HC Deb 23 June 1960 vol 625 cc726-40
Mr. Maclay

I beg to move in page 16, line 45, to leave out "either together or" and to insert "separately".

Perhaps it would be for the convenience of the Committee if, with this Amendment, we discussed the next Amendment, in line 46, at the end to insert: or, where no objection has been made by the patient or his nearest relative, together". The effect of the Amendments is to require the two medical practitioners giving the two recommendations in support of an application for admission or a guardianship application to examine the patient separately if the patient or the nearest relative objects to the examinations taking place together.

Amendments were moved during the Committee stage to require the examinations always to take place separately and, I think, to prevent either of the two doctors have access to the recommendations of the other. It was pointed out at that time that the Amendments were not acceptable because they would prevent a proper assessment of a patient's condition, for example, by means of domiciliary consultation between the patient's general practitioner and the psychiatrist of the hospital to which the patient is to be admitted who has been called in for consultation by the general practitioner.

An undertaking was given to look carefully at the question of separate examinations. Consultation between the general practitioner and the hospital consultant is regarded as the ideal procedure for obtaining a proper opinion as to whether the patient's mental disorder warrants compulsory action under the Bill. This Clause incorporates various provisions designed to make that possible. In the first place, one of the medical recommendations is to be given by a doctor approved by the regional hospital board as having experience in the diagnosis and treatment of mental disorder. He may be, and commonly will be, the consulting psychiatrist from the hospital which the patient is to enter.

The medical staff of the 'hospital which the patient is to enter are no longer barred from giving one of the medical recommendations unless, of course, the patient is to be accommodated as a private patient or to enter a private 'hospital. The second medical recommendation is, where practicable, to be given by the patient's general practitioner or by another doctor who has previous acquaintance of him. These provisions accord with the Dunlop Committee recommendations.

6.0 p.m.

An insistence on separate examinations in every case would, we believe, make it difficult to fulfil the intention of the provisions. This would mean that the special experience in mental disorder possessed by the approved doctor would never be related to the general practitioner's special knowledge of the patient, his past history and background. A proper domiciliary consultation between the two doctors would become impossible, and I am advised by the experts, and I myself believe, that this must weaken the medical recommendations considerably and could be a retrograde step. We feel that the provisions for the examination to take place together is a safeguard to the patient since it ensures that a proper assessment can be made of his condition. For these reasons we cannot agree to go as far as was asked in Committee and to require that medical examinations should always take place separately.

We agree, however, that the examinations should be separate where a patient or the nearest relative objects to their taking place together, and the Amendments will achieve that. A patient, or a nearest relative who considers that the patient cannot express himself freely to one doctor in the presence of the other, or conceivably that there might be collusion between the two doctors, will thus be able to insist on separate examinations.

We very much hope that this will help to meet the fears which were expressed in Committee that examinations con ducted together might not offer sufficient protection to the patient. I hope that the House feels that we have gone as far as we can reasonably go to meet what I am sure is in the minds of hon. Members opposite.

Miss Herbison

I am sorry, but I have come to the conclusion even more firmly than when I first read the Amendments on the Notice Paper that the Government have gone no distance at all in this matter. I will not go over the case which we made in Committee, but it was to ensure, in the first instance, that there would not be collusion between the two doctors. We wanted to ensure that these recommendations would come independently from the two doctors. We have been told today, in effect, that the only time that we shall have a separate examination of the patient is when there has been no objection either by the patient or by the nearest relative.

Let us first consider the patient. He is to be examined because it is suspected that he is suffering from a mental disorder. Will he know that he can object to being examined at the same time by two practitioners, or by the consultant and the practitioner? Even if he knows that he has a right to object, if he is mentally ill he may not know how to object.

