HC Deb 13 May 1930 vol 238 cc1762-70

I beg to move, in page 6, line 13, at the end, to insert the words: The Board of Control shall upon the signed request of any person who considers himself to be unjustly detained under such application, recommendation, or order, furnish to him or to his authorised representative free of cost a copy of such application, recommendation, or order. I am very glad that our Amendment to this Clause is to be taken, because it is the kernel of the Bill. It is rather useful to have the Amendment discussed on the Floor of the House as well as in Oommittee. The Amendment is some sort of a safeguard, at any rate. I would like the House to understand what happens under Clause 5. If a relative of a person on the border-line makes an application and that application is signed by two doctors, one the medical practitioner of the family and the other a doctor appointed by the Board of Control, then the patient becomes a temporary patient for six months or for an extendable period. The important thing to notice under certification at the present time is that anybody who is certified has a chance of going before somebody outside these two categories, the relations and the doctors. They go before the magistrates, there is an appeal to law, and actual certification is done by the law and not by the doctors. Here you are getting a new principle, that, without going before a magistrate or before anybody except the medical practitioner and the relatives, you can have a person segregated for six months, which is extendable. In the same Clause, Subsection (14), there is a provision made for the Board of Control dealing with people who are temporary patients and having them certified.

The important thing is that there would be some protection for these people who go in for this temporary treatment. The Government may say that the control exercised by the magistrate, being outside, is useless, that the magistrates do it automatically, and that it does not provide effective safeguards even for certified patients. Although I think that is better than nothing, yet in this Amendment there is something provided whereby the incarcerated person may have a chance. Under the Amendment the Board of Control is to supply to the person who is locked up and who thinks he ought not to be locked up, a copy of the application that is made by the husband, wife, or officer of the local authority, or other person, and the names of the two doctors on the application, so that they will not be in complete ignorance. I submit that is some safeguard. It is only if the person is intelligent enough to demand it that he can get a certificate at all. I do not see why within the four corners of the Bill it should not be possible to give this small safeguard to them, and I am not without hopes that the Government may be able to accept the Amendment.

My real difficulty is that the right hon. Gentleman and myself read this Bill in rather different ways. I do think, when we are dealing with questions where the liberty of the subject comes in, we might have the presence of a Law Officer on the Front Bench. The presence of the Under-Secretary of State for the Home Office is an indication that a lawyer is wanted, and, in any case, how are we laymen effectively to discuss this question, which involves the liberty of the subject and deals with the law and the rights of the British citizen, in the absence, not only here but in the Committee upstairs, of the Law Officers of the Crown. I am not complaining that the Attorney-General is not here, because I know that he is a busy enough man, but I do think that we might have the Solicitor-General sometimes during the Debates.

The main point about the Amendment is clear. It is some slight security for the person who is not voluntarily detained but compulsory detained for a limited period if he can apply for a copy of the application and certificate under which he has been detained. I hope the Government may grant this very small concession.


Most persons will agree that it is proper that the substance of what the right hon. and gallant Gentleman has said should be secured to the patient but the Government have not overlooked that ground. Clause 15 of the Bill provides that the Board of Control shall make rules for any of the purposes specified in the Third Schedule to the Bill. The Third Schedule of the Bill, paragraph 6, provides among the objects for which the Board of Control shall make rules modifying and adapting in relation to persons received as temporary patients the provisions of Sections so-and-so, including Section 82 of the principal Act. Section 82 of the principal Act states that the secretary to the commisisoners"— which now means the Board of Control— shall upon the discharge of a person furnish to him upon his request free of expense, a copy of the reception order and certificate or certificates upon which he was confined.


On a point of Order, or shall I say a point of interrogation?


The hon. Member may ask the hon. Lady a question, but it is not a point of Order.


The hon. Lady has read out an order which refers to the discharge of patients, but I understand that the right hon. and gallant Gentleman's Amendment is not dealing with discharge, but with admission.


This is a section which is applicable to a person's discharge. [HON. MEMBERS: "Detained!"] May I finish my sentences? Section 82 of the principal Act provides that he shall be furnished free of expense with a copy of the reception order and certificate or certificates.


The hon. Lady has read to us an extract from the principal Act dealing with giving the patient a copy of an order of discharge. Under Clause 5 of this Bill there is no reception order, because it says specifically that a patient may be received into an institution without a reception order.


