DISPOSAL IN CASES OF MENTALLY DISORDERED OFFENDERS

HC Deb 29 January 1997 vol 289 cc406-12

Lord James Douglas-Hamilton

I beg to move amendment No. 22, in page 10, line 28, leave out '28' and insert '7'.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: Government amendments Nos. 23, 24, 254 and 25.

No. 142, in clause 6, page 12, line 32, at end insert—

1. '(aa) A patient shall not be remitted to prison in accordance with sub-paragraph (a) above until and unless—
1. (i) the case has been referred back to the court that imposed the hospital direction; and
2. (ii) the court is satisfied that the remittance to prison would not be injurious to the patient's mental health.
2. (ab) In order to determine the impact of the remittance to prison on the patient's mental health, the court shall consider the written or oral evidence of two medical practitioners (complying with section 61 of this Act).
3. (ac) Where a court is satisfied under (aa)(ii) above that the remittance to prison would be injurious to the patient's mental health, the court may revoke the hospital direction and—
1. (i) impose a hospital order (with or without a restriction order); or
2. (ii) impose no further penalty.'.

Government amendments Nos. 26, 117 and 118.

No. 143, in clause 20, page 23, line 39, after '60A', insert '(1)'.

No. 144, in page 23, line 48, at end insert— '(2) Where a court determines under section 62A(4)(ac) of the Mental Health (Scotland) Act 1984 above not to remit a patient to prison, the Prosecutor may appeal against this determination—

1. (a) if it appears to him that the determination was inappropriate, or
2. (b) on a point of law.

and an appeal under this section shall be treated in the same manner as an appeal against sentence under section 108 of this Act.'.

Government amendments Nos. 79, 277, 126, 278, 279 and 80 to 82.

Lord James Douglas-Hamilton

I can speak briefly, as the amendments arise from amendments—and arguments—presented by Opposition Members in Committee, which I accepted in principle. However, I should mention one point specifically. Amendments Nos. 22 to 25 would, following the making of a hospital direction, reduce the maximum time for which a person may be in transit between the court and the hospital from 28 to seven days, and add to the list of those who may so convey the person an officer on the staff of that hospital. The other amendments are procedural.

Dr. Godman

Amendment No. 23 says that, in addition to a constable and a mental health officer, an officer on the staff of the hospital can perform escort duties. Will the Minister confirm that most mental health officers are social workers who have undergone specific training in the mental health sector? Surely he would not expect someone to be escorted by a mental health officer—a social worker. Surely such escort duties would be undertaken by a police officer or, as the amendment says, an officer on the staff of the hospital specified".

Lord James Douglas-Hamilton

I am certain that sensible arrangements will be made, which will not burden those concerned, but the amendment arose out of an Opposition request in Standing Committee. I think that the hon. Gentleman was not on the Standing Committee. The amendment reflects the Committee's wishes, and is a step forward.

Mr. McAllion

This group of amendments deals with a new court order, which is called a hospital direction; it is sometimes referred to as a hybrid order. It gives the court new powers where offenders are found guilty of an offence that is punishable by imprisonment, but where the court judges that a prison term would not be insufficient to deal with such offenders. In addition to any prison sentence, the court is empowered to direct that the prisoners should be detained in hospital.

If the patient, or the prisoner, recovers from the mental disorder in hospital, the idea behind the hospital direction is that he would be returned to serve the rest of his sentence in prison. Amendment No. 143 seeks to deal with the damaging consequences that may arise out of that situation.

I am particularly concerned about the type of offenders who will come under the provisions of the clause. The notes on clauses make it clear the people who are affected by it—obviously, not all prisoners but only certain groups of prisoners. The notes say that the clause affects prisoners who are well enough to have stood trial, but who also suffer from a mental disorder to the extent that would warrant hospitalisation. It is the use of the term "mental disorder" that I want to bring to the House's attention. I want to plead with the Minister to think again before he commits this provision to the statute book, because it would affect people in the real world.