Let us next consider the nearest relative. If the Secretary of State will cast his eye no further down the Notice Paper than the Amendment in line 21, page 17, he will see that the Government are meeting a point made from this side of the House seeking to ensure that in the recommendations there is no collusion and that no relative with a pecuniary interest will in such a way try to get a person detained in a hospital. The Government accepted our argument in Committee and I am glad that they have introduced that Amendment, but if we were able to convince them how important it was that they should put down such an Amendment, then it is strange that they feel that they have met the point we seek to make by moving the Amendments to lines 45 and 46.

The Secretary of State said, in effect, that it is usually a good thing for the patient's own general practitioner and the consultant from the hospital to get together and to make the examination. On some occasions it may be a good thing. it would be a good thing if it were a physical illness and it might be a good thing even in some kinds of mental illness.

We must put the benefits which would accrue from that against the very grave disabilities which might accrue if there were any suspicion of collusion. We do not legislate for the good in this world but for those who might want to do things which are wrong. For these reasons we do not accept the Amendment in line 46, and we hope that the Secretary of State will give further thought to this matter.

Mr. Maclay

Perhaps I may have the permission of the House briefly to reply. The hon. Lady the Member for Lanarkshire, North (Miss Herbison) has weighed the balance as to where the good lies and come down on one side. I understand her reasons, but, although I have given careful thought to this matter, because it obviously affects one of the fundamental points in which we are all interested, I am not convinced by her argument that there is not a greater risk of harm to a greater number of patients by accepting what she wants to put in the Bill than by accepting what we want to put in the Bill. There must be very many cases in which it is extremely desirable for there to be full consultation on or examination of the patient by the doctor who has always known the patient and the specialist who has been called in. It would be a great mistake to make it impossible for that to happen.

We have gone a long way to meet the request made by hon. Members opposite. I realise that there could be cases in which, because of his mental condition, the patient could not know of the provision in the Statute, but we cannot cover every conceivable case in such a Statute as this, where we are dealing with human beings and human conditions. I think that the situation is fairly well protected, as far as we can hope to go, by providing the protection that if the patient or the nearest relative is able to express an objection, he can do so, and attention has to be paid to it. We should be running a grave risk of harming the treatment of patients if we went the full distance that the hon. Lady recommends.

I hope that the House will accept the Amendment.

Dr. Dickson Mabon

There are several points which must be cleared up. We are not here discussing treatment. This is a judicial process. We are about to deprive somebody of his liberty. We are about to have two medical recommendations which will be submitted and which could even be taken to law to decide whether such a person will be committed at State expense and against his own will in a State institution for treatment. That is how I understand the Clause, although I began to wonder whether I was reading the same Clause or the same Bill when I heard the Secretary of State's reply. We are here discussing not treatment but a statutory procedure concerning the liberty of the citizen. It is a most serious matter.

There were two points in the Minister's reply which I cannot understand. As my hon. Friend the Member for Lanarkshire, North (Miss Herbison) said, on the same page of the Notice Paper there is an obvious contradiction to this Amendment. In a later Amendment the Government have met us, quite sensibly, in the case where a nearest relative or some other person, possibly for pecuniary reasons, may seek to act maliciously against a person who might be detained.

To qualify the concession which he is making, the Secretary of State is introducing the phrase "or nearest relatives" and is calling it a protection. But it might not be a protection; it might be the very entrapment of the patient. People seem to have the impression, for some peculiar reason, and certainly some Ministers have given that impression, that patients in this position are violently aggressive and know their own rights and their law inside out and know exactly where they stand.

That is a ridiculous impression. Many of these patients are inarticulate, they are passive, they are cowed, they are beaten. Society has broken them by the stress of modern conditions. They do not know their law. If the nearest relative has some pecuniary interest, he might not protect the patient.

We have argued the case in Committee that there ought to be separate examinations, and the first Amendment here proposed meets our case exactly. But the second Amendment says that this separate examination will not be necessary if two people do not object, namely, the patient and the nearest relative. We are arguing the fact that the patient may not be in a position to make a sensible objection. He may not even know that he has the right to do so.

