MENTAL TREATMENT BILL. [H.L.]

HL Deb 10 December 1929 vol 75 cc1050-119

Order of the Day for the House to be put into Committee read.

THE UNDER-SECRETARY OF STATE FOR INDIA (EARL RUSSELL)

My Lords, I beg to move that the House do now resolve itself into Committee, and in so doing I might tell your Lordships that it is hoped to conclude the Committee stage to-day. I think that, with your Lordships' assistance, we shall be able to do so at a fairly reasonable hour.

Moved, That the House do now resolve itself into Committee.—(Earl Russell.)

On Question, Motion agreed to.

House in Committee accordingly:

[THE EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Power to receive voluntary boarders.

1.—(1) Any person suffering from mental disorder who is desirous of voluntarily submitting himself to treatment, and who makes a written application for the purpose, may without a reception order be received as a voluntary boarder in an institution within the meaning of this Act, or in any hospital or nursing home approved for the purposes of this section by the Board of Control, or, with the consent of the Board, into single care.

(2) Any unmarried person under the age of eighteen suffering from mental disorder whose parent or guardian is desirous of submitting him to treatment may, if the parent or guardian makes a written application for the purpose, be received as a voluntary boarder under this section, but such a person shall not be so received on his own application.

(4) For the purposes of this section, the expression "parent or guardian" in relation to an unmarried person under the age of eighteen includes any person who undertakes or performs towards that person the duty of a parent or guardian.

LORD SANDHURST moved, in subsection (1), to leave out "suffering from mental disorder." The noble Lord said: The object of this Amendment, which is a very small one, is to make it as easy as possible for persons who are suffering from incipient symptoms to become voluntary boarders. Your Lordships will observe that the terms of the Bill are: Any person suffering from mental disorder who is desirous…. and so on. My anxiety is based on the view that it should not be necessary for a person to be so far gone in the disorder as these words imply before submitting himself to treatment. The Bill says, in effect, that he must be actually suffering from mental disorder. I am very desirous that no person should be deterred from offering himself for treatment as a voluntary boarder, even by implication, when he is not so far gone as to be properly described by the words of the Bill. Accordingly I propose to leave out the words "suffering from mental disorder," and I had intended to move to insert after "treatment" the words "for mental or nervous disorder." I should really be content merely to leave out the words that I have read. Under the corresponding section of the Lunacy Act, 1890, there is no definition of the voluntary boarder's malady. All that is necessary is that a person should be desirous of voluntarily submitting himself to treatment. I understand from my noble friend who is in charge of the Bill that he would not be content to leave the matter quite so much at large as that, and I also understand that, for administrative reasons, he does not desire me to include the word "nervous." He prefers the words "for mental disorder" alone. If he is prepared to meet me to that extent, I am equally prepared to meet him. I should be prepared to insert after "treatment" the words "for mental disorder." I beg to move.

Amendment moved— Page 1, line 7, leave out ("suffering from mental disorder.")—(Lord Sandhurst.)

EARL RUSSELL

We can practically accept this Amendment. The noble Lord's object is to leave out these words and to insert after "treatment" the words "for mental or nervous disorder.' There are objections, as he has said, to including the word "nervous," but we would accept the second Amendment without the words "or nervous," so that the Bill would read:— Any person who is desirous of voluntarily submitting himself to treatment for mental disorder…. and so on. If the noble Lord will agree to move the second Amendment in that form, we will accept both Amendments.

On Question, Amendment agreed to.

Amendment moved— Page 1, line 9, after ("treatment") insert ("for mental disorder").—(Lord Sandhurst.)

On Question, Amendment agreed to.

VISCOUNT BRENTFORD moved, in subsection (2), to leave out "eighteen" and insert twenty-one." The noble Viscount said: The first Amendment which I have down on the Paper relates to the age at which a person may voluntarily place himself in an asylum or mental home. My important Amendment is the second one dealing with the conditions under which he places himself in a home, and therefore I do not propose to take up much of your Lordships' time on this first question. It does appear to me a little questionable whether a man or woman of eighteen years should be allowed in any circumstances voluntarily to place himself or herself in a mental home. I should have thought that the ordinary age at which a young person comes of age and is able to take important decisions in life should be the age at which he or she should be able to take this most important decision of all—namely, whether he or she should without any certification of any kind have the right to place himself or herself in a home or an asylum. I should be glad if the noble Earl would give us the reasons for fixing upon the age of eighteen, and I should also be glad to know whether, if the House agrees, he would consider an Amendment raising the age to twenty-one. I therefore beg formally to move.

Amendment moved— Page 1, line 15, leave out ("eighteen") and insert ("twenty-one").—(Viscount Brentford.)

EARL RUSSELL

The noble Viscount asks me where the age of eighteen came from and the reason for its suggestion. It comes from an Amendment which this House itself inserted in the Mental Treatment Bill of 1923 and, therefore, it was thought well to follow it. I hope the noble Viscount will not press his Amendment. There are other Amendments suggesting that the age should be reduced at which the parent or guardian can act for the child, but there is a later Amendment coming which we hope to accept and which would, I think, meet the point. It is an Amendment by Lord Danesfort that the application should be accompanied by a medical certificate. We think that perhaps in the case of minors there should be in addition to the consent of the parent or guardian a medical certificate that the patient would benefit from treatment. If the noble Viscount would accept that Amendment instead of his own, I think it would meet all objections to dealing with a young person without his personal consent.

VISCOUNT BRENTFORD

I am prepared to withdraw this Amendment, but I should be glad to hear what my noble friend has to say with regard to his Amendment, because I place great stress upon my Amendment with regard to people under the age of eighteen.

Amendment, by leave, withdrawn.

THE LORD CHAIRMAN

The next Amendments by Lord Sandhurst are consequential, I believe.

Amendments moved— Page 1, line 16, leave out ("suffering from mental disorder"). Page 1, line 17, after ("treatment") insert, ("for mental disorder").—(Lord Sandhurst.)

On Question, Amendments agreed to.

THE EARL OF CRANBROOK moved, in subsection (2), after "purpose," to insert "and where such a person is not under the age of sixteen his consent to the application by the parent or guardian is given in writing." The noble Earl said: I am moving this Amendment on behalf of the London County Council, who, as Earl Russell knows, have a great many mental institutions and large experience in dealing with people suffering from mental disorder. They feel that the age of eighteen is too high for the parent to have sole control over a practically grown-up man or woman. At the age of sixteen a young person is allowed to marry, and sixteen also, I believe, is the age at which a young person is allowed to give his or her consent to undergo an operation. Therefore it is felt by the Council that the consent of the parents should be accompanied by the consent of the patient. I hope that the noble Earl will see his way to accept this Amendment.

Amendment moved— Page 1, line 19, after ("purpose") insert the said words.—(The Earl of Cranbrook.)

EARL RUSSELL

Your Lordships will notice that whereas the noble Viscount wanted to raise the age to twenty-one the noble Earl wishes to reduce it to sixteen. We still think that eighteen is the better age, and that it is not really necessary to accept the Amendment in view of the one which I have indicated that we propose to accept, which would mean that the judgment of the parent or guardian would be reinforced by the recommendation of a doctor. In that case, I think your Lordships would feel that a person whose parents express a desire that he should be treated voluntarily would be protected if the application were accompanied by a medical certificate. I may say at once that we propose, if the noble Lord [Lord Danesfort] agrees, to use the word "recommendation" rather than "certificate." We wish to avoid the use of the word "certificate," which suggests the certification of a person. I shall be much obliged if the noble Earl will not press his Amendment, because we think the age of eighteen is better, and does agree with a previous decision of your Lordships.

THE EARL OF CRANBROOK

I had thought of putting down an Amendment on the same lines as that of Lord Danesfort, but when I saw the Amendment of Lord Danesfort I did not put one down myself. We feel rather strongly that persons of sixteen, who are able to marry, which is a much graver step than going for treatment in a mental hospital, should have a say in their own affairs.

THE MARQUESS OF SALISBURY

I hope the noble Earl will reconsider his decision. I do not differ from the view that he should withdraw his Amendment at the present moment, but I do not think that this is covered by the decision to which the House has just arrived. The effect of the Amendment now before your Lordships is that the consent of the individual young person should be essential. It does not mean the removal of the action of the parent, which was the effect of the last Amendment, but that they should both consent. I agree with Lord Brentford that we ought to have the action of the parent in the case of these minors, but I also agree that in the case of a young person still a minor, but approaching the age of an adult, the consent of the individual should also be required. That is what my noble friend Lord Cranbrook has moved. I am sure that the noble Ear] will see that the two points are not inconsistent at all; they are supplementary the one to the other. And I am sure it is a very strong measure indeed to say that a young man or young woman of eighteen may be "voluntarily" shut up as it is called without his or her consent—because that is what the proposal of the Bill is. That a mere child should be shut up without its consent by the decision of the parent or guardian is a reasonable thing; but when you get to the age of eighteen to say that the individual who really is quite capable of decision on a great number of subjects of vast importance, such as marriage, for instance—to say that the consent of a young person of eighteen should not be a pre-requisite seems to me a very strong doctrine. I do not desire to press the noble Earl at the present moment, but I hope he will not think the point is covered by the view of my noble friend Lord Brentford—which is quite different—and that he will reconsider this between now and the Report stage.

EARL RUSSELL

What the noble Marquess says is this, that between the ages of sixteen and eighteen a person might be allowed some will of his own. I quite see that point, but does not the noble Marquess think that if it is to be accompanied by a medical recommendation that will in effect cover that point? It is not in the least likely that any doctor will sign a recommendation to say that the patient will be better for voluntary treatment if the patient has said to the doctor: "No, thank you; I do not wish to have voluntary treatment." However, I will consider it between now and the Report stage.

