§ Order for Second Reading read
3.31 pm§ The Secretary of State for Social Services (Mr. Norman Fowler)I beg to move, that the Bill be now read a Second time.
In introducing the Second Reading of the Mental Health Bill in January 1959 the Minister of Health, my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith), who is in his place this afternoon, said that, in place of the then legislation on mental health
we propose to put a new pattern—comprehensive, simpler to understand and apply, and in line with contemporary thinking and medical and social advance".—[Official Report, 26 January 1959; Vol. 598, c. 704.]It is generally agreed that the 1959 Act was a landmark in the care of the mentally disordered.The approach of the 1959 Act reflected the principle that patients suffering from mental disorders should generally be regarded in the same way as the physically ill, without the need for isolation or certification. For the majority of patients, admission to hospital was to be without any formal procedure, and that has been the pattern ever since. The latest figures show that there are about 200,000 admissions to hospitals each year. Of these, 180,000 are informal admissions. These patients are on a par with the physically ill and have the same rights.
It was also acknowledged in the 1959 legislation that some mentally disordered patients present problems which have no parallel among the physically ill. Because of his mental condition, the patient's behaviour in some serious cases can constitute a danger to other people or to himself. He may have little appreciation of the nature of his mental disturbance and his judgment may be grossly disturbed. For such patients compulsory powers may be necessary, and these were defined by the 1959 Act.
The Bill does not seek in any way to overturn the principles of the 1959 Act. It seeks to build on them and to take account of the developments that have occurred since 1959. The Bill concerns the small number of patients—some 19,000 admissions a year out of 200,000—who have to be detained or made subject to special conditions by way of guardianship. In other words, detention in hospital becomes necessary where a patient needs care and treatment for his mental disorder for his own health or safety or the protection of others and when he is unwilling or unable to enter or stay in hospital voluntarily.
Although the numbers of people involved are small, the issues raised are, I believe, of great importance. I say that for three main reasons. First, detained patients are deprived of their liberty. Therefore, it is important that detention should be imposed only where it is essential, that there should be proper rights of appeal, and that detention for treatment should be ended as soon as the need for it has passed. Secondly, detained patients are particularly vulnerable, because of their confused or disturbed mental state. Therefore, it is important that their care and treatment should be subject to safeguards. Thirdly, it is also important that society should be protected from the sometimes dangerous activities of a small minority of the 689 mentally disordered; indeed, without this the progress made in improving services for, and general attitudes to, mental health could be severely jeopardised.
I believe that the way society cares for the mentally disordered is an important indication of the general concern of that society. I readily acknowledge all the work that has gone into the preparation of the Bill. After considerable consultation, the Labour Government published in 1978 a White Paper setting out their views, and many of those proposals are now in the Bill. The Bill also takes account of further discussion and developments since then—for example, the proposal for a Mental Health Act Commission is new and owes much to a proposal made by Sir John Boynton's report on Rampton hospital. We have also taken the opportunity to incorporate some of the proposals made by the Committee on mentally abnormal offenders, chaired by Lord Butler, who made a great contribution in this area, as he did in so many others.
I emphasise that this is in no conceivable way an issue of party politics. The changes to the Bill already introduced by the Government in another place are, I hope, evidence of our willingness to consider improvements that are practicable. I hope that the fact that the Bill will be subject to the Special Standing Committee procedure is further evidence of that willingness. We have few opportunities of mental health legislation and we should endeavour to get that legislation right.
The Bill is about the rights and interests of the public, the patients and the staff who care for those patients. The safety of the public is of obvious concern, and we shall do everything possible to preserve that. Equally, it is important that we provide safeguards for those detained patients and the Bill does that by, for example, halving the time before a patient's detention in hospital has to be reviewed, giving increased access for patients to mental health review tribunals, and by setting up the new Mental Health Act Commission.
At the same time, the Bill seeks to clarify the position of staff and removes uncertainties in the law. It is, of course, basic that the success of all our plans depends on the skill and dedication of hospital staff, and I pay tribute to the high standards achieved in this often very difficult work.
There is perhaps one further point which I suggest we always need to remember. Although the Bill is mainly concerned with detention, it is concerned not with custodial detention but with detention in a hospital for the purposes of treatment and care. For the majority of people who are compulsorily detained, the outcome of treatment will be release from detention with the mental disorder cured or greatly alleviated. For a minority, treatment may mean enabling them to live as full and satisfying a life as is possible, given the nature and severity of their mental disorder. But in either case, detention is for the purposes of treatment and care and is not an end in itself.
