of your Lordships' House do not like arguments to amendments to say that they are defective when they can be put right at a subsequent stage. But there are other things which would make the Government unhappy about this amendment. Although certainly from the Home Office point of view we are as keen as noble Lords moving the amendment to see the proper use of hospital orders taking pressure off the prison system, I think there are these formidable difficulties. First of all the amendment is open to the same objections of principle in relation to clinical freedom as was the previous proposal by the Select Committee on Home Affairs.

I would be unhappy, speaking on behalf of the Government, about proposing by legislation to compel the staff at a local National Health Service hospital to admit a particular patient if in their professional opinion—that is, the opinion of the doctors as well as the staff—the person concerned was not suitable for or could not benefit from the treatment offered by the hospital, or possibly that the presence of the offender would significantly impair the provision to others of the treatment given there.

Moreover, I think I must reveal to your Lordships that my department's experience of the operation of the Criminal Procedure (Insanity) Act, under which there are only about 20 to 30 cases per year, has not been a very happy one. These are cases which frequently require the expenditure of very considerable amounts of time and effort where the procedure is very much as under this amendment being put forward, except that at the end of the day there is a duty on the hospital to receive the patient. Nonetheless, I have to reveal that there has been very great difficulty under that piece of legislation in order to get those few cases into a hospital where the Minister has the duty to find a place.

May I come back to the general context of this. In reply to the Select Committee of the House of Commons last month, the Government indicated that—I quote from the reply— it does not believe that the best way of ensuring that more of these offenders find their way to hospital rather than to prison service establishments is to put a legal obligation on a hospital to admit such an offender on the order of a court". That reply also quoted the view of Lord Butler's committee that it was, not unreasonable that consultants should establish criteria for selecting patients for treatment and that, psychiatric hospitals would find it impossible to do their work if they were forced to accommodate all such cases as the court thought right to send them, regardless of their ability to provide suitable treatment". With very great respect to the noble Lord, Lord Avebury, the Government feel so strongly about this amendment that it is much more than a question of providing resources. There is the question of clinical freedom which comes into it, and this is what Lord Butler and his committee put their fingers on. Your Lordships may think, as I do, that these views coming from the Butler Committee, an independent committee which had conducted a wide-ranging review of arrangements for dealing with mentally disordered offenders, and which was chaired by a very highly respected Member of your Lordships' House, tell powerfully against the thrust of this amendment.

Indeed, in relation to offenders in respect of whom a court might be minded to make a hospital order the Butler Committee went even further. They argued that there should be a statutory requirement on a court to obtain the consent of a doctor in the receiving hospital for making a hospital order with restrictions. Such a requirement would have the totally opposite effect to that intended by this amendment. But may I quickly say the Government do not think it necessary to go as far as the Butler Committee recommended, although we have made provision in this Bill for requiring a court to receive a report, either orally or in writing, from a doctor in a receiving hospital before making a hospital order. But the views of the doctor who would be clinically responsible for the patient if a hospital order was made, we feel are very important and should not be lightly set aside.

I do feel that I must reply before sitting down to the point made by the noble Lord, Lord Avebury, which I absolutely accept comes into the amendment, about resources. I do not think I can sit down and leave that aside. Before coming to the House this afternoon the latest information I could find was that the establishment of regional secure units is continuing to be looked upon by my right honourable friend's department and the Department of Health and Social Security as a priority. A 30-bed unit has now been opened in the North East at Middlesbrough. Building is in progress on four other sites to provide 136 places. On the basis of present plans about 170 permanent places should be available by the end of this year, and by 1985 over 500 are expected to be available. As an interim measure all health authorities have been asked to designate particular hospitals to provide treatment in conditions of security until such time as permanent regional secure units are provided, and some 380 places are now available and a further 200 places are planned.

I should not like your Lordships to think that in resisting this amendment, which I fear I must do, we are sitting back and doing nothing. We are trying to do something to improve the provision which is to be available so that the sentence of the court can be put into effect. To go as far as this amendment would wish, which would be in many ways to dragoon those who in their clinical judgment feel in some cases that they cannot accept a patient, would not be a wise way to proceed.