LORD DAWSON OF PENN

I think, perhaps, I can say something which will elucidate the difficulty of the noble Marquess. Is he not making the mistake of thinking of these people in terms of the normal mind? If we were dealing with people of normal mind I would give my support entirely to the young person having the right of decision; but unfortunately nature has decided this matter for us, and there is a great proneness for these mental disorders, which may so easily develop into insanity properly so called, to arise at these ages of sixteen and eighteen; and the very existence of these mental disorders, slight as they may be at that stage, makes these young people very difficult. Sometimes it is almost impossible to get them better in their own homes. They are, in a sense, anti-social, and therefore they do want rather more pressure than those who are normal. In fact, these young people with these incipient disorders are to be looked upon more in the light of normal young people who are younger by two years, and it is because of the very conditions which we have to meet that it is desirable to put a little more power in the hands of the parents for this particular type of ailment. If you support it with a medical certificate or medical recommendation—which, I quite agree, is the better term—I think you will meet the difficulty and safeguard the Bill against abuse, which I am sure we all desire to do.

VISCOUNT BRENTFORD

I dislike very much differing from my noble friend, but the whole tenor of his speech makes me anxious about this clause. This clause relates to the voluntary right of a person to shut himself up. It is not a question of pressure, it is not a question of a condition of mental disorder under which he is not able to take a voluntary decision. Under the clause a young man of eighteen may, and can if he wants, make a voluntary decision and he can then go into a mental home without any doctor's certificate.

LORD DAWSON OF PENN

With a doctor's certificate.

VISCOUNT BRENTFORD

Without. Under the Bill as it is drawn if a man over eighteen desires to place himself in a home where he would be well looked after it is part of his own volition. The voluntary judgment of this so-called voluntary patient is to be taken away, and pressure is to be put upon him by the parent and by the doctor who is prepared to sign the recommendation. It is quite possible that a young person under eighteen may be put under proper safeguard and proper certificates in a mental home or asylum. But the very essence of this clause is that it is a voluntary clause. There are other clauses of the Bill under which you can put pressure, and other clauses of the existing law under which a young man or young woman under eighteen can for his or her own benefit be incarcerated. But I think the proposal of my noble friend Lord Cranbrook is really an improvement on the Bill. It is a proposal which will make the Bill more popular, as well as more reasonable.

LORD BANBURY OF SOUTHAM

Surely my noble friend is mistaken in saying that this is a voluntary clause. Let him read the subsection:— Any unmarried person under the age of eighteen suffering from mental disorder whose parent or guardian is desirous of submitting him to treatment may, if the parent or guardian makes a written application…. and so on. Therefore, this young person cannot submit himself to voluntary treatment unless the parent or guardian makes a written application. What is to prevent the, parent saying to the young person: "I intend you to go into this home; you have got to say that you are going to do it voluntarily, and I will make a written declaration that you are doing it voluntarily." I must say I agree with the noble Lord, Lord Dawson of Penn, that this is not a voluntary clause but a clause which might lead to pressure.

EARL RUSSELL

As the noble Earl has offered to withdraw the Amendment, and I have promised to consider it, I think on the next Amendment I can show your Lordships how it may be met.

Amendment, by leave, withdrawn.

LORD DANESFORT moved, in subsection (2), after "purpose," to insert "accompanied by a medical recommendation." The noble Lord said: I am using the word "recommendation" instead of "certificate" in my Amendment on the advice of the noble Earl in charge of the Bill. I understand that the Government are prepared to accept this Amendment. Under the Bill as it was drawn it was open to the parent or guardian of any young person under eighteen practically to put him into a mental home, whether he desired it or not, and to have him detained there for a period which may be considerable without any volition whatever on his part. I do not wish to say anything about parents and guardians in general, but it is quite possible to say that in some cases there might be parents or guardians who would like to lock up a child who might be a little unruly or disagreeable, and I think that, in the interests of the liberty of the subject, it is absolutely necessary to have some further protection in the Bill. It was suggested during the Second Reading by the noble Lord, Lord Dawson, and others that this incarceration of a young person should not take place unless there was a medical certificate or recommendation saying that it was desirable for him to be so detained; and therefore I move my Amendment as being at any rate a partial remedy for what might have been a great evil. I hope your Lordships will consider the suggestion sufficient to avert any possible evil, but if the House desires to strengthen it further I should be quite prepared to accept any suggestion.

Amendment moved— Page 1, line 19, after ("purpose") insert ("accompanied by a medical recommendation").—(Lord Danesfort.)

EARL RUSSELL

The two Amendments of the noble Lord must be read together—this one and the one on page 2, line 2, where it is proposed to insert a new subsection. That subsection is founded on Clause 5, subsection (3), and prescribes the person who is to make the recommendation and it finishes in this way— …that the said person is…likely to be benefited by being received as a voluntary boarder under this section. I shall want, when we come to it, to ask the noble Lord to change it a little to fit in with Lord Sandhurst's Amendment. If it is desired to afford an expression of will in regard to persons between sixteen and eighteen it will be a matter that I will consider between now and Report stage, but it seems to me it might be possible, and entirely protective, to insert in that recommendation a provision that if the person is over the age of sixteen he has expressed willingness to agree to the treatment. That would be a certificate by the doctor that the minor agreed to be treated. I think if noble Lords would allow me to consider that between now and Report stage I might meet the objections raised.

THE EARL OF ONSLOW

That would also include the parents' consent?

EARL RUSSELL

Yes.

THE EARL OF ONSLOW

You would have the consent of the parents and guardian and the medical recommendation?

EARL RUSSELL

The consent of parents would be a pre-requisite to the medical recommendation arising.

VISCOUNT BRENTFORD

I do not want to be insistent in regard to these matters if your Lordships really desire to accept the Amendment proposed by my noble friend Lord Danesfort, which has been agreed to by the Government in substance. I would not then take my objection any further, except to say I personally regret very much that a young person under eighteen can be locked up in any form of home or asylum without judicial proceedings. Under the law as it stands to-day everybody has the protection of the judicial authority before being put into any one of these institutions, whatever name you like to give them. Under this clause, as it is now proposed to be amended, a young person who should be, as my noble friend said, a troublesome child or even an unwanted child, is to be locked up on the recommendation of one doctor without the right to go, as he has to-day, before some kind of judicial officer, even a magistrate. Your Lordships will remember that the Royal Commissioners themselves—I shall come to that on Clause 5—have very grave doubts whether anybody should be locked up without some form of judicial proceeding. Here you have a young person, who is not so able to protect himself as a man of twenty-one or twenty-two, and who may be put away by the father and mother with the family doctor's advice, for that is what it comes to, and nothing more. I see one or two noble and learned Lords present, and I do not know whether they would think this is a right course to take or not. If they think it is right I will not press your Lordships further. I am bound to confess that, personally, I conceive that it is a very grave breach in the law as it now stands, and a very unsatisfactory position for the Government to take up.

LORD ATKIN

There is one further protection that I think might be taken; at any rate I should like to draw the noble Lord's attention to it, which I am sure he will give. It is this. The proposal, which carries out the scheme of this clause that the treatment is voluntary, is that the young person of seventeen or sixteen will have intimated to the doctor his consent to be so treated; but, as I read the clause as it now stands, there is no limit of time during which he will be kept in a hospital in those circumstances, except the consent of his guardian. It seems to me that if you carry out the idea that the young person of sixteen or seventeen ought to consent to treatment he ought to be consenting throughout, and he ought not to be in the position of being detained against his will. I do not know how that is to be met. There is no provision at the present time. It seems to me to be unsatisfactory, if he has to consent to his being in a hospital to begin with, that when once his consent is obtained he can only be removed at the request of his parents or guardian. I think some provision ought to be made to meet that.

LORD MERRIVALE

I do not know whether my noble and learned friend has considered the effect of Clause 1, subsection (3), which provides that a person received as a voluntary boarder may leave the institution upon giving seventy-two hours notice—that is three days—of his intention to do so; or, if he is unmarried, upon such notice being given by his parents or guardian. If you would extend the first paragraph of subsection (3) so as to combine the two consents I think that probably would meet the difficulty, but I venture to press upon my noble friend and my noble and learned friend the necessity for seriously considering the great innovation in the Common Law rights of His Majesty's subjects which is made if, instead of the standard age of sixteen which has been known for generations as the age of right and of responsibility on the part of individuals, you substitute an arbitrary age without any safeguard except the certificate of one medical man. I say no more than that to my mind it is a grave innovation. Everybody who knows anything about the personal law of this country knows what an outstanding feature the rights which arise at sixteen always is. If a lad of sixteen and a half is detained, even by a parent, a friend may obtain a writ of habeas corpus to ascertain whether he ought not to be released. The principle which that represents you are infringing by this provision, and I think you are doing it with an inadequate safeguard.

EARL RUSSELL

Of course it is quite true this is an invasion of the Common Law right of personal liberty which is recommended in the interests of the patients, and it will be for your Lordships to decide whether on balance the course proposed will be in the interests of these patients and will lead to their recovery or not. With regard to the particular point of the consent of the person over sixteen, of course it is not met now, because the suggestion that they should consent on going in has not been before us till this moment. That will be part of the matter I will look into before Report stage. I agree, in principle, with the noble and learned Lord, Lord Atkin, that if the patient who is over sixteen has to consent to go in for this treatment he must continue to consent when he is there. That follows naturally. That will be one of the matters I will consider before the Report stage.

On Question, Amendment agreed to.

VISCOUNT BRENTFORD had given Notice to move, after subsection (2), to insert the following new subsection:— ( ) No person under the age of twenty-one years shall be received as a voluntary boarder unless a reception order shall be made under the provisions of Sections four, five, six, seven, eight, nine and ten of the principal Act.

The noble Viscount said: I take it that it will be the wish of your Lordships that I shall not move this Amendment, which is intended to restore the statutory right of a man to be put into a home or asylum only by a judicial authority. I gather that your Lordships wish to give the Government an opportunity of trying this new method and in the circumstances I shall wait to see their new clause on the Report stage. I will not now move this Amendment.