Such a person is incapable of volition. The Board of Control has to take all the circumstances into consideration relating to the detention of lunatics. I am not quite clear to what section the right hon. and gallant Member for Newcastle-under-Lyme referred.


I did not refer to any section. I said that it is specifically stated in the Bill that anyone temporarily detained under Clause 5 should have power to get from the man in charge this particular application form.

11.0 p.m.


These men have every opportunity afforded them by the rules made by the Board of Control. Take the person of unsound mind who is unable to say yes or no. It is nonsense really to say that he should be able to demand the certificate. If he is a person incapable of volition but recovers himself so far as to be able to make a coherent demand by that action he ceases to be a person incapable of volition under Clause 5. [HON. MEMBERS: "No!"] A person under Clause 5 is a person incapable of volition—


Incapable of deciding whether or not he shall be treated.


He is a person unable to say whether or not he desires treatment; he is a person who to the lay mind is plunged into the depths of madness—[HON. MEMBERS: "No!"] A man who is incapable of saying yes or no to the question "Do you desire treatment" is a person who to the lay mind is plunged into the depths of madness. [HON. MEMBERS: "We must have the Law Officers present."] Under Clause 5 he is one who has sunk into hopeless depression. [HON. MEMBERS "No!"] So that he cannot give a plain answer to a plain question.


No, No!


We shall all be certified.


When the question as to whether he desires treatment or not is put to him he is unable to give a coherent answer and may be certified as a lunatic. I ask the House to consider the mental condition of a person who cannot give an answer to that simple question. He is a person utterly incapable of giving an answer to any question. [HON. MEMBERS: "NO!"] Certainly he is. If a doctor says to him "do you want treatment" and he cannot say "yes" or "no" then he is a man whose judgment is under a cloud and cannot decide for himself. There are people in that position. Very often a woman will sink into such a hopeless state of depression in which she will answer no question at all, in which she sits perfectly helpless and to the layman that person would seem hopelessly insane, but to the trained eye of the doctor there is a chance of recovery. It is mockery to say that a person in that condition could perform the rational act of saying: "On what grounds am I here?" But if and when that person is discharged or becomes well enough, having recovered his mentality sufficiently to be able to manage his own affairs, he can ask for the statement required. [HON. MEMBERS: "What statement?"] The statement which I have already read, namely: The Board of Control on the discharge of a person shall furnish to him, upon his request, free of expense, a copy of the reception order and certificate upon which he was confined, etc. Section 82 of the original Act is to be altered to meet the new situation, and it is to be adapted by the Board of Control. They have to change the nomenclature to suit those persons who are not technically lunatics, and they will do that by making the alterations necessary to adapt Section 82. To say that a person who cannot manage his own affairs—that is the person meant by Clause 5—shall call for a certificate, you are saying something which is not feasible, but if and when that person recovers his mind and can manage his own affairs, he has the same privileges that attach to the certified lunatics, and the Board of Control will be able to make the Section applicable to the new set of persons. Therefore, the Bill gives every reasonable protection.


Does the Parliamentary Secretary realise that under Subsection (12) the patient who has become capable of expressing himself as being willing or unwilling to receive treatment may be detained against his will for another 28 days? During that 28 days the patient ought to be entitled to see the documents on which he has been detained. I do not know whether the Amendment dealing with Sub-section (12) is going to be dealt with, but as the Subsection stands it means, beyond all question, that even when a voluntary patient has become capable of expressing himself he can still be detained a prisoner for 28 days, although ex hypothesi of sane mind and able to say whether he is willing or not to receive treatment.


Does this relate to the Amendment under discussion?


The hon. and learned Member is in order on the Amendment.


The argument of the Parliamentary Secretary does not apply to that period of 28 days and therefore during that time this Amendment could apply, and justly apply. I can see no reason why the amendment should not be accepted. If a patient is incapable of volition he cannot make the demand, but as soon as he becomes capable of volition, and Sub-section (12) presupposes that, there is a whole month during which he can be getting to know how he came to be where he finds himself.


