Clause 49.—(DEFINITION OF RELATIVE AND NEAREST RELATIVE.) (Hansard, 5 May 1959)

§ Mr. R. Thompson
I beg to move, in page 33, line 30, to leave out from "relative" to the end of line 49, and to insert: means any of the following, that is to say—

(a) husband or wife;

(b) son or daughter;

(c) father;

(d) mother;

(e) brother or sister;

(f) grand-parent;

(g) grandchild;

(h) uncle or aunt;

(i) nephew or niece.

(2) In deducing relationships for the purposes of this section, an adopted person shall be treated as the child of the person or persons by whom he was adopted and not as the child of any other person; and subject as aforesaid any relationship of the half-blood shall be treated as a relationship of the whole blood, and an illegitimate person shall be treated as the legitimate child of his mother. (3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the "nearest relative" means the person first described in subsection (1) of this section who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex. It may be for the convenience of the House if, with this Amendment, we discuss the Government Amendments in this Clause and in Clauses 53 and 55.

§ Mr. Deputy-Speaker (Sir Gordon Touche)
That may be done with the approval of the House.

§ Mr. Thompson
These Amendments constitute a combined effort to meet points raised during the Committee stage discussions regarding the definition of nearest relative and the circumstances in which the functions of the nearest relative can be transferred to some other person. The combined effect of the whole series is, first, to ensure that illegitimate children are regarded for this purpose as related not only to their mother but also to other 294 members of their mother's family. That arises on the first of these Amendments.
Secondly, the effect is to exclude husband or wife in cases of separation or desertion. That meets a point which was raised by more than one hon. Member in Committee. Thirdly, the effect is to include persons who have been living as man and wife for at least six months, though not married. That meets the unmarried-spouse point which also had a good deal of discussion in Committee. Fourthly, the Amendments widen the ground on which application may be made to the county court for the appointment of some other person to act as nearest relative, and to include the ground, first of all, that the nearest relative is incapable of acting by reason of mental disorder or other illness, or secondly, that there is no nearest relative as defined in the Amendment in page 36, line 1. Next, they will allow an application to be made to the county court by any person with whom the patient resides, whether or not this person is a relative. It was pointed out in Committee that sometimes the person most fitted to carry out this function would not be a relative but somebody who had been giving shelter or protection to the patient.
Further, they will allow application to the county court to be made at any time, whether or not the patient is already detained in hospital. Application could therefore be made to displace the relative who would otherwise succeed on the death of a good nearest relative—I use the word "good" in the sense of meaning one who has the interests of the patient sincerely at heart —if there is ground for thinking that he is likely to act unreasonably. All these Amendments taken together, meet, I think, practically all the objections and criticisms that were raised in Committee.
On the question of enabling the powers of the nearest relative to be exercised by the person nearest in affection rather than close in kinship, the Amendments proposed in page 35, line 40, and page 36, line 1, will facilitate this, when there is no next of kin or when the next of kin is acting unreasonably or is willing to abdicate.
The points I have put will indicate to the House that we have taken very seriously the discussions we had in Committee and have tried to incorporate by 295 means of this series of Amendments the particular matters which seemed at that time to cause most concern to hon. Members.