LORD DANESFORT had given Notice to move, after subsection (2), to insert:— ( ) The medical certificate referred to in the last subsection shall be signed by a registered medical practitioner, who shall be either the usual medical attendant of the person to whom the application relates, or a person who has been approved for the purpose of making a medical certificate under this the last subsection either by the Board of Control or by the local authority within whoso area the said person then is. Such certificate shall state the qualifications of the medical practitioner, the date or dates on which he examined the said person, that the said person is suffering from mental disorder and is likely to be benefited by being received as a voluntary boarder under this section.

The noble Lord said: I rise to propose the Amendment standing in my name to insert a new subsection, but the Amendment as printed on the Paper will require one or two verbal amendments. In line 1 the word "recommendation" will have to be substituted for "certificate" and the same substitution will have to be made in line 6, and I think also in line 9. Then after the word "boarder" in the last line but one—

EARL RUSSELL

The words in line 12 "suffering from mental disorder and is" should come out.

LORD DANESFORT

Do we not want those words?

EARL RUSSELL

No.

LORD DANESFORT

I do not quite see why they should come out, and I should like to hear the reason. I think it is rather necessary that the doctor who examines any person should make this statement that the person is suffering from a mental disorder. Unless he is, how is he likely to benefit from treatment for mental disorder? It seems to me that the words should remain unless the noble Earl in charge of the Bill can give me some reason.

EARL RUSSELL

It is consequential upon Lord Sandhurst's Amendment which has already been accepted.

LORD DANESFORT

I was going to put in after "boarder" the words "for treatment for mental disorder." If I may be allowed I will move my Amendment in that form. After the discussion that has taken place, I do not think it is necessary to trouble your Lordships with any further remarks.

THE LORD CHAIRMAN

I think perhaps I had better read the whole Amendment as it has been altered so much. The Amendment proposed is to insert the following new subsection: The medical recommendation referred to in the last subsection shall be signed by a registered medical practitioner, who shall be either the usual medical attendant of the person to whom the application relates, or a person who has been approved for the purpose of making a medical recommendation under this the last subsection either by the Board of Control or by the local authority within whose area the said person then is. Such recommendation shall state the qualifications of the medical practitioner, the date or dates on which he examined the said person, that the said person is likely to be benefited by being received as a voluntary boarder for treatment for mental disorder under this section.

Amendment moved— Page 2, line 2, at end insert the new subsection.—(Lord Danesfort.)

LORD ATKIN

I thought the first Amendment moved by Lord Danesfort to insert "accompanied by a medical recommendation" was associated with further words which the noble Earl opposite suggested—namely, a recommendation that he should be received for treatment for mental disorder. The noble Lord, I think, suggested that the recommendation should be defined and it seems to me to follow that if he may submit himself under the first part of the clause and consent to be treated for mental disorder—the idea being that he is to be treated in the incipient stages and without mental disorder being present—it is plain that the recommendation of the doctor must conform to that state of things, and that it should be a recommendation that it would be beneficial for the person to be treated for mental disorder. If you require that he should be found to be suffering from mental disorder you put him in a different category from the person who need not be suffering from mental disorder but need only volunteer to be treated.

EARL RUSSELL

I am very sorry, but I do not quite follow the point. We have taken out the words "suffering from mental disorder" and put in the words "for treatment for mental disorder." That is in accordance with the Amendment made earlier. Perhaps the noble and learned Lord would put it down on Report stage if he thinks the Amendment necessary. I think it would be inconsistent with the previous Amendment.

LORD DANESFORT

May I consider the matter between now and the Report stage? I quite see the objection, and if it is desirable I will strike out the words on Report.

On Question, Amendment agreed to.

VISCOUNT BRENTFORD moved to leave out subsection (4). The noble Viscount said: I move to leave out this subsection because I really do not understand what the position is going to be. The House has now decided that a voluntary patient who is under eighteen may be put into a hospital with the consent of his parents or guardian. Then follows this very remarkable subsection:— For the purposes of this section, the expression 'parent or guardian' in relation to an unmarried person under the age of eighteen includes any person who undertakes or performs towards that person the duty of a parent or guardian. I have had some experience in drafting Bills in another place, and I remember the passing of the Guardians Act, which, of course, also passed through this House, but I have never come across a clause referring to a person who is not a parent, not a guardian, but somebody who undertakes or performs the duties of such a person. I do not quite know what the noble Earl in charge of the Bill means. Does this subsection mean, for instance, that a parent who has had very little to do with an illegitimate child may take upon himself the duties of a guardian—that a man who has neglected his child up to this moment may take upon himself the duties of a guardian and lock him or her up in a home or an asylum in accordance with the provisions of the clause? I hope before your Lordships pass this clause—my noble friend, Lord Merrivale, has said we are going a long way to delete Common Law right—we may have some explanation as to who is to exercise this power.

Amendment moved— Page 2, line 19, leave out subsection (4).—(Viscount Brentford.)

EARL RUSSELL

Unfortunately it happens sometimes to the children of the poor that they do not find themselves in the happy position of having a home with a definite father and mother with whom they are living. All sorts of things may happen to them. They may be abandoned illegitimate children. There may be cases where the father has been sent to prison, and the mother has run off with someone else, and the child is taken in and looked alter by a neighbour. They have not got the conditions of certainty which obtain in happier classes. That is a difficulty which has to be provided for. The noble Viscount who moved the Amendment seems to think we have devised an addition to the general idea of parent or guardian which is something totally new. If he will look at the Mental Deficiency Act, 1913, Section 71, he will find these words:— The expression 'parent or guardian' in relation to a defective shall include any person who undertakes or performs towards the defective the duty of a parent or guardian. The words, therefore, have ample authority and actually, I think, in the case of these particular people who are not in the fortunate position of having, as I say, any very definite or legally-appointed guardian, the words are necessary. I think the noble Viscount would be well advised not to press the Amendment.

VISCOUNT SUMNER

I would like to put a question on this point. You surely do not want to give these powers to somebody who is not a legal parent or guardian but who undertakes duties and does not perform them. That is what the words say.

EARL RUSSELL

That must surely depend upon the circumstances. Somebody may have undertaken to be the guardian of a child and may or may not be performing the duties, but, if they are in fact paying for them and being in fact their guardians, you must accept them. Somebody who may not have undertaken the duty of guardian in the sense of assuming legal responsibility may be performing the kind duty of a foster mother and may look after them. The words are disjunctive in the Act of 1913 and it would be desirable to preserve these words as they have been found satisfactory in that Act.

THE MARQUESS OF SALISBURY

If the noble Earl assures us that this provision has already proved satisfactory, that, of course, makes a difference, but the words reach a limit of vagueness which is almost unparalleled. Before whom are they to undertake them? In the sight of public opinion? In the knowledge of the neighbours around them? In the presence of a magistrate? How is it recognised and established that a particular person has undertaken to do a particular thing? Is it merely that A.B. says: "I undertake the duty"? It must be something more than that. Although it may be that by some series or legal decisions the matter has been stabilised, yet, otherwise, if the words have not been defined, they seem most marvellously vague.

LORD ATKIN

The difficulty is this. A guardian means a legally-appointed guardian and there are numbers of cases of children, both rich and poor, who have not a legally-appointed guardian. The parents have died or have deserted them and they are in the hands of relations or kind friends who have brought them up and who are, in the legal phrase, guardians de facto. Those are the guardians who a re meant to be included. Whether this phrase is the aptest phrase or not for the purpose I do not know; but it is essential that this phrase should be there, otherwise these children would not be able to get this treatment like other people and would have to be treated in hospitals. Perhaps the noble Lord will consider whether some better phrase could be found.

EARL BEAUCHAMP

I am always unwilling to intrude with cases which have come within my personal cognisance; but I know a case where this subsection, had it been in force, would have been very useful. I shall not go into the details, but generally speaking the case was that the father died after marrying again. It is difficult for a step-mother to undertake duties of this kind, nobody was appointed the legal guardian, and in this case such a phrase would have been very useful. The noble Earl has assured us that it has worked well and therefore I think we should accept it.

EARL RUSSELL

These are cases where there are no legally-appointed guardians, cases of neglected children, of deserted children, of children picked up in the streets, and under this phrase you can call in the people who are actually looking after them. It has the authority of sixteen years behind it and we ought to adopt it now.

THE EARL OF ONSLOW

If the Amendment proposed by Lord Brentford were adopted, would not the parents or guardians have the power to go to a doctor and ask for a recommendation, and would not the doctor presumably be liable if he gave a recommendation to somebody who is not a proper guardian? Am I right in that?

EARL RUSSELL

It may be, but the doctors who attend the poor take a great many risks with the intention of helping them. The alternative, if you want some legal person, is to turn the child over to the Poor Law, and the relieving officer would be the parent or guardian. That is not desirable in the interest of the child or patient and I hope your Lordships will accept these words.

LORD DANESFORT

It is generally agreed that one must have some words for some person who is not the legal guardian but is acting de facto in that capacity. That being so, I think the words here used are most vague and on the face of it exceedingly unsatisfactory. The noble Earl in charge of the Bill referred to the Mental Deficiency Act in which he tells me these same words are used. Has that Act ever come before any Court to consider it? Has any question ever come before any Court of these words? If there had been such a case, it would probably have been very useful to us now. If no such case is produced, I hope the noble Earl will consider these words again before Report stage. As my noble friend said, the words appear to be very vague. What has a person to do in order to undertake the duties of a guardian? How long before must he have undertaken those duties? In what form must he have undertaken them? Is there to be any record of his having undertaken those duties? I merely throw out these suggestions to show that the words as they stand are exceedingly vague. Perhaps the Lord Chancellor or some great legal authority will consider the words before we reach the Report stage and see whether we cannot have something rather more definite which will hold water.

THE LORD BISHOP OF WORCESTER

I hope your Lordships will not tighten up this clause too much. You are dealing, it is well to remember, not only with the very poor but with a large class rather above them, separated from the poor but very far separated from those who can look after themselves. An ounce of experience in this matter is often worth a great deal of theory and it falls to me from time to time to be in the chair of one of our great educational foundations of a charitable nature when children of the poorer middle class are being admitted. Very often you will get a case in which the father has deserted the children and the mother is of no use, and there comes along an aunt in charge of a boy or girl who tells you: "I am not the guardian, but he (or she) always stays with me in the holidays." There has been no sort of legal arrangement about it and there is not likely to be. But the policy of the school is, apart from any sort of legal transaction, that that person is recognised as the guardian of the child and all questions that may arise in regard to that child in the school would be referred to that very aunt. In a case like this you cannot define the aunt. She indeed both undertakes and performs the very kindest duties, but you cannot put her into an Act of Parliament. If you begin to try to do it you will probably deprive her of her quite excellent functions.

