HC Deb 10 June 1981 vol 6 cc478-86

Amendment made: No. 29, in page 8, line 13 leave out `children' and insert

'pupils with special educational needs'.—[Mr. Mark Carlisle.]
Mr. Maxwell-Hyslop

I beg to move amendment No. 30, in page 8, line 15 after the first 'schools', insert 'other than schools specially provided for patients attending a psychiatric hospital'.

Mr. Deputy Speaker (Mr. Ernest Armstrong)

With this we may take the following amendments:

No. 31, in page 8, line 15, at end insert— '(b) schools which are specially organised to make special educational provision for children attending a psychiatric hospital and which are for the time being approved by the Secretary of State as hospital special schools shall be known as hospital special schools. '

No. 33, in clause 11, page 8, line 38 after 'schools', insert 'or hospital special school'.

No. 34, in page 8, line 40 after 'school', insert 'or hospital special school'.

No. 39, in clause 13, page 10, line 2 after 'school', insert 'or hospital special school'.

No. 40, in page 10, line 5, after 'school', insert 'or hospital special school'.

Mr. Maxwell-Hyslop

Amendments Nos. 33, 34, 39 and 40 are consequential on the first two. The essential point with which they are concerned is the proposition that there is an important difference between "special schools" in the generality of the Bill, and educational units attached to psychiatric hospitals that are classed as "special schools".

The reason for this important distinction is the reason why the children concerned find themselves in the "special school" of one of those two categories. In the generality of "special schools" the child finds himself there because of the characteristics of the school and his own needs. In the case of the "special school" attached to a psychiatric hospital, that is not the reason why the child is there. He is there because he needs to be in the hospital to which the school is attached. In other words, the child is in a "special school" attached to a psychiatric hospital for a medical reason for which he has been admitted to the hospital rather than an educational reason for which he has been admitted to the school.

Mr. Wigley

Would the hon. Member accept that it is not just in relation to psychiatric hospitals that that would be the case? It would also be the case in other hospitals where the child is accepted on a long-term basis and needs to be there to pursue his education.

Mr. Maxwell-Hyslop

I have not denied that proposition. I am putting the lesser rather than the greater case. It is the one with which the Royal College of Psychiatrists is concerned.

A child goes to a hospital for medical treatment with the consent of his parents—a consent that can be withdrawn. That is essential to the relationship between doctor and patient in general, but in particular in psychiatric hospitals, and especially where disturbed children are involved. If for reasons which are not medical the relationship is destroyed, there may be unfortunate consequences. Some children who otherwise would have gone into the hospital for treatment which they need will not do so, because their parents will believe, rightly, that they cannot rely on being able to withdraw the child from the hospital if they judge that to be the best course.

It is not a necessary condition of going into a psychiatric hospital which has what is classed as a "special school" attached to it that the child will be subject to a statement under clause 7. On the other hand, the child may already be subject to a statement, or he may be made subject to a statement while in that hospital. The range of patients is extensive and the period of treatment may vary from a few days to a couple of years. This was recognised by Baroness Young in a lengthy letter which she wrote to me on the subject, in which she said: The widely different circumstances and needs of children in hospital would also make it extremely difficult to arrive at any workable set of regulations which could be universally applicable. Quite so. If that statement is correct, how much more correct must it be that no set of regulations, covering not only all "special schools attached to hospitals" but the generality of "special schools", can possibly be applicable?

My basic proposition is that to try to embrace within one legislative definition educational units which are termed as "special schools" and to which children are sent because they need the characteristics of that educational unit, and then to stretch the same regulations to cover a completely different situation is not only unnecessary and unreasonable, but is courting avoidable situations deleterious to the medical treatment of the child in the hospital.

In ministerial correspondence and in a ministerial meeting the case has been put that such units do not have to be classed as "special schools" anyway. In theory that may be true, but if they are not the alternative system makes no provision for paying specialist staff. In practice they have to fall within certain aspects of the "special school" classification, so that the special qualifications of the staff which are necessary to make such a unit run properly and to the greatest benefit of the children attending it can be properly remunerated.

The solution to this conundrum is embodied in the amendments that I have tabled. Amendment No. 31 provides another category, and I have adopted, as far as possible, the wording of the Minister's draftsman, except in so far as "hospital" has to be inserted: "(b) schools which are specially organised to make special educational provision for children attending a psychiatric hospital and which are for the time being approved by the Secretary of State as hospital special schools shall be known as hospital special schools.". This merely applies a suitable term to recognise a different situation.

There are other subsidiary differences. Some units cover a very large area. I can, naturally, speak with greatest knowledge of a unit located in the constituency of my hon. Friend the Member for Exeter (Mr. Hannam). That hospital unit, a clinic for severely disturbed children, covers an area from the Isles of Scilly to Bristol, and includes the Channel Islands. To think in terms of local education authority multi-disciplinary teams in Cornwall, Bristol or the Channel Islands making quick decisions about children located 100 miles away is not to be au fait with the practicalities.