The idea of hybrid orders came out of a working party that was set up in 1994 by the Home Office and the Department of Health in England and Wales. It was chaired by a Dr. John Reed—not, I think, the Dr. John Reid who is Labour spokesman on defence. The working party recommended that hybrid orders should be introduced, but it made it clear that the recommendations related only to prisoners/patients who were suffering from what it termed a "psychopathic disorder".

Psychopathic disorder is one form of mental disorder that is defined in the English Mental Health Act 1983. It has a specific meaning, but it is not defined in Scottish legislation. The working party made it clear that it was concerned about whether people with a psychopathic disorder were in any sense treatable in hospital in any case. That was why it introduced the hybrid order. When the Minister transferred that concept from the working party in England and Wales to Scottish legislation, he completely misunderstood the purpose that lies behind the hybrid order.

Dr. Helen Kirk, one of the most distinguished consultant forensic psychiatrists in Scotland, who works at Murray Royal hospital in Perth, wrote to me this month because she was concerned about the detail in the Bill. She said: It is my understanding that originally this order was to apply only to psychopathic personalities. Obviously, she was referring to the working party's report. She said that, if that were so, there was no problem with hybrid orders being applied to such cases, because in Scotland, most such people"— those with psychopathic personalities— would not be admitted to hospital. She wrote: By definition psychopaths are said to be unable to learn by experience. Such a definition raises questions as to whether change can be effected by hospital treatment. Furthermore such individuals are extremely disruptive and destructive in a ward to the disadvantage of other patients. Dr. Kirk made it clear therefore that, if the hybrid order referred only to people suffering from a psychopathic personality, no one in Scotland would be concerned about the application of the clause. However, there is no such thing as a definition of a psychopathic personality in mental health legislation. The nearest we have is one of the definitions that is applied to mental illness. It states that it is A persistent disorder manifested only by abnormally seriously aggressive or irresponsible conduct", which makes it appropriate for him"— or her— to receive medical treatment in a hospital", which is likely to alleviate or prevent a deterioration in the patient's condition. Dr. Kirk is concerned that the clauses refer not to people who have a psychopathic personality or a psychopathic disorder but to people who have a mental disorder, and mental disorder has a different meaning in law in Scotland. It refers, first, to people with mental illness and, secondly, to people who have mental handicaps—mental impairment or severe mental impairment. As Dr. Kirk said, for such people prison is no kind of answer. She wrote: The mentally handicapped … have no place in a prison nor do those with mental illnesses such as schizophrenia or manic depressive illness. Those are comments by someone who is an expert in dealing with offenders who are sent to Murray Royal hospital for forensic psychiatry, often by the courts. She should know better than any hon. Member that, if we include mental disorder in the terms of this law, we will begin to create much damage for vulnerable people in society. She said that all psychiatrists throughout Scotland would resist such people being sent to prison once they are better. For a start, she pointed out that, if anyone came out of serious mental illness and had recovered, only to be told that he was to be sent back to prison to serve the rest of his sentence, the most likely effect would be a relapse into illness, and all the good work in the hospital would be undone as a result.

Dr. Kirk also pointed out that, if the proposed law included all types of mental disorder, the likely outcome would be hospital beds (which are relentlessly diminishing in numbers) would be blocked by patients ready for discharge but who have to mark time while the tariff"— the prison sentence—was served out.

If the threat of being sent back to prison is there when the patient is sent to hospital, the consultants in the hospital will allow that patient to block the bed in the hospital, rather than release him, because going back to prison is likely to lead to a relapse. By including the clause, the Minister has made a gross mistake in transferring an English concept to Scottish law, misunderstanding what the English concept was about and applying it wrongly to Scotland.

Amendment No. 142 tries to salvage something by saying that, before someone is returned to prison, the matter must go back to court, which must be satisfied that there will not be a relapse of the condition if the patient is sent back to prison. The Minister is creating a bureaucratic maze and a nightmare for many people who suffer from genuine illness and who come before the courts. I plead with him to ensure that, before the Bill goes to the House of Lords, he will get in touch personally with people such as Dr. Kirk at the Murray Royal, and speak to them about their concerns, because we are making a terrible mistake.