Baroness Macleod of Borve

Before my noble friend the Minister sits down I should like to raise a point of clarification. We are—at least I am, but perhaps it is only me—talking about assessment which is one of the pivots of the Bill. If two doctors say that an offender should be assessed as to whether he can benefit from treatment in a hospital are we then still to say that, unless they agree in court to take that offender under their wing for the 28 days' assessment and perhaps short-term treatment, that offender would still have to go to prison to get the assessment? It is the 28 days' assessment that is the problem. It is in that connection that we have not been able to get places in hospital.

Baroness Masham of Ilton

Before the noble Lord, Lord Belstead, answers that point I should like to say that I am a member of a regional health authority in Yorkshire and we have one planned. Also, as the noble Lord has said, there is one in Middlesbrough. I asked a question on Second Reading to which I did not receive a reply. I shall repeat it now in the hope that I shall get a reply. If a patient needs assessment, as the noble Baroness, Lady Macleod, has just said, can he or she be sent from the south to the north, as we in the north seem to be better equipped—and will be shortly even better equipped—with these secure units?

Lord Belstead

I should have thought that the answer to my noble friend Lady Macleod is surely included in Clause 27, which, of course, we have not yet come to. One of the reasons, which I did not mention in the interests of time, why I feel that there is an alternative way of approaching the problem which the noble Lord, Lord Avebury, and other noble Lords wish to approach through this amendment, is that in the Bill we are providing for the courts new powers to remand accused prisoners to hospital for observation and for reports and for the making of interim hospital orders on persons for whom the courts are not certain a hospital order proper would be the appropriate disposal. When these new arrangements are in operation it should be much easier in cases where there is doubt about a person's suitability for treatment in hospital for the matter to be examined by the courts and by the health authorities without any irrevocable commitment on either side.

We believe that the operation of these arrangements should in itself further strengthen the links between the courts and the hospitals and, frankly, make it easier to get those offenders into hospital who ought to be in hospital. As to whether it will mean the transfer of people from one region to another, I am afraid that I must tell the noble Baroness, Lady Masham, that I cannot answer that question. I shall try to get the information as quickly as possible and let the noble Baroness know the answer.

Lord Avebury

I am grateful to the noble Lord, Lord Belstead, for the comprehensive way in which he replied to the amendment and also for the remarks he has just made drawing attention to the effect that the interim hospital orders will have on the relationships between the courts and the hospitals which I think is a matter of some importance and may well result in more frequent compliance with the wishes of the courts when we come to Section 60 orders.

However, I wonder whether the noble Lord does not exaggerate the difficulties of an amendment such as we have proposed arising from the issue of clinical freedom to which he has quite rightly drawn attention. I had the privilege the other day of visiting the interim secure unit at Bethlem Hospital and discussing the problem there with the consultant Dr. MacKeith and members of his staff and being introduced to a number of the patients there. I must say that I was very impressed indeed with the régime and with the care that the patients were receiving and the general atmosphere which was immensely superior to that of a prison and, I should have thought, of very much greater therapeutic value.

No one in the ISU in Bethlem Hospital told me that there was difficulty in accepting patients there from the courts and I believe that the problem is one of resources. Indeed, when we come to the provisions that the noble Lord, Lord Belstead, was mentioning, the permanent buildings which will be able to accommodate 500 patients by 1985 will not be cheap either in terms of capital expenditure or the staff that have to run them. I am very glad that the noble Lord has taken the opportunity of reaffirming that the Government are absolutely committed to achieving, he said I think, 170 places by the end of 1982 and 500 by 1985.

I hope that in assuming this commitment it is well understood by the Government and by the Treasury that we are taking on a fairly substantial piece of expenditure within the NHS and that it would be absolutely fatal to back down at the last minute and say that we are not going to proceed with the programme that the noble Lord has outlined. I believe that, however expensive it may be, this is a very sensible expenditure of taxpayers' money and one which will certainly relieve the burden on the prisons—which are now, as we saw from the NACRO figures published the other day, costing £7,000 per annum per inmate; and that, I think, was the 1980–81 figure and it must have increased since then—and indeed the burdens on society which arise from the offences caused by the mentally abnormal offender who may be treated in one of these units. So I think that every encouragement should be given to the work of consultants such as Dr. MacKeith and his staff.