Inside the hospital school of that unit there is already a multi-disciplinary team which constantly assesses the children, whether they be passing through on a long-term or short-term basis. There is a doctor, an education psychologist, a social worker, a nurse, a local education authority teacher, an occupational therapist and a clinical psychologist. The social worker will be in contact both with the child's family and with the school he normally attends. The Minister will probably say that the child may remain on the role of the school which he attended before he went into the unit. So he may, but, on the other hand, he may not. He might have been excluded from that school because of personality problems, which could be one of the principal reasons why he went into the hospital for treatment.

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What is to be hoped is that, if possible, the child will be able to return to the school from which it has been excluded after the successful outcome of its treatment in hospital. What the hospital endeavours to do, both in the interests of the individual patients concerned and in the interests of other patients who need the facilities of the hospital, is to return the child to its home environment and its normal educational environment as soon as possible. That can literally be within a few days. On the other hand, it can be after a much longer period.

The assessment of the child patient in the hospital and the school is a continuing process. If the child is the subject of a statement, has been removed from the roll of the school that it used to attend, and is registered with the school attached to the hospital, the Bill says that it cannot just be discharged from the hospital on the basis of the assessment of the team in the hospital which possesses all the skills of a team outside. In practice the child's discharge would have to wait until a team could be gathered together outside the hospital to duplicate the work that had already been done inside the school attached to the hospital.

Not only is that an extremely wasteful process of duplication; it is unnecessary and delaying. That is why experienced consultants in charge of such units, and the Royal College of Psychiatrists, which has given some thought to the matter, do not wish those schools to be brought within the same formal classification as the "special schools", in the sense in which the term is used everywhere else in the Bill.

Mr. Wigley

The hon. Gentleman has put forward a valid argument, which I had not appreciated before. The term "hospital special school" may be interpreted by others outside as covering special schools at hospitals and psychiatric hospitals. There may be a problem. Is the hon. Gentleman's terminology right?

Mr. Maxwell-Hyslop

It is important to have a separate category for those schools. The hon. Gentleman has raised a valid point. If that were my right hon. and learned Friend's only objection, the amendment could be accepted, and in another place another word could be inserted by amendment, or the Chair might allow a manuscript amendment—for example, "psychiatric hospital special school". That might be a point of substance, but it is not one on which I wish to consume the time of the House. Any such terminological amendment would be acceptable to me. I hope that it would be acceptable to my right hon. and learned Friend as well.

Without wishing to delay the House unduly, I am at some pains to remove some of the obfuscation that has needlessly crept into the prolonged discussion to date. I shall run through the arguments again so that my right hon. and learned Friend does not have to focus his attention on matters that are not relevant.

It is agreed that children who are not subject to a statement can be withdrawn from a "hospital special school" at the request of their parents. I hope that it is also agreed that children who are the subject of a clause 7 statement and are registered as being at that school, and not at any other, cannot be withdrawn from the hospital at the behest of the parents. I use the word "hospital" as shorthand. It is not practical, after a child is withdrawn from a hospital, for there to be a legal requirement for him to attend school there each day if it is 60 miles away from where he lives.

The Bill could place us in the ridiculous position of Shylock. My right hon. and learned Friend may say that nothing is stopping parents from withdrawing their child from the hospital. However, they are still under a statutory duty to see that he attends the school each day, which could be physically impossible because of the distance, unless and until the lengthy procedures in the Bill for removing registration are complete.

If a separate set of regulations is necessary, let us have them. My right hon. and learned Friend may say that separate regulations already apply to some schools, termed "special schools", attached to hospitals, but we are creating a new structure. It will be many years before we legislate on the matter again, so let us get it right. Instead of getting the structure wrong and having to repair the damage with regulations, let us acknowledge in the main text of the Bill that we are dealing with two categorically different situations.

I shall not argue with my right hon. and learned Friend if he recognises that fact but finds my drafting unattractive. If he undertakes in another place to introduce amendments to the same effect, we shall not fall out. My objective is to secure a different legal status for schools attached to hospitals that fall within the "special school" nomenclature for staffing purposes, which is important, but also in terms of the children whom they take in who may have been in ordinary "special schools". It is for them that we must make provision. That is why I ask my right hon. and learned Friend either to accept the amendments or to introduce similar ones.

Finally, let me say that my hon. Friend the Member for Plymouth, Drake (Miss Foukes) has consistently taken a great interest in the matter, and wished her name to be on the amendment. I thought that she was adding it, and she thought that I was, with the result that it does not appear.