Turning to the provisions of the Bill, it may be for the convenience of the House if I divide the Bill into four broad areas: first, the scope of the Bill; secondly, the arrangements for compulsory admission and continued detention and for guardianship; thirdly, the arrangements for appeal and for ending detention; and, fourthly, the arrangements for the treatment and well-being of patients while they are detained.
As regards the scope of the Bill, it covers all forms of mental disorder, but changes have been made in the definitions to bring them up to date. A major change here 690 was made by the Government in another place. That was the removal of the term "mental handicap" from the Bill as introduced and its replacement by the term "mental impairment". The purpose of the change is to make it clear that for most mentally handicapped people the powers in the Act and the Bill have no relevance.
It was put to us that one major reason for the confusion in the public mind of mental illness and mental handicap was that the two conditions were dealt with together in the Mental Health Act. The change acknowledges the fact that for the most part mental handicap, unlike most mental illness, is not susceptible to treatment. However, experience shows that a very small number of mentally handicapped people may be able to benefit from treatment and care, and may need to be detained so that it can be provided because of irresponsible or aggressive behaviour associated with their disorder, which puts at risk their own health or safety or that of others. The amended definition in clause 1 ensures that the needs of this special group are adequately covered.
My second category was the arrangements for compulsory admission and continued detention and for guardianship. Part II and part III make a significant change in the conditions for admission and continued detention under the long-term powers. Together, these criteria for detention ensure that no one is detained or continues to be detained unless there is genuine need. In addition to the test of treatability—that is, that the patient is likely to benefit from treatment—the conditions are that the patient's mental disorder must be of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital, that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment, and that it cannot be provided unless he is detained.
Clause 3 amends the procedure for emergency admission under section 29 of the 1959 Act. The power of emergency admission is used more than any other admission power. In 1979 nearly 8,400 patients were admitted under this power. That was greater than the number admitted under any of the other powers. That was never intended, and the Bill shortens the time limits between examination and admission from three days to 24 hours, to help ensure that the power is used only in cases of genuine emergency. The clause also restricts the right to make an application to the nearest relative, rather than to any relative, or to a mental welfare officer.
Clause 6 concerns applications to detain patients already in any hospital. The need to do so may arise where a patient already receiving treatment for mental disorder wishes to leave hospital against his own best interests and cannot be persuaded to stay. The Act provides that if this arises the patient may be detained for up to 72 hours by the doctor in charge of his treatment. Clearly, that doctor cannot be available at all times to cope with emergencies. Therefore, clause 6 provides that another doctor may be nominated to exercise the power of detention.
The Bill also gives nurses qualified in caring for the mentally disordered power to hold an informed patient for up to six hours or until the doctor arrives if, in their judgment, it is clearly not in the patient's interests to leave hospital. The power may be exercised only where the patient is already receiving treatment in hospital for mental disorder. It will make the nurse's legal position clear in an important matter which has hitherto been subject to some uncertainty.
691 There is also one change in clause 4 which affects almost all admission powers for non-offenders. Under the Act, the mental welfare officer—a social worker—has the important function of making an application for admission to hospital when the nearest relative does not do so. The Bill provides for the replacement of mental welfare officers by "approved social workers", who will have to be specially designated and trained in the care of mental disorder. Training and approval will be the responsibility of the local authorities, and they are now being consulted on this.
We attach great importance to this new concept of "approval". It is not a once-and-for-all initiative. It will ensure that there is a steady supply of well-trained social workers to undertake these duties. This is of the utmost importance, because social workers play such a central role in admissions.
§ Mr. Christopher Price (Lewisham, West)What extra resources will be available to local authorities to make sure that this is done?
§ Mr. FowlerWe are still having consultations with the local authorities on that matter. In many cases the local authorities already have provision of this kind and therefore make provision already. Basically, the new resources which will be required will come mainly from those local authorities which are not at present making provision. We shall keep the matter under review. I do not think that at this stage I can go further than that.
The third category is that of the arrangements for appeal and for the ending of detention. The Bill will make major improvements in access to mental health review tribunals. The tribunals are essential to the working of the Act. They are independent of the detaining authorities and of my Department. As the House knows, they are appointed by the Lord Chancellor, and they consist of a lawyer, a psychiatrist and a lay member. They provide patients with an independent review of the need for their continued detention. Hitherto, only those detained under longer-term powers have had access to the tribunals, but a new right of application is being introduced for patients detained under the 28-days power under which about 6,000 patients are admitted each year.
