PROTECTION FOR ACTS DONE IN PURSUANCE OF THE PRINCIPAL ACT AND THIS ACT

HC Deb 18 October 1982 vol 29 cc171-5

Mr. Geoffrey Finsberg

I beg to move amendment No. 100, in page 39, line 29, leave out from 'Ireland' to second 'the' in line 32 and insert 'the reference in this section to the Director of Public Prosecutions shall be construed as a reference to'.

Mr. Deputy Speaker

With this we may discuss Government amendments Nos. 66 and 68.

Mr. Finsberg

This is a minor correction, on the advice of the draftsman for Northern Ireland, to clause 57, which was moved in Committee by my hon. Friend the Member for Beeston (Mr. Lester). We want to delete some words that are unnecessary because other legislation has the same effect.

Amendments Nos. 66 and 68 are two small, technical amendments which are consequential on amendments at an earlier stage about the functions of approved social workers.

Amendment agreed to.

Mr. Proctor

I beg to move amendment No. 114, in page 39, line 33, at end insert— '(6) After subsection (4) there shall be inserted— (5) The provisions of this section only apply to civil and criminal proceedings where the act complained of was done in respect of a person or persons who, at the time of the said act were detained under this Act or the Mental Health (Amendment) Act 1982".'. This amendment follows on from the discussion in the Special Standing Committee originated by my hon. Friend the Member for Beeston (Mr. Lester) with regard to section 141 of the 1959 Act

No one would deny that section 141 is an important protection for the staff of mental hospitals. However, the Committee sought some clarification, and, as reported at column 654, my hon. Friend the Member for Beeston tried to establish the position of voluntary patients under section 141. I moved an amendment in Committee seeking to exclude voluntary patients from section 141

In his reply, the Minister seemed to think that the position was clear but said that he would come back on Report if it was not clear enough. The Government have tabled no amendments to section 141, even though the Committee was uneasy and unhappy about the position of informal patients under that section

The only occurrence since the Committee stage is a letter from my hon. Friend the Under-Secretary of State dated July 1982 to my hon. Friend the Member for Beeston, which was copied to all Members of the Special Standing Committee. I should like, if I may, to make some brief comments on each of the paragraphs in that letter. I am sorry if I try the patience of some of my hon. Friends, but the subject of mental health is important, even at three o'clock in the morning. Therefore, I do intend to put some important points to my hon. Friend the Under-Secretary.

Paragraph 2 of my hon. Friend's letter states: Acts purporting to be done in pursuance of the Act could be done in relation to a patient who is not, but is believed to be, liable to be detained. For example, a doctor who was not a registered medical practitioner might have signed an application to commit. There is also talk in that paragraph of protecting ambulance men who might take such a patient to hospital and nurses who might keep him in hospital or give him treatment.

In the circumstances envisaged in paragraph 2 there would be no point in suing the ambulance men or the nurse as they would almost certainly be unable to stump up any damages. It would be much more satisfactory to proceed against the hospital managers—the health authority or the doctor who falsely represented his standing—although that would probably be equally pointless. The action in such circumstances would probably be false imprisonment, which does not require the establishment of negligence or bad faith. Therefore, the innocent ambulance men are, in theory, at risk, but in practice I do not believe that any such case has ever been reported. It seems to be of insufficient weight to justify leaving unclarified the principle incorporated in amendment No. 114.

Paragraph 3 quotes the example of a nurse saying to an informal patient "I am withholding your letters from the post and the Mental Health Act gives me authority to do so." It continues: There will be cases where the nurse had made a genuine and excusable mistake, for example, because a patient's records showed that he was detained or because the nurse relied on legal advice from the health authority which was unfounded. As far as I know, no case along those lines has been reported, either. The same comments that I made with regard to paragraph 2 apply. The point here must be whether there is any reason or risk that justifies treating informal mental patients any differently from everybody else. For instance, if a policeman were instructed by a senior police officer to arrest somebody on a warrant obtained by a senior police officer which was invalid, I expect that the arresting police officer could be liable in a false imprisonment action. It may seem unfair that we put the value of personal liberty so high for ordinary people that this type of liability is considered justifiable.

Finally, paragraph 4 of the letter raises the question of the Court of Protection. Most of the patients who are under the jurisdiction of the Court of Protection may also seek some protection under section 141 of the 1959 Act. I do not see why the protection of section 141 should be extended to those caring for informal patients under the jurisdiction of the Court of Protection. A receiver appointed under section 102 of the 1959 Act by a judge is authorised only to do those things that the judge orders or directs him to do. Therefore, so long as he remains within the direction of the judge, or more likely the registrar of the Court of Protection who exercises the functions of the judge, there can be no question of any action. If the receiver steps outside these bounds, I cannot think of any action that would not require negligence, bad faith or breach of fiduciary duty. If there is an action that does not require those elements, should it not properly be available to the informal patient as well as to the rest of us, for example in relation to the exercise of these powers by trustees?

