'(1) Where the managers of a hospital exercise their powers under subsection (3A) of section 94 of the Mental Health (Scotland) Act 1984, they shall submit regular reports in writing to the Mental Welfare Commission about the discharge of the powers under that section.
(2) A report under subsection (1) shall be submitted no later than 18 months after the discharge from hospital of the patient concerned, and thereafter on an annual basis, until such time as either—
(3) Any report submitted under subsection (1) above shall be made available on application to any person who, in the judgement of the Mental Welfare Commission, has a legitimate interest in its contents.'.—[Mr. Forth.]
§ Brought up, and read the First time.
§ 12.3 pm
§ Mr. Deputy Speaker (Mr. Michael J. Martin)
With this, it will be convenient to discuss the following: New clause 4—Right of appeal—'( ) Any person shall have the right to appeal to the Mental Welfare Commission against—
- (a) the holding by the managers of a hospital of money and valuables on behalf of a person under section 93(3A) of the Mental Health (Amendment) Act 1984; or
- (b) the expenditure of money or disposal of valuables in pursuance of section 93(3) of that Act.(2) Where the Commission upholds the grounds of such an appeal, it shall determine what recompense shall be payable by the hospital to the patient concerned.'.Amendment No. 2, in clause 1, page 1, line 8, after `may', insert', for a period not exceeding five years following the discharge of the patient,'.Amendment No. 1, in page 1, line 16, at end insert—'( ) The managers of a hospital may exercise their powers under this section until such time as either—
- (a) the patient is considered by the medical officer in charge of his case to be capable of adequately managing and administering his property and affairs; or
- (b) a curator bonis is appointed in respect of that person.( ) Any person may at any time request that the patient's ability to manage and administer his property and affairs be reviewed by the medical officer in charge of the case.'.Amendment No. 5, in page 1, line 16, at end insert—'(3C) For the purposes of subsections (3A) and (3B) of this section—
- (a) "money" shall include bank notes and coins and sums deposited in a bank or building society account;
- (b) "other financial assets and investments" shall include stocks, shares, Government bonds, personal equity plans, tax exempt special savings Accounts, individual savings accounts, unit trusts, corporate bonds, pension funds and life assurance;
- (c). "money", "other financial assets and investments" and "valuables" shall include sums and items inherited by the patient when resident in hospital or subsequent to discharge from hospital.'.
§ Mr. Forth
We have now arrived at a crucial stage in the consideration of the Bill, which has indeed been through its process. It received a Second Reading, and the Committee, on which I had the honour of serving, considered the Bill briefly. In Committee, one or two questions arose, to which I believe that the House will want to return, so as to satisfy itself. I hope that it will be accepted that the new clauses and amendments are a genuine attempt to improve the Bill, to ensure that it takes a balanced approach to the problem that everyone accepts exists.
By good fortune—or, more probably, good organization—I received in my mail this morning, from the Law Society of Scotland no less, a letter referring to the Bill. It says that the Law Society of Scotland supports the Bill. It then very eloquently describes the purposes of the Bill.
The letter states:This Bill seeks to amend Section 94 of the Mental Health (Scotland) Act 1984, which enables managers of a hospital to receive and hold money and valuables on behalf of incapable patients who are detained in hospital or are receiving treatment there. Section 94 does not permit the managers to release the funds to the patient or anyone else when the patient ceases to receive treatment in the hospital and returns to live in the community. Where there is no curator or other person legally authorised to receive money on behalf of the patient, the funds become trapped and patients are prevented from getting access to their own resources.The letter continues:The Bill will attempt to resolve this specific problem by allowing the managers of hospitals to continue to hold monies and valuables which they are holding at the time of the patient's discharge, and empower them to spend money or dispose of the valuables for the benefit of the patient in terms of Section 94, even though the patient is no longer detained in hospital…The Society supports the Bill and recognises that it will solve a problem which is affecting a substantial number of former hospital residents in Scotland. The Bill is of great importance to vulnerable persons in Scotland.The society urges me to give it my support.
I read out the letter because I think that it states elegantly the purpose behind the Bill and the background to it, and because it lends the distinguished support of the Law Society of Scotland to the purposes of the Bill. So far, so good. The objectives behind the Bill are clear and at one level we can have little or no argument with them. However, I believe that the Bill raises a number of important questions and issues, with which the new clauses and amendments are designed to deal.
The hon. Member for Paisley, North (Mrs. Adams) is managing the Bill on behalf of the hon. Member for Midlothian (Mr. Clarke). We all wish the hon. Gentleman a speedy recovery. We hope to see him back in the House very soon. We hope also that the way in which we deal with the Bill will give him even more reason to feel better and to return. I hope that the hon. Lady and the Minister have given serious consideration to the new clauses and amendments. They are designed to improve the Bill in some important ways.
1508 First, I seek to improve the Bill in the area of accountability. As soon as we start to talk about a vulnerable section of society—people who are by definition incapable in one way or another—and about someone else having responsibility and control over the assets of the incapable person, we are raising important issues of accountability and of possible appeal.
I would have thought that the purpose behind new clause 1 is almost self-evident. It states:Where the managers of a hospital exercise their powers…they shall submit regular reports in writing to the Mental Welfare Commission about the discharge of the powers under that section.Surely that is unarguable and almost self-evident. My right hon. Friend the Member for Penrith and The Border (Mr. Maclean) and I want to ensure and guarantee as far as we can that there can be no possibility of mishap, malfeasance or whatever in the handling of moneys of a vulnerable person by somebody else.
I do not suggest that that is likely or probable. The very people to whom existing legislation and the Bill would give responsibility are those who are for the most part dedicated to their task of dealing with vulnerable people. That is not to say that we should ignore our responsibility to provide as many safeguards as possible for the discharge of that important responsibility.
§ Mr. Desmond Swayne (New Forest, West)
At least part of the value of the new clause is that it will give a measure of reassurance to relatives who suspect that things may not have been done as well as they might have been.
§ Mr. Forth
I am grateful to my hon. Friend, who raises an important matter that should not be treated lightly. Although I shall concentrate on the relationship between the patient and the hospital, my hon. Friend is right to point out that those close to the patient are often the most worried. We have a responsibility to them as well. They have seen their nearest and dearest in unfortunate circumstances, and they—the relatives and friends—want the maximum reassurance that all is as it should be.
I therefore suggest in new clause 1 that the submission of regular reports in writing about the discharge of that responsibility is the least that we can expect. It is a minimum provision on which we can build, and on which I shall build as I argue for my various new clauses and amendments.
New clause 1 goes on to state, importantly, that any reportshall be submitted no later than 18 months after the discharge from hospital of the patient concerned, and thereafter on an annual basis".In other words, we want to make sure that reports are issued not too frequently, but sufficiently frequently to give reassurance and to allow a proper basis of accountability in the discharge of an important responsibility, until the patient is considered able to manage his or her affairs, or until a curator bonis is appointed, and the responsibility passes on from the person specified under the Mental Health (Scotland) Act 1984, which we seek to amend, and moves out of the purview of this legislation.
New clause 1 is a minimum requirement, so I shall not dwell on it. New clause 4 raises an issue of more fundamental importance, which I hope that the 1509 hon. Member for Paisley, North and the Minister will want to deal with appropriately—the right of any person to appeal to the Mental Welfare Commission againstthe holding by the managers of a hospital of money and valuableson behalf of the incapable person, orthe expenditure of money or disposal of valuablesin pursuance of section 93(3) of the Mental Health (Amendment) Act 1984.
That is a basic mechanism which it is essential to build in to give proper reassurance to the most vulnerable that they have a right to appeal if they or, as my hon. Friend the Member for New Forest, West (Mr. Swayne) suggested, their relatives or friends felt that anything being done was in any way wrong.
I doubt whether there would ever be outright theft or misuse of the money or valuables, but let us suppose that it was considered that moneys were being unwisely invested and that a sufficient rate of return was not being obtained. I shall return to that later, in the context of later amendments.
The right to appeal if someone feels that his assets are not being properly managed to his maximum benefit is unarguable. We are keenly sensitive to the needs of vulnerable groups and put in place all sorts of mechanisms to protect them. I am in danger now of arguing against myself, but I sometimes feel that we do too much in that direction. That is my view with regard to people who are able-bodied and in full possession of their faculties. They should largely be able to fend for themselves, but in the present case, we are dealing with a vulnerable group.
Such people may not have friends and relatives to help them. They may be on their own, as I suspect all too many of them are, and for that reason they are doubly or trebly vulnerable.
In that context, the right to appeal is surely important.
Subsection (2) says that where the Mental Welfare Commission upholds the grounds of such an appeal, it shalldetermine what recompense shall be payable by the hospital to the patient concerned.That is an important issue. We are saying not only that there should be accountability for the discharge of that important responsibility—and that there should be a right to appeal—but that where it is established that some damage has been done to the interests of the incapable person, there must be a provision for recompense.