In addition, the length of the periods of detention under the longer-term powers is being halved. That will mean that patients detained under those powers will have twice as many opportunities to apply to a tribunal. Moreover, there will be an automatic review by the tribunal for every detained patient who has not been seen by a tribunal in the previous three years. That will ensure that no one is forgotten.
§ Mr. Andrew F. Bennett (Stockport, North)With regard to the access to a tribunal, surely the key question is whether people are to be able to be legally represented and whether they will have the resources for it. What is the Minister's attitude to granting legal aid to all those who wish to appear before a tribunal?
§ Mr. FowlerThat is another question that we shall keep under review. As the hon. Gentleman knows, the Lord Chancellor has power to introduce regulations on that matter, but we shall want to take account of the debates in Committee. We recognise that it is an important issue.
692 I cannot give a commitment at this stage, but we shall listen carefully to what is said in Committee, and also to the evidence that is given in the Special Standing Committee proceedings.
I come now to another group of very important amendments moved by the Government in another place. They affect part III, on mentally disordered offenders. They are necessary to enable our law to take account of the recent judgment of the European Court of Human Rights. Restricted patients are to be able to apply direct to a mental health review tribunal for a review of their cases, and the tribunals are given the power to direct the discharge of restriced patients independently of the Home Secretary.
All offender patients will, like other detained patients, have more frequent opportunities to have their cases considered by a tribunal. Clause 18 revises the criteria to be applied by the courts in making hospital orders, so that all offender patients will also be subject to the new "treatability" test that I described earlier.
Clause 46 also spells out the duty of the hospital managers to give information to detained patients on the grounds for their detention, the ways in which they can be discharged and their rights of appeal. That again was a Government amendment in another place.
Information on rights leads naturally to the fourth category of improvements made by the Bill—the arrangements for the treatment and well-being of patients while they are detained. Most of this relates to the work of the new special health authority, the Mental Health Act Commission, which the Bill proposes should be established to concentrate its attention on the needs of detained patients.
The giving of treatment is clearly a central issue. It is the key to the whole concept of the legislation and, indeed, to the 1959 Act. It would be wrong to detain someone in hospital without providing treatment. Without treatment, hospitals for detained patients would become prisons under another name. Staff would be frustrated that they had patients whom they were capable of treating but were not empowered to treat; and some patients, unwilling to agree to treatment which they needed to uncloud their minds, would deteriorate. It has therefore been accepted that in the case of detained mentally disordered patients there should be a right to impose treatment where necessary.
The point was put very clearly in the report of the Royal Commission which led up to the 1959 Act, when it said:
Every effort should be made to persuade patients and their relatives to agree to care without compulsion. But if such efforts fail, doctors and others should not be too hesitant to use the compulsory powers which the law provides when this is the only way of giving the patient treatment or training which he badly needs, or when such powers are necessary for the protection of others.The Government continue to support that general view, but we believe that the time has now come to spell out in more detail the Circumstances in which treatment may be imposed on a detained patient and to provide new safeguards. In this way both staff and patients, or those who represent their interests, will be in no doubt about the legal position.
Clause 41 therefore states, for the first time, the general principle that where a detained patient can understand the nature, purpose and likely effect of treatment, it should not be imposed on him except in the strictly defined circumstances set out in the Bill. There are basically three 693 separate sets of circumstances. Under the first, the responsible medical officer can treat a detained patient for his mental disorder without consent in emergencies as defined in the Bill. Secondly, general nursing and other general care can be provided without the patient's consent. Thirdly, treatments such as electro-convulsive therapy, medication, and surgical treatments including diagnostic procedures can be given without the patient's consent, with the agreement of an independent psychiatrist appointed by the multi-disciplinary Mental Health Act Commission.
Even with these new safeguards there will be certain treatments that cannot be given unless the patient consents. These are the treatments which give rise to special concern—such as psychosurgery—and which are to be specified in regulations. Unless the patient gives his consent to these, and unless, furthermore, the second opinion by the independent psychiatrist is that the treatment should be given, these treatments cannot be given at all.
The Bill therefore provides a carefully thought out scheme in which the safeguards are graduated according to the particular category of treatment. This inevitably produces a fairly complex clause, but one which the Government believe seeks to balance properly the various factors surrounding consent and the imposition of treatment. On this, as on other parts of the Bill, detailed guidance will, of course, be issued later.
