HC Deb 05 May 1959 vol 605 cc267-78
Mr. Walker-Smith

I beg to move, in page 14, line 4. to leave out subsection (1) and to insert: (1) A patient may be admitted to a hospital and there detained for the period allowed by this section, in pursuance of an application (in this Act referred to as an application for admission for observation) made in accordance with the following provisions of this section. (2) An application for admission for observation may be made in respect of a patient on the grounds—

  1. (a) that he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital under observation (with or without other medical treatment) for at least a limited period; and
  2. (b) that he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.
In effect, subsection (1) of Clause 25 prescribes two basic criteria for admis- sion for observation. First, there is the nature and degree of mental disorder and, secondly, the interests of the patient's health or safety, or the protection of others. Many constructive suggestions for improving the Clause were made in Committee, but they were all made within the agreed ambit of these basic criteria. In fact, the hon. Member for Newcastle-upon-Tyne, East (Mr. Blenkinsop) then said: I am glad also that he"— that is, myself— has agreed to reconsider the wording of subsection (1). We all hope that he will find more suitable words. He has also made clear that while he is doing so he does not propose such a change of words as to change the conception of the Clause. He is not proposing, as was suggested by one of his hon. Friends, that there should be such a change in the Clause as to make a change in the whole approach to it."—[OFFICIAL REPORT, Standing, Committee E, 26th February, 1959, c. 248.] The hon. Gentleman was right. I am not doing that. I am operating within the framework we have, but I am seeking to make certain improvements to it.

The criticisms of the Clause were, in effect, three. The first criticism was of the phrase we have in the Bill "renders him suitable" for detention. Those words were criticised by my hon. Friend the Member for Carlisle (Dr. D. Johnson) and also, I think, by the right hon. Lady the Member for Warrington (Dr. Summer-skill), who criticised the phraseology as being redolent of the language of the cookery hook, and more suited to that than to the language of a Statute.

We have, therefore, sought to find a substitute for that phrase by using the words … warrants the detention of the patient … That, I think, steers a reasonably middle course between the words to which objection was taken and the alternatives suggested in Committee, "essential". "desirable", and the like.

The second criticism was of the use of the word "expedient" in paragraph (b) of Clause 25 (1). On that, we had some very interesting discussion, fortified by references to the Scriptures and to the Prayer Book, as to the proper meaning of the word. The fear was expressed that it was a word that had degenerated in meaning and that there might be sonic implication that patients could be detained on grounds of expediency—which was, perhaps, a little exaggerated. However, we have taken care of that by substituting the simpler word "ought," which is better in this context.

The third criticism was made by my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), who made so many valuable and constructive contributions in Committee. My hon. Friend said: It will be seen that no Amendment is made to Clause 25 (1, a). In other words, all that the recommending doctor has to do is to say that the patient is suitable for observation. I think that he should have in mind that the patient is also suitable for treatment, if treatment is to follow observation. This is no more than a drafting point but it needs looking at and I hope that my right hon. and learned Friend will do so."—[OFFICIAL REPORT, Standing Committee E, 26th February, 1959; c. 247.] I have done so. I think, on consideration that the conception embodied in the present subsection (4), which was moved into the Bill on the initiative of the right hon. Lady the Member for Warrington, and to which my hon. Friend the Member for Hendon, South referred, would be better embodied in the statement of the grounds on which the application for admission may be made. This is achieved by the wording of subsection (2, a) of the Amendment. The words (with or without other medical treatment) have been inserted after the word "observation".

Having taken care of those three points which attracted comment and criticism, the recasting of this important Clause is completed by the Amendment in page 14, line 20, to omit subsection (4). In general, the Amendment does not change the basic concept of the Clause. We were anxious not to do that, and we were fortified in our view by the opinion expressed by the hon. Member for Newcastle-upon-Tyne, East, which 1 have quoted. Observation is still an essential object of admission under the Clause, but the Amendment makes it clear that the patient who clearly needs at least a short period of treatment can be admitted under the Clause. One good effect of doing this is that it makes it possible to limit Clause 29, which deals with the emergency procedure, to admissions for observation, thus meeting another point raised in Committee to which we shall come in a moment.

Finally, from the point of view of drafting, we have taken the opportunity in this fasciculus of Amendments to make considerable improvements of drafting and presentation.

Mr. K. Robinson

There is little doubt that the Minister has improved the wording of the Clause. He and his advisers must have worked quite hard on it since the Committee stage. I think that on the whole, in the felicity of the wording, the new Clause is a great improvement on the old one. It is far better to say that the patient ought to be detained than to say that it is expedient for him to be detained. I think that all the other changes of phrase are for the better.

