Clause 53.—(DISCHARGE, AMENDMENT AND TERMINATION OF ORDERS FOR TRANSFER OF FUNCTIONS.) (Hansard, 5 May 1959)

§ Mr. Walker-Smith

I beg to move, in page 36, line 27, to leave out from the beginning to "a" in line 36 and to insert: An order made under section fifty-two of this Act in respect of a patient may be discharged by the county court upon application made—

(a) in any case, by the person having the functions of the nearest relative of the patient by virtue of the order;
(b) where the order was made on the ground specified in paragraph (a) or paragraph (b) of subsection (3) of the said section fifty-two, or where the person who was the nearest relative of the patient when the order was made has ceased to be his nearest relative, 300 on the application of the nearest relative of the patient.

(2) An order made under the said section fifty-two in respect of a patient may be varied by the county court, on the application of the person having the functions of the nearest relative by virtue of the order or on the application of a mental welfare officer, by substituting for the first-mentioned person". Clause 53 is concerned with the position which arises after the county court has made a transfer of functions order under Clause 52. In Clause 53 as we have it in the Bill paragraph (a) of subsection (1) allows a person succeeding to the position of nearest relative to apply for the discharge of a transfer order and paragraph (b) of subsection (1) allows the statutory nearest relative—if I may so term him, the person Who becomes the nearest relative by virtue of the order—and the mental welfare officer to apply for a variation of the order.

This Amendment I am commending to the House redrafts most of the present subsection and introduces some points of substance as follows: Paragraph (a) allows the person exercising the functions of the nearest relative to apply for the discharge of the order as well as its variation. The effect of the discharge is to reinstate the relative who has been displaced. Paragraph (b) allows the displaced relative to apply for the discharge of the order if the order was made on either of the grounds (a) or (b) in the Amendment to page 36, line 1, to which we have just agreed—that is, if the patient has no nearest relative within the meaning of the Act, or it is not reasonably practicable to ascertain whether he has. The second ground is where he is incapable of acting as nearest relative by reason of mental disorder or other illness. The effect of the new paragraph (b). therefore, is to allow a relative whose existence was unknown when the order was made, or who was incapacitated by illness, to establish his position as nearest relative.

It does not, of course, extend that to cases under paragraphs (c) and (d) of the Amendment to page 36, line 1, because it is obviously not appropriate for relatives discharged on those grounds, that is to say, the unreasonably objecting ground, and the ground of acting without due regard to the welfare of the patient. They are not allowed to go back to the county court. If they were, they would be going to the county court, in effect, with an 301 application for the patient's discharge from hospital. That is a matter the jurisdiction of which is vested in the mental health review tribunal to which the displaced relative, albeit displaced, can make his application once a year.

§ Mr. Walker-Smith

I beg to move, in line 40 to leave out from the beginning to the end of line 4 on page 37 and to insert: (3) If the person having the functions of the nearest relative of a patient by virtue of an order under the said section fifty-two dies, the foregoing provisions of this section shall apply as if for any reference to that person there were substituted a reference to any relative of the patient, and until the order is discharged or varied under those provisions the functions of the nearest relative under this Part of this Act shall not he exercisable by any person. This is drafting. it simply improves the wording of subsection (2) of the Clause, but makes no alteration in its substance.