All too often, a vulnerable person entrusts—or has had entrusted to someone else—his money or assets, and when something goes wrong, is left wondering why he has no ability to recover what has been lost. There should be the ability to provide recompense on such an occasion, although I am sure that such cases will be the exception rather than the rule.
An interesting presumption underlies the Bill—that someone in management in a hospital, whose main skill is in dealing with people's mental and physical welfare, is equally capable of dealing with financial affairs. I am not sure that that is self-evidently the case, and we may wish to air that matter again on Third Reading.
I am prepared to accept that a hospital manager would not in every case personally discharge responsibility, and that he may delegate it to someone else. However, 1510 that raises other implications. If the institution is a relatively small one and does not have a large bureaucracy or a large number of people available, the manager might have to take the responsibility on personally. I do not know. However, some important questions are starting to arise on the detailed application of a simple and straightforward principle.
The Law Society of Scotland—bless it—was kind enough to write to me to say that the Bill was splendid, much overdue and desperately wanted in Scotland. I have no doubts about that. However, I wonder whether the Law Society looked in detail at the Bill. I received the letter only this morning, just before I came into the Chamber, and I have not had the chance to discuss with the Law Society whether it feels that the new clauses and amendments add to the Bill. That might have been a valuable contribution to the debate. Perhaps there is some way in which the Law Society could let us know before the end of this short debate, and before we speed the Bill on its way—amended by my new clauses and amendments, I trust.
Amendment No. 2 tries to impose a reasonable time limit on the processes of the Bill. I concede immediately that, in this context, there are pluses and minuses in imposing arbitrary time limits. My purpose is to try to provide a framework within which the mechanism can work so that it can be subject to periodic review. I propose a period of five years. Some might feel that to be too long, but there should be a measure to provide a time frame for the operation of the Bill.
§ Mr. David Maclean (Penrith and The Border)
Is my right hon. Friend aware that the argument for a time frame is supported by the Scottish Association for Mental Health? Admittedly, it favours a much shorter period than that which we have specified, but it considers the absence of a time limit to be a small but significant gap.
§ Mr. Forth
My right hon. Friend's point shows that, even though the Bill was debated in the Chamber on Second Reading and in Committee, legitimately interested parties such as the one to which he refers and the Law Society of Scotland are coming forward at this stage in proceedings to make such points. Our amendments are an attempt to respond to some of them. No doubt my right hon. Friend will make his own justification of them, should he catch your eye, Mr. Deputy Speaker.
Suffice to say that the point made by my right hon. Friend, for which I am grateful, shows that people outside the House who watch the progress of Bills take the opportunity at each stage—particularly in Committee and on Report—to give Members of the House the benefit of their experience so that amendments may be drawn up. That is the essence of the legislative process and that example has certainly shown the value of it. I am grateful to him for reinforcing the argument for our modest amendment, and I hope that we will not fall out over the time scale. All I want to establish is that there is good reason for specifying a time limit rather than not having one.
§ Mr. Peter Luff (Mid-Worcestershire)
My right hon. Friend says that the legislative process provides the opportunity for outside bodies to make representations. Has he received any about the time scale he suggests? 1511 Five years seems to be a rather arbitrary figure. I am persuaded by his argument in principle, but where has that magic figure come from?
§ Mr. Forth
As ever, that is a most reasonable question and one with which we wrestle frequently in these contexts. Any time scale is, of necessity, arbitrary; it comes down to a matter of judgment. Our judgment is that five years is about right.
I have not received the representation that my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) has received, but I have received a letter from the Law Society of Scotland, which he has not received. I do not know whether my hon. Friend the Member for Mid-Worcestershire (Mr. Luff) has received such a letter.
§ Mr. Forth
I make no complaint about it, but a series of representations on different points have come in to us, which has enabled us to seek to improve the Bill. That is as it should be. To finish my inadequate answer to his point, I confess that five years is an arbitrary figure. Although our judgment is that that figure is appropriate to what we were seeking to achieve, I would not say that it is the final answer. However, it provides a time context.
§ Mr. Maclean
I merely wish to answer the point that my right hon. Friend has raised. I have not received such a letter—not because one has not been sent, but because I have been tardy in collecting my mail this morning—and I did not receive a letter from the Scottish Association for Mental Health. I suggest that, for the millennium, he connect his computer to the internet and then surf cyberspace; he will find all the representations there, as I did.
§ Mr. Forth
My right hon. Friend well knows that vile expressions such as "cyberspace" are alien to me. I have never yet surfed the internet and I hope to survive for some considerable time without surfing it. I know that, for him, the internet is the source of a considerable amount of information, and I wish him well in that, but I prefer my mind to remain relatively uncluttered in these matters. I also prefer to receive my information from the written word on the page. I am old-fashioned that way and I find it reassuring to hold a document in my hand, as I am now—
§ Mr. McLoughlin
Can my right hon. Friend assist me? The Bill applies only to Scotland. This is the United 1512 Kingdom Parliament and, although these matters may now be for consideration by the Scottish Parliament, can he explain the position in respect of England? We need to know that all citizens of the United Kingdom are being treated equally.
§ Mr. Swayne
No; I want to refer precisely to the amendment, and the arbitrary choice of five years. What does my right hon. Friend propose should happen at the end of that period? He should remember that the Bill is designed to remedy the weakness whereby, at present, a person must engage in an expensive process in order to obtain control of the funds. By introducing a five-year limit, my right hon. Friend may undermine the Bill's purpose.
§ Mr. Forth
I hope not. I am not going to disagree violently with my hon. Friend; I merely say that our aim was to introduce a long stop, as it were, forcing the matter to be reviewed after five years. That is why we chose a longer rather than a shorter period. I accept that any measure of this kind is fraught with certain difficulties: I do not dissent from that at all. The amendment was intended to provide a beneficial long stop.
§ Mr. Swayne
I have another question, which refers specifically to the amendment, but also refers generally to it and the new clauses and amendments grouped with it. My understanding is that the Bill is very much a temporary measure pending a much wider review of the law in respect of these matters.
§ Mr. Deputy Speaker
Order. The hon. Gentleman keeps talking about the Bill. We are discussing a specific amendment—or rather, several specific amendments. The hon. Gentleman cannot talk about the Bill at this stage.
§ Mr. Swayne
Is not the force of the new clauses and amendments reduced by the fact that the Bill is a temporary measure? Is there any reason for introducing arbitrary limits such as the five-year limit, given the time limit that applies to the Bill as a whole?
§ Mr. Forth
I do not say this very often, but I will say it to my hon. Friend now, in a spirit of friendship. I have 1513 been in the House for 16 years, and had the privilege of serving in government for nearly nine years. I know that very few things in this place are temporary. We are all aware that procedures relating to a measure that may well appear now to be subject to review are likely to continue for rather a long time. I do not want to rest my case on the assumption that the Bill is only a temporary measure, and that everything will be sorted out soon. As you know even better than I, Mr. Deputy Speaker, that is a pretty risky approach, and I do not accept what my hon. Friend has said in this instance.
I want to press on. I want to give others a chance to explore these matters, and I do not want to jeopardise the passage of the Bill. Let me say something about amendments Nos. 1 and 5. What we are trying to do is consistent with our aim in, particularly, the new clauses. I shall skip the preamble, but amendment No. 1 provides, in essence, thatany person may at any time request that the patient's ability to manage and administer his property and affairs be reviewed by the medical officer in charge of the case.We want to build in the opportunity for a review to take place, in the interests of the patient, and to allow those who may also have the patient's interests at heart—in addition to hospital managers and others—to have an input. This is a protective mechanism, and I think that it is at one with the purposes of the new clauses.
Let me now deal with an amendment that applies to a rather different issue, although it is grouped with the other amendments and new clauses. My amendment—I apologise; it is not my amendment, but that of my right hon. Friend the Member for Penrith and The Border (Mr. Maclean), and I want to express my support for it. What I suspect my right hon. Friend had in mind—certainly, this is how I interpret the amendment—is this: we want to make absolutely certain that the terminology of the Bill covers all reasonable circumstances and eventualities in the important context of money, assets and so on.
That is why the amendment seeks to go in a little detail into the sort of assets that would be covered. It talks not only about money in the obvious sense. We believe that it is important to bring other assets within the definition in the Bill to allow their management to the advantage of the patient. The amendment coversother financial assets and investmentsand, importantly, says that those include stocks, shares, Government bonds, personal equity plans and so on. We are not attempting to be exhaustive—not to say exhausting—but we want to try to ensure that, in the fulfilment of the purpose of the Bill, we encompass all possible assets, particularly those that are interest bearing, so that there is no danger that the proper interests of patients are neglected, or minimised by an over-restrictive Bill.
That is the thrust of what my right hon. Friend the Member for Penrith and The Border is getting at, but he will explain his position, I hope, in a moment. I wanted simply to lend support to what I understood to be the purpose of the Bill, and to ensure that the patient's interests are fully looked after.