I am not so sure about the change of subsection (4), which we wrote into the Bill in Committee, being placed into subsection (2, a) as one of the grounds for admission, but I do not feel that it makes much difference either way.

I should like to ask the Minister about two points on subsection (2. a) What is the reason for the words (with or without other medical treatment)"? Is the implication that observation in itself is a kind of medical treatment? If that is so, I have not known of it in the past. Also, why do the words for at least a limited period suddenly make their appearance in the Amendment? I do not think that they were in the Clause as originally drafted.

I should be grateful if the Minister would say what is meant by the words (with or without other medical treatment) and for at least a limited period". We all know that the procedure is limited to twenty-eight days.

Dr. D. Johnson

I should like to express my appreciation to my right hon. and learned Friend for altering the phaseology, since the Amendment, as he was kind enough to say, was at my suggestion originally. I think that I can lay claim to the cookery simile which he attributed to the right hon. Lady the Member for Warrington (Dr. Summerskill). As my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) said to me in an aside, possibly having my hotel past in mind, the chef and not the housewife was responsible for this.

The new phraseology is unexceptionable and I think that my right hon. and learned Friend and his advisers should be congratulated on it. I have only one rider to add to my approval, which I appreciate I should have brought forward at an earlier stage of the Bill. It concerns my fears as to the latitude of interpretation that might be given to the interests of the patient's health. As I have said, I appreciate that I should have put forward extensive arguments on that matter earlier and I wish only to mention it.

I feel that the Clauses as amended are a great improvement on the old ones. I should like to thank my right hon. and learned Friend for the trouble to which he has gone in improving them.

Sir Hugh Lucas-Tooth (Hendon, South)

On a point of order. Are we discussing the three Amendments together? I think that we are, but I should like to be clear on the point.

Mr. Deputy-Speaker (Sir Charles MacAndrew)

I was under the impression that we were discussing the Amendment in page 14, line 4, by itself.

Dr. A. D. D. Broughton (Batley and Morley)

I think that the Amendment improves the Clause, but I am sorry that the Minister did not go a little further. The Clause relates to admission for observation, which sounds very harmless. Of course, every patient admitted to hospital will be observed. Subsection (4) reads: Nothing in this section"— that is, relating to admission for observation— shall preclude a patient admitted for observation from receiving such treatment as the responsible medical officer considers appropriate, From a superficial glance at the Clause, it may be thought that we are concerned with observing and possibly treating a patient, but the important point is that the Clause relates to compulsory detention, that patients are compulsorily detained, are robbed of their liberty and will lose certain civil rights. This can be brought about by an application for admission for observation being founded on the written recommendation in the prescribed form of two medical practitioners. As the Minister is aware, I think that that is an insufficient safeguard of the liberty of the individual, and I much regret that he has not considered it wise to include in the Amendment the necessity for the approval of a justice of the peace being sought before a person can be compulsorily detained, thus losing his or her liberty and some civil rights.

Dr. Bennett

As one who was, unfortunately, not able to take part in the deliberations in Committee, but who has had to admit large numbers of people to hospitals under the former law, may I say how startled I am at the ease with which it has been found possible to introduce such radical Amendments to the wording, thus bringing it more or less into line with the language which we speak nowadays as compared with the previous cumbersome and not very precise wording? I congratulate all concerned on that, and I am sure that it will make the administration of the Bill a great deal easier.

Mr. Hale

I think that the wording is an improvement, and I do not desire to criticise it. I do not know what "warrants" mean and I doubt whether anyone else does, but, on the whole, I think that the word is not particularly objectionable. We know that anxiety neurosis is an occupational disease of Parliamentary draftsmen and that anything too specific has to be excluded for fear of judicial interpretation.

I listened to the few words of the hon. Member for Carlisle (Dr. D. Johnson) with great sympathy. I feel exactly the same. This is a very good Clause if it works right, but it can be a very bad one if it works wrong. In dealing with a matter of this kind we are all conscious of the ambivalence to which the hon. Gentleman referred. On the one hand, there is the question of civil rights, freedom and liberty. On the other hand, there is the desire that the forlorn and neglected shall be able to receive the benefit of treatment. Therefore, in the Bill we have a Clause which permits a person to be compulsorily taken to hospital for observation. On the question of appeals to mental health tribunals, and so on, the right hon. and learned Gentleman was very forthcoming—I appreciated his attitude throughout—and made considerable offers of protection and improvement in the regulations.

6.0 p.m.

We have provided that there will have to be two doctors to certify—in this case, only two general praotitioners, perhaps. I am not sure that they may not be better. We have provided that the hospital authorities themselves must be satisfied and that the hospital authorities can release a person at once if they come to the conclusion that a release is justified. And so we have provided a series of effective provisions.