§ Dr. Summerskill
This is a most remarkable occasion. The Minister has accepted suggestion's made from this side of the House which, I suppose, are unprecedented in this field. He has done quite rightly, but he knows as well as I do that criticisms may come from all kinds of people. He and I are prepared to defend our attitude, but the moralists who regard these matters only from the moral standpoint will find it extremely difficult to understand why there has been embodied in an Act of Parliament powers for an individual to exercise the functions of nearest relative in respect of an individual with whom he has been living, although there is no marriage tie.
I feel that I know more about life than does the Minister in this respect. [Laughter.] I know that sounds rather bad, but I speak as a doctor. When the time comes to find what the inter-relationship is between a patient and somebody in the house who had hitherto acted in a position of husband or wife, one has sometimes discovered that that has not been the position at all. I would therefore not put six months in as the period but would make it one year. The present proposal is a little too lenient. I said in Committee that if we are to do these things we should allow a man and woman living with each other to have a trial run for a little longer than six months before they were given this function. I would therefore put it at a year. After a year, love sometimes flies out of the window. After six months, there might still be the honeymoon stage.
Something should be done about this. Criticism will be forthcoming. My hon. Friend the Member for St. Pancras, North (Mr. K. Robinson) mentioned National Insurance. I learned a lot about this matter when I was at the Ministry of National Insurance, and a lot more when I was at the Ministry of Food, where we discovered that a large number of rations were not being taken out as we expected. They were not being taken out by women who had been living with a man not for a year or two but perhaps for twenty years and had had half a dozen children by him.
296 I stand with the Minister on this matter. Those who criticise must realise that all around are couples who, to all appearances, are properly married but who nevertheless cannot produce a marriage certificate. It would be absolutely wrong, in the event of one of them suffering from some mental disorder, to deprive the partner of all powers. Therefore, what we are doing in these Amendments is absolutely realist. We are saying that we must look for the individual in the patient's life who can exercise the greatest sympathy, kindness and understanding. We have only to read our newspapers to realise that that person may not always be the legitimate husband or wife.
On the question of the illegitimate child, I again congratulate the Minister. It is clear that the illegitimate child should be regarded as the nearest relative in these cases. In the case of a single girl who is pregnant, her father and mother are the nearest relatives, but they may have turned her out of the house. When years have passed and her child is living with her, that woman may develop a mental disorder and, as the law stands, the nearest relatives would be the man and woman who had been utterly cruel to the girl when her need was greatest. The child who lives with her, is fond of her and has shown her affection, would have no power in the decision as to what was to happen to its mother.
I must congratulate the Minister upon accepting the suggestion and embodying it in these Amendments. I am sure that those who may be a little critical on moral grounds will realise, if they consider the particular circumstances of a patient suffering from mental disorder, that the Amendments are humane, and wise.

§ Sir H. Lucas-Tooth
I also would like warmly to welcome these Amendments. I doubt whether ever in the history of the House of Commons so many points in so many directions have been met at the same time as in this series of Amendments. Perhaps I may be allowed to claim some measure of paternity because I raised some of these points on the Second Reading.
The principle involved is not quite so original as the right hon. Lady the Member for Warrington (Dr. Summerskill) has suggested. Those of us who had experience of administering pay and allowances 297 during the war learned something of exactly these sort of problems. The right hon. Lady will remember the discussions which took place over the "unmarried wives" and that type of case. When one had direct experience of this, as I had during the war, one saw what a very large range of really important questions were raised by these rather obscure relationships which arise. I am certain they are even more prone to arise in this class of case than in any other class of cases we could consider together.
For that reason, I most warmly welcome these Amendments. I am sure they will be extremely helpful, not only from the point of view of pleasing those directly affected, but from the point of view of doing something, which is the very purpose of the Bill, for bringing about an earlier cure of those affected.

§ Mr. R. Thompson
Perhaps I might be allowed to say a word or two in reply to the right hon. Lady the Member for Warrington (Dr. Summerskill) and my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth). I must confess that it is unusual for me to find myself in the situation of being almost reproached by the right hon. Lady for proceeding too rapidly. Usually it is the other way round. However, I make no complaint about that and I shall be happy to have her support when these matters—as they may—arouse some controversy. The right hon. Lady made some point about the six-month period in the unmarried spouse case. There is a precedent for that. I am thinking of the arrangements made during the war whereby a special dependant's allowance was paid to a woman who had been living with a soldier for at least six months before he joined the Colours. That precedent probably explains why we have chosen this period.
At this point I think I ought to make clear, before we say goodbye to this matter, that the Amendment provides that if the patient also has a legal spouse the unmarried spouse does not qualify to act as the nearest relative unless the legal spouse is excluded by paragraph (b) of subsection (3) of the Clause as amended by the Amendment in page 34, line 2 which we have just discussed and which deals with separation and desertion.