Hon. Members can see the thrust of what we are doing. The new clauses and amendments are designed to enhance the Bill, to protect the incapable person as far as possible, 1514 and to ensure as far as we reasonably can—without, I hope, being too bureaucratic—that, when the patient, or friends or relatives of the patient think that there is a risk of the patient's interest not being fully looked after, mechanisms are provided in the Bill to guard against that.
That is the thrust of the new clauses and amendments. I hope that they will be looked on kindly by the hon. Member for Paisley, North, on behalf of the promoter of the Bill, and by the Minister. However, if, for some reason that I could not possibly understand, they were minded to ask the House not to accept the amendments, at the very least I would want full assurances that the concerns that lie behind the new clauses and amendments could be fully covered within the existing terms of the Bill, without any further amendment. That is the very least that we would expect.
I am sure that the Law Society of Scotland is hovering somewhere, listening to the proceedings. I cannot speak for it, but I am sure that it would have the same worries. If the hon. Member for Paisley, North and the Minister are not going to satisfy me, they of all people will have to answer to the Law Society of Scotland if they do not get it absolutely right.
§ Mr. Luff
It is in the nature of these Fridays that a Bill that first looks totally uncontroversial and unproblematic acquires a new character as we listen to the arguments that are expounded by hon. Members. I was particularly struck by the group of amendments and new clauses that we are discussing following the comments by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) in Committee. He said that the Billis the model private Member's Bill. It is short, it is non-controversial, it has the Government's blessing and the hon. Gentleman introduced it in good style. I wish it God speed,"—[Official Report, Second Scottish Standing Committee, 19 May 1999; c. 3.]Any Bill that my right hon. Friend wishes God speed must indeed be a good Bill.
I am delighted to see that the hon. Member for Paisley, North (Mrs. Adams) is here to take the Bill through, in the place of the hon. Member for Midlothian (Mr. Clarke), who, sadly, is unable to do so. I join my right hon. Friend the Member for Bromley and Chislehurst in wishing him a speedy recovery.
I genuinely believe that the amendments and new clauses deserve at least to be answered by the Government, or the hon. Member for Paisley, North, because they raise genuinely important issues. As I understand it, by the end of the year, the safeguards in the amendments and new clauses could apply to some 750 people and to assets totalling about £3 million, so it is not an inconsequential issue for the House to consider.
I am grateful to the Library for its helpful briefing note on the Bill. I realised that the safeguards that are alluded to in the amendments and new clauses were of great importance when I read the extent of the concern in Scotland about the current position. It is not simply a matter of there being no power to move the funds from the hospital when the patient moves on; there are deeper-seated concerns. That is why it is so important to have safeguards.
I have some reservations about one of my right hon. Friend's amendments, which has some vagueness in its drafting and I shall turn to that later. However, the Government and the promoter of the Bill would do well to take the amendments seriously.
1515 According to the Library, all that is required for the hospital to take over the management of a patient's funds is for a responsible medical officer to state that, in his opinion, the patient is incapable of managing and administering his property and affairs by reason of mental disorder. That is quite a simple test and there are probably clear-cut cases, nevertheless safeguards must be appropriate.
I am aware that there have been changes in the monitoring of expenditure by hospitals and that is welcome, but if the Bill is to proceed, as I am sure it will, we need to be confident that the right safeguards are in place.
The Scottish Law Commission's discussion paper on managing the welfare and finances of incapable adults made a number of telling criticisms of the absence of safeguards in the system: only one medical certificate is required; there is no opportunity to challenge a certificate; central management by hospitals may be regarded as remote and impersonal; no individual is appointed with specific responsibility and it is not clear how far the duty to receive money extends. It is right that the House should consider those worrying points when extending the scope of legislation.
I am particularly concerned about section 94 of the Mental Health (Scotland) Act 1984, which states:managers shall have regard to the sentimental value that any article may have for the patient".That seems to be a difficult judgment to make, as the provision recognises when it continues,or would have but for his mental disorder".It is tremendously difficult to judge what may be of sentimental value to an individual. My wife had the invidious task of emptying my mother's house on her death and she made judgments as to which items in the house were of sentimental value to me. On the whole, she did a remarkable job, but one or two things that I would have liked still went into the skip.
§ Mr. Forth
Let me give my hon. Friend a surprising example to reinforce his point. It is even possible that company stocks and shares may be of sentimental value. When I inherited a modest share portfolio, I decided to keep one or two shares that had been very good for my mother over a period of time. Therefore, I had a peculiarly sentimental attachment to them. Even something as apparently banal or financial as a share could in some circumstances come under the definition to which my hon. Friend refers.
§ Mr. Luff
Strangely, I agree with my right hon. Friend. If I were to be placed in the position covered by the Bill, there are two groups of shares that I hold that I would not want to be disposed of on my behalf by a hospital manager or anyone else. They include shares in the Severn Valley Railway, of which I am a vice-president and shares in another company which were bought by my mother on the advice of a travelling salesman. They were a disastrous investment as they collapsed in value and any manager might well consider disposing of them on my behalf, but I would be sorry if they were sold. I shall not name the company as that would be invidious, but my right hon. Friend makes a genuine point. The strangest 1516 items can have sentimental value. They are not limited to paintings, keepsakes, souvenirs and books; even financial instruments can have such an attachment.
I am particularly concerned to know what rights the relatives of a patient have to disagree with any expenditure on behalf of that patient. A number of us will have had difficult constituency cases involving mentally incapacitated adults. Watching families, close relations or, in one case the fiancéof a patient shows that it is a difficult and painful process. It is crucial that when a manager spends money to benefit a patient, the family has some rights to challenge that expenditure.
On 12 March, the Bill had a long Second Reading. A cynic might say that that had something to do with legislation that should have been considered after the Bill—such as the important Bus Fuel Duty (Exemptions) Bill, promoted by my hon. Friend the Member for West Derbyshire (Mr. McLoughlin). Nevertheless, the Second Reading debate was a good one. However, one sentence in the Minister's reply to the debate caught my eye and worried me, which is partly why I believe that the safeguards proposed in this group of amendments are so important. The Minister said:anyone who deals with a person's funds has an obligation to account for his actions. If he is negligent, that can be remedied under common law."—[Official Report, 12 March 1999; Vol. 327, c. 646.]
§ Mr. Luff
That is the safeguard that we are being offered by the Minister, but it is a sledgehammer to crack a nut. The approach suggested by my right hon. Friend the Member for Bromley and Chislehurst offers a much better way of dealing with the problems. We are often talking about quite small sums and I am loathe to hand to lawyers the "benefit" of a dispute on issues that are often tragic and personal, involving painful and difficult decisions. We could find less painful dispute-resolution procedures than those offered by the Minister in his reply, which greatly concerned me.
The Minister also gave some assurances on safeguards to the House. Although ministerial assurances are always welcome, I much prefer statements to be made in a Bill—which is what this group of amendments would do. Warm words uttered at the Dispatch Box are always worth having and Ministers can generally be held to account for the promises that they make, but the Minister said:Several hon. Members made the point that we need to ensure that reasonable and proper safeguards are in place…The hospital manager will retain responsibility for the funds…There will need to be close co-operation between the new carer in the community and the hospital manager. I anticipate that the procedures, which will be put in place when the Bill becomes law, will enable the new carer to apply to the hospital manager for the release of funds, as the occasion arises, to be spent in the most appropriate way for the person's benefit.The Minister saidI anticipate that the procedures…will be put in place".We can anticipate many things, but I should much prefer clear-cut legal procedures to be in place, rather than a Minister's anticipation of procedures. We all know that, in English affairs—I cannot speak with the same authority on Scottish affairs—relationships between health services and social services are often, to say the least, tense. Often, the barrier between the two services leads to the most unwelcome disputes in how an individual's affairs are 1517 handled. I am, therefore, concerned to think that the Minister merely anticipates that the two bodies will be able to agree matters between them in a friendly way.
The Minister gave a further assurance. He said:I undertake to ensure that further guidance is issued to those who will be required to operate the new provisions. The guidance will set out, for example, how money should be requested from hospital managers, and how hospital managers should consider such requests."—[Official Report, 12 March 1999; Vol. 327, c. 650.]I do not know whether the Minister will be able to say, in his reply to this group of amendments, that that guidance has become available. As I said, I hope that at least some of the amendments and new clauses in this group will commend themselves, so that the existence of such guidance will not be so important. However, if the Government or the hon. Member for Paisley, North do not intend to accept any of these amendments, the guidance would become very important and it would be good to know what progress has been made in developing it since the Minister gave that assurance to the House on 12 March.