What worries me about it is that one is apt to talk about these Clauses in terms of individual cases which one can visualise. One can see the old, the isolated and the slightly mentally affected elderly person living at home who, by a week or two of chemotherapy, may be put in a condition in which he can be made to enter a decent home, not a mental home, and take his own part with his fellows. On the individual cases, we can see the good that can come.

One wondered vaguely whether this sort of provision could apply in the cases of the sexually affected and whether those who suffered from what some of us think may be mental compulsions, whether self-acquired or not, could be sent for observation with the possibility of being advised of the appropriate form of treatment or being made to receive the appropriate form of treatment.

En every way, however, we are providing, as we must, that a man can be sent for observation and can then be detained for ever. With all the safeguards we are putting in, that is what we are saying. Two medical practitioners must first give their approval. The difficulty in all these respects is that our procedure imposes upon us the necessary duty of considering each Clause in vacuo, of taking it as it comes and of not being sure what finally will be the protection provided in subsequent Clauses.

We have already provided that this power can be exercised by a mental health officer of no qualification. And not only that he can exercise it—we have virtually said that he must. We have said that it is his duty to make the order if he comes to the conclusion, to use the terms of the Amendment, that the circumstances warrant it if the nature or degree of the mental disability warrants the patient's being sent for treatment. These are necessary and proper, but somewhat vague, words. If "the state of his health" or "to protect other persons" be added, it is the duty of the mental health officer to take the necessary procedure.

Having said that, I do not dissent from what has been said by any one of my hon. Friends. The provisions in this and the next Amendment to the Clause are an improvement. On the whole, the Minister has very well tried to meet some of the difficulties that were expressed in Committee. The Clause, properly administered under proper provisions by qualified people, may be of great service to many members of the community who need that service. I leave it with a little fear, a little wonder and a little anxiety, 'however, as to how far, if we do not watch the regulation's carefully and if we do not ensure that they provide proper provisions, we may not have cases raised in this House in 'the years to come which will show that we have given a power which, unless it is watched, could become a possible serious invasion of human liberty.

Sir H. Lucas-Tooth

I welcome the Amendments. They do not so much produce drafting changes as make the Clause clearer than it was. That is of the greatest importance and it is really the answer to the points made by the hon. Member for Batley and Morley (Dr. Broughton) and the hon. Member for Oldham, West (Mr. Hale).

We are now dealing with that Part of the Bill which deals with compulsion. The general rule about compulsion will be to be in for a year, or, possibly. a longer period. The Clause deals with the case where there will be compulsion—in the first place, at all events—only for the short period of a month. It is much better if those who have to be put under some form of restraint come in for only a month and can go out when the month is over and, perhaps, never be subject to compulsion again. That is why this is one of the most important Clauses in the Bill. It is important from that point of view in that it will help in the general sense for which hon. Members have pressed. Its clarification will be valuable, and I congratulate my right hon. and learned Friend the Minister on the new wording.

Mr. Walker-Smith

I should like to deal with one or two specific points which have been put and with the more general observations made by the hon. Member for Oldham, West (Mr. Hale) and others. First, however, perhaps I might thank hon. Members who have given a welcome to our recasting of the Clause and to the generous things which several hon. Members have been good enough to say.

To reply, first, to the relatively minor questions, in Clause 25 the detention of the patient in a hospital under observation … for at least a limited period is intended to be in contrast with the provision in Clause 26. The wording warrants the detention of the patient in a a hospital for medical treatment points the distinction between the two Clauses: that, in regard to the one, the treatment required may be of a short-term nature and can be done in the observation period without necessitating the rather more full-scale procedure of Clause 26, in which the application is for admission for treatment, and where there is nothing to suggest that it will be of such a short-term nature.

Mr. K. Robinson

The right hon. and learned Gentleman has explained why he has used the words for at least a limited period". I do not think that the words achieve the object that the Minister is setting out to achieve. Surely, if he wants to make a contrast with the procedure for admission for treatment, the words should be "for a limited period". Those words prefaced by "at least" imply a more extended period.

Mr. Walker-Smith

That might be so. Before using the Clause, however, one must be satisfied that there is a necessity for detention at all. That is the reason for "at least a limited period". The words do not appear in Clause 26 because it is without limit of time in the sense that the patient must be suitable for detention. Under Clause 26, one normally would not be able to have in mind at the beginning the precise sort of period for which treatment would be required. I will certainly look at the drafting again, and, if it is possible to improve it still further in that respect, I will seek to do so in another place.