VISCOUNT BRENTFORD

I take it that the wish of your Lordships would be that I should not press this Amendment, but I would like to ask the noble Earl what would be done if one of those pseudo-guardians puts a child of seventeen into a home and the child, under the provision we have made, desires to come out of the home and the pseudo-guardian has disappeared? How are you going to get the signature of the pseudo-guardian?

EARL RUSSELL

I shall enquire into the question before Report and I would remind the House that this has worked well under the Mental Deficiency Act.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clause 2:

Notice of reception, death and departure of voluntary boarders and provisions as to boarders who become incapable of volition.

(3) if any person received as aforesaid becomes at any time incapable of volition, he shall not thereafter be retained as a voluntary boarder for a longer period than one month, but shall on or before the expiration of that period be discharged, unless in the meantime he has again become capable of volition or steps have been taken to deal with him either under the principal Act as a person of unsound mind or under this Act as a person incapable of volition who is likely to benefit by temporary treatment.

LORD SANDHURST moved, in sub section (3), after "time," to insert "in the opinion of the medical superintendent or such other person as afore said." The noble Lord said: This is an important verbal Amendment. Subsection (3) of Clause 2 provides that— If any person received as aforesaid becomes at any time incapable of volition— certain consequences are to follow. It was pointed out on the Second Reading that incapacity of volition was a very difficult thing to define and it must in the nature of things be, in point of fact, a matter of opinion. This, I think, ought to be recognised. It also struck me that somebody should be made responsible for formulating that opinion. Nobody could more properly be made so responsible than the superintendent of the institution or the person into whose charge the voluntary patient has gone. I beg to move.

Amendment moved— Page 2, line 39, after ("time") insert ("in the opinion of the medical superintendent or such other person as aforesaid").—(Lord Sandhurst.)

EARL RUSSELL

We think that this Amendment will make for clarity, and we accept it.

On Question, Amendment agreed to.

LORD SANDHURST had given Notice to move, in subsection (3), before "volition," to insert "rational." The noble Lord said: After discussion with my noble friend I have decided not to move either this or the following Amendment.

LORD ATKIN

May I say a word about this Amendment? I thought my noble friend would be moving it and would give us an opportunity of saying something about it.

THE MARQUESS OF SALISBURY

Will the noble Lord move it formally?

LORD SANDHURST

I beg to move.

Amendment moved— Page 2, line 39, after ("of") insert ("rational").—(Lord Sandhurst.)

LORD ATKIN

As the Bill was drawn, the person received as a voluntary boarder had to be suffering from mental disorder, and it was a person suffering from mental disorder who became in capable of volition, so far as this subsection is concerned. This would conform to Clause 5, as to which I under stand that we are going to have some discussion later and which deals with a person who is suffering from mental disorder and is for the time being incapable of volition. But now we have amended the first clause by allowing a person to be treated for mental disorder without there being any certificate or statement that he is in fact suffering from mental disorder. Accordingly a person who is merely being treated is now said to be incapable of volition. At this stage I am quite unable to understand what is meant by "incapable of volition." If it means "incapable of volition as the result of mental disorder," surely some such definition ought to be inserted. "Incapable of volition" is one of the vaguest terms you could possibly have, standing by itself. You surely need something to relate it to mental disorder or unsoundness of mind.

EARL RUSSELL

I do not know if the noble Lord, Lord Sandhurst, has moved the insertion of the word "rational."

THE MARQUESS OF SALISBURY

I understand that the noble Lord has moved it, merely in the interests of order.

EARL RUSSELL

We should regret the insertion of that word, because there may be such a thing as irrational volition. The word is not really useful here and would lead to great difficulties. Your Lordships must remember that there are infinite grades of this malady. There is confusion, as in the case of a person who merely feels that he is getting more and more nervous, that his nerves may break down, that there may be a nervous explosion if he carries on. Such a person feels that treatment might do him good. Then there is the person who has plenty of volition of the wrong kind—an insane or disordered volition. This subsection applies to people who have become incapable of volition in the sense in which they exercised will when they came in. That is to say, they are no longer there of their own free will; they are there without any will at all. The object is to protect them. The insertion of the word "rational" would create considerable and unnecessary difficulties, and I hope that your Lordships will not insist upon it. People may be incapable of being rational without being incapable of volition. The two things are not necessarily the same. On the whole we feel that these words would be very difficult to construe.

THE MARQUESS OF SALISBURY

I do not want to prolong this debate, but I hope that the noble Earl will realise that as this phrase appears, I think, in our legislation for the first time—am I right in that?—

EARL RUSSELL

Yes, I think so.

THE MARQUESS OF SALISBURY

Then I am sure the noble Earl will not think us hypercritical if we are rather careful as to the form of words. I am inclined to agree that "rational" would not improve matters very much, but I think we require something more than the mere word "volition." The noble and learned Lord, Lord Atkin, has given it as his opinion that we do require something more. I hope the noble Earl will consider this.

LORD ATKIN

Would the noble Earl accept something like "incapable of volition as the result of mental disorder"? That is the kind of phrase I would suggest.

EARL RUSSELL

This is really more difficult, I think, than noble Lords realise, and I should prefer not to accept anything at this stage. I will, of course, consider any suggestion from the noble and learned Lord or anybody else, and I will go into the matter. I prefer not to accept any new words at this stage, for they might easily turn out to be the wrong words.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4:

Power to lodge relatives and friends of boarders.

4. Any relative or friend of a person who is received as a voluntary boarder under Section one of this Act or under the provisions of any local Act may be received and lodged as a boarder in any registered hospital or licensed house as long as the voluntary boarder is resident therein:

Provided that in calculating the number of patients for which a licensed house is licensed, or for which a registered hospital is certified, any such relative or friend shall be reckoned as a patient.

LORD SANDHURST moved, after "voluntary boarder," to insert "or as a patient." The noble Lord said: This Amendment is one which does not really deal with patients at all. If your Lordships will allow me, I will read the relevant words of the clause:— Any relative or friend of a person who is received as a voluntary boarder under Section one of this Act or under the provisions of any local Act may be received and lodged as a boarder in any registered hospital or licensed house as long as the voluntary boarder is resident therein. Your Lordships will observe that this section enables licensed houses or registered hospitals to receive the friends of voluntary boarders only. It does not enable them to receive the friends of certified patients. The reason that it is necessary, in my judgment, to move this Amendment is that Section 229 of the Act of 1890, which is the corresponding section in that Act, is wholly repealed by a Schedule to this Act. That section enabled the friends of patients, whether voluntary boarders or not, to be received in licensed houses. The section applied only to licensed houses, but a similar result was achieved in the case of registered hospitals, I believe, under regulations. It therefore appears to be necessary to insert the words that I propose, and also to insert the words "or patient' after "voluntary boarder" where the phrase occurs again. I may add that it has been my experience on more than one occasion to find friends of a patient resident in the institution in which the patient was living. Certainly there could be no greater safeguard for the wellbeing of the patient than the fact that his friends are willing to share his lot with him.

Amendment moved— Page 3, line 24, after ("boarder") insert ("or as a patient").—(Lord Sandhurst.)

EABL RUSSELL

There are four Amendments of the noble Lord, all designed to effect the some purpose. There is, I think, no objection to accepting them. It is unlikely that very great use will be made of this provision in practice. It applies only to private institutions, and the position is safeguarded by the proviso at the end, which means that any boarder who lodges there must occupy the bed of a patient. Therefore the owner of an institution will not welcome boarders if his house is full. It is only a permissive power, useful in some cases. There is no objection to it, and we are willing to accept the Amendments.

On Question, Amendment agreed to.

Amendments moved—

Page 3, line 24, leave out ("Section one of this Act or") Page 3, line 25, after ("of") insert ("the principal Act or this Act or any local Act") Page 3, line 27, after ("boarder") insert ("or patient").—(Lord Sandhurst.)

On Question, Amendments agreed to.

Clause 4, as amended, agreed to.

Clause 5:

Provision for treatment without certification of persons temporarily incapable of volition.

5.—(1) Subject to the provisions of this section, a person who is suffering from mental disorder and is for the time being incapable of volition, but who is likely to benefit by temporary treatment, may, on a written application duly made in accordance with the provisions of this section but without a reception order, be received as a temporary patient for the purpose of treatment—

1. (i) into an institution provided by a local authority; or
2. (ii) into a registered hospital; or
3. (iii) into any such other institution, hospital or nursing home as may be 1074 approved by the Board of Control for the reception of such temporary patients; or
4. (iv) with the consent of the Board of Control, into single care.

(2) An application under this section must be in the form set out in Part I of the First Schedule to this Act and must, if possible, be made by the husband or wife, or by a relative of the person to whom it relates, or, on the request of the husband or wife or of a relative, by a duly authorised officer of the local authority within whose area the said person then is, and, if the application is not made by any of the persons aforesaid, it shall contain a statement of the reason why it is not so made, of the connection of the applicant with the person to whom it relates and of the circumstances in which he makes the application.

(3) The application shall be accompanied by a recommendation in the form set out in Part II of the First Schedule to this Act, signed by two registered medical practitioners, of whom one shall be either the usual medical attendant of the person to whom the application relates, or a person who has been approved for the purpose of making recommendations under this section either by the Board of Control or by the local authority within whose area the said person then is.

(4) Each of the medical practitioners by whom a recommendation under this section is to be made shall, before signing the recommendation, examine the person to whom the recommendation relates either separately or in conjunction with the other and shall specify in the recommendation the date on which he so examined the said person.