Those are my primary arguments on this group of amendments. However, I had some reservations about amendment No. 1, which, in its final subsection, states:"Any person may at any time request that the patient's ability to manage and administer his property and affairs be reviewed by the medical officer in charge of the case."Any person" "at any time" seems to be an extraordinarily wide-ranging provision, and I should like to know from my right hon. Friends who tabled the amendment why it proposes such a provision.
§ Mr. Maclean
I accept that the terminology "any person" seems wide-ranging, but to try to define the individual categories of person who may have an interest—whether relatives, friends or a curator bonis, who is mentioned in the amendment—could lead to a very long list and would inevitably, in some peculiar circumstances, exclude people who are relevant. I therefore felt it better to use the terminology "any person", trusting that those who did not enter that category would have the discipline and the sense not to interfere in the affairs of someone else and behave like a busybody. In any case, the commissioner or medical officer would have the final say on whether and how to proceed.
§ Mr. Forth
My hon. Friend is extraordinarily generous in giving way. I wish to take up the other point, just to show how inseparable my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) and I are on 1518 these matters. The phrase at any time is important because the whole point of the safeguards that we seek to introduce is that those with the responsibility under the existing statute, amended by this Bill if it is enacted, must be aware that, at any time, others with the interests of the patient at heart can step in and exercise the powers to be given in the amendment. That phrase is, therefore, an important safeguard and it must not be limited.
§ Mr. Luff
I understand the import of the amendment. Without wishing to appear invidious, I am no more persuaded by my right hon. Friend the Member for Bromley and Chislehurst than I am by my right hon. Friend the Member for Penrith and The Border. I apologise for that. I am satisfied on the "at any time" provision, but "any person" still seems very wide ranging, given the nature of the disputes that often arise and the question of incapacitated people. That is a matter of concern to me.
I accept that the amendment is important, as it stops a hospital being locked into administering the funds in perpetuity. That seems to be a good thing. If the Minister is comfortable with the words "any person", I hope that the amendment will be acceptable to him and to the hon. Member for Paisley, North, who is in charge of the Bill.
§ Mr. Swayne
I am not persuaded by the force of the arguments in favour of the amendment. The Bill tackles a clear-cut problem in anticipation of a wider reform that will attend to difficulties that go beyond its scope. [Interruption.] I hear my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) tut-tutting because of my lack of experience of how long situations may persist when it was anticipated that they would be remedied rather sooner. However, the force of that argument is undermined by the fact that the remedies that he seeks to include in the Bill will affect only people whose assets continue to be administered in that way after they have left the hospital to go into community care. Those obligations, and that way of operating, are not imposed on people whose funds will continue to be administered by the hospital because they have remained in the hospital.
Therefore, the amendment introduces two distinct categories to manage the funds available to patients: one set of rules and procedures for those who have been discharged, and another for those who remain within the hospital.
§ Mr. Forth
I think that I am right in saying that one would not have been allowed to do what my hon. Friend suggests by reason of the long title of the Bill. The Bill authoriseshospital managers to…hold…the property of persons to whom section 94(1) of the Mental Health (Scotland) Act 1984 no longer applies.I am no expert in these matters, but I think that I am right in saying that, had we attempted to amend the law as my hon. Friend suggests—I am sympathetic to what he says—we would not have been allowed to amend this Bill as he suggests because of its long title.
§ Mr. Swayne
I did not suggest for one moment that the Bill was amendable in that way. It is precisely because it is not that the force of the amendments is undermined. Precisely because of the defect in the procedure to which 1519 my right hon. Friend has drawn attention and our inability to remedy it here, we shall be introducing a different set of procedures for patients who remain in hospital.
I shall be brief because I wish to speak on a different matter this morning.
§ Mr. Maclean
Is my hon. Friend saying that he sees some merit in the amendment, but does not like it because it does not amend another Bill in tandem, or is he suggesting that the amendment has no merit and he would accept it only if all the relevant legislation were amended in a similar fashion?
§ Mr. Swayne
I hope that the force of what I am saying will become clear as I deal with each new clause and amendment.
New clause 1 would require hospital managers to submit regular reports. I entirely understand the motive behind the requirement and I followed the arguments of my right hon. Friend the Member for Bromley and Chislehurst, who made proper reference to the anxieties of outsiders, friends and relatives, but I fear that a bureaucratic burden would be imposed with regard to one particular category of patients and no other. Pending the wider reform of the law governing the assets of people with a poor record of mental health, which we have been promised, it would be unwise for us to complicate the Bill by introducing that distinction.
§ Mr. Maclean
I disagree profoundly. Adrian Ward, an expert in the matter, in his book "The Power to Act", said that hospital management providesa relatively quick and inexpensive method of administrating funds and possessions of a modest value. It avoids the cumbersomeness of accounting to, and supervision by, the…Court. It does not impair any existing legal capacity.
§ Mr. Swayne
Precisely. Is there any need, in that case, to add the bureaucratic burden of regular reports from which patients who remained in the hospital would not benefit?
I wonder whether the requirement in subsection (2)(a) of new clause 1 is a proper one to place on the medical officer. I refer to my own experience in a constituency case in which there is a profound disagreement between the parents of a mentally ill individual and his medical carers. The latter take the view that he is capable of administering his affairs, and the former that he is not. I wonder whether the medical officer is capable of taking decisions on issues that govern the protection of standing orders, assets and other items.
To an extent, my concern about subsection (2)(a) is ameliorated by amendment No. 1. I would not want the new clause to be added without the amendment, but for larger reasons I would prefer that neither of them be added.
New clause 4 is entirely understandable, but its force is undermined by the fact that the right of appeal would apply only to those patients who have been discharged, whereas those who remain in the hospital, who might equally have a grievance, would not benefit. There is an 1520 argument that says that simply because some people cannot benefit from a remedy, we ought not to allow no one to benefit from it.
§ Mr. Swayne
As the relevant law is shortly to be reviewed in its entirety—quite properly, that will happen in the Scottish Parliament, not this Parliament—such matters should be left for the Scottish Parliament to deal with; it is not for us to sort them out.
The motives that lie behind the amendments and new clauses are proper and understandable, but I fear that they would place a bureaucratic burden on hospitals, because of the administration required of them in the preparation of reports. More fundamentally, the amendments and new clauses would also introduce a different way of dealing with the property and assets of two categories of patients, and I believe that that is not currently justified.
§ Mr. Maclean
I shall speak to the amendments and new clauses tabled in my name, most of which also bear the name of my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth). In view of the thrust of the argument advanced by my hon. Friend the Member for New Forest, West (Mr. Swayne)—that we should not make the amendments now, although he seemed to say that they had some merit, merely because, by the nature of the Bill, they cannot cover everyone—I may now have to elaborate slightly more than I intended if I am to persuade him of my case.
Many amendments have been tabled, and there is little time available to debate them, but this first group goes to the heart of the Bill; it is the most important group.
Both new clauses mention the Mental Welfare Commission, so I must explain why I chose that. New clause 4 saysAny person shall have the right to appeal to the Mental Welfare Commission against…the holding by the managers of a hospital of money or valuables…or…the expenditure of money or disposal of valuablesand so on.
I picked the Mental Welfare Commission for Scotland because it plays a major role in protecting the persons and interests of mentally incapable adults, whether they are in hospital, other institutions or the community. In financial affairs, it must inquire into any case in which it appears to it that such a person's property may be exposed to loss or damage. It must also notify any hospital or local authority when it considers that it should exercise its functions to prevent or redress loss of or damage to property. In addition, I understand that it has various duties to visit patients detained in hospital.
In 1997, it was estimated that in our population up to 100,000 people were incapax at any one time. This number is likely to grow rather than decline, as life expectancy outstrips medical science's ability to prevent or cure the various forms of age-related mental deterioration.
The Mental Welfare Commission plays a vital role and seems a relatively cheap and efficient mechanism for reviewing how mental patients are treated in hospital. I suggest to the Minister that that is a better mechanism. Giving people a right of appeal to the commission is far better than resorting to common law.
1521 My hon. Friend the Member for New Forest, West criticised our suggestion on the ground that it would place an awful bureaucratic burden on hospitals. That is wrong. I do not think that he understands how funds are managed now. New clause 1 states:Where the managers of a hospital exercise their powers under subsection (3A)…they shall submit regular reports in writing".I hope that I shall be able to prove that that is not a bureaucratic burden. There is already a variety of ways in which the finances of a mentally incapable adult can be managed in Scotland. Indeed, it is probably the fragmented and archaic nature of those mechanisms, and the fact that they can fail to provide an adequate remedy in many common situations, that have prompted that widespread call for wholesale reform of the law governing them to which my hon. Friend referred. However, I shall not go down that route.
The management of a mentally incapacitated person's affairs is usually separate from the management of his personal welfare. Different types of managers have powers to take care of each of those aspects, and financial managers are appointed to deal with patients' financial affairs. My hon. Friend the Member for New Forest, West should therefore not try to state that giving people in hospital a right to appeal and requiring a report to be made not later than 18 months after their discharge from hospital would place a bureaucratic burden on hospital management, affect patients' treatment or bog down the health service.