On the more general points which have been raised, I do not think that I would be in order on this Amendment in pursuing the reference by the hon. Member for Batley and Morley (Dr. Broughton) to the justices of the peace, on which he made his case in Committee. It did not commend itself to the Committee in spite of the eloquence and persuasiveness of the hon. Member's advocacy. It is in a different form on the Order Paper again and it is a matter for Mr. Deputy-Speaker to determine. If it comes up for discussion I will deal with it more fully then, but I do not think that I should be in order in pursuing it now.

I am sure that the hon. Member for Oldham, West was rather pessimistic in his references. As he was good enough to say, we have taken a great deal of care with this and the next following Clause, which are really basic in the structure that we are building. We had in mind all the time to try and assemble a structure which would reflect the balance of the considerations we must have in mind. They are, firstly, the liberty of the subject, secondly, the necessity of bringing treatment to bear where treatment is required and can be beneficial to the individual, and, thirdly, the consideration of the protection of the public. All through I have tried steadily to keep in mind that what we are trying to do is to erect as balanced a structure as we may which can give effect to all those things in harmony with each other. That is the underlying purpose we had in mind in making the provisions in the Clause.

Under Clause 25 the patient comes in for observation or for short-term treatment. He can stay only 28 days under Clause 25 procedure because, as the House will see, the last three lines of the next Amendment will read: …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 this Act. This, in effect, means that if he needs long-term treatment we must bring to bear the appropriate provisions of Clause 26.

Those who have been closely concerned with the Bill in Committee know that there is a provision for the keeping of these things under review. We have introduced the mechanism of the mental health review tribunals. Therefore, we have these varying stages at which a detained patient can bring his case to the scrutiny of one of these tribunals and the tribunal can consider whether or not it is right that he should be there or whether he should be discharged. I think that we have an effective mechanism for ensuring the liberty of the subject while at the same time trying to make what provision we can to ensure that effective treatment can be brought to bear on those who can benefit by it. As we proceed further with the Report stage, the hon. Member for Oldham, West will be glad to see that we are proposing further Amendments with a view to strengthening and improving the procedures in respect of the safeguarding of the liberty of the subject. I hope, therefore, that we may have the Amendment.

Mr. K. Robinson

I think that I deflected the right hon. and learned Gentleman from saying a few words about "other" medical treatment.

Mr. Walker-Smith

The word is inserted because all treatment implies observation in any event, but I will have a look at the wording. If the word is tautological it shall come out.

Amendment agreed to.

6.15 p.m.

Mr. Walker-Smith

I beg to move, in page 14, line 20, to leave out subsections (3) and (4) and to insert: (3) Subject to the provisions of section fifty-two of this Act (in a case where an application is made under that section for transferring the functions of the nearest relative of the patient), a patient admitted to hospital in pursuance of an application for admission for observation may be detained for a period not exceeding twenty-eight 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 this Act. In Committee my hon. Friend the Member for Ilford, North (Mr. Iremonger) expressed concern at one possible consequence of the time-limit of twenty-eight days in observation cases, with which the Clause is concerned. He drew attention to the break in treatment which might arise if the patient has to be discharged after twenty-eight days, as he does under this procedure, without the possibility of an immediate effective application for treatment under the next Clause, because the nearest relative objects.

The position is a little complicated. I defined it in this way in Committee: The limit for detention for observation is twenty-eight days unless, in the meanwhile, there has been a readmission for treatment on application made either under Clause 26 in what we might call ordinary circumstances or under Clause 29 in circumstances of urgent necessity, that is to say, under the emergency Clause. Whereas an application under Clause 26 does require consultation with the nearest relative and his consent, the emergency application under Clause 29 (1) does not … Therefore, the present position is this. If an application is made for the transfer of functions under Clause 52. and if the application is still sub judice at the end of twenty-eight days' period, then the patient cannot be further detained for observation against the wishes of his nearest relative unless it is a case of urgent necessity …"—[OFFICIAL REPORT, Standing Committee E, 26th February, 1959: c. 241.] I go on to say that it is open to him to remain informally.

The position is changed somewhat by the Amendment in Clause 29, page 17, line 7, to leave out from beginning to "in" in line 8 and insert: admission for observation may be made in respect of a patient which will limit emergency applications to cases of observation if the House accepts that Amendment. That fact, plus the fact that Clause 30 excludes the possibility of one period of detention for observation being followed by another, makes it necessary to meet the situation which my hon. Friend the Member for Ilford, North has in mind by allowing a period of observation to extend beyond twenty-eight days when an application to over-rule an objecting nearest relative has already been lodged with the county court. This effect has been achieved by this Amendment, together with the Amendments which we seek to make in Clause 52.

Amendment agreed to.