In addition to the point made by the hon. Member opposite, I would call attention to two other points. The Parliamentary Secretary has said that the temporary patient will have whatever privilege attaches to the certified lunatic. I have looked up the Lunacy Act of 1890 and I can find nothing in that Act which bears upon the specific point raised by the Amendment. The nearest approach to it is in Section 82 of the Lunacy Act, 1890, which runs as follows: That the secretary of the commissioners shall, upon the discharge of a person who considers himself to be unjustly confined as a lunatic, furnish to him, upon his request, free of expense, a copy of the reception petition and certificate or certificates, and if the order was made on the petition, also a copy of the petition upon which the reception order was made. It will be observed that that Section operates only after a man has left an asylum. There is nothing in the Act of 1890 which deals with this particular point while he is in the asylum, and it is precisely that point to which the Amendment is directed. That is the first point. The second point is this: The Bill itself, in Clause 22, defines the expression "institution" in which these people are confined, and it defines the expression "institution" as meaning A mental hospital and other premises maintained by a local authority for the purposes of this Act, a registered hospital or licensed house. When one is dealing with a hospital or other premises maintained by a local authority, one may reasonably assume that the circumstances in which the local authority would desire to retain a person who had recovered his sanity would be difficult to conceive. But there are other premises, "a registered hospital" or "licensed house." There are a large number of licensed houses in this country which take patients for profit. I, myself, have had to visit some of these places, and wherever the element of profit enters into the handling of insane persons, there is an economic tendency to retain the people after they are well—an economic temptation against which the Bill as it stands at present provides no protection whatever. [An HON. MEMBER: "They are all under inspection!"] Yes, I know. As to some of the cases that have been in these places where they are under inspection, if it were in order, I could give information which would not lead to that complete trust in the Board of Control on which the Bill is based, but if there is one element which underlies the case of the Parliamentary Secretary of Health, it is the assumption that the Board of Control can do no wrong, and, secondly, that the hospital authorities can do no wrong. Without any disrespect to many who are doing their best on a difficult job, I cannot accept the assumption that the Board of Control can do no wrong, nor that the medical authorities do not make mistakes. If a person is sufficiently sane—


Look at Sub-section (9) of Clause 5, and the hon. Member will see that there are visiting committees which are additional safeguards.


I know, but we want something more than a visiting committee; we want a residential committee. If the individual is fit enough to consider himself as unjustly detained, and is capable of making a signed request to the hospital authorities, it seems to me that there can be no possible objection on the part of the Ministry to the acceptance of the Amendment. To summarise what I have tried to say, I think that there are loopholes which are not covered by the Bill; I think that there is the possibility of the kind of case envisaged by the Committee; I think that where such a case arises, it is reasonable for the individual to make the request postulated, and I think that if the request is made it should be complied with in the interests of the individual.


I must confess that the speech of the Parliamentary Secretary has caused me considerable apprehension. We understood that this Bill was mainly concerned with people on the border-line, and was not partly concerned with people so bereft of their senses that they could be described as sunk in lunacy; but, according to the hon. Lady, the patients in the institutions to which she referred were so bereft of their senses that once they were in, according to her assumption, there they had to stay, and there seemed to be no hope at all for them. The hon. Lady, in defence of the Government, explained that the Government had made provision for the power which the right hon. and gallant Gentleman the Member for Newcastle - under - Lyme (Colonel Wedgwood) claims. She said that the patient could get this document on discharge, but that hardly meets the case. As I understand the point of the Amendment, its object is to enable a person who thinks he is unjustly detained to make such an application with a view to discharge and to be told that he will be able to obtain the document after discharge seems a mere mockery. This Amendment raises a very serious question concerning the liberty of the subject on which we ought to have the advice of the Law Officers. To make laws upon this very difficult subject and to deal with the question of whether people are to be regarded as lunatics or not, is a task which calls for careful definition and research. The House before coming to a decision on this point, and before parting with Clause 5 ought to hear the opinion of the Law Officers.


I think the House generally will agree that we ought, as far as we can, to insert safeguards for people who are in institutions of this kind, but I would ask the House to remember the category of persons with whom we are now dealing. For the most part, apart from the cases to which the hon. and learned Member referred, they are people who would be in a position to sign the requests. If the House press this Amendment upon me, I am prepared to accept it, but I want the House to understand that perhaps they are not getting quite as much as some hon. Members think the Amendment means.

Amendment agreed to.