Last night the Minister of State, Home Office said that exceptions made bad law. Here we have a whole string of hypothetical cases that make even worse law. I hope that my hon. and learned Friend will explain why we cannot remove the bar on section 141 in relation to informal patients.

Mr. Kenneth Clarke

I shall do my best to answer the questions raised by my hon. Friend the Member for Basildon (Mr. Proctor), although my hon. Friend the Member for Beeston (Mr. Lester) received an answer on 22 July, on which my hon. Friend has drawn. If the answer is studied and reread several times, it is clear, although perhaps not crystal clear, that we are dealing with a complex area of law and no explanation can be given in colloquial or readily accessible English, unless great care is taken.

At this late stage in our proceedings and at such a late hour, I hope that my hon. Friend is not challenging the fundamentals of section 141. Throughout our proceedings most people have accepted that the staff and the authority need some protection against actions by detained patients. The analogy that my hon. Friend drew of the policeman arresting someone wrongfully is not valid, because we are dealing with the mentally ill or severely mentally handicapped. Therefore, there is a risk that one symptom of their illness may be the taking of a malicious and unfounded action against a member of staff to whom they have taken a dislike. Obviously, the staff are entitled to some protection from such action.

Again, it was the Government's opinion that the protection under the 1959 Act went too far and tried to hedge about the ability of the High Court or the Director of Public Prosecutions to initiate proper civil or criminal proceedings where it was plain that a case should go to a court to be decided. Therefore, we reworded the important part of section 141 in clause 57, to which my hon. Friend's amendment is directed. The problem that concerns him is whether section 141 applies to voluntary patients so that even they cannot bring an action against a member of staff or the authority without going over the hurdles of section 141. It is difficult to paraphrase the precise, but rather obscure language of the letters that have been going backwards and forwards on this subject, but basically the answer is that section 141 of the pricipal Act does not apply to informal patients in almost all respects. unfortunately, section 141 is not worded quite like that. It says that the protection of the section applies in all those cases—criminal or civil proceedings—in respect of any act purporting to be done in pursuance of the Act or any regulations or rules thereunder.

Therefore, the protection applies to actions under or purporting to be under the Mental Health Act 1959. It is almost impossible to conceive of any acts that could be done or could be purported to be done under the 1959 Act that would apply to informal patients. Almost all the powers given in the 1959 Act and in the Bill enable people to take actions vis-a-vis detained patients. Therefore, there are hardly any circumstances in which an informal patient could be affected.

Unfortunately, my hon. Friend, in trying to clarify the matter, has achieved the same effect as the existing law. In producing his alternative form of words he has taken out two detailed parts of section 141 which could, in a tiny minority of cases, have a practical and undesirable effect

3.15 am

First, my hon. Friend has taken away the clause about any act purporting to be done in pursuance of this Act. It was to the cases that would be damaged by taking those words out that the letter of my hon. Friend the Under-Secretary of State was directed. An act can be done under the Mental Health Acts only if the patient is a detained patient. Someone can carry out an act purporting to do something under the Act when he believes that the patient is a detained patient. Leaving aside the fact that people can act in bad faith, or be negligent, one can conceive, to take one of the examples in the letter, of an ambulance man who has a patient in his charge who he believes is a detained patient because he is told so. Therefore, he is told that he should prevent: the patient from escaping. If the patient attempts to go off and he takes steps to stop him from escaping, he might be liable to an action thereafter, but he would be protected if we retain section 141 with its present wording. That is an adequate illustration that there is cause for keeping the wording that we have.

The other detailed point that my hon. Friend left out by trying to reword section 141 is the references to part VIII of the Act, which is a whole section of the 1959 Act dealing with the Court of Protection, with which we have not yet had to concern ourselves. I am anxious not to go into the problem of the Court of Protection under the 1959 Act, except to say that it is necessary to give even receivers protection under section 141 against people subject to orders of the Court of Protection. Many of these people are not in hospital, but they are under the Court of Protection because they are seriously mentally ill and deranged. It is not unknown for people in that unfortunate position, frustrated because the Court of Protection will not allow them to have access to their money and affairs, to entertain themselves by taking frivolous and vexatious action against the receiver, or whoever is keeping them away from their money. They may wish to give the money to the cats' home, or whatever they wish to do with it. The Court of Protection is designed to stop them from doing that. It would not be right to take that protection away.

I doubt whether I have made the position much clearer than in the original letter, but this is an obscure part of the law. My hon. Friend's main purpose is to ensure that informal patients in most ordinary cases are not cut off from their civil remedies or protection from the criminal law. Section 141 is already looked after by the wording we have in the principal Act and in the Bill. Although the amendment would in some respects clarify the wording, because of the two minor points I have described, this would be a backward step and we should take away protection in a limited number of worthwhile cases.

Mr. Proctor

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.