PERSONS DETAINED UNDER MENTAL HEALTH (SCOTLAND) ACT 1984 (Hansard, 16 December 1992)

§ Mr. McFall
I beg to move amendment No. 2 in page 5, line 11, leave out 'a report is furnished in respect of him under subsection (9) below' and insert 'an application for admission under Section 18 of this Act has been approved by the sheriff and made in accordance with Part V of this Act.'.

§ Madam Deputy Speaker (Dame Janet Fookes)
With this it will be convenient to take the following amendments: No. 3, in page 5, leave out lines 20 to 35.
No. 4, in page 5, leave out lines 36 to 46.
Government amendment No. 14.

§ Mr. McFall
The amendment would ensure that clause 4 is amended so that the regular procedures under the Mental Health (Scotland) Act 1984 apply to detainees under the Immigration Act 1971.
We tabled the amendments for a number of reasons, but our principal concern is the provision for continued 478 detention following the expiry of sentence. We see no reason why the normal procedures under section 18 should not apply in such circumstances, operating under the same criteria and offering the protection of an application to a sheriff. The proposals contain broader criteria, and only a right of appeal to the sheriff.
Our anxieties would become crucial in, for instance, the case of a person with language or mental difficulties who had been detained under immigration provisions. Such a person would be unlikely to understand that he or she had a right of appeal, and would surely be dealt with more appropriately under the procedure governing a section 18 application to the sheriff.
The recent statutory amendments to detention procedures should eliminate concern about transitional difficulties on expiry of sentence, and thus strengthen the argument that the normal procedure should apply following expiry.
We were not convinced by the arguments advanced by the Minister in Committee.

§ Lord James Douglas-Hamilton
I am happy to concede that, when a prisoner has been transferred to a mental hospital under both a transfer direction and a restriction direction, and when the date has arrived on which that prisoner would otherwise have been released from prison, the person concerned should from that point on be treated in exactly the same way as a person who has been admitted to hospital under civil rather than criminal procedures. Indeed, my noble and learned Friend the Lord Advocate and I have made much the same point in relation to clause 4 at earlier stages. I would, however, be reluctant to go as far as is proposed in amendments Nos. 2, 3 and 4.
It should be borne in mind that the provisions that we are considering tend to relate to only a small number of longer-term prisoners who require to be transferred to hospital because of serious mental disorder. Where a prisoner is serving a short sentence, or has only a short period of a longer sentence still to serve on the date on which he is transferred to hospital, it is unlikely that a restriction direction will be made. Where the prisoner's mental disorder is not such as to require long-term treatment, it is unlikely that he will be detained in hospital for very long, or that the responsible medical officer will consider that continued detention in hospital is necessary.
What is envisaged in amendments Nos. 2, 3 and 4 therefore seems somewhat unrealistic. The person concerned may have been detained in hospital for several years, and may in that time have made one or more unsuccessful appeals to the sheriff to be discharged. At the time in question, it will appear evident to all concerned—including the Mental Welfare Commission for Scotland—that the person's continued detention in hospital will be necessary for a further period.
Finally, the patient himself may not wish to contest the grounds for his continued detention. Nevertheless, it is proposed that there should be a formal application to the sheriff to obtain authority for that continued detention, as though the patient were being admitted direct from the community.

§ Dr. Godman
When a person is transferred to a mental hospital, will the Mental Welfare Commission for Scotland maintain a monitoring role? Will the Minister also assure us that he is entirely confident that no such persons who are detained in mental hospitals anywhere in 479 Scotland would have been released long ago if they had stayed in prison for the duration of their sentences? May we have an assurance that no such person has been detained for longer than his original prison sentence?

§ Lord James Douglas-Hamilton
I shall have to check on the second point; it is possible that a person has remained in a mental hospital because he has become very ill. In answer to the hon. Gentleman's first question, I can tell him that the Mental Welfare Commission for Scotland will have the monitoring role to which he referred.
I think that I can reassure the hon. Member for Dumbarton (Mr. McFall) about Immigration Act detainees. In their case, subsections (9) and (10) of new section 74 will not apply, and an application under section 18 of the 1984 Act will be necessary to secure their continued detention.
In my view, there is no need to involve the sheriff unless a patient wishes to contest the grounds of his continued detention. Provision must, of course, be made for the patient to have that opportunity, and such provision is made in lines 42 to 46 on page 5. The effect of those words is that a patient whose detention in hospital is continued under subsections (9) and (10) has the right to appeal to the sheriff at any time during the following six months —that being the period for which the authority for his detention is renewed.
In the light of that, I do not think that anything would be achieved by amendments Nos. 2, 3 and 4 except more and unnecessary work for the sheriff and for solicitors representing patients. There is, however, a reasonable change which could be made, and which I am happy to propose to meet the purpose of the amendments to some extent.
6.45 pm
I think that we all agree that, when the day arrives on which a transferred prisoner would have been released from prison, there should thereafter be no distinction between him and other patients who have been detained with the sheriff's approval. It may be said that the existing provisions do not quite achieve that result, because they provide that, on the substitution of fresh authority for his detention, the patient is to be treated as if he had been admitted in pursuance of a hospital order. That would, in effect, mean a continuing distinction between the patient concerned and others who are admitted in pursance of an application to the sheriff. Government amendment No. 14 is intended to remove that distinction.
I hope that Opposition Members will recognise that I seek to take on board the point of their amendments as far as I can, and that they will support amendment No. 14 rather than pressing amendments Nos. 2, 3 and 4.

§ Mr. McFall
I thank the Minister for his assurances. None the less, I submit that the notional right of appeal is not the same as the procedure under section 18 of the 1984 Act. I feel that the difference in character between the court's scrutiny under section 18 and an appeal to the sheriff should be recognised. In view of the Minister's positive response to the spirit of our amendment, however, I beg to ask leave to withdraw the amendment.