(5) A recommendation shall be of no effect for the purposes of this section if there is a greater interval than five clear days between the dates on which the person to whom the recommendation relates was examined by the two medical practitioners respectively and any such recommendation shall cease to have effect on the expiration of fourteen days from the date on which the person to whom the recommendation relates was examined by the two medical practitioners, or if he was examined by those practitioners on two different dates, on the expiration of fourteen days from the later of those dates.

(6) Where a person is received as a temporary patient under this section, notice of his reception together with a copy of the application on which he was received and of the recommendation accompanying the application shall before the expiration of the day next following the day on which he was received, be sent by the medical superintendent or other person in charge of the institution, hospital or home or the person with whom he is residing in single care to the Board of Control, and, in the case of an institution which has a visiting committee, to the clerk to the visiting committee, and in any other case, to the clerk to the visitors of licensed houses for the district in which the patient is.

(11) A person received as a temporary patient may, subject to the provisions of this section, be detained for a period not exceeding six months but shall not be detained as such for any longer period.

(13) Without prejudice to the provisions of the last two preceding subsections, the provisions of Sections seventy-two to seventy-four, seventy-six to eighty and eighty-two and eighty-three of the principal Act (which relate to the discharge of persons of unsound mind detained under that Act) shall apply to any person received as a temporary patient under this section as they apply to persons detained under that Act, subject, however, to such modifications and adaptations as may be prescribed By rules made under Section three hundred and thirty-eight of the principal Act.

VISCOUNT BRENTFORD moved, in subsection (1), to leave out "and is for the time being incapable of volition." The noble Viscount said: We now come to an Amendment which is I think of very considerable importance. The noble Earl opposite promised to consider the question of the meaning of the words "incapable of volition" in the case of a person who has become a voluntary patient in one of these establishments, and wants to go out. We are now dealing with Clause 5, which we may call the most important new clause in the Bill. Under this clause a man suffering from mental disorder, and for the time being incapable of volition, may be put into a medical home by the order of two doctors, without the judicial safeguard which up to the present time has always been considered right by the laws of this country. I have a further Amendment but I am not dealing with that for the moment. What I want to ask is what interpretation the noble Earl places upon these words "incapable of volition," and I do that in consequence of the speech of Lord Dawson of Penn on the Second Reading. That speech is of vital importance.

If the interpretation which Lord Dawson of Penn—and I assume from his speech medical practitioners—places upon these words is correct, then we are in a very serious position! If a man is incapable of volition I should have thought it meant incapable of expressing a decision of any kind, whether he desired to go into a hospital or not, but if a man says: "It may be I have, been ill; it may be that a trip to Bournemouth or a sea voyage would do me good, but my wife and the doctor want me to go into a mental home, and I will not do so," what is the position? I want to ask whether that man is incapable or capable of volition? Lord Dawson takes the view that he may be quite incapable of volition because his volition is not of the proper kind. This is what the noble Lord said:— There is this question about volition, in which I hope that noble and learned Lords may help us, and that is that the volition would need to be an intelligent volition. In other words a volition coinciding with the views of the medical men.

The noble Lord went on:— I admit the difficulty of that point because, if you are going to get the full benefit of this part of the Bill dealing with volition and if you want to do as much good as possible, you want to distinguish between an automatic refusal, for example, and an intelligent negative. For instance, you may have people who in the stress of illness may say 'No' or 'Yes' when that is a reflection of their previous character, an automatic process and not an intelligent volition. Whether it is one or the other you can safely leave—as you must leave questions in other professions—to skilled men. But with those who are accustomed to deal with such cases as these—and they are not uncommon—you may rely on their judgment to say 'Yes' or 'No.' This may be a case of locking a man up in an asylum against his own volition, because the doctors—and there is no judicial authority yet imparted into this clause—might say his volition is not intelligent. They may say that he may think a sea voyage or a trip to Bournemouth would do him good, and that, he will not go into an institution, but they, the doctors, think it better that he should go into a home and, therefore, they say that this is not intelligent volition, and he is, in the words of the Bill, "incapable of volition," and in the circumstances they send him into a home. Before dealing with the clause as a whole and the question of safeguards as a whole, I want to have it made clear by the Government whether my view or the view of Lord Dawson of Penn is correct on this question.

Amendment moved— Page 3, lines 35 and 36, leave out ("and is for the time being incapable of volition").—(Viscount Brentford.)

EARL RUSSELL

The answer to the noble Viscount is very simple. We agree with him. When we say without volition we mean without volition, whether that volition be uncontrolled or an insane impulse or not. If the patient says: "No, I will not go into your asylum; I will have nothing to do with it," then, unfortunately, he will have to come under the full certification treatment. Clause 5 is intended for the cases of which there are a very large number and which doctors, I think, generally call confusional cases, in which people are indifferent to their surroundings and whom treatment may benefit. Emphatically it is not intended for the reception of a patient who, rightly or wrongly, objects to treatment. If he takes that view, then we do not, at any rate at present, intend that he should be included in the definition of this clause. Non-volitional means expressing no view one way or the other—indifference. The moment he says—to use an expression which I believe was used by the noble Viscount on a former occasion—" I'll be blowed if I will go into an institution," then he need not go. I do not know whether the noble Viscount desires me to deal with the whole question of safeguards now, or whether he wishes to come to that on a later Amendment. On the question of volition, there is no doubt about our meaning. The clause means without volition.

VISCOUNT BRENTFORD

I am very much obliged to the noble Earl for making his reply so definite, and I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

VISCOUNT BRENTFORD moved in subsection (1), to leave out "on a written application duly made in accordance with the provisions of this section but without a reception order." The noble Viscount said: This is part of my long Amendments to Clause 5 and the Schedule. The question I desire to raise is whether these patients who are suffering from mental disorder and who are incapable of volition but likely to benefit by temporary treatment, may be shut up under the decision or certificate of two doctors without the judicial authority which up to the present has been regarded as of vital importance in all these cases. Noble Lords will remember that the Royal Commission did not take the view which the Government have taken. In fact, this Amendment is the proposal of the Royal Commission. I have had the proposed new subsections drafted by a learned lawyer very carefully to carry out the opinion and the decision of the Royal Commission. That Report of the Royal Commission was signed by the noble Earl opposite and unanimously by the other Commissioners. I frankly admit they said they signed it with reluctance because they thought it would be better, in the interests of the patients themselves, to do away with the judicial authority and allow a patient to be shut up on the certificate of two doctors; but they said that, owing to the weakness of the minds of the people of this country in regard to the liberty of the subject, they could not and did not consent to the proposal which is now included in this Bill. I suggest that the first view, the Royal Commission's view, was the right one, and that the Government have taken the wrong view—a view which will not, I think, add to the success of the Bill.

The House will remember that the original Acts were passed by Parliament in order to protect the rights of the subject, in order to prevent a man or a woman being locked up without a judicial authority to whom appeal could be made. Here, in order to save expense, I have suggested, as indeed the Royal Commission suggested, that instead of two doctors there should be one doctor, but that there should be a magistrate who should see the patient, and his friends if necessary, and decide whether it really was desirable, in the interests of the subject, that the liberty of the subject should be done away with. This is a very important question. The liberty of the subject is at stake in this clause of the Bill. Up to the present we have never allowed that liberty to be interfered with by any advisers except under judicial authority. You may say that you do not like the particular form of judicial authority that I propose. I do not mind; any form that the noble Earl likes I am prepared to assent to. But was it not a very great alienist who said the number of wives who came to ask him to certify their husbands was only equalled by the number of husbands who came to ask him to certify their wives?

And you must remember this, that when there is incipient mental disorder the wife goes to her own doctor and says she is worried about her husband: it is the wife's doctor who goes and sees the husband. If the wife has incipient mental disorder the husband goes and sees his doctor—quite honestly—who goes and sees the patient. There really is no adviser on behalf of the patient, for doctors naturally cannot be called in by the patients themselves; they can only be called in by the husband or wife, or some other relative. There is nobody at all who is directly the friend and adviser of the incipient patient—nobody except a judicial authority who stands quite independent of those who desire to place the patient under control, who has no feeling one way or the other, but who must, as the representative of the law, give a certificate in some form or other before the patient can be incarcerated.

The noble Lord, Lord Dawson of Penn, in his speech on the Second Reading, said in reference to this proposal that if you introduced judicial authority you would do great harm to the Bill; you would not have the advantage of this great part of the Bill, which would not be taken advantage of by the patient. I do not quite see how a patient who is incapable of volition, suffering from mental disorder, can take advantage of this part of the Bill. The noble Lord went on:— Nor will the doctors try to make them take advantage of it. We are not going to have our skilled opinion overhauled by local magistrates who do not understand the A, B, C, of our profession. It has nothing to do with the A, B, C, of the medical profession. It has nothing to do with the skilled opinions of the doctors as against those of the law. It is a question of whether there shall be any person unconnected with the patient, unconnected with the medical adviser who has been called in in order to consider whether or not this patient should be locked up—somebody representing the law of the land, who shall have the final decision.

But I do appeal to your Lordships to consider the fact that the proposal that I make is in accordance with the considered view of the Commission itself. I frankly admit that they prefer the Bill, but it is because of this very point of the liberty of the subject, and the feeling that might be aroused in the country in regard to the infringement of the liberty of the subject that the Royal Commission prepared and formulated this very scheme that I am submitting to your Lordships. In the circumstances I hope that the Government will admit some form of legal decision. I do not press them to take even the scheme of the Royal Commission, but some scheme which will prevent a man who is suffering from mental disorder, and who is ex hypothesi incapable of volition himself, from being locked up without a judicial authority of some kind. It has been the law of this country for more years than members of this House can remember. All the various Acts of Parliament which have been passed for, I think, two centuries dealing with questions of lunacy have always insisted upon there being some independent judicial person, acting judicially, before the patient's liberty is taken away from him.

Amendment moved— Page 3, line 37, leave out from ("may") to ("be") in line 39.—(Viscount Brentford.)