Under section 94 of the Mental Health (Scotland) Act 1984, hospital patients liable to be detained under that Act or who are receiving treatment for their mental disorders can have their funds administered by the management of the hospital. There is no equivalent legislation authorising the managers of other care establishments to manage the finances or property of incapable residents. Recent investigations by the Mental Welfare Commission suggest that most incapable patients whose funds are managed by the hospital suffer from chronic schizophrenia, learning disability or dementia. They have usually been in hospital for a number of years, and most do not have contact with relatives.
All that is required for the hospital to take over management of a patient's funds is for the responsible medical officer to state that, in his opinion, the patient is incapable of managing or administering his property and affairs by reason of his mental disorder. My hon. Friend the Member for New Forest, West questioned the adequacy or ability of the responsible medical officer to make that judgment, but who else could make it? That has to be a medical decision. It cannot be taken by an accountant, a banker or by the hospital's financial managers.
§ Mr. Swayne
With the greatest respect to my right hon. Friend, that is fatuous nonsense. Many people are inadequate at managing their financial affairs, but they do not require a medical officer's certificate saying so.
§ Mr. Maclean
My hon. Friend is missing the point. He is, of course, right to say that many people who are not detained in mental hospitals under the mental health legislation make a mess of managing their finances. Many 1522 people's financial affairs are not as good as they should be. My wife says as much to me every month when the bank statement arrives. Perhaps I should not visit Scotland, but neither there nor in England have I been detained under the mental health legislation—much to the consternation, sometimes, of hon. Members on both sides of the House. My point is that the treatment of a person detained under the mental health legislation must be left to the judgment of doctors. I am sure that my hon. Friend accepts that.
A doctor judges whether a person with chronic schizophrenia, dementia or some other disability is capable of leading a safe life in the community, or whether he or she must be detained in a mental hospital. Surely the doctor, therefore, is also the only one who can decide whether that person—given that he or she is unable to live an ordinary life without support from the medical services in hospital—is capable of managing his or her finances. I cannot think of anyone else able to make a judgment of the mental ability of another human being. I do not want to elaborate further on that point but, having dealt with it now, I may be able to speak more briefly about one of the other amendments.
The powers available to hospital managers under section 94 of the 1984 Act, which the Bill would amend, are limited to receiving and holding money and valuables and expending them for the patient's benefit. As I understand it, hospital managers must have regard to any sentimental value that an article may have or would have had to the patient, but for his mental disorder which results in him no longer being able to make a judgment on such sentimental value. However, no further statutory guidance on how those powers can be exercised is given.
There have been concerns that staff feel that to spend money on certain patients would be to waste it and that, consequently, no great effort should be made to ensure that all income available to the patient is claimed or that any money received should be preserved instead of being used to enhance the patient's quality of life. On the other hand, it appears that, in some cases, the money was being used to purchase goods or services that would normally be provided by the national health service. I will not go back to the Crosby report 1985, but that made various recommendations on how to deal with that problem. The new clauses and amendments that I and my right hon. Friend the Member for Bromley and Chislehurst have tabled deal with such worries and concerns.
If we grant under new clause 4 the right of "any person" to appeal to the Mental Welfare Commission against decisions, it would give the detained person such a right, as it would family, friends or other relatives. The terminology "any person" would also give concerned bodies and individuals, boards of visitors and organisations such as MIND the right to take up cases that they think appropriate. I accept the downside that, theoretically, some nosey parkers with no right whatever—they may have a caring interest in the patient but no familial or financial interest—could be given the right to interfere and appeal to the Mental Welfare Commission. I have had to make a judgment on how grave is that risk. I think that it would be very slight.
I am not suggesting that the commission must take action in every case and is bound by the person who appeals to it to do so. It must of course consider the case, but if it concludes that the person who is appealing has no locus or ground and that the appeal is a load of 1523 nonsense, it is not bound to proceed. Indeed, there may be the odd occasion when, no doubt, a nosey parker with no other right raises a good point in caring about someone's mental welfare which has not been previously considered.
When I used the terminology "any person" in new clause 4 and elsewhere, it was deliberate because I was afraid that if I tried to define who might have a specific and good reason for such an appeal, I would limit the range of those who would be able to appeal and miss some who had a perfect right to do so.
I would be happy if the Minister said that the terminology was too wide and that there is a list or schedule already in some Act that I could not find of people who may have that right and that it covered everybody. I would accept that and amend my amendments accordingly. The right of appeal is on the expenditure of money or disposal of valuables. That would deal with the concerns of staff and others that sometimes inappropriate judgments have been made on spending patients' money or getting rid of their valuables.
I thought that I would address new clause 4 first in order to try to reassure my hon. Friends who are hostile to its intent. In new clause 1, I suggest that hospital managers must make regular reports in writing to the Mental Welfare Commission. I do not need to explain any further why the commission is the best body to which the report should be made, suffice it to say that it already exists and clearly plays a valuable role in Scotland.
Such a requirement would not impose a heavy burden on financial managers who would have to exercise the responsibility. They have to keep accounts and records in any case. They need not call a case study group to discuss the patient. They already have to keep records of how much is spent and on what it is spent. I am suggesting that all that be combined into a short report to the Mental Welfare Commission, showing what judgments have been made. I do not envisage that that would be a heavy burden on financial managers. It is not a burden on medical staff or doctors; they are not the ones who do it.
New clause 1 states:(2) A report under subsection (1) shall be submitted no later than 18 months after the discharge from hospital of the patient concerned, and thereafter on an annual basis, until such time as either—(a) the patient is considered by the medical officer in charge of his case to be capable of adequately managing and administering his property and affairs".That is eminently sensible. I shall not try to persuade my hon. Friend the Member for New Forest, West that the medical officer is the appropriate person. If he wishes to tell me of someone better, I might be persuaded.
There is another important point that none of my hon. Friends has dealt with. New clause 1 says that reports shall be submitted until either the patient is considered to be capable of adequately administering his property and affairs or(b) a curator bonis is appointed in respect of that person.My hon. Friends will ask why I have picked a curator bonis instead of any other system. "Curator bonis" is wonderful Scottish terminology. It is one of those examples where Scots law, based on Roman Dutch law, has something to give the United Kingdom, if only we 1524 were wise enough to take some parts of it and if only Scotland were wise enough not to go its own way. However, that is another route, which we shall not take today.
A curator bonis can be appointed to manage the assets and affairs of a person over 16 who lacks the capacity to manage his own financial affairs. It is highly relevant—which is why I have put it in new clause 1—because it is the most widely used general legal procedure for managing the funds of a mentally incapacitated person. As I said in introducing my remarks, Scotland has a wealth of means of managing the affairs of people in hospital, or of people generally who may be incapacitated. I have discussed the hospital management system; the curator bonis is the most widely used alternative.
The curatory—that is, the appointment of a curator—can often be the default mechanism. A local authority must apply to the court to appoint a curator if no one else is doing so, and a curator should then be appointed. A curator is a specific type of judicial factor, which is a general term for a person appointed by the court to do something on behalf of another person. Applications to appoint a curator bonis are to the Court of Session or the sheriff court in Scotland, and must be supported by two medical certificates saying that the person is of unsound mind. The incapacitated person or his relatives are entitled to oppose the petition. I hope that two medical certificates saying that a person is of unsound mind would be satisfactory to my hon. Friend the Member for New Forest, West, and that he will not criticise that aspect of new clause 1.
Curators bonis are under the supervision of the accountant of the court, to whom they must submit annual accounts for audit. Without trying to be arrogant, I believe that this is where my new clause is quite clever, in that, by picking a curator bonis and saying that managers must submit annual reports, I am trying to impose on the managers of hospitals a burden similar to that which curators bonis currently have. That is also why I put curators bonis in my new clause. Curators bonis are remunerated for their efforts and are usually professional people, such as solicitors. I shall return to that.
On appointment, a curator automatically supersedes hospital management, any Department of Social Security appointees and most other managers under specific statutory provisions. However, a curator is, in turn, superseded by the appointment of a tutor-at-law, if that happens. It is relevant for me to explain briefly to the House about curators bonis because, even if we have the hospital management system, if a curator bonis is appointed he automatically outranks the hospital management and takes over from it.
We now come to what some of my hon. Friends who are not lawyers may consider to be a downside. Most curators bonis are solicitors, and most of them do not work for free. Indeed, it is said that curators can be expensive. The Law Society of Scotland will no doubt justify that and write letters to colleagues and to myself, which I shall pick up and read in good time if I have got it wrong. The funds of the ward must cover the court petition to appoint the curator, his on-going remuneration—which is determined annually by the accountant of the court on a percentage basis with the aid of complex tables—the annual audit costs and the costs of any further court applications to authorise particular actions by the curator.