There is another point that I should like to make while the noble Lord, Lord Elton, is here from the DHSS to listen, and that is that I think that we need to look very carefully at the provision of the larger regional secure units as compared with the idea which Dr. MacKeith has advanced of having a number of smaller units dispersed throughout the region—at Oakwood, for example, Cane Hill and so on—so that the management of the patients can be on an intensely personal and individual basis. I think that this approach may well be more successful than the larger psychiatric hospitals, and particularly if we compare it with the special psychiatric hospitals such as Broadmoor where the ratio of staff to patients is nothing like as good. I think that we shall not find that the post-release experience in an establishment of that kind is anything like as favourable as it is with these smaller units.

As I have said, I did not find in discussing this matter with Dr. MacKeith—and I must say that I did not go into the question of this particular amendment with him—that there would have been much of a problem in accepting patients who were sent there by the courts. Certainly on remands—the question raised by the noble Baroness, Lady Macleod—it is, as I see it, one of the functions of the ISUs to try to take the patients out of the prison system when it is a question of assessments.

But I think that several important and complex issues have been raised in the course of this debate and none of us would like to reach a final conclusion before we had had a chance to study the Minister's reply in detail and to take advice from the people in the health service that we are consulting and from organisations like MIND. So, with many thanks to the Minister for his thorough reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18, as amended, agreed to.

7.28 p.m.

Lord Belstead moved Amendment No. 44: After Clause 18, insert the following new clause:

(" Applications in respect of patient subject to hospital order.

.—(1) After subsection (3) of section 63 of the principal Act (effect of hospital orders and guardianship orders) there shall be inserted—

"(3A) Without prejudice to any provision of Part IV of this Act as applied by this section, an application to a Mental Health Review Tribunal in respect of a patient admitted to a hospital in pursuance of a hospital order may be made by the nearest relative of the patient—

1. (a) in the period between the expiration of six months and the expiration of twelve months beginning with the date of the order; and
594
2. (b) in any subsequent period of twelve months."

(2) In subsection (4) of that section the words "admitted to a hospital in pursuance of a hospital order, or " shall be omitted.").

The noble Lord said: I beg to move Amendment No. 44. Although this amendment stands by itself and appears to be quite distinct from Amendment No. 51 to Clause 26 and the proposed new schedule, Amendment No. 114, for which Amendment No. 51 is a paving amendment, this amendment is in fact very closely linked with Amendments Nos. 51 and 114. This amendment is, indeed, a part of the package of amendments which have been prepared to take account of the judgment of the European Court of Human Rights in the case of X v the United Kingdom.

The net effect of that package, which is, as I say, mainly contained in Amendments Nos. 51 and 114, is very substantially to increase the rights of patients detained in hospital subject to restriction orders in line with the spirit and purpose of this Bill, which is to increase the safeguards available to all detained patients. I am emphasising this point about increasing the rights of patients as being the purpose of this Bill, because paradoxically, the precise effect of this amendment is, I regret, to remove an existing right belonging to those patients who are sent to hospital by the courts without restriction orders.

The amendment will prevent a patient detained under Section 60 of the 1959 Act from having his or her case reviewed by a mental health review tribunal until the person concerned has been detained for a period of six months. At present, such a patient may have the case considered once in the first six months after initial detention and then again when he has been detained for 12 months. Clause 12 of this Bill will give such a patient a new right to go to a tribunal in the second six months of detention in hospital; and the net effect of Clause 12 and of this amendment could, therefore, fairly be described as postponing from the first six months' detention to the second the initial tribunal entitlement of a patient who is detained under a hospital order without restriction.

Your Lordships will say: Why are the Government doing this? The need for this change is entirely bound up with our response to the judgment of the European Court in the case of X v. the United Kingdom. X was, of course, a restricted patient. In broad terms, what the European Court decided in that judgment was that all offender patients who are lawfully detained on the grounds of their mental disorder must have equal safeguards available to them. We were found to be in breach of the convention because a restricted patient, unlike an unrestricted patient, could not have his case considered by a tribunal with a power to discharge him. The convention contains provisions prohibiting discriminatory treatment and it seemed to the Government that, in order to be certain that we were complying with the provisions of the convention, we should provide exactly the same rights of access to a mental health review tribunal for restricted patients as we are providing for unrestricted offender patients.