We are also arguing that the nearest relative may not have a benevolent disposition towards the patient. The law of lunacy has always been anxious to make sure that the patient would not be exploited by a relative in any cruel way. The exploitation of the mentally ill by the nearest relative has been the subject of human stories and plays for a long time. This is the sensible point which we are discussing.

There is another point to which I should like to receive a reply. In Committee, we discussed this thoroughly and the Joint Under-Secretary, who is not here at the moment, made two contradictory points. In the OFFICIAL REPORT of the Scottish Standing Committee of 29th March he said: If one has to have this joint con-sultation,"— referring to the two doctors together— this comparing of notes, what is the point in preventing one doctor from seeing the recommendation of the other? How can it be enforced? That is the first assertion of the Joint Under-Secretary—that the two doctors, whether they see a patient separately or together, are bound to come to the same conclusions and to write out the same recommendation.

Later, however, the Joint Under-Secretary said: Each would not even see what the other had written. This is going back on everything we have said so far about consultation and comparing notes, but when it actually comes to writing the recommendations, one person may not see what the other has written. Of course, they will be independent of each other."—[OFFICIAL REPORT, Scottish Standing Committee, 29th March, 1960, c. 482–3] This was said in response to an argument by myself and other hon. Members on this side of the House that there ought to be independent recommendations because we were taking away someone's liberty. The two doctors had to justify this decision and should examine the patient separately and write their recommendations separately.

I think that it would be very unfortunate if the right hon. Gentleman persisted in this second Amendment. The second Amendment applies to every person who is detained or whose detention is sought. This concerns a large number of people and it will apply in every case. If the right hon. Gentleman persists with the second Amendment, will he tell us whether the recommendations are to be written independently of each other, or written jointly? If they are to be written jointly, it will be disastrous. We shall, in effect, have not two people appearing before the sheriff, but only one.

We have been preening ourselves because we thought that in the Scottish Bill we have an advantage over the English Act in that we have the sheriff as part of the judicial process. Is this to be vitiated by having, in effect, only one recommendation? The first Amendment, of course, may stand. The second ought to be looked at again. Perhaps, in another place, the Government would be willing to make whatever Amendment was thought advisable. We strongly urge the right hon. Gentleman that he is making a mistake which will weaken the whole judicial process by tying the two doctors together and not making them independent. In this Bill, if there is a bias in his mind, so he told us, it must be in favour of the patient, as against committal by the State, and, between the public interest and the patient, it must be in favour of the patient. It will not favour the patient if the right hon. Gentleman allows the two recommendations to run together.

6.15 p.m.

Mr. Dempsey

I ask the Secretary of State to consider another aspect of this Amendment of which I have had personal experience in days gone by. We must all realise, in considering this Clause and these Amendments, that we are taking away a person's liberty. We are certifying a person as a mental defective, which, of course, means institutional treatment.

If we err, we should err on the safe side and ensure that the liberty of the subject, which we in this country treasure so much, is adequately protected. If we are to arrive at that adequate protection, I think that by accepting the latter Amendment we should, in all probability, be on the verge of making a very great mistake.

As my hon. Friend the Member for Greenock (Dr. Dickson Mabon) has pointed out, we are dealing with a person who is suffering from stress and strain and probably from the most severe of all illness, namely, a mental condition. That individual is not capable of objecting and of understanding his or her rights in accordance with the Statutes of this country. That person is wholly dependent on someone else, and the someone else mentioned in the Amendment is a relative. There is an old but very true saying, "You choose your friends but you do not choose your relatives"

It reminds me of a very sad case of which I knew in which a situation of this nature developed. Indeed, the relatives had such a pecuniary interest that they managed to arrange to coerce the elderly person, who was suffering from mental trouble at that time, to allow them to enter her local authority house on the pretext of assisting. Once they were settled in the local authority house, after a period of a few months the relatives were so helpful in calling on doctor after doctor that they had that elderly person certified and removed to an institution. They then took over the tenancy of the local authority house.