We also have the safeguard of the independent Mental Health Act Commission, which I regard as the single most important innovation in the Bill. The commission will, in a sense, carry on where Parliament leaves off. When Parliament has finished debating the Bill, the Mental Health Act Commission will take over the role of watchdog for detained patients.
It has been argued that mental health review tribunals already do that job, but theirs is a quasi-judicial role. The interests of detained patients go much wider than judicial decisions about discharge. The powers of admission, renewal of detention and treatment are of equal concern. The review team under Sir John Boynton, which considered the management of Rampton hospital, suggested in its report a need for such a body to look after the wider interests of detained patients.
The commission will be set up as a special health authority and will be a multi-disciplinary body of about 70 people, including lawyers, doctors, nurses, social workers, psychologists and lay members. It will operate from different centres and will have specific tasks within a clear-cut remit. It will be concerned only with mentally disordered patients who are compulsorily detained in hospital under the powers of the Act. It will visit hospitals where such patients are accommodated, talk with them and with the staff and examine records. It may also take up with hospital managers, and ultimately with me if necessary, any case where procedures for detention appear not to have been properly followed.
§ Mr. Michael Meacher (Oldham, West)I wish to ask the Secretary of State about the Mental Health Act Commission. Does he agree that there are two substantial weaknesses in the excellent proposal for the commission? First, the commission will not be able to deal with the 93 per cent. of patients who enter hospital informally. Secondly, while the commission is empowered to 694 investigate the complaints of detained patients, it has no powers to take any action if it finds that a person has been detained unlawfully.
§ Mr. FowlerI am coming to the first point that the hon. Gentleman mentioned. I understand the argument that the commission's remit could be made wider. With regard to the hon. Gentleman's second point, the powers of the commission will be sufficient for its purposes, bearing in mind the other powers and the other bodies that exist. I shall continue my speech and seek to explain that point.
The commission will be required, under clause 44, to prepare and keep up to date a code of practice for the guidance of those concerned in the admission of patients under the Act, and for the guidance of doctors and other professionals concerned in the medical treatment of detained patients. It may also, of course, prepare other specific reports on these matters as it wishes, or on any other matters which come within its remit. As well as looking after the interests of detained patients, therefore, the commission will be a source of invaluable advice on good practice in caring for these often severely disturbed patients. It will also provide a forum of experienced people in which the social, medical and ethical problems surrounding the care and treatment of detained patients may be debated.
The commission will also have special duties in relation to consent to treatment. As I said, certain treatments which give rise to special concern must be given only with the patient's consent and with the agreement of a second, independent medical opinion. Those treatments will be listed in regulations, but it will not be possible to give precise legal definitions to all treatments giving rise to special concern and some will, therefore, be described in a code of practice. It will be the commission's job to do this as part of the code of practice on medical treatment.
The commission will also appoint the independent doctors to give second opinions. Some might be psychiatrist members of the commission. Thus, the commission will monitor directly the arrangements for obtaining consent to treatment. Moreover, the doctors giving second opinions will discuss the issues which arise with the other, non-medical members of the comission. In short, the commission will function in these matters as a multi-disciplinary body taking a wide and informed view of all the issues.
It is important that we should have a body like the commission which can focus its attention on the special needs and position of detained patients, and can where necessary bring those needs to our attention through its reports and in other ways. As I have said, we are not giving the commission a wider remit in the field of mental health, because that would overlap with those of other bodies and prevent it from giving undivided attention to this special group. But I am sure that the influence of the commission will over the years have a general influence for good in the wider field as well.
The Government are deeply committed to the Bill and we shall listen to all suggestions and representations. It is important that we should give as much consideration to mental health as to physical health. It is also important that we should continue to push forward with the work that was at the heart of the 1959 Act—that those suffering from mental disorder of whatever kind should not be seen as isolated and different, but should have their disability accepted as on a par with the other disabilities of life.
695 Much of this means looking at mental health in the context of the general health and social services of the country and of bringing the mentally disordered fully into our community life.
Much progress has been made and I am determined that we should make further headway as fast as we can. In the Bill we are undeniably concerned with only a small number of people and a particular group of patients in the wider mental health field, but fuller recognition of their rights and of the care that society owes them, and of the rights of staff who provide this care for them, is important both in itself and as a mark of our concern for mental health. I commend the Bill to the House.