EARL RUSSELL

When I replied to the debate on the Second Reading I dealt with this subject, which was then raised by the noble Viscount opposite. I said that I implored him, because I knew he was as anxious as we should be that these people should be properly treated, if only he was satisfied that there was no danger involved, to consult with me or with the Minister of Health and see what we could do to adjust his view. I pointed out to him that we were afraid of anything which was formal, and I took a second opportunity of saying that I hoped he would consult with us and see whether we could not explain to him the reason for our point of view and come to some adjustment. I regret that the noble Viscount has not given us the benefit of any conference on this matter.

VISCOUNT BRENTFORD

My noble friend will please forgive me. I put this Amendment down on the Paper. I have been here every day, I have been in touch with the noble Earl, and I should have been only too delighted to consult with him. It was certainly for no lack of courtesy to himself that I did not. I thought, when he had seen that Amendment, if he had any proposal to make to me he would have mentioned it across the floor of the House.

EARL RUSSELL

I am not complaining of any lack of courtesy. I think the matter is much too serious for that. I was hoping the noble Viscount might have intimated that we could have discussed this with him. Perhaps I misunderstood him, but I was expecting and hoping to get some communication from him on this point. However it so happens we have not been able—I quite acquit him of any discourtesy—to have any personal communication with him. We shall therefore have to discuss these things across the floor of the House, where, no doubt, it is quite proper they should be discussed. We may take this. I suppose, as being, may I say, a test Amendment covering the whole of the suggestions which the noble Viscount has made on this part of the Bill. I think it will be desirable to take the whole general discussion upon this.

VISCOUNT BRENTFORD

Certainly.

EARL RUSSELL

The noble Viscount said once or twice that he would be willing to consent to any judicial authority I would agree to, or any form of judicial authority I would agree to. It is not a question of what I have no objection to. I have no objection to a judicial authority; the Minister of Health has no objection; nobody has any objection to a judicial authority in itself. The objection, unfortunately, comes from the patient and the patient's relatives. That is the very thing we want to get over. There is no objection on the part of the Minister of Health himself, or the Royal Commission, or the doctors, or anyone else, except, perhaps, some doctors, but the objection is on the part of the patient, and the moment you interpose this judicial authority he looks upon the matter in a totally different light.

VISCOUNT BRENTFORD

The patient is incapable of volition.

EARL RUSSELL

Of course he is, but it affects his relatives, and they are the people who set the law in motion. The scheme which the noble Viscount has put down is the provisional treatment order of the Royal Commission. He is quite right in saying he carries that out, and he has told your Lordships quite truly that we recommended that with great reluctance; but we think it would be very much better for the patient if the matter could be done in a less formal way. What is it we want to treat under this clause? We want to treat incipient mental disorder without the stigma of certification, and this, whether you call it provisional certification, or whatever you call it, is certification, and the public will regard it as certification. That really is the fatal objection as the law is now. If the patient is rich enough to be treated in his own home he may not come under the Lunacy Act at all. He need not be reported; he need not be certified; you need not get the doctor's certificate. But the poor person who has to go to an institution to be treated can now only be received and treated there after certification.

We are anxious that he should be able to be treated there in the early stages without certification, because he may recover in quite a short time. The figures furnished to the Royal Commission showed that in a large hospital, taken over a period of four years, 25 per cent. of recoveries took place within six months of admission. It is an advantage also to these patients' mental state, because, though a patient is incapable of volition, he is not always incapable of some sort of thought, though it may not be coherent, and some sort of feeling. Is it not desirable, if you can make that person well within six months and send him out again a cured man, to do so in such a way that nobody should ever be able to say he has been certified, and that his relations should not feel he has been certified as a lunatic? Every one who is connected with the matter agrees that it is an immense advantage in treatment and an immense advantage from the patient's point of view to do that, and that it is likely to conduce to his more rapid recovery.

The class of people to whom Clause 5 is most likely to apply are generally people who are rather indifferent as to what becomes of them; therefore, as I have said, they are really non-volitional. They are not people who are resisting. For the resistant, unfortunately, certification must remain; but here the suggestion is that the non-volitional should be treated without the intervention of a judicial authority for the period of six months. I will remind your Lordships of what the safeguards are. I would beg the noble Viscount when he is speaking not to talk about being locked up and being put away. Those are the very expressions we want to get out of the mind of these patients. We want to talk about their being treated for their health. We are most anxious they should not associate it with the idea of locking up or detention, even if in fact they have to be detained. The very thing we want to avoid associating in the minds of the patients and their relations is any idea of locking up. We want to assimilate the treatment as far as we can to the treatment for ordinary illness. Detention may be a necessary part of it, but that is not the part on which we wish to insist.

VISCOUNT BRENTFORD

It is the part you insist upon.

EARL RUSSELL

The noble Viscount does not know that in quite a number of asylums, among certificated patients, a large percentage are allowed out by themselves for exercise and go back to the asylum. That is the sort of detention you get. You get no more detention than the patient at the moment requires. The whole object is to encourage the patient to be fit to look after himself. Again, in the case of the normal certificate, he is given far greater freedom than was ever talked of twenty years ago in those circumstances. I have heard of one institution where over 50 per cent. of the patients go shopping in the town, and 25 per cent. of them go unaccompanied by any attendant to look after them. Those are the methods of treatment to which we are looking. We want to do it in the least formal way possible.

I was pointing out what precautions are to be taken. There are to be two medical recommendations. One of them is to be signed either by the usual medical attendant of the patient, or by someone specially approved by the Board of Control or the local authority—that is to say, some formal and official person. The patient may then be received into an institution provided by the local authority, or any registered hospital—that is, your Lordships understand, a charitable institution where no profit has to be made out of the patient. It is not a question of keeping him for profit. He may only be received in a licensed house if it has been approved by the Board of Control for the reception of this particular kind of case. When he is received notice of the reception and a copy of the medical recommendations have to be sent at once to the Board of Control, where they are scrutinised. Within a month of his reception the patient has to be visited, as I told your Lordships on Second Reading, either by two members of the visiting committee or by two of the visitors of licensed houses appointed by the justices, one of whom must be a medical practitioner, and, when they visit him, they are required to sign a statement that the patient is properly detained, or, if they are not satisfied, to report to that effect within two days to the Board of Control. While he is under care he will receive the ordinary periodical visit from the Board of Control and from the visitors of the institution, and, finally, the period is limited to six months, and the Board of Control have power to discharge him at any time.

As I have told your Lordships the reason why the provisional order of the Royal Commission was not adopted was that it was practically indistinguishable from the full certification. I think I ought to read your Lordships these words from the Report of the Royal Commission. They will be found on page 53, paragraph 107: (i)Provisional Treatment Order.—In framing our proposals for this procedure we were confronted with a choice between what may be ideally desirable and what is practically expedient. Some witnesses, whose views are entitled to the most careful consideration, have urged that in dealing with an incipient or non-volitional case which is likely to recover quickly without recourse to certification, the warrant for detention should be made without the intervention of a magistrate. If we were free to consider exclusively the medical treatment of the patient, we should have little hesitation in accepting this suggestion. But it is a principle of English law that the liberty of the subject may not be infringed without the intervention of some judicial authority; and we doubt whether public opinion is ready to countenance a departure from it. That is the very question we are to decide this afternoon so far as this is concerned. It may be that ultimately the treatment of mental illness will be so assimilated to the treatment of physical illness that the participation of a magistrate will no longer be considered necessary. But we are concerned to recommend reforms which may be practicable in the immediate future; and we have come to the conclusion, though not without reluctance, that the provisional treatment order should be made by a magistrate. Well, now the Minister considers that public opinion may be ripe for that step forward. I am inviting your Lordships this afternoon to take that stop forward. It is a step forward. It is a change, but it is a change which it seems to me has nothing against it except a prejudice and a formula. There are no real dangers of any sort or kind, nothing but benefit to the patients involved, no possible harm, no probable harm to any individual in this country. I hope your Lordships will have the courage to take that step this afternoon. By this clause it is provided that there should be no intervention by a magistrate. If you destroy the attempt to get this treatment without certification it will, as I think I said on Second Reading, very largely destroy the value of this clause. There was a sentence in a leading article in the Sunday Times of December 1 which referred to this Bill's conception of a patient going temporarily to a mental home without the stigma of judicial interference, the fear of which often causes unconscious conspiracies of delay by relatives with disastrous results to the patient. I think I may safely say that all who are familiar with the actual facts of this subject, who do not deal with them as theories in the air but are acquainted with the patients, the institutions, the form of treatment, the feelings of doctors and the progress of science, are all unanimous that this treatment would be an advantage.

Here is a letter which I received on the introduction of the Bill and I think it is one from which I should read a few sentences to your Lordships. The writer said:— The Bill is one that is long overdue… The only people who appreciate your splendid move are the unfortunates who have come in contact with that terrible thing mental derangement. My own wife had a breakdown six weeks after the birth of our little daughter. We had to get her away at once to a private mental home. She was absolutely fit again in three weeks. Yet, to get her tinder proper fare, she had to be 'certified' by two doctors and a J.P. She does not know it and I pray she never will. For the knowledge that she had once been certified as a lunatic would be enough to send her permanently insane. I do hope most sincerely that your Bill will go through successfully, and thereby save many a person from an anguish and despair that cannot be described. That letter exactly illustrates the feeling I have referred to. I do not think I can put it higher than that.

I would ask your Lordships seriously to reflect what is the protection given. In theory it is all very well to say you have not infringed the liberty of the subject in this way before, but I would ask your Lordships to reflect what real protection in practice has been given by the intervention of the justices. Do you suppose if two competent medical men had signed a certificate giving perfectly clear facts on which they based their conclusion, that a justice would take upon himself in the ordinary case to override that certificate? I do not wish to use the perhaps rather provocative language of my noble friend Lord Dawson, but do you think he would take upon himself to overjudge those men with their professional skill and say: "No, in spite of this certificate I do not think this person is insane"? What he can do and the most he can do I think, is to see that everything is regularly done. That of course becomes the duty both of the superintendent of the institution to which the person is taken and of the Board of Control who receive the certificate. It is their duty to see that everything is regularly done. They are much more competent to perform that than the ordinary justice. We had evidence put before us that in an ordinary case of full certification—it was very wrong, but it is what happened—the patient was put into a taxicab and taken to the door of the justice's home, that the justice ran down the garden, poked his head into the cab and then signed the certificate.