It was possible to coerce some poor soul suffering from that dreaded trouble, mental illness, to enable them to become occupants of a local authority house. I would say to the Secretary of State that because of that unpleasant experience the local authority, which is one of the largest today in Scotland, has altered its housing regulations to prevent the transfer of a house while the tenant is alive to any other member of the household.

I have known of cases where we have had individuals who have been detained for years in a certain mental hospital in Scotland. During those years, those persons have continued as tenants of local authority houses because of that most regrettable experience. I quote that case to the Secretary of State to show how dangerous the second Amendment could be, and I appeal to him to reconsider it with a view to withdrawing it.

Mr. T. Fraser

The right hon. Gentleman said that he believed that in some cases it would be in the better interest of the patient—indeed, I think he said in a great many cases—that two medical practitioners should examine the patient together. I should like him to tell the House in what circumstances it could be to the advantage of the patient to have these two examinations at the one time. The Bill makes it quite clear that before a person can be detained there must be two recommendations, not one recommendation by two medical practitioners, but two medical recommendations. That is essential.

The Secretary of State says that one of the two medical recommendations would normally come from the patient's ordinary doctor, from the general practitioner who knows the patient well, and the other would normally be a recommendation by a practitioner approved for the purposes of this section by a Regional Hospital Board as having special experience in the diagnosis or treatment of mental disorder…" The second person, the specialist, will normally come into the case after the patient has been under the treatment and observation of the general practitioner for a considerable time. Therefore, the general practitioner has seen the patient on his own, not on one occasion, but on numerous occasions. Then the specialist is being called in.

Does the Secretary of State say that, since the specialist is being called in to see whether he can give a recommendation in favour of the detention of the patient, it is in the interests of the patient that the specialist should be accompanied by the general practitioner when he examines the patient? Is it in the interests of the patient because it is more likely that a recommendation will be made in favour of detention, and thus the liberty of the subject taken away, or is it in the interests of the patient because it is less likely that he will be detained and his liberty will be preserved?

What does the Secretary of State consider to be the interests of the patient? We are discussing whether or not the patient will be detained and his liberty taken from him. What is in the interests of the patient? Is it that he Should be detained or that he should have his liberty preserved?

Mr. Maclay

I do not know.

Mr. Fraser

The Secretary of State says that he does not know what is in the best interests of the patient. Before the specialist is called in, the general practitioner has already made up his mind to make a recommendation in favour of detention. Does the Secretary of State think that that would not be so, or does he think that the general practitioner is undecided and would like to have the advice of the specialist before he makes up his mind whether the person shall be detained? If that is so, an application is being made, but the general practitioner does not know whether he can complete a prescribed form for recommending the detention of the patient until he has had the advice of the specialist from the adjacent mental hospital in which the person would be detained.

If the two doctors are to examine the patient together it is clear that the decision would be taken by one medical practitioner, namely, the specialist. If there are to be two medical recommendations, they should clearly be two medical recommendations or decisions which have been arrived at independently by the two medical practitioners concerned in making the recommendations. One of them would normally be the general practitioner, who has already made up his mind before the specialist is called in.

Let the specialist himself then see the patient. If the specialist takes the view that it is in the interests of the patient and of society generally that he should make a recommendation for the detention of the patient, let him make the recommendation, but that would be two separate recommendations.

The Secretary of State should realise that the Amendment gives the impression that the Legislature takes the view that it is desirable to have two separate examinations, because the Clause will then say, "examined the patient separately". The Amendment in line 46, which we are discussing with this Amendment, goes on to provide that where no objection has been made by the patient or his nearest relative the examinations may be conducted together.

In the Amendment in line 46 the Secretary of State takes away the whole value of the Amendment in line 45, because the Secretary of State knows as well as any other hon. Member that in the vast majority of cases the persons concerned will not know their legal rights. If the general practitioner comes along with the specialist and asks that they see the sick person together, neither the patient concerned nor the relatives will know that they have a right under the law to demand separate examinations by these two medical practitioners.