This is not a party political point. If my Front-Bench team had introduced this measure, I would have made the same speech. We will be making a terrible mistake if we allow the hospital directions to go through in these terms, because they will encompass people who should never be sent to prison, and who will not be sent to prison anyway. The clause will be a nightmare for consultants, the mentally ill and the prisons.

6.30 pm

Dr. Godman

I share some of the serious reservations of my hon. Friend the Member for Dundee, East (Mr. McAllion). A court has to be satisfied by way of the written or oral evidence of two medical practitioners, by which is meant consultant psychiatrists. In the context of amendment No. 242, before a person can be transferred to the prison system would consultant psychiatrists be involved in an examination in the hospital?

The Minister reminded the House that I was not a member of the Standing Committee that scrutinised the Bill. Which hospitals are we discussing? We are speaking not just about Carstairs prison but about several hospitals in Scotland. What role does the Mental Welfare Commission for Scotland play in the scheme? I have the greatest respect for the members of that commission and I should like to know whether they would be concerned with the development of a patient's treatment in hospital. Would the commission be informed if it were decided that a person was to be placed in prison and that his condition had changed dramatically during his hospital stay?

If medical practitioners are involved in the determination of a hospital direction, then, in the context of amendment No. 142, they should also be involved in deciding whether a patient should be sent to Barlinnie or Greenock or to some other penal establishment. Despite agreements in Committee, the clause has woeful deficiencies. Perhaps the Minister would reply to my question about the role of the Mental Welfare Commission for Scotland and say whether consultant psychiatrists outwith a hospital would be involved in the decision to remit a person to prison.

Mr. McFall

We debated amendment No. 142 in Committee and the Minister said that he would consider it. However, there are still glaring deficiencies in the measure. We have been contacted by the Convention of Scottish Local Authorities, Edinburgh Healthcare NHS trust, the consultant forensic psychiatrist, Derrick Chiswick, and by the Royal College of Psychiatrists. The comments by those people have to be taken seriously by the Minister.

The danger in the legislation is that the combination of prison and the hospital direction will be used not instead of a prison sentence but instead of a hospital order. People should not be punished for having mental disorder Amendment No. 142 seeks to guard against the risk of transferring people to prison who would more appropriately continue to receive hospital treatment. The decision to transfer a person subject to a hospital direction from hospital to prison should rest with the court, which would be duly advised by consultant psychiatrists. The decision should not be the sole responsibility of doctors.

Dr. Chiswick was a member of the Reed committee in 1994 and says that the committee made proposals which in England and Wales distinguish between the different categories of mental disorder. However, for Scotland there is a hybrid proposal which will not serve our interests. In his letter, Dr. Chiswick states: hospital direction would not apply to people with a mental illness or a mental handicap. It would only apply to those where the mental disorder is a persistent one manifested by abnormally aggressive or serious irresponsible conduct which is a near equivalent of the English Mental Health Act category of psychopathic disorder. In summing up, he states: I am aware that the working of the law in relation to mentally disordered offenders is something of an arcane affair but I do urge you most strongly to try and prevent the passage of Clause 5 in its current form. It will do no good but may do much harm. The Royal College of Psychiatrists has also written to us. I have a letter from Dr. McCreadie, who is the chairman of the Scottish division, saying that the mental health provisions have been adopted in clause 36 of the Crime (Sentences) Bill and that the Scottish Bill proposes the use of hospital direction for all categories of mentally disordered offenders. We take exception to that.

The royal college says that among the implications would be the need for more secure beds. The letter states: While the Scottish Office expects that only a dozen or so such Hospital Directions would be made in the course of any one year, it is clear that there will be cumulative effects which will have major implications for the number of beds required in conditions of security for mentally disordered offenders. In particular, there will be a need for many more beds in the State Hospital, where such patients are likely to be treated, and if it is considered that return to prison would lead to a relapse in their mental condition. Length of stay in hospital will be directed by the length of sentence rather than by clinical need or public safety issues. The Minister must treat those concerns seriously.