Therefore, it is our desire to keep those two entitlements in line which lies behind this proposed amendment. When the Crown court is considering whether or not to make a restriction order on someone who appears to meet the criteria for detention in hospital for treatment, it may be doing so after the person concerned was convicted of every serious criminal offences, up to and including manslaughter. We doubt whether it would be acceptable either to the general public or to judicial opinion that an offender sent to hospital following conviction for a very serious crime should have an immediate right to have the grounds for his continued detention in hospital for treatment considered by a tribunal with a power to discharge him if it was satisfied that the criteria for detention in hospital for treatment were not met.

The Crown court would have been considering this very point and would have had to take evidence from two doctors before making the hospital order. It was perhaps always something of an oddity that even a nonrestricted 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—especially perhaps when it is recalled that the patient had no such right in the second six months of detention in hospital when perhaps such a review would have been more appropriate.

Therefore, if this amendment is agreed to, restricted and non-restricted patients will have the right to go to a tribunal, not in the first six months of detention, but in the second six months, and thereafter all offender patients will be able to go to a tribunal once in every 12-month period. If we are to treat all patients, whether subject to restrictions or not, exactly alike—as we believe the European Convention requires us to do—this seems the fairest way to amend the law. I therefore commend this amendment to your Lordships. I beg to move.

Lord Renton

I am sure that your Lordships' Committee is grateful to my noble friend Lord Belstead for the clear explanation that he has given of what is really quite a complicated matter. I say without hesitation that the Government are to be congratulated upon promptly attempting to carry out the wishes, as embodied in their decision, of the European Court of Human Rights.

However, my noble friend was very candid in pointing out that in one respect he is removing a right which exists under the 1959 Act, and I think that that is regrettable. I do not think that it is necessary in order to comply with the decision of the court. Indeed, on the contrary, I think that it is 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 type of patient a new right, we must remove an existing right from another type of patient. Therefore, although I greatly welcome all the package except on this one point, I would seriously suggest to my noble friend that between now and the Report stage he should consider striking out subsection (2) of the new clause embodied in Amendment No. 44.

That would leave him with a degree of inconsistency, but so long as it complies with the decision of the Court of Human Rights—and I think that it would be said to do so—it would appear to be in order. But to leave this package of amendments with that anomaly is, I find, disappointing and strange. Therefore, I hope that the Government will consider the removal of subsection (2) of the new clause, whether or not they put anything in its place.

Baroness Robson of Kiddington

I should very much like to support the noble Lord, Lord Renton. He has said it much better than I can. We are looking at a Bill where we are trying to ensure that the rights of patients, of whatever kind, are improved, and we are using it to make the conditions less favourable for one section of the people within our hospitals. It seems to me that it should not be beyond human wit to get it right. Although it says in this very clear explanatory annex that I was kindly sent by the noble Lord, Lord Belstead, that: one inference to be drawn from the judgment of the European Court is that the safeguards for all persons should be the same", even if it means that it is a farce to have a case reviewed again within the first six months, for the benefit of those people who have been entitled to that benefit before, we should go through that kind of procedure. I believe that it is quite wrong to diminish the rights of non-restricted patients by this amendment.

Lord Belstead

The first thing that I should like to say to the noble Baroness, Lady Robson, is that I may have misled her in the papers which I sent her; or that the noble Baroness may have had a slight slip of the tongue. Let me put it on the record that the Home Office does not think that it is the judgment which requires the consistency which is incorporated in this amendment and which my noble friend Lord Renton and the noble Baroness are criticising. We believe that the consistency which we need to write into our legislation is required by the terms of the convention itself. I just simply say that to give absolute clarification of what we believe from the Home Office is the position in which we find ourselves in this country at the moment. We do not think that it is the judgment of the court which required this consistency; we believe that the convention itself, to which we have to direct ourselves because of the judgment of the court, is requiring the consistency.

What I should like to ask the Committee to agree to would be this. I would be grateful if it would be possible for the amendment to be agreed to and written into the Bill, so that the debate can be read in Hansard and the new clause can be seen on the face of the Bill. But I will give an undertaking that I will be very ready to meet the noble Baroness and my noble friend Lord Renton to discuss this, because I think we shall want to look at the terms of the convention and the judgment again as a result of this brief exchange this evening. It would be most convenient if we met to have a talk about it to see if there is any way in which the Government can move towards the position which the noble Baroness and my noble friend have taken. So that I do not mislead the Committee, we feel, if I may repeat it once more, that we are in a position as a contracting State to the convention, that as a result of the judgment we must, because of the convention, achieve consistency so far as matters relating to the case of X v. United Kingdom are concerned.