VISCOUNT BRENTFORD

You admit it was wrong.

EARL RUSSELL

I admit it was wrong, but what I am saying is that it is what is done sometimes and what may often happen. A careful medical man whose reputation is at stake, and who may be cast afterwards in an action for damages, whereas a justice cannot be, is I think much greater protection than that. I do ask your Lordships to remember that all through what we are dealing with and considering is the patient and the patient's benefit only. We want to cure these people, we want them to get well. All opinion is satisfied that the less formality that attends them in these incipient and early and comparatively mild cases the better the chance, and the more rapidly they are likely to get well. I do ask your Lordships not for the sake of a fetish to throw away a reality, but to resist the Amendment which the noble Viscount has put on the Paper.

LORD DARLING

The noble Earl who is in charge of this Bill has read a portion of paragraph 107 of the Committee's Report. Perhaps it was the part which he thought most striking, but I think your Lordships would be glad to hear the conclusion of that paragraph for it is evident that the Commissioners were not very determined and did not come to an irrevocable view of the matter. I rise to say, in the few words that I intend to use, that I trust your Lordships may see some reason for passing the clause as it stands. After the word with which the noble Earl concluded his quotation the Commission went on to say:— It may be that ultimately the treatment of mental illness will be so assimilated to the treatment of physical illness that the participation of a magistrate will no longer be considered necessary, but we are concerned to recommend reforms which may be practicable in the immediate future and we have come to the conclusion, though not without reluctance, that the provisional treatment order should be made by a magistrate. Is not that a very hesitating way of coming to a conclusion upon a matter so grave as this is represented to be?

It was said by the noble Viscount who moved the Amendment that this deals with an invasion of the liberty of the subject which has always been considered absolutely sacred in English law. Why, the noble Viscount himself has, as I have, interfered over and over again with the liberty of the subject—greatly to the subject's advantage and particularly to the advantage of the subject's friends and relations. What is here in question? By this Bill we get the opinion, the necessary opinion, expressed solemnly and with a full sense of responsibility, of two doctors, one of them if possible the patient's own habitual medical attendant. What is the difference between us? The difference is whether, in addition to that, you are to take the patient before a magistrate or bring a magistrate to the patient. The patient is not an absolute lunatic. He is a person capable of understanding a great deal. What is said here by those who advocate passing this clause as it stands? This is a man in a very, very delicate situation. Be rough with him, frighten him, and you will make a permanent lunatic of him. Be gentle with him, let him be treated not as though he were mad or about to go mad, but as if he were ill, and to be treated by the man who habitually treats him for illness, and to be quite certain call in another man of the same profession, the same standing, the same education, and let him confirm the opinion of the first. In those circumstances the patient, because that is what he is—he is not to be regarded as a prisoner—will think: "This is my habitual medical attendant. He has come to prescribe for me. If he prescribes a draught for me, I will take it at once. If he prescribed an operation, I should very likely consent to undergo it. Here is another doctor who has been called into consultation. They agree that for my health I should go away somewhere, not to be detained for long, but somewhere to stay for a moderately short time."

We know, and the noble Earl has read out what I also had heard, that in a very large proportion of cases, treated as it is intended these patients should be treated, they recover and they recover within six months. But it is authoritatively stated by those who have to do with them that everything depends upon concealing from them the fact that it is suspected that they are mentally deranged. If you bring in a magistrate and not a doctor, the patient might know him. He might be simply some man in business, the squire or somebody in the neighbourhood, a very decent, sensible man no doubt, but the patient would know at once that he did not come to see him because he was unwell. The patient knows he is the sort of man who spends a good deal of his time sending people to gaol. What would be the effect upon him? The effect would be, as was said by many witnesses before the Commission, that the man would be worse than if nobody had come to see him at all.

They hesitatingly said that they preferred that a magistrate should, as at present, be called in to add his opinion to that of a doctor's. The noble Viscount relied upon the old law with regard to lunacy; he said it was in the old Statutes with regard to lunacy. So it is, but we are dealing with something different. They were aiming at people many of whom were so far gone in mental derangement that they were absolutely dangerous to themselves or to others. We are not dealing with that class of person. Our law long dealt with such persons in ways no one would deal with them now. This mental disease was long looked upon as a thing without a remedy. Your Lordships will remember, as soon as I say the next words, a doctor who was asked Canst thou not minister to a mind diseased; Pluck from the memory a rooted sorrow; Raze out the written troubles of the brain. and the doctor had to say: "No, I cannot." That is no longer true. Another doctor, not a fully qualified one, said: "Nous avons changé tout cela." Now everybody knows that by modified treatment, by sympathetic treatment, which does not mean a justice of the peace to intervene at any point of it, these people can be cured and cured in the large proportion which the noble Earl has indicated.

There is only one other word I should like to say. A statesman long known in the other House of Parliament wrote on "The Influence of Authority in Matters of Opinion" and I have his assent to my saying this. The Chairman of the Commission, Mr. Hugh Macmillan, one of His Majesty's Counsel—and I have his assent to my saying this—is of opinion that what is proposed in this Bill is the proper way of dealing with these incipient cases. He is not a doctor; he is a justice of the peace for every county in England because he is a member of the Privy Council. That is his opinion. He has come to the conclusion that the intervention of justices of the peace would be bad for the patient and he differs from that clause of the Report of the Commission, a clause, as I have indicated to your Lordships, only arrived at after very hesitating consideration.

LORD LAMINGTON

We have listened to two very convincing speeches why we should not accept the Amendment. This seems to be the time when we should take a step forward in the treatment of these sad cases. That treatment would be more successful for the reason given by my noble friend behind me just now, that the intervention of a magistrate would only do harm and would possibly give pain to the patient. Moreover, his intervention would be of no value from a medical point of view. My noble friend Lord Dawson of Penn will agree that a man who came in to see a patient suffering in this way could not possibly tell by a short interview what was the real condition of that person's mind. After all, there are plenty of safeguards included in the scope of the Bill and it is only temporary treatment. It is not a case of permanent inclusion like a certified person. There is every other kind of safeguard that can be devised so that there can be no malpractices. I believe that in Scotland it is not necessary to have the certification by a magistrate or a judicial authority. I feel very strongly that it is desirable to avoid giving unnecessary pain to people in these very delicate and difficult border-line cases so as to prevent any undue suffering and give a better chance of speedy recovery. I hope my noble friend will withdraw his amendment.

LORD SANDHURST

I hope your Lordships will not pass this Amendment. I associate myself entirely with what the noble Earl said about such words as "incarceration" and "locking up" which I was sorry to hear used two or three times. That is the very thing we want to put out of the public mind altogether. The noble Viscount referred to the fact that for 200 years the law had been such that a patient's liberty could not be interfered with except by judicial authority. Two hundred years ago views on lunacy were entirely different from those of to-day. Patients were chained in asylums down to the end of the eighteenth century. The patient at that time was regarded as a pariah against whom the public had to be protected. To shut up a person in those circumstances was, of course, analogous to shutting up a person who had committed a crime. He was treated almost, if not quite, as if he was a person who had committed a crime. We have got away from all that. When a patient suffers from scarlet fever or smallpox he is carried off to one of the Metropolitan Asylum Board's hospitals. Is that called incarceration? Does the patient consent? His case is really analogous to that of the patient who is mentally afflicted.

The real reason why I rose was to refer once again to the practice in Scotland. The right rev. Prelate opposite quoted a familiar phrase about an ounce of practice being worth a pound of theory. According to the law of Scotland, as in England, an offence is committed if a patient is detained otherwise than in accordance with the provisions of the Lunacy Act, but in Scotland the provision is subject to this exception: that where a certificate is given by a medical person that a patient is afflicted but the malady is not confirmed, and the medical person considers it expedient with a view to his recovery that he should be placed in a specified home for temporary residence for a specified time not exceeding six months, the patient can be detained without any certification at all. He may be detained for six months merely on the certificate of one medical practitioner, no notice, so far as I have been able to discover, has to be communicated to the Board of Control unless the detention extends to twelve months, and there is no visitation except under the general section of the Mental Deficiency and Lunacy (Scotland) Act, 1913. What is the result of that? The result is that in connection with, but not as incorporated parts of, the great Scottish asylums, homes have been opened in which patients can be received without certification, treated by the medical officers of those asylums for six months and given every prospect of recovery without being condemned as lunatics. That is the sort of thing that we want to see in this country, and I hope and believe that the proposal which His Majesty's Government are now putting before the House will greatly conduce to that end. Let me say once more that I sincerely hope that this Amendment will not be carried.

THE EARL OF ONSLOW

May I say one word? It seems to me that we are perhaps getting away from the point which my noble friend behind me made. The noble Earl opposite gave us a very satisfactory statement in regard to this question of volition. A man who is incapable of volition is a man who is incapable of saying: "Yes, I should like to go for treatment," and who is equally incapable of saying "No." He really does not know what he is doing; he is in a comatose condition and is incapable of any decision or even of any expressin of will. When he is a great deal worse he may be more decided in his mind, he may be able to say "No" and no action in the world can make him go into one of these institutions apart from the full method of certification. I think I have stated the point correctly and that my noble friend opposite agrees. What does my noble friend behind me ask? He puts the case of a man with no will of his own who does not know what he is doing and cannot say "Yes" or "No." His wife, or somebody very anxious about him, calls in a doctor. The doctor shares the anxiety. They say, perfectly justly and rightly, that the man is in a bad state of health and they seek the opinion of a second medical man. To carry out the intention that has been very clearly stated by the noble Earl opposite we want to be perfectly certain that this person is really incapable of saying "No," however feeble or foolish his "No" may be. As I think my noble friend behind me suggested, the case is not quite the same as that which calls for a full certificate.

