REMAND TO HOSPITAL FOR REPORT ON ACCUSED'S MENTAL CONDITION (Hansard, 18 October 1982)

§ Mr. Pitt
I beg to move amendment No. 18, in page 18, line 21, leave out from 'charged' to end of line 22 and insert 'or it is determined that he understands the nature and purpose of the proposed exercise by the court of the powers conferred by this section, and has consented to it.'. I seek to amend an inconsistency. In part VI of the Bill the Government accept that for consent to be valid it must be given by a person who understands to what he is asked to consent. An understanding consent is required. The amendment provides for an understanding consent to apply in clause 28. A court might consider that it is not necessary for an accused person to understand. The amendment clears up an inconsistency. The concept has been debated fully by Lord Hooson and others in the House of Lords. I hope that the Minister will agree to repair the inconsistency.

§ Mr. Mike Thomas
I support the amendment. The clause makes it clear by the word "or" in line 20 that there can be no question of someone who has committed an act as charged being affected by the provision. If a person has not committed an act as charged it is inappropriate for him to be remanded without consent and without understanding what is involved. If a person cannot understand and has committed an offence, other parts of the legislation can be applied. There is force in the argument about inconsistency and in the suggestion that the courts might believe that we had reason to leave in the inconsistency.

§ Mr. Mayhew
The hon. Member for Croydon, North-West (Mr. Pitt) spoke with commendable brevity. His intention is to tighten the existing wording to ensure that a defendant does not consent to a remand in hospital in ignorance of what that entails. The hon. Gentleman's amendment adds nothing to the sense of the existing words. The concept of consent already carries with it the necessity that the person giving consent shall be capable of understanding the situation and have sufficient information on which to make up his mind.
Magistrates' courts are well used to dealing with issues of this type and it is neither necessary nor helpful to spell the matter out in the way proposed in the amendment. Whatever may be the position in relation to decisions made in hospital, I would suggest that in the context of proceedings in court the House can be confident that steps would be taken to ensure that the hon. Gentleman's requirements are indeed met. I understand his point, but I do not believe it supports his contention that a change is necessary. I wish to make it clear, however, that consent in clause 28 is not consent to treatment, because clause 40(1)(b)makes it clear that a person detained under clause 28 is not subject to the provisions about consent to treatment in part 6 of the Bill, so that the ordinary principles governing treatment would apply.
Therefore, the hon. Gentleman would be giving no hostages to fortune by agreeing to withdraw the amendment. In the light of what I have been able to say, I invite him to withdraw the amendment. There is no danger here and there is no reason for what he has proposed.

§ Mr. Pitt
Having listened to what the Minister had to say, I beg to ask leave to withdraw the amendment.

§ Mr. Mayhew
I beg to move amendment No. 84, in page 19, line 15 leave out from 'if' to end of line 18 and insert 'it appears to the court that it is appropriate to do so'.

Mr. Deputy Speaker
With this it will be convenient to take Government amendments Nos. 85 to 89.

§ Mr. Mayhew
Subsection (8) of clauses 28 and 29 was inserted in the Bill by an amendment in Committee moved by the hon. Member for Newcastle upon Tyne, East (Mr. Thomas). The present amendments leave the effects of the new subsection exactly as they were intended by the hon. Member. Our purpose here is simply to rectify some minor defects of drafting. There was for example an inconsistency between the provisions of subsection (8) that the court could end the remand on the basis of the independent medical report and the provisions of subsection (7), which state that the remand can be terminated only on the basis of evidence from the doctor responsible for making the report required by the court. Amendments Nos. 84 and 86 rectify this inconsistency and provide that the court may terminate the remand if it appears appropriate to it to do so. Amendment No. 85 makes it clear that the right expressed in subsection (8) can be exercised only at the accused person's own expense. The other changes to the drafting of subsection (8) made by this amendment are to ensure consistency with other parts of the Bill.

§ Mr. Mike Thomas
I accept what the Minister says, although he has slid into the provision the clarification that the independent report shall be at the expense of the patient. I am not sure whether that was entirely the intention of the Committee, but one can trust the Government not to leave such a matter of public expenditure in doubt. Nevertheless, I accept all that he says about his intentions and ask the House to support the amendment.