Lord Renton

I am sure that the Committee would be right to accept the request of my noble friend Lord Belstead. It is clear that we should accept this group of amendments at the moment. I am grateful to him for saying that he will reconsider this deprivation of an existing right. In doing so, I hope that he will bear in mind that the consistency which the convention, as he rightly has reminded us, requires would easily be met by preserving the existing right and making the new rights consistent with that. I see no difficulty about that at all. Indeed, I do not think it requires even an act of stupendous generosity on the part of the Government to achieve that result.

Lord Belstead

I do not want to prolong this but I think—and I am afraid I cannot find the relevant note in my papers—that our concern with my noble friend Lord Renton's suggestion is not that the Government are worried about this. We want to go as far as possible towards seeing what is right and what your Lordships' House believes is right. I must discuss this with my noble friend, but I think that the Government would have to take cognisance of what the courts would feel about having their decisions subject so immediately to a tribunal review. However, with that caveat, just so that I have it on the record, if we could proceed in the way I have suggested I would indeed be grateful.

Baroness Robson of Kiddington

I would he most happy.

On Question, amendment agreed to.

Clause 19 agreed to.

Clause 20 [Removal to hospital of persons serving sentences of imprisonment etc.]:

Lord Belstead moved Amendment No. 45: Page 12, line 36, leave out ("handicap") and insert ("impairment").

The noble Lord said: This is consequential on Amendment No. 3. I beg to move.

On Question, amendment agreed to.

7.44 p.m.

Lord Avebury moved Amendment No. 46: Leave out Clause 20, and insert the following new clause:

("Removal to hospital of persons serving sentences of imprisonment etc.

20.—(1) For section 72(1) of the principal Act there shall be substituted—

"(1) In the case of a person serving a sentence of imprisonment the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do so, by warrant direct that that person be removed to and detained in such hopsital (not being a mental nursing home) as may be specified in the direction.

(2) No direction shall be made under this section unless a Mental Health Review Tribunal is satisfied that—

1. (a) the said person is suffering from mental illness or psychopathic disorder, and
2. (b) the mental disorder is of a nature or degree which warrants the detention of the patient in a hospital for medical treatment, and
3. (c) such treatment is likely to alleviate or prevent a deterioration in his condition."

(2) Subsection (4) of section 72 of the principal Act shall be repealed.").

The noble Lord said: Part V of the principal Act contains all the powers for sending offenders compul- sorily to hospital. We have dealt with Section 60, which allows the courts to make an order that a person convicted of an offence punishable by imprisonment should be detained in a hospital, and Section 72 then contains similar powers exercisable by the Secretary of State in respect of a person who is already serving a sentence of imprisonment to send him to a hospital. If it is felt necessary to do so for the protection of the public, the court may, in addition, impose a restriction order under Section 65 for a person who is the subject of a hospital order under Section 60, and the Secretary of State in the analogous case may impose a restriction order under Section 74 in the case of a person transferred from prison to a psychiatric hospital.

Clause 20 of this Bill alters the criteria for the use of Section 72 so that in the case of a psychopathic disorder they can only be applied to patients whose condition is likely to be alleviated, or may be prevented from deteriorating, by treatment. The Secretary of State has to be satisfied that the patient is suffering from mental illness or psychopathic disorder before making a Section 72 order, and in making his decision he has the advice of two medical practitioners.

There have been several cases that have come to my notice in the past few months where a prisoner has nearly reached the end of his sentence and then he is transferred to a special hospital under Section 72, and normally this is accompanied by a restriction order under Section 74. The effect has been in the past that he could not ask for his case to be referred to a mental health review tribunal until a year after the date of the transfer—long after he might have been released from prison at the proper release date. Although, as I understand what the Minister has just said, the person transferred under a Section 72 order will now be entitled to make an application to the mental health review tribunal within the first six months. But it may still happen that a person continues to be detained in a psychiatric hospital long after he could have expected to be released in the normal course of events if he had remained in the prison.