Rev. Ian Paisley (Antrim, North)

On a point of order, Mr. Deputy Speaker. I seek your guidance. A serious event has occurred in Northern Ireland tonight. Eight men accused of murdering a policeman have blasted their way out of the Crumlin Road prison with guns. Will the Government make a statement tonight?

Mr. Deputy Speaker

The authorities will take note. It is not a point of order and therefore not a matter for me. It is a very serious situation. I am sure that the Government spokesman will take note.

Mr. Mark Carlisle

As the only member of the Government present, may I say that there is a Whip on duty as well. He will have heard what the hon. Gentleman has said. I think that the hon. Gentleman may be assured that his message will be conveyed appropriately.

Rev. Ian Paisley

I am grateful to the right hon. and learned Gentleman for that statement.

Mr. Carlisle

My hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) said that he hoped that there were various matters on which we could agree. I think I can say with confidence that we agree on one thing: this is a complicated and technical matter. If, in my few words, I fail to persuade him that his amendments are not necessary, I assure him that it will not be because we have not attempted to examine the situation. Indeed, if at some stage he is able to provide additional information, I shall of course consider the matter again.

As I understand it, the effect and purpose of my hon. Friend's amendments would be to create a new and limited category of special schools, which would be known as hospital special schools, but which in practice would be limited to schools provided for those attending a psychiatric hospital or unit.

As my hon. Friend said, the purpose of his amendments is merely to disapply from those schools clause 10(2), which at present requires that the parent of a child who is … a pupil at a special school in accordance with arrangements made by a local education authority shall not withdraw the child from that school without the consent of the local education authority". I am very grateful to my hon. Friend for his speech on Second Reading, which I have had the opportunity to study. As he knows, over the past few days, at my request, an official from the Department has had fairly lengthy telephone conversations with a constituent of my hon. Friend who is particularly concerned about this matter. I am even more grateful to my hon. Friend for substantially limiting his speech today to what I had understood to be the likely area of disagreement between us.

The first point that I had intended to make, which I realise we both now accept, was that the clause has no effect at all upon the admission, removal or withdrawal from a special school of a child who is not the subject of a statement under the Bill. Therefore, if a child is referred in the normal way from a general practitioner to a hospital and it is medically decided by the GP and the consultant that it would be appropriate for the child to go into hospital, perhaps for a short time, and to enter that school, as the child is not subject to a statement he is in no way affected by the clause and the parents are free to withdraw him as at present. The only circumstance in which a child could not be withdrawn from that special school without the consent of the local authority is, as my hon. Friend has said, when that child is registered as a pupil at that school in accordance with an arrangement that has been made by the local education authority.

The second provision on which my hon. Friend and I are agreed in principle—although we may disagree as to its validity in practice—is that if that child is the subject of a statement under clause 7 and the statement refers to a specific special school by name and the child is then, for medical reasons, removed from that special school and goes into the hospital and becomes a short-term patient in the special school of the hospital. The clause has no effect whatever unless that patient is also registered as a pupil on the roll of that hospital school and is removed as a pupil from the roll of the special school that he was attending.

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We believe, and would make it clear in what we said to local authorities, that, in practice, when a child is subject to a statement under the Bill and is on the roll of a special school, if that child is removed for a short stay to a psychiatric hospital, the local education authority would not take the child off the register of that special school to place him on the register of the special school in the hospital. Indeed, we would indicate to the local education authority that we would not expect it to do so.

Mr. Maxwell-Hyslop

I intervene only to ensure that no misunderstandings will arise. This statement does not refer only to the child being registered at a "special school"; it is at any school. I nention that because my right hon. and learned Friend referred to a "special school", and I thought he might have said something that he did not mean to import.

Mr. Carlisle

My hon. Friend is right. I was taking the case where the educational provision provided under the statement was the registration of the child in a special school. My hon. Friend is right. The child might be the subject of a statement, but that statement may not say that he is a registered pupil at a special school. He may be educated somewhere else.

The only basis on which the clause, as I understand it and as I am advised, would require the consent of the local education authority before that child could be withdrawn from the special school in the hospital would be if that child were registered as a pupil at the special school in accordance with arrangements made by that local education authority. In other words, I agree with my hon.

Friend that, under the terms of the Bill, if that child were to be made the subject of a statement under clause 7 and the provision decided upon under that statement were to be education at a particular psychiatric hospital school, that child could not be properly withdrawn without the local education authority's consent.

Again, in practice, it is difficult to believe that that position would arise except in agreement with the consultant psychiatrist concerned and the local education authority. Therefore, again in practice I should have thought that the only effect of it would be to prevent a child from being withdrawn against the view of those concerned with his psychiatric health, rather than preventing the discharge by the psychiatrist of the child from that hospital.