1525 1.15 pm
It is now generally recognised that curators should not be appointed for estates of less than about £50,000. It is uneconomic to do so. I assume, without going into the details, lawyers' fees will amount to £49,000 on an estate of less than £50,000. That is the underlying message that I receive from the information that I have dug out in my studies.
New clause 1 therefore suggests that annual reports will be submitted by the financial managers of mental hospitals. That would mirror the present requirements of curators bonis.
§ Mr. Swayne
That would be the exact mirroring of what the curator bonis would achieve. My right hon. Friend has given us a taster of what curators bonis would charge for the service. Why should the burden be imposed on hospital managers, who will be expected to undertake it, out of the public purse, for nothing?
§ Mr. Maclean
The costs of curators bonis are apparently quite high, but that is not purely because they are required to submit an annual report. The annual report and audit are only tiny parts of the legal bill. In any event, I think that a hospital manager, even a highly paid extortionate hospital manager charging for his time, might not charge at the same hourly rate as a solicitor who is a curator bonis. My hon. Friend has used a rather bogus argument to try to suggest that we should not have annual reports from hospital management because one day that might become as expensive as the cost of a curator bonis, bearing in mind all the other things for which the curator bonis is entitled to charge in administering the estate of somebody incapacitated.
I suggest that an annual report should be prepared until such time as the medical officer says that the person is capable or a curator bonis is appointed. If a curator bonis is appointed, there will be an annual report in any event, and it will be costly.
I move on briefly to deal with the other amendments. I do not intend to speak at length because my right hon. Friend the Member for Bromley and Chislehurst covered them adequately.
§ Mr. Maclean
More than adequately; that is what I intended to say.
Amendment No. 1 mirrors part of what I seek to do in new clause 4. The amendment reads:The managers of a hospital may exercise their powers under this section until such time as either…the patient is considered by the medical officer…to be capable…or…a curator bonis is appointed…Any person may at any time request that the patient's ability to manage and administer his property and affairs be reviewed by the medical officer in charge of the case.I rather like the last part of the amendment because it would give any person the right to suggest to the medical officer that the patient's mental capability to administer his own financial affairs should be reviewed.
There may be accidents because we know that at some of the larger mental hospitals, reviews are sometimes not carried out as expeditiously as they should be. Files may be delayed at hospitals dealing with large numbers of patients, or a patient's annual or six-monthly review may 1526 not take place when it should. Little hiccups of that sort occur. I am not criticising medical authorities or any particular mental hospitals; I am merely saying that hiccups occur in organisations dealing with tens of thousands of people. The new clause will give any person at any time the right, if he discovers a problem, to say to the medical officer, "Why has case X not yet been reviewed? We think that he is capable of administering his affairs." Organisations such as MIND or other hospital visitors, or visiting psychiatrists or doctors, may think that a case should be reviewed. That is sensible.
The purpose of amendment No. 1 is to ensure that in the case of an incapax patient who has been discharged, whose money is held by hospital managers, and who is subsequently able to deal with his affairs, the amendment would automatically give him the right to assume control of his own assets. It would also guard against the hospital being locked into administering funds in perpetuity. It is a well balanced, even-handed amendment, which prevents the hospital being stuck with administering the funds for ever more, and gives a guarantee to the patient that he can regain control of his assets in the event of him being judged able to administer his own affairs.
I shall deal briefly with amendment No. 2, which was a source of controversy among some of my hon. Friends. If it is accepted, the Bill will read:The managers of a hospital may, for a period not exceeding five years following the discharge of the patient, continue to hold money…and receive interest…and expend money".The amendment inserts a time limit of five years. The purpose of the amendment is similar to that of new clause 3, which restricts the responsibility of the hospital managers to discharge patients who continue to live within health board boundaries. I cannot discuss that as it was not selected, but the amendment is comparable to that. It prevents managers having to assume an unacceptable administrative burden.
The amendment would place a five-year limit on the time for which hospital managers administer the assets of discharged patients who remain incapax. Some of my hon. Friends consider five years too long. I am not certain whether it is the correct period. However, it is a long-stop provision, as my right hon. Friend the Member for Bromley and Chislehurst said. There is nothing to stop the hospital managers concluding that the person should have his funds restored before that time. I cannot find the quote from the Scottish Association for Mental Health, which argued for a six-month review period or a six-month time limit. The association certainly argued for a long stop, and the time it suggested was considerably shorter than that proposed in the amendment.
I urge the Minister to consider such a provision. There must be some cut-off point at which the hospital ceases to administer the funds. It cannot be right that the hospital management should continue to administer the affairs of a patient who was discharged 10 or 15 years previously.
§ Mr. Maclean
I am grateful to my hon. Friend for that intervention, which leads me nicely into my remarks on amendment No. 5, which deals with valuables and other items that may be of sentimental value.
1527 First, however, I shall conclude my remarks on amendment No. 2. There is nothing magical about the five-year period to which the amendment refers, but some limit is necessary. I shall be happy to accept the Minister's advice whether three years is the correct term, or six months or 10 years.
§ Mr. Forth
The trouble is that we cannot change the amendment now. This is the last gasp of consideration. Unfortunately, the House has put itself in a position where we must accept either the original Bill or some—or, we hope, all—of our amendments and new clauses, but nothing else. My right hon. Friend therefore has a problem. He must stick to his proposed period of five years, or he is not going to have anything at all.
§ Mr. Maclean
I am grateful to my right hon. Friend for pointing out that the Bill cannot go to another place for amendment. Nevertheless, I expect the Minister to say today that he is aware of the point, and that legislation is being prepared for the new Scottish Parliament. That may be the wider Bill for which my right hon. Friend has called, or a Bill to deal with this matter.
I understand that there is a need for further mental health legislation in Scotland with which the Scottish Parliament can deal. I hope that the Minister can reassure me—whether we are talking about a period of two, five or seven years—that legislation will be proposed to deal with the problem. If he sees merit in the proposal, a measure can be introduced here—we will be happy to deal with legislation relating to the Union—or in the Scottish Parliament. I see merit in the proposal, as do my right hon. and hon. Friends.
Essentially, amendment No. 5 is a probing amendment to ensure that the terms used in the Bill, such as "money", adequately cover all assets that an incapax patient may hold. It may be that there is an established precedent for what the terms mean. However, as the Bill extends the powers of hospital managers, it is sensible to ensure that all assets held by the patient are covered.
The Minister can answer my point in one of two ways. He can say that he will propose legislation in either the UK Parliament or the Scottish Parliament, or he can say that the term "money" is defined somewhere else, such as the 1994 Act—although I must confess that I did not spot it—to include bank notes, coins and sums deposited in a bank or building society account. If so, I will be satisfied.
The amendment also lists other forms of financial assets which a person might hold, or acquire via an inheritance. Again, the list is not exclusive, but it covers the most popular forms of non-bank account investments. That is very important. The Minister may tell me not to worry and that the matter is covered in existing legislation, or that the interpretation of the law will be that that is the case.
The amendment states that money, financial assets and investments and valuablesshall include sums and items inherited by the patient when resident in hospital or subsequent to discharge from hospital.This is the key part of the amendment. For example, a patient may be left property or money in the will of a deceased relative, or he or she may receive a windfall 1528 payment from a building society which has converted to a bank. It is not clear from the Bill if such moneys could be administered by the hospital management. The amendment would ensure that they were covered. I shall not push the amendment to a vote if the Minister can reassure me that this crucial matter is covered.
This morning, we have dealt with Bills concerning human beings. It is terribly important for this Parliament to deal with such measures. The first Bill that we debated today dealt with one human being who may have suffered a terrible injustice, and the House spent two and half hours dealing with it. This afternoon, we are dealing with a Bill relating to individuals who are still alive, but whom medical practitioners have ruled to be incapable and who must be detained in hospital. If they are released, the state has decided that they would be incapable of managing their affairs and that we should run their assets. That is a grave step to take, but it has been taken over the years by various Parliaments which have given powers to medical practitioners to detain people by reason of mental incapacity.
If we are to have such legislation on the statute book, and if Parliament is to pass this amending Bill—I hope that we shall do so, and I do not intend to prevent that from happening even if the Minister rejects my amendments and new clauses—it is beholden on hon. Members to make sure that they build in all the safeguards they can.
On the selection list, this group of amendments and new clauses has been entitled "Safeguards". I did not choose that title; perhaps it was chosen by you, Mr. Deputy Speaker, or your office. That is what they are—safeguards for human beings. We are dealing with important legislation this morning and it has been a privilege to discuss provisions that I think may improve it. However, I am willing to be persuaded that the amendments are not necessary or that these matters can be dealt with in the other place. This time, that other place is 300 miles up the road.