Dr. McCreadie also mentions an increase in the number of mentally disordered people in prison. His letter goes on: To avoid the risk of a Hospital Direction being imposed, psychiatrists may be reluctant to recommend a conventional Hospital Order resulting in more mentally ill people in the prison system. The Opposition do not want that, and nor do the professionals, and I hope that the Government do not want it either.

In the part of his letter dealing with the possibility of risk, Dr. McCreadie states: There may well be an increased risk to the public. Patients under Hospital Directions will not benefit from the indefinite follow-up which is provided by the current legislation relating to Restriction Orders. The letter suggests a solution. It states: If the new Hospital Direction is to be introduced in Scotland then the Ministers should be urged to restrict it to those patients who would fall within the definition of Psychopathic Disorder in the English Mental Health Act. That is the Act that flowed from the Reed committee. The letter goes on: While there is no exact category of Psychopathic Disorder in Scotland, it exists in terms of Section 17(1)(a)(i) in those cases where the 'mental disorder from which he suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition'. Eminent psychiatrists and the Royal College of Psychiatrists have said that we are doing the wrong thing. I ask the Minister to take the issue seriously so that we may have appropriate legislation and not a defective measure which could increase the risk to the public.

Lord James Douglas-Hamilton

Courts will act only on the basis of recommendations from psychiatrists and will take into account whether the accused's condition is treatable and therefore whether a hospital direction would be appropriate. I was asked whether the Mental Welfare Commission for Scotland would have a role. At the moment, it has no role when a court is deciding on a disposal that involves sending somebody to hospital. Statute spells out what evidence shall be given to the court and by whom and the same will apply under hospital directions.

The hon. Member for Dundee, East (Mr. McAllion) asked why an order was to be made available for all forms of mental disorder. I am aware that the equivalent English conditions enable hospital orders to be made where the mental disorder is psychopathic, but it has been decided that for the time being it should be so limited in England and Wales. Scottish courts can make such an order in any case in which that is thought appropriate and the Home Secretary has power to extend hospital directions to other categories of mental disorder by order.

I listened carefully to hon. Members who spoke to amendment No. 142 and the related amendments, but I am not attracted to proposals that seem to be based on the assumption that hospital doctors will recommend to a sheriff or the Secretary of State for Scotland a course of action that would run counter to a patient's best interests—a course that would be injurious to the patient's mental health.

Let us first be clear that the situation with which the amendments deal is not new, merely arising out of the introduction of a hospital direction. The situation arises already with prisoners who become ill in prison and are transferred to hospital under a transfer direction. While their sentence of imprisonment is running, the only exit from hospital for such patients leads back to prison. However, that will happen only when the Secretary of State is satisfied that the criteria have been fully met.

The Secretary of State must be satisfied either that the person is not suffering from mental disorder of a nature or degree that makes it appropriate for that person to be liable to be detained in hospital for medical treatment, or that it is not necessary for the health or safety of the person or for the protection of other persons that that person should receive such treatment. In either case, the Secretary of State must be satisfied that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment.

The House will be interested to know that, each year, there are about 60 transfers of prisoners to hospital, but that fewer than 20 prisoners move in the opposite direction; thus, there are many more transfers from prison to hospital than prisoners returning to prison. Most prisoners remain detained in hospital and—when appropriate, on expiry of their sentence—are released directly into the community.

I am convinced and confident that the same rigorous attention to health will apply to persons who are in hospital under the authority of a hospital direction, and that is what the Bill so provides. What prompts and will prompt consideration of whether a patient should be transferred to prison will be either an appeal by the patient to the sheriff or the hospital doctors' view that it is appropriate to recommend a return to prison to the Secretary of State. Therefore, given those safeguards, there should be no question that doctors would argue for such a transfer or that the sheriff or Secretary of State would agree to one if the considered medical view was that the patient required continued hospital treatment for his or her mental illness.

Amendment agreed to.