We now agree that the impact of the provision is in only that limited area. It does not change the existing law in any way. In the Education Act 1944 the words had exactly the same effect as in the Bill. Section 38(2) says: A child who has under arrangements made by a local education authority become a registered pupil at a special school"— that definition of special school includes a special school in a hospital, to which my hon. Friend referred— shall not be withdrawn from the school without the consent of that authority. Therefore, if a child is in a special school, including a hospital special school, as a result of arrangements made by a local authority and is a registered pupil at that school, he cannot be discharged without the consent of the local authority.

The Bill does not change the law. My hon. Friend is possibly saying that the law has always been wrong. As I understand it, during the years that that law has been in force there has been no pressure to suggest that it is not working satisfactorily. For perfectly good and genuine reasons, while recognising his concern and accepting that the psychiatrist to whom my officials have spoken is not convinced of the argument that I am advancing, I believe that my hon. Friend is mistaken in believing that this has a major effect.

The other point that my hon. Friend made was about the regulations. At the moment, any special school in a psychiatric hospital is a special school within the terms of the 1944 Act and is subject to regulations. One set of regulations covers all special schools, that is the Handicapped Pupils and Special School Regulations 1959. I agree that my hon. Friend may say that it is putting on regulations and taking them off. Those regulations conclude that if a special school is in a hospital—that is any type of hospital—the regulations shall apply to it with such modifications as are required to meet the conditions appertaining to that hospital. I give my hon. Friend the assurance that any regulations made under the Bill would have to be new regulations and would need a similar proviso to ensure that they could be modified to meet the different conditions that arise in a special hospital from those that arise in an ordinary special school.

What my hon. Friend is asking for is not necessary, because of the limited effect which he says the Bill would have on children in particular circumstances. I believe that that is repeating the legal situation which has been current since 1944 and, as far as we know, has worked accurately.

If my hon. Friend is still not satified with my explanation, and if there is evidence of which the Department is not aware that the provisions in the law have been working unsatisfactorily for many years, we should consider any representations that my hon. Friend might wish to make. I do not see that my hon. Friend's fears are justified and that in future the discharge of a child in the circumstances that he has described would be delayed because of the need to have a multi-disciplinary inquiry by a local education authority team when the wording has existed since 1944.

I have no doubt that in practice the local authority will act on the advice of the psychiatrist in charge of the hospital that the child attends. I should have thought that in practice that was inevitable. I have considered the matter as carefully as possible and I have looked closely at the various Acts. Therefore, I hope that my hon. Friend will feel able to accept my explanation.

Mr. Maxwell-Hyslop

I am grateful to my right hon. and learned Friend for having looked at the matter carefully. However, he has not given us any news. If he scratches his memory he will recollect that I said that at present different regulations applied to schools attached to hospitals. My argument was that the existence of a different set of regulations recognises that it is anomalous to try to bring both types of "special schools" within the same regulations. My point of substance was that this should be recognised overtly in the Bill's text instead of pretending that they are all the same in the Bill and having to make a differentiation in the regulations.

My right hon. and learned Friend pointed out that the problem had been overcome in the past—I believe, clumsily—by making a separate set of regulations for schools attached to hospitals. In pointing that out he has granted the case for the amendment. He has acknowledged that such schools are in a different category and that they cannot be covered by the same regulations. Indeed, that is why they are not covered by the same regulations. Let us get things right this time. After all, our legislation will have effect for many years.

To date, the regulations have been ignored. Consultants have discharged patients who, under the regulations, should not have been discharged. In many walks of life people suddenly realise that there are extant regulations of which they had been unaware and which had not, therefore, been enforced. Once official note is taken of them, a different situation arises. From then on it is necessary to get the situation under control.

I hope that my right hon. and learned Friend will agree, on reflection, that instead of maintaining a text that pretends that "special schools" attached to psychiatric hospitals fall into the same legislative category as those that do not, that should be acknowledged openly in the Bill's text.

There is another reason why that should be so. Local education authority officials are not usually lawyers. They know Acts better than the fine print of regulations. If the Act makes the distinction clear, it will be more likely to generate the required attitude among those officials than if the substance of the Act pretends that two different things are the same. Local education officials would not then have to fudge the regulations—which they may not be aware of, or may not enforce—in order to get out of a false assumption embodied in the primary enabling Act.

Therefore, I again ask my right hon. and learned Friend to reconsider the matter to see whether he does not agree that it is time that we got it right in the principal measure, the Bill, rather than once again having to fight to get it right in the subsequent regulations.

Mr. Deputy Speaker (Mr. Bernard Weatherill)

Is the hon. Gentleman seeking leave to withdraw the amendment?

Mr. Maxwell-Hyslop

I am waiting, Mr. Deputy Speaker, for a response from my right hon. and learned Friend.

Mr. Deputy Speaker

The Secretary of State has spoken once.

Mr. Mark Carlisle

I should point out, Mr. Deputy Speaker, that I have spoken at great length. I take note of what my hon. Friend says.

Amendment negatived.

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