Nobody can dispute that. It is so clearly and obviously the fact that if Parliament takes the view that it is desirable to have separate examinations it should say so and provide for separate examinations. I cannot see in What conceivable circumstances it would be in the interests of the patient that the two examinations should take place at the one time.

Mr. Maclay

It is not easy to get absolutely clear the various degrees of arguments which have been advanced in the last few minutes. I am not quarrelling with their quality, but there has been a shading off from one point to another which it has been rather difficult for me to follow accurately.

I will try to clear up one or two points of substance straightaway. The hon. Member for Hamilton (Mr. T. Fraser) asked me what I thought was in the patient's best interests. No one can say. The patient's best interests must be to have the best treatment, which may not be to enter a hospital. It may be to go in as a voluntary patient, or it may be in the best interests of the patient to go in as a compulsory detainee. Obviously one cannot answer that.

One of the reasons behind my main argument on this point is that it would be a great pity if any obstacle were put in the way of coming to the wisest decision. That is why it is very necessary for there to be the possibility not only of consultation but of joint examination. One reason for a joint examination in many cases might well be that it would be very much easier for the prospective patient, if that is the word we are using to describe the person concerned. He might well be much happier if he had his own family doctor with him at the time. It may very well be to his advantage in reaching a proper decision on what should happen to his future.

The hon. Member for Greenock (Dr. Dickson Mabon) picked me up for using the word "treatment". The hon. Member was possibly being a little narrow in his interpretation of "treatment", because what we are talking about here is in many ways treatment. It is the ultimate decision as to whether there should be detention or voluntary admission.

Dr. Dickson Mabon

By definition the patient at this stage will not accept voluntary treatment. He would be a very poor practitioner who brought in a psychiatrist to give a second opinion if he had not already tried to persuade the patient to accept voluntary treatment. The general practitioner is bringing in the psychiatrist at this juncture in order to have a second medical recommendation for compulsory detention. By definition, "compulsory detention" means that the patient does not wish to enter hospital. There is no party interest in this matter. It is a legal process as to how we are to give the patient the treatment he needs. We ask for two witnesses. The Secretary of State is ensuring that we shall get only one.

Mr. Maclay

By no means. Another point of substance is that there will be two separate certificates. Both will be signed on soul and conscience. We must be a little careful. I realise that one has to think occasionally of something bad, but I find it difficult to believe that there will be many occasions on which two separate medical practitioners will sign wrong statements on soul and conscience. I do not like to think of that as anything but the most inconceivable and remote possibility.

Miss Herbison

The Minister says that he finds it difficult to believe that two separate medical practitioners would sign wrong statements on soul and conscience. That is not my great worry. If the two medical practitioners examine a person together, the general practitioner, having a long knowledge of the person, could exercise great influence on the consultant. Even by discussion and being together, although they did not want to have collusion, there is always the fear that the wrong decision would be reached.

6.30 p.m.

Mr. Maclay

The hon. Lady expresses one view, but there are others that are held very strongly. I am not a medical person, of course, so I cannot speak with full conviction, but I have taken very careful advice. It is very strongly felt in this matter affecting the freedom of the individual, that unless there is the possibility, unless objection is taken, of the family doctor being in attendance, one might not get the best decision.

I do not know a lot about medical conditions and practice, but I am sure it must be very helpful to anyone forming an opinion affecting the freedom of an individual—not only for treatment—to have, if possible, access to information from someone who knows the history of the patient. I hope that I may never be in that position myself, but I know that if I were I should prefer to have my own family doctor around when someone else came to the door. This is a very serious matter, and it has rightly been debated with great seriousness, but I must tell the House that I am convinced that what we propose is right, and I hope that the House will accept it.

Amendment agreed to.

Further Amendment made: In page 16, line 46. at end insert: or, where no objection has been made by the patient or his nearest relative, together "—[Mr. Maclay.]

Mr. Maclay

I beg to move, in page 17, line 18, to leave out "and".

Mr. Speaker

I presume that it is convenient with this Amendment to discuss that in page 17, line 21.