§ Mr. Peter Brooke (Cities of London and Westminster)
I shall be very brief. This group of amendments and new clauses stands in the names of my right hon. Friends the Members for Bromley and Chislehurst (Mr. Forth) and for Penrith and The Border (Mr. Maclean). I pay genuine tribute to their assiduity—not only today, but on previous Fridays—to the cause of private Members' legislation. They have been subjected to some criticism outside the House, which I think has been wholly misplaced. Some might say that that is a charitable view, because one of the victims of their stern and unbending approach has been a Bill of mine which commends itself to many people inside and outside my constituency and which would correct an offence that literally lingers disagreeably in the nostrils of mankind.
My right hon. Friends' emphasis is on legislation receiving proper scrutiny. It is a truism that we pass too much legislation and that it is insufficiently scrutinised by the House. The Home Secretary had to come to the House recently to confess to a massive omission from the Prevention of Terrorism (Temporary Provisions) Act 1989. Had that omission been exposed by a major terrorist offence between the passing of the Act and the discovery 1529 of the omission, it might have occasioned his resignation. It would also have reflected on Parliament as a whole. If that would have been a major setback in the context of terrorism, how much more so are omissions in the context of mental health?
I shall not dwell on the Bill that we debated earlier this morning because you would rule me out of order, Mr. Deputy Speaker, but it was also occasioned by an omission from previous legislation. Relevant to that legislation were the Mental Health Act 1961 (Northern Ireland), the Mental Health (Northern Ireland) Order 1986 and the Criminal Justice (Northern Ireland) Order 1998. I strongly support the assiduity of my right hon. Friends, who have brought this group of new clauses and amendments to the attention of the House, discussed the cause of mental health and highlighted the interest in the proposals, which has been severally represented to them, of organisations outside the House. That is a riposte to those outside the House who have criticised them for their diligence in respect of legislation of this sort.
§ Mr. Edward Leigh (Gainsborough)
It is an honour to follow my right hon. Friend the Member for Cities of London and Westminster (Mr. Brooke) and I agree with his remarks about the need to give adequate scrutiny to such Bills, which are so important to people. I emphasise the word "people" and I am glad that we are undertaking that scrutiny. My right hon. Friend the Member for Penrith and The Border (Mr. Maclean) has been so assiduous and so comprehensive in his remarks that it is not necessary for me to detain the House for long, except to highlight one or two of the points that I believe need to be made. I support the new clause because it would add to the efficacy of the Bill.
Our debate has concerned the nature of the Mental Welfare Commission for Scotland and its role. No doubt we will be reassured be the fact that it mustenquire into any case where it appears to them that such a person's property"—that is, the property of someone covered by the relevant Acts of Parliament—may be exposed to loss or damage. It must also notify any hospital or local authority when it considers that they should exercise their functions in order to prevent or redress loss or damage to property. In addition, the MWC has various duties to visit patients who are detained in hospital.I am absolutely sure that the MWC carries out its duties assiduously, but we are considering conferring extremely wide powers. I think that we should inquire carefully into the extent of those powers, and ensure that the interests of patients—albeit patients who may be very sick, and who may be incapable of running their own affairs—are properly observed.
My right hon. Friend the Member for Penrith and The Border quoted from a report stating that hospital management providesa relatively quick and inexpensive method of administering funds and possessions of a modest value. It avoids the cumbersomeness of accounting to, and supervision by, the Accountant of the Court.No doubt the House will agree that that is a good way of managing the interests of patients, but it must be said that the powers vested in hospital management in regard to patients' funds are extremely wide. The new clauses and amendments contain safeguards to deal with that.
Only one medical certificate is required for a patient's funds to be controlled by hospital management, and there is no opportunity for the certificate to be challenged. 1530 There can be no consideration of the evidence in a hearing. Management by a hospital's central managers may be regarded as remote and impersonal. No individual is to be appointed with specific responsibility for the funds of particular patients. It is not clear whether the duty to receive money extends to withdrawing money from a patient's bank or building society account so that it can be spent on the patient's welfare. The current limit of £50,000—which seems to give considerable latitude to those controlling the funds—could appear excessive, given that curators would almost certainly be appointed for mentally incapable people with estates of that size living outside hospital.
Although the powers vested in hospital management in regard to incapable patients are clearly very wide, there is no right of appeal. No one is suggesting that hospitals will set out to mismanage funds; all that my right hon. Friends are suggesting in the new clauses and amendments is that the Bill should allow patients some guarantee, and some right of redress against hospital managers who fail to administer their finances in their best interests. Such cases may be rare, but it should be borne in mind that we are not necessarily thinking in terms of purely financial mismanagement. Sentimental value may well attach especially to articles, but perhaps even to funds of some sort, and hospitals may take insufficient account of that.
Section 94(3) of the Mental Health (Scotland) Act 1984 allows managers toexpend that money or dispose of those valuables for the benefit of that person and in the exercise of the powers conferred by this subsection the managers shall have regard to the sentimental value that any article may have for the patient, or would have but for his mental disorder.We all know that it might be extremely difficult for hospital managers, given their wide powers, to reach a definite conclusion that was fair in terms of the sentimental value of any given article. I see no harm in providing for an annual report of the kind envisaged in new clause 1, enabling the way in which hospital management runs a patient's affairs to be laid down in print, and enabling the patient's family to be reassured about what is going on.
There are a number of concerns about the Bill, which are made even more pertinent by the extension of the powers of hospital management for which it provides. We need a precise definition of "benefit to the patient"; no doubt the Minister will be able to help us in that regard. If a manager spends money for the benefit of the patient, what rights will the patient's family have if they disagree with the expenditure, or with any part of it? Perhaps the Minister will be able to reassure us about this. At present, hospital management and the Mental Welfare Commission can work with the family, but what rights will the family have? It seems that, under existing legislation and under the Bill as proposed, they have few rights.
In the event of such a disagreement, what provision is there for arbitration? As an associate member of the Chartered Institute of Arbitrators, I take an interest in arbitration. I hope, if all goes well with various exams, to become a fellow of the institute. There is no mention of arbitration in the Bill. After all, in virtually every other dispute, people can either take the matter to a court of 1531 law, or it is laid down in a contract, or in agreements within the business that disputes will be referred to arbitration.
§ Mr. Forth
My hon. Friend may recall that, earlier in the debate, someone—I forget who—pointed out that the Minister had said, and I find it almost beyond belief, that people should not worry because, if anything went wrong, they could resort to the common law, to the courts, to put it right. With his obvious expertise in and commitment to the principle of arbitration, does my hon. Friend agree that the amendments are far preferable to forcing people, especially those who are perhaps vulnerable, to resort to the courts for a fair hearing?
§ Mr. Leigh
I am grateful for that intervention. The whole point of arbitration is to provide an inexpensive alternative to court procedures, which are cumbersome and long-winded, and to which it is difficult for ordinary members of the public to have access. Given the cases that we are talking about, where I doubt that large sums of money will be involved, where people may be of very modest means and mentally incapable, I do not think that people will go to common law.
I would much rather have a Bill that set out a safeguard in clear terms. What the Bill proposes is right. Of course, there should be a procedure by which the affairs of a patient who goes into the community can be managed properly, but the amendments propose that there should also be a safeguard for the family—some right of redress, some right of appeal, some written report to which they can refer. As I understand it—I may be wrong; perhaps the Minister can reassure me—there is none at present. That is not fair.
By requiring hospital managers to submit regular reports to the Mental Welfare Commission, by allowing the relatives, or guardians of patients to have access to those reports, and by providing the right of appeal against decisions of the managers, we will put those safeguards in place. They would strengthen the Bill, not weaken it. I hope that the Minister and the promoter of the Bill will accept the amendments.
§ The Parliamentary Under-Secretary of State for Scotland (Mr. Calum Macdonald)
I acknowledge the supportive nature of all the amendments to the general thrust of the Bill and the supportive nature of the comments made so far in the debate. I welcome the good wishes that have been extended to my hon. Friend the Member for Midlothian (Mr. Clarke), which I warmly endorse. I also welcome the role of my hon. Friend the Member for Paisley, North (Mrs. Adams), who is acting as the promoter of the Bill.
I appreciate the underlying sentiments of new clause 1. It deals with the welfare of the person concerned and the importance of avoiding any impropriety in handling his or her affairs.
A number of arrangements, or checks and balances are already in place, which will help to ensure that the resources in question are used to the optimum benefit of the patient. For example, section 94(2) of the Mental Health (Scotland) Act 1984 already requires hospital managers to obtain the consent of the Mental Welfare 1532 Commission to administer the funds of incapacitated persons where such funds are in excess of a figure agreed by the First Minister. Currently, that figure is £5,000. It follows, therefore, that in any such case the commission will be aware of the existence of those funds and could at any time in the exercise of its protective function under the 1984 Act make inquiries about the use of the resources in question. If, for example, there was a suggestion of improper use, it could bring the matter to the attention of the First Minister, the health board concerned or any other relevant body.
