HC Deb 16 April 1937 vol 322 cc1373-7

2.31 p.m.

Commander Bower

I beg to move, in page 2, line 17, to leave out the Clause.

As in dealing with the last Amendment I am afraid I rather overstepped the limits of order and said a great deal which might have been better said on this Amendment, I will cut my remarks as short as possible, with an apology. Sir, to your predecessor in the Chair for having gone out of bounds. We feel that the whole question of including insanity in this Bill is yet again one of those things which can only lead to a very much increased and undesirable extension of divorce, and though I realise that this Clause is nothing but a definition Clause, we put down this Amendment rather as a safeguard so as to have an opportunity of saying something on the matter. That, so far as I am concerned, is all that I wish to say on the subject.

2.33 p.m.

Lieut.-Commander Agnew

I beg to second the Amendment.

The purpose of this Clause is to define what is incurable insanity—

The Solicitor-General

No. This is a definition which, at the instance of the Government, the promoters have put into the Bill, of the care and treatment of persons of unsound mind, and we specify in the first paragraph the different forms of care and treatment that can be given.

Lieut.-Commander Agnew

For the first time in the discussion of this Bill the hand of the Government has been shown, and we have here a definition of what are to be care and treatment for persons of unsound mind. Having accepted the principle, though with reluctance on my part, that insanity is to be a cause of divorce, it is necessary to have some kind of definition so that you can operate it correctly, and I have no doubt that the promoters have derived great benefit from the very helpful advice which has been tendered to them, so that they can have at any rate the legal parts of their Bill in order. I want to address my remarks particularly to paragraph (b) of this Clause, that is to say, to those provisions which relate to persons undergoing treatment as voluntary patients under the Mental Treatment Act, 1930. Section I (5) of that Act reads: Any person received as a voluntary patient under this Section may leave the institution, hospital, home or place upon giving to the person in charge seventy-two hours' notice in writing of his intention to do so, or if he is a person under the age of sixteen upon such notice being given by his parent or guardian. While we were in Committee on this Bill it is true that the Solicitor-General gave us information to the effect that very often when persons do leave a home voluntarily under this Act, they are re-certified as of unsound mind, and then, of course, they are classed legally as insane, but there is nothing mandatory about that. It may well be that people give the requisite 72 hours' notice and leave the home, and the proper authorities do not see fit to re-certify them as insane. By the provisions of this Bill as outlined in this Definition Clause, persons may, at the very time when they have taken advantage of their powers to leave a home, be the victims or the subject of an action for divorce brought against them for being incurably insane. If we accept the Clause, we lay ourselves open, therefore, to the grave danger that such people who are considered by the law to be sufficiently fit and able in mind to leave the home after giving 72 hours' notice may be made the victims of a divorce action on the grounds of insanity. It seems to be open to grave abuse if people who are not insane and are allowed to leave the home are insane enough to have divorce actions brought against them.

2.38 p.m.

The Solicitor-General

It is perhaps desirable that I should tell the House exactly what this Clause does. We have already, in Clause 2, made it a ground of divorce that a person is incurably of unsound mind and has been for five years under care and treatment. The court has to find that the person is incurably of unsound mind. This Clause merely goes on to define what care and treatment means. No point arises on paragraph (a), because that is merely a recital of the various measures under which people can be detained, while they are of unsound mind, for care and treatment. So that this paragraph deals only with people who are under detention, and I do not think there can be any dispute that those who are under detention are receiving care and treatment. It does not follow that they are of unsound mind. That is a matter to be decided by the court.

Paragraph (b) deals, as I explained in Committee—and I thought that my hon. Friends were satisfied—with a very small class of people. There are cases in which, for psychological reasons, the actual certification is lifted and a person becomes a voluntary patient. It gives some little peace of mind to such a person's relatives when they are no longer in a position of having to say that the unfortunate subject is certified. The certification is lifted, but on terms. The person must remain in the institution as a voluntary patient, and there are quite a number of people who enjoy that little measure of relief in this terrible affliction in mental homes. They are perfectly safe; they can be allowed on parole to walk about, and are not dangerous to anybody. If they attempted to go out they would be immediately certified again. If their relatives attempted to take them out they would be recertified. It is to cover this limited kind of case which, for this little psychological kindness and courtesy to them and to their relatives, are not technically certified, that we have included them as people who are still really, in the sense of this Bill, under care and treatment. It does not remove the burden on a petitioner or the court of ascertaining whether they are incurably of unsound mind. The whole matter must be read subject to the governing words in the preceding Sub-section.

Mr. Bellenger

Does this paragraph refer only to a class of person who has been certified but whose certificate has been lifted and who becomes a voluntary patient? Is there not another class of persons who can enter an asylum as voluntary patients without previously having been certified?

The Solicitor-General

I think that that class will also be covered, but, again it is subject to the over-riding consideration that the court has to be satisfied that such persons are incurably of unsound mind. Suppose the Bill merely said that, it would probably meet with the promoter's desire, but by Clause 2 there must be two barrels: they must be incurably of an unsound mind and they must have been, for a period of at least five years immediately preceding the petition, under care and treatment. The case put by the hon. Gentleman is safeguarded in the Bill.

2.43 p.m.

Mr. H. Haslam

I hope that, from the point of view of insane persons and the possibility of curative treatment, this Clause will be allowed to stand. I believe it is the general experience of medical men that the 1930 Act has been a most valuable Measure, because it has enabled persons who are not quite sound of mind to enter, of their own accord, into a home and to receive treatment. The Act has proved invaluable to persons who have mental trouble. Many of them have been cured by the voluntary system, whereas people who are forced into an institution often have their curative treatment jeopardised. I think that this Clause, and particularly paragraph (b), should be left for the sake of those who are suffering from mental disability.

2.45 p.m.

Viscount Wolmer

I should like to correct the statement of the Solicitor-General that we have in the two Clauses something in the nature of a double barrel. The main purpose of this Clause is to define what is to constitute care and treatment, but we must not forget that it is possible under the Bill as it stands for a patient to be confined when he is not incurably insane, and at the end of that treatment, and possibly as a result of it, so to have deteriorated in his mental condition that it would be possible to persuade a court that his case had become incurable. Therefore, there is no double barrel, and it seems to me that the Clause gives no sort of added safeguard in regard to the great danger which some of us know from experience must always exist in mental cases.

I am thinking of a case in which I was personally concerned. The wife of one of my servants became violently insane, ran naked down the street, and was shut up in a lunatic asylum and kept there for a long time. I went to see the doctor at the asylum, and he assured me that she was absolutely incurable and would probably die within a short time. On the contrary, after two or three years—I admit that it was not five years—she completely recovered and was released. On the day she came out her husband, who had tuberculosis, fell dead through the bursting of a blood vessel on the chest. Anyone would think that such a shock would have sent her back to the lunatic asylum, but, on the contrary, she buckled to the task of bringing up her family of four children and has been a splendid mother ever since. I merely give that as an instance of the sort of case, with which many of us may be familiar, in which a person may undergo long periods of care and treatment, with the highest available medical authority saying the case is incurable, and it being found in the end that it was not incurable. Therefore, it seems to me that this definition, which I have no doubt is necessary for legal reasons, does give no added safeguard to those of us who fear the results of this provision in this Clause.

Commander Bower

In view of the debate which has taken place, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.