Also, if he does not succeed in the application that he makes subsequently to the mental health review tribunal, he may remain in custody for a very much longer time than he would have done normally. This is why it requires to be reviewed in the manner suggested in this amendment. Take, for example, the case of a person who has received a nine-year sentence—say for grievous bodily harm, or something like that—and who has qualified for full remission and would be released, if he does not obtain parole, at the end of six years. If, immediately prior to the expiry of that six years, he is made subject to a Section 72 order and transferred to a psychiatric hospital, he would remain there for another three years until the total sentence has been exhausted before he may be released, unless in the meanwhile the mental health review tribunal has taken the view that he should be released.

This is not an academic matter. I drew the attention of the noble Lord the Minister to a particular case recently. There are two which have come to my notice. One received a good deal of publicity. This was the case of a young man in Birmingham who had been sentenced to a term of imprisonment at Gartree Prison and was transferred to Rampton under Section 72, and remained there for some time after the period in which his sentence would have normally come to an end. That was a case that caused a tremendous amount of anxiety in Birmingham, because the young man was a Rastafarian and it was considered by those who knew him well that he was not suffering from any mental disorder but that he was wrongly diagnosed by the psychiatrists within the prison service.

I do not need to underline the fact that this is an extremely sensitive and controversial matter; that it is said by the West Indian community that psychiatrists in the prisons, and indeed in the hospital service as a whole, are not properly trained in recognising the different cultures of ethnic minorities, and that as a result people may be wrongly diagnosed as suffering from mental illness when they talk, for instance, as the Rastafarians frequently do about God; a word which is not often heard on the lips of people in the late twentieth century.

Therefore, a person who is very religious—and it has now been declared by the Catholics that Rastafarianism should be treated as a religion—may nonetheless be diagnosed as suffering from mental illness. In this particular case the consequence for the young man was that he was transferred to Rampton and continued to be detained there for some time after his sentence would have expired.

The other case that came to my notice recently was of a young man who again was transferred under Section 72 very shortly before the end of his sentence. He was transferred with restrictions to Broadmoor. This case has been taken up by MIND and has been the subject of a letter which I wrote to the noble Lord, Lord Elton, which I hope he received before this debate. The young man's earliest release date was 10th February. I understand he is still in Broadmoor, even though during the last year of the time he was in prison his behaviour, I am told, was exemplary. I was not able to check on this in detail before the debate, but it seems very dangerous that no review should be conducted by some independent and impartial body when arbitrary powers exist to prolong the period of a person's detention beyond that which was imposed by the court.

That is why in the amendment it is suggested that before an order is made under Section 72, with or without restrictions, for the transfer of a person from a prison to a psychiatric hospital, there should be an opportunity to review the matter before a mental health review tribunal. I have no doubt that when he replies the Minister will say that under the amendment just accepted—which may be improved still further on Report—this person would have the right of application to a mental health review tribunal within the first six months of his transfer. But how can we be certain that the hearing of the tribunal will take place before he would have been released? That is the important question to which the Minister must address himself.

It would also compel the prison authorities to address their minds to the question of a person's mental health long before he reaches the earliest release date, something which they do not appear to do at the moment. If they were able to satisfy themselves that the patient would benefit from transfer to a special hospital during the period of his imprisonment, there would be plenty of time for the matter to be endorsed by a mental health review tribunal before the expiry of his sentence. I hope that, with that argument, the Minister will feel that this would be a valuable and worthwhile addition to the rights of patients, and particularly those who are in the vulnerable position of being held in our prison system. I beg to move.

Lord Belstead

I congratulate the noble Lord, Lord Avebury, on the ingenuity with which he succeeded in importing his views on Rastafarians into a proposal otherwise to amend Section 72 of the Mental Health Act 1959. Having said that, I could not agree with him that the involvement of a mental health review tribunal in the process of transfer from prison to hospital is appropriate or necessary. I do not think it is appropriate because, after all, tribunals exist to protect the rights of patients in hospital, rather than persons serving prison sentences, and because the involvement of tribunals in what would be for them wholly new work would almost certainly lengthen the process of transferring a prisoner to hospital. I do not think it is necessary because there are already adequate safeguards to prevent patients being transferred from prison to hospital if they do not meet the strict criteria for detention in hospital for medical treatment.