Secondly, and in addition to the procedure that I have just mentioned, the commission has asked hospital managers to obtain its consent to any single or cumulative item or items of expenditure purchased from a patient's capital exceeding £500 in any one year. That figure is kept under regular review and was set at £500 on 1 April this year.
Thirdly, such expenditure on a person's behalf will be subject to scrutiny by the auditors. Any irregularity or improper use could also be detected in that way.
Fourthly, hospital managers already notify the commission of all cases in which they are managing the resources of patients in hospital under section 94. The commission, in turn, already examines in the course of its hospital visits whether the powers under section 94 are being properly exercised and whether the resources of the patients concerned are being managed to their satisfaction.
By way of reassurance to the hon. Member for Gainsborough (Mr. Leigh), the Scottish Executive has made it clear that it will ensure that in the administrative guidance that will follow the enactment of the Bill, hospital managers are asked to notify the commission of all cases in which they are managing the resources of persons who want to live in the community. The commission will also be invited to include those persons in the scrutiny that it already undertakes under section 94 arrangements.
Finally, as my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith), the then Minister, made clear on Second Reading, the new Administration in Scotland is about to issue new guidance on managing the resources of incapacitated patients who live in the community. That will provide clear guidance to hospital managers on the how the resources that they are managing can best be used to benefit the patient concerned. A number of safeguards are already in place and I understand that they operate to everyone's satisfaction. Those safeguards will be extended to all new cases that come within the scope of the Bill.
New clause 4 would introduce a right of appeal for persons who leave hospital to live in the community and continue to have their funds looked after by the managers of the hospital that they have left. The appeal, which could be raised by any person, could be against the continuing management of such a person's resources by the hospital or against the way in which their money and valuables have been managed. Currently, no formal right of appeal is available to patients in hospital under section 94 of the 1984 Act, but as hon. Members have acknowledged and as one might expect, hospital managers go about their task 1533 with diligence, thoughtfulness and care. A range of safeguards is already in place, some of which I described in my reply to new clause 1.
If, however, there was evidence that hospital managers were continuing unnecessarily to manage the funds of a person or that they were expending his or her funds inappropriately, at common law that person could make an application for the return of those funds at any time. [HON. MEMBERS: "Oh."] I ask hon. Members to contain their disappointment until I have finished this point.
Patients can apply for the return of their funds at any time if it is apparent that they have recovered the capacity to manage their own affairs. That is an important protection and should be acknowledged as such. If hospital managers refuse to accede to such an application, they will be open to judicial review.
Similarly, if it emerged that hospital managers were inappropriately disposing of a person's resources, redress could be sought in the courts. That facility would apply regardless of whether the person was in hospital or had left hospital to live in the community.
§ Mr. Macdonald
The point that I was about to make is that there are other forms of protection. Nevertheless, it is important to note that common law protection is available—as is the possibility of judicial review, which is an important but not the only safeguard. It would also be open to the person, or to someone on his or her behalf, to ask the Mental Welfare Commission to investigate any suggestion of impropriety, or other shortcomings, in the handling of the person's property.
I assure hon. Members that the commission has wide-ranging powers to investigate complaints, which can come from any person—including, of course, relatives. I therefore do not think that new clause 4 is necessary. There are already sufficient powers, both at common law and—in the 1984 Act—in the Mental Welfare Commission's powers, to ensure that a person's property being managed by the hospital is adequately protected. With that assurance, I hope that hon. Members will not press new clause 4 to a Division.
We believe that amendment No. 2 is also unnecessary. As has been made clear in the Scottish Parliament—and mentioned in this debate by the hon. Member for New Forest, West (Mr. Swayne)—it is proposed to introduce, in the autumn, an incapable adults Bill that will provide for a comprehensive new system for dealing with the finances of incapable adults. It is envisaged that the Bill—subject, of course, to the wishes of the Scottish Parliament—would be enacted and operational well within five years. In that case, hospital managers' responsibility for persons who leave hospital to live in the community should essentially cease—so that amendment No. 2 would have no practical effect. I therefore hope that hon. Members will also be persuaded not to press that amendment.
As for amendment No. 1, section 94 of the 1984 Act already requires the medical officer responsible for the patient's treatment to state that that person is incapable of 1534 managing his affairs. The section also makes it clear that, when a curator bonis is appointed, hospital managers' responsibility ceases. In the course of the regular medical assessments that a patient in hospital will receive, the doctor will normally determine whether the patient remains incapable of managing his or her affairs. When capacity has been regained, clearly, the responsibility of the hospital manager will terminate. The same applies to patients living in the community.
I recognise, however, the importance of regular medical reviews—which is perhaps the underlying point of the amendment. It is therefore proposed that—in a guidance circular to hospital managers and other interested parties that will follow the Bill's enactment—stress will be placed on the importance of conducting regular assessments of the person's condition, whether in hospital or the community, to determine the person's capacity or otherwise to manage his or her own affairs.
It would also be open to any person at any time—as the amendment envisages—to request that a patient's condition be reviewed. That point will be covered in the proposed circular, to ensure that hospital managers are clear that, when an approach is made on behalf of a person in that regard, it is duly honoured in exactly the way intended by the amendment.
In addition, good practice guidance, which the Scottish Executive plans to issue in the near future on the management of incapacitated patients' funds, will stress the importance of regular checks on patients' capacity, whether in hospital or in the community. With that assurance that the point will be incorporated in circulars and guidance, I hope that hon. Members will not press that amendment to a vote, either.
I do not think that amendment No. 5 would be helpful. The right hon. Member for Penrith and The Border (Mr. Maclean) said that it was intended as a probing amendment to discover the meaning of the terminology. One of the chief merits of the Bill is its simplicity and the neat solution that it proposes to a pressing problem: the current legal impediment that prevents hospital managers from releasing funds when a patient leaves hospital. We need to retain the general thrust of section 94 of the 1984 Act, which this Bill amends. Section 94 refers specifically to money and valuables. For the time being, there is no need to depart from that simple terminology, which allows hospital managers to adopt a flexible, common-sense approach to their responsibilities for the resources of persons in their care.
The Bill is already designed to deal with money and valuables held by hospital managers, or interest accruing on those. It is not envisaged that, after a patient goes back into the community, new money, for example from pensions, will be managed by the hospital manager. Arrangements for the new money will be made in the normal way. For example, the new carer or a Department of Social Security appointee will manage moneys received after the patient is discharged from hospital.
Before a patient goes back into the community, the hospital and social workers plan that discharge and make arrangements for the patient's welfare. Planning for management of the patient's income is part of that task. Arrangements are often made for pensions and similar regular payments to be paid to someone on the patient's behalf—generally a DSS appointee or some other appointed person.
1535 Obviously, one would expect that, where a patient had a large financial portfolio, a curator bonis would be appointed, or other arrangements made, to look after such assets. There is, however, flexibility in the provisions for hospital managers to exercise discretion on the approach to those matters. It is important that that flexibility be allowed to continue.
If there is a case for change, we would all agree that it would be best dealt with within the larger canvas of the incapable adults Bill, which is being prepared for the Scottish Parliament. I therefore urge that the amendment be withdrawn.
I hope that none of the amendments will be pressed to a vote. Although they contain some good points, the Scottish Executive has given assurances that they will now be incorporated in new guidance.
§ Mr. Forth
May I express my gratitude and appreciation for the typically courteous manner in which the Minister has replied to the debate? He has dealt with the material seriously and has gone out of his way to deal with the matter fully and courteously, which is not always the case in Friday debates. I do not, therefore, want to be unhelpful.
I much appreciated the detailed reply that the Minister gave on new clause 1, as it reassured us that the worries that we expressed can be dealt with in a number of different ways, and not necessarily as described in the new clause. The hon. Gentleman went out of his way to identify how that could be done, which was reassuring.
I was worried about the Minister's response to new clause 4, until he reached his punch line. He spoke about resorting to the courts and judicial review, which most of us feel would not be of much use to the individuals in question.
When the Minister said that the commission could always hold an investigation, that must have reassured everyone other than members of the Law Society of Scotland, who must be worrying that we are trying to steer people away from Scottish lawyers; but that is their problem.
I was slightly less happy with the Minister's response to amendment No. 2. He said that everything was to be reviewed and changed, so it would all be okay. He seemed almost to be giving a commitment on behalf of a completely different institution. I do not know whether he feels that he can speak on behalf of Members of the Scottish Parliament, but as he has been so forthcoming, I am willing to accept his reassurances in good faith. He has good contacts with MSPs and I am sure that he exercises some influence over them, so on this occasion we can accept that the matter will be dealt with, as it now properly should be, north of the border.
The Minister went even further on amendment No. 1 and said specifically that a circular of guidance would be issued that reflects the anxieties expressed today and puts in place the mechanisms that our new clauses and amendments were designed to achieve. As a result of 1536 what he has said, of his courtesy and of his having taken such trouble to deal with these matters, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.