Mr. Maclay

Thank you, Mr. Speaker.

The effect of the Amendment is to require a doctor signing a medical recommendation accompanying an application for admission or a guardianship application to state in the recommendation whether he is related to the patient, and whether he has any financial interest in the admission of the patient into hospital or his reception into guardianship.

An Amendment was moved in the Standing Committee which would have had the effect of prohibiting a medical recommendation from being given by a doctor standing in certain professional, financial or family relationships to the applicant, or to the doctor giving the other medical recommendation, or to the patient. The object of those who moved that Amendment was to ensure that there could be no collusion between the patient's relatives, or between doctors related to each other in any way, to secure the patient's compulsory admission to hospital.

We resisted that Amendment because it was felt that the Bill contained other safeguards, in particular, the requirement that applications are to be approved by the sheriff, which would effectively deter anyone from collusion of the type at which the Amendment was aimed. However, in the light of the discussion of that Amendment, we undertook to look at it again, in particular, with regard to the question of persons with a pecuniary interest in the admission of the patient to hospital.

For the reasons given in the debate in the Standing Committee, we still feel that it would be wrong to adopt the previous suggestion and prohibit from giving a recommendation doctors standing in certain relationships to the applicant, the patient, or to the other doctor giving the recommendation. The prohibitions suggested would have covered a very wide range of persons and, particularly in remote areas of Scotland, might have made it difficult to find two doctors who could properly sign the two recommendations in respect of a patient.

I hesitate to repeat, though I will do so, the extreme example that the suggested prohibitions would have made it impossible for one medical recommendation to be signed by the father-in-law of an assistant employed by the doctor signing the other recommendation. That is an extreme example, but the suggested requirement would have made that impossible. As I say, that is somewhat far fetched, but it could happen.

Furthermore, it would be extremely difficult to enforce such a provision. When it was suggested in the previous debate that the proper course would be to leave the sheriff discretion to take into account, when deciding whether or not to approve an application, the relationships or financial interests of the doctors concerned, the movers of the Amendment themselves pointed out that the sheriff might not always be aware of the relationships involved.

After full consideration, therefore, the best course seems to be to ensure, by means of a statement in the prescribed form of recommendation, that the sheriff is always informed whether the doctors signing the two recommenda tions are related to the patient, and whether they have any financial interest in the admission of the patient to hospital or his reception into guardianship. This will ensure that the sheriff will look particularly carefully at any recommendations given by doctors who are related to the patient, or Who have a financial interest, and be careful to discount any possibility of collusion before he approves the application. At the same time, the provision will not give rise to the practical objections to the previous suggestion, and I hope that this attempt to meet the spirit of the previous Amendment will prove acceptable to its movers.

Dr. Dickson Mabon

We are very pleased that the Amendment we moved in Standing Committee has been treated so well. I then asked the Joint Under-Secretary to consider perhaps one-seventh of that Amendment, and he graciously consented to consider it. Later, he undertook to look at the whole thing again, and we have now obviously got more than one-seventh.

The Amendment was stimulated by the fact that in the English Act there is a four-paragraph Section dealing with all sorts of relations which act as a disqualification. We now have this new suggestion from the Secretary of State that in the form prescribed for use in submission to the legal process before the sheriff these safeguards can be incorporated, and we are very pleased to see this provision written into the Measure.

As I said in the Standing Committee: I am almost ready to give away the father-in-law of the assistant."—[OFFICIAL REPORT, Scottish Standing Committee, 31st March, 1960; c. 500.] That was if we could get an assurance that the whole thing would be considered. It has been considered, and on behalf of my hon. Friends I should like to say that we welcome the Amendment, which is an important one.

Amendment agreed to.

Further Amendment made: In page 17, line 21, at the end insert: and (e) such recommendations shall contain a statement as to whether the person signing the recommendation is related to the patient and of any pecuniary interest that that person may have in the admission of the patient to hospital or his reception into guardianship."—[Mr. Maclay.]