Let us not forget that we are talking about things being done on the report of two medical officers, of two doctors. Although I do not in any way accept the strictures which the noble Lord made in introducing the amendment on members of the prison medical service—indeed, I reject absolutely what the noble Lord said in that respect—nonetheless, if one was not sure about a medical report which comes from a doctor (and everybody can err from time to time) let us not forget that Section 72 requires two medical reports, and of course the safeguards are being strengthened by amendments to the 1959 Act which are being made in this Bill. Provided the criteria for treatability are met, surely there is no reason why a person suffering from mental impairment or severe mental impairment should not be transferred from prison to hospital. The noble Lord's amendment would prevent that because it refers only to mental illness and psychopathic disorder.

There is a further point, a serious one, which I would put to the noble Lord and which, with his experience of helping people in custody, he will appreciate. The involvement of doctors other than a tribunal doctor would inevitably be necessary in any proposed transfer from prison to hospital, and the involvement of a tribunal would be a further complication to the transfer process. In a case, by no means unlikely, in which a prisoner suffers a severe mental breakdown or becomes extremely psychotic, a delay in transfer arrangements would lengthen the time taken because the process would have to wait for a decision of the mental health review tribunal, and that could have a very serious effect on the health of the patient. For those reasons, the Government could not support the amendment, and I hope the noble Lord will agree that some of the arguments I have adduced are valid.

Lord Winstanley

Before my noble friend Lord Avebury responds, may I ask the Minister to clarify a point which arose earlier in his answer? He said that in his view, and no doubt he is correct, the purpose of the mental health review tribunals is to protect the rights of hospital patients. I think those were his words.

Lord Belstead

Yes.

Lord Winstanley

Going on from there, may I ask whether the noble Lord would accept that a person who has been a prisoner in a prison and who is transferred to hospital shortly before the expiry of his sentence—so that after the time of the expiry of his prison sentence he is in hospital—is then a patient detained in a hospital within the very terms which the Minister used?

Lord Belstead

I think—and I am afraid I am thinking on my feet—the answer to the noble Lord is, Yes, that he is on to a good point, but the amendment has a very much wider application than the application which he has just put to me.

Lord Avebury

I could detain the Committee for a long time in replying to all the points the Minister made, but I know it is the intention to come to a conclusion fairly soon, so I will content myself with a few remarks about some of the most contentious points he made. First, the noble Lord talked about a patient who becomes ill shortly before he is due to complete his sentence. If that is the case, then presumably he would be transferred to the prison hospital, and then, as my noble friend Lord Winstanley pointed out, he becomes a person who is eligible for the protection of the mental health review tribunals, because he is then within, for example, the hospital wing at Parkhurst before he is transferred to a special psychiatric hospital.

The Minister then produced the example of someone who has a severe psychotic episode immediately before he is discharged. I do not know how many cases occur of long-term prisoners becoming severely ill just before the end of their sentences, but the Minister should take a close look at the cases I have raised and should satisfy himself that there is not an increase, as appears to me from the few cases that have come to my notice, of the use of Section 72 at the end of rather long periods of imprisonment, and the question why psychiatrists in hospitals have not been able to identify the mental illness from which the person is alleged to be suffering earlier on in the sentence.

I was not actually making general criticisms of the prison medical service, as the noble Lord seemed to imply, but I would point out that it is not perfect. If we go back to the case of the Rastafarians, I would remind the noble Lord the Minister of the case of Richard Campbell, the young man who died in Ashford Remand Centre of dehydration. He was diagnosed by the prison medical service as suffering from schizophrenia. When the prison medical service attempted to transfer him to St. Bernard's Hospital, Southall, it was said that he was suffering only from a physical illness and he was transferred back to Ashford Remand Centre, where a few days later he died of dehydration. I must say that an example of that kind shows that there can be severe misunderstandings arising from the misdiagnosis of Rastafarianism as schizophrenia, and I do not think that noble Lords should brush them aside by saying that the prison medical service is perfect.

It is not a question of black or white, if I may put it that way; it is a matter of the prison medical service trying better to inform themselves of the kinds of customs and backgrounds of the ethnic minority who unfortunately find themselves an increasing proportion of our prison population. But I accept that these are very complex matters, and there is no simple answer to them. However, having studied the Minister's reply, I intend to take further advice on it, and perhaps I shall return to this matter at Report stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20, as amended, agreed to.

Clauses 21 and 22 agreed to.

Lord Denham

I think that this might be an appropriate moment to adjourn. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.