What I understood my noble friend to say was that, if the patient himself has an outside adviser or impartial friend who may be able to say that he thinks that the man is capable of volition and he ought to be treated, the only way in which he can be treated, if he is not willing to go into a home as a voluntary boarder, is by certification. That would carry out the intention of the Act as I understand it. I quite see the point made by the noble Earl opposite and by other speakers, that it is very difficult to distinguish in the public mind between a certificate for temporary treatment of a man who is not a lunatic—I gather that the whole point is that such a man should not be considered a lunatic—and a full certificate. Let me make a suggestion. I have not examined it and I do not know whether it is possible, or even whether on fuller examination it would be desirable. It is just a suggestion for the consideration of noble Lords opposite. Would it be possible to entrust this form of recommendation, or rather the endorsement of the recommendation of the two medical men, to the Commissioner or the Assistant Commissioner of the Board of Control, or at any rate to the authority of that Board, rather than to a judicial authority? I do not know whether that suggestion might help your Lordships if it were worked out and might possibly meet the case. I make it for what it is worth, but I do not insist upon it in any way. Perhaps the noble Earl opposite will examine it.

LORD MERRIVALE

I hope that the noble Earl will consider the suggestion that has just been made. I do not think that anybody here is desirous of preventing the fullest possible proper effect being given to these new provisions for the benefit of people who are not insane but who want particular care. Many people think, and I confess that I am one of them, that we must pay a proper price for the liberty of the subject, that this is a thing which we must not put out of mind. What is proposed here is that, if a man is sick or is thought by those about him to be sick, then upon the certificate of two medical men whom they will call in—because he is incapable of volition—he may straightaway be placed under treatment. In nine hundred and ninety-nine cases out of a thousand it is most desirable that he should be under treatment, but everybody knows that the odd case occurs, whether through interest or malice or some indirect motive, and produces mischief, I hope that the desire that we all have is to guard against mischief of that kind. Certainly it has been the practice in this country to safeguard the liberty of the subject.

A good deal of reference has been made to the safeguard provided by the present reference to magistrates. I happen to have seen, in one capacity or another during many years, how totally unsatisfactory a safeguard, if you can call it by that name, the present procedure provides. It really is not a safeguard. I have heard the cases mentioned by the noble Lord, Lord Sandhurst, and others, and I could supply abundant eases where the farcical character of the present safeguard has exposed itself. But common knowledge of this has not prevented our countrymen from desiring some safeguard. The noble Earl, Lord Onslow, suggested the Board of Control. I cannot help thinking that for a delicate matter of this kind you might have a nominated body of referees, nominated in the public interest as proper persons. For my part I believe that, if you had a body of referees and one of these were designated, no matter how, by the medical man or by the family, to see that the thing was being fairly done, that the patient was being treated as he ought to be treated, you would provide a real safeguard. The choice of the Board of Control presents difficulties. They are entirely official persons, but it is quite open, I think, to those who will bring this Bill into operation to provide a special body of referees—call them what you will—whose duty it will be to have regard to the fairness of the proceedings. There need not be any publicity at all, if you have your panel. It will be a panel of qualified persons in whom medical men and everybody else who knows anything about the matter will have confidence. If you interpose a safeguard of that kind I think you will have something to which the most delicately-minded patient or the most intimate friend will not object.

LORD HANWORTH

I hope the Government will hold to the Bill, and I desire to say why, if the noble Viscount goes to a Division, I shall vote against his Amendment. The speech of Lord Merrivale seems to me to overlook the safeguard which is provided in subsection (9). Within one month of the reception of any person he is to be visited by two members of the visiting committee of the institution and further, if they are of opinion that the patient should not continue to be detained, immediate notice is to be sent to the Board of Control. It is no use setting up another body of referees, for the real difficulty which you have to deal with is this, that there would he a reluctance on the part of friends to put the Act in motion. Take the case of the poor wife referred to in the letter which has been lead to the House. The husband had to get her certified in order to obtain proper treatment for her, and he says, and everybody must sympathise with him, that he hopes that she will never learn that she was a certified patient.

You want to get treatment for that type of person. There is reluctance to go before or apply to the board of referees, and equally there is reluctance to go to the magistrates. The stigma is really the same. You are going to introduce some authority other than a doctor, which is going to say: "In our judicial opinion we say you ought to be certified and go to an institution." If that is done, it is just the very step which will interfere with the patient's recovery. So long as it is left in the hands of the medical man, and treatment is given by the medical man, you can secure some hope for these people. After all, they are only going to be treated for a period of six months, and no more, with the safeguards which have already been read out to the House. The noble Earl has stated them, and I am not going to remind your Lordships of them; but really the point of the clause is to get rid of the stigma, which acts as a preventive of any action by the relatives, equally with the fear of the patient if he realises that he is being certified.

In view, therefore, of the purpose of the clause, I believe that the Government have provided sufficient safeguards. All patients in institutions have a right to communicate with the Lord Chancellor and the Lords Justices in Lunacy. I am one of those who from time to time receive letters from patients detained in institutions. If I ever get a letter that seems to offer any hope at all, I always send it to the official solicitor and direct a special report to myself. Inquiry usually satisfies me—in fact I might say in all cases—that there has been no improper detention, and I have never yet found a case in which, in spite of that right of the patient to write to those who have jurisdiction in lunacy, the powers have been abused. In the interests of medical treatment for persons who can be cured by medical treatment, I trust that the Government will stand by their clause, and although I regret to dissociate myself from the noble Viscount, I shall vote with the Government.

THE MARQUESS OF SALISBURY

I have listened to the discussion with the greatest interest, and I admit with great doubt and hesitation of mind. It seems to me to be a very difficult issue indeed, but before the Government definitely make up their mind I would like to put one or two considerations before your Lordships. In the first place, I think it is fair to say that the opponents of this Amendment prove too much, because their contention is that where a person who is mentally afflicted has a very good chance of recovery, it militates very much against that chance being realised if there is the intervention of a judicial authority. They will, of course, observe that that runs directly in conflict with the present Lunacy Acts. I do not put it by way of a debating point, but the Government do not suggest any modification of the Lunacy Acts, under which a judicial authority is always essential. Yet we have it from noble Lords, and we know it of our own knowledge, that there are many cases in which a definite certified lunatic recovers. Are we to be told then that we ought to modify the Lunacy Acts, and to do away with the judicial authority in the Lunacy Acts, and to allow the Lunacy Acts to be put in motion by two medical practitioners without this safeguard of the intervention of a judicial authority? The argument, if it is worth anything at all, which has been submitted to your Lordships, would certainly go that length, and I think most of your Lordships would shrink from that rather formidable logical conclusion. That is one consideration which I would like the House to bear in mind.

There is another. Just now we had an Amendment proposed by Lord Brentford, in which he sought and obtained from the most candid management of this Bill by the noble Earl, an explanation of the meaning of volition in connection with this very clause. The want of volition means, according to the Government, that the man cannot say either "Yes" or "No." If he says "No," however good the treatment may be for him, he is not to be subject to the operation of this clause. That is to say, the policy of the Bill is that where a man is capable of saying "No," he is to be immune from this particular clause. That is a very difficult question—whether he has said "No." Who is the judge of that? Is it really contended that two medical practitioners are appropriate persons to determine whether there is a real negative uttered by the patient? That is my difficulty. Here is a case of a rather torpid patient. Does he or does he not accept this treatment? If he says "No," it is the policy of the Government that the certificates of two doctors should not be sufficient; but they are not very capable of judging whether what he says amounts to a negative. And indeed it is a very delicate matter.

That is the kind of thing which a judicial authority is eminently capable of deciding: does that amount to a refusal? I know your Lordships who sit in Quarter Sessions or petty sessions are very well acquainted with the interpretation of a plea of "Guilty" or "Not Guilty" by prisoners. It has often happened to myself to have to say whether what the prisoner says amounts to a plea of "Guilty" or a plea of "Not Guilty," because the subsequent course of the trial depends upon that. It is a delicate matter, and the magistrate has to say to the Court and the jury: "That does not amount to a plea of 'Guilty.' You must take it as one of 'Not Guilty,' and try the case." I hope that noble Lords will see the force of the analogy. Has this patient, who is ex concessis rather confused and torpid, said that he is not willing to go, or has he not said it? I must say I think it very difficult to trust the doctors entirely in that respect. Their technical ability is not called in question there at all, and their whole bias would be the other way. Their bias would be to say: "It would do this man good. Surely what he says does not amount to a negative. Cannot we put a little strain upon it? Cannot we say that on the whole it was not 'No'? Put him under treatment."

I am sure your Lordships appreciate the difficulty—that the decision is not a purely medical decision. If it were a purely medical decision there would be something to be said for the contention of the noble Lords, but this is largely a matter of appreciating the actual evidence of how the patient receives the proposition, and I think that in many cases it would be a very difficult and delicate matter to decide. Of course, if the policy of the Bill had been that whether the man said "Yes" or "No" he might have been compulsorily treated, that would be different; but we know that that is not the policy of the Bill. If the man says "No" then he is not to be treated under this clause. I confess, therefore, that my hesitation is very great. If I had the least expression of opinion from the noble Earl opposite that he appreciates the point I have tried to put before your Lordships and that he would consider it, I should personally be quite glad if this Amendment were not pressed. But unless the noble Earl will be willing to consider the difficulty of determining what the actual volition of the patient is —whether he has a volition or not and whether he has exercised it—then I should feel a great difficulty as to my vote. I earnestly hope the noble Earl will say he realises the difficulty and will see whether he cannot meet it.

EARL RUSSELL

I think I ought to reply at once to the appeal of the noble Marquess, though I am not sure whether he will consider my reply altogether satisfactory. But I really do not think this difficulty will arise in practice. The person is not necessarily comatose—confusional is rather the word. It is a little like the person who is very ill, and a kind nurse comes and says: "Won't you take a treacle posset?" and he pushes it away; and the nurse says: "It will do you good," and then he takes it. That is the kind of thing. You cannot get any will of any sort out of it.

I think I ought to meet the noble Marquess on another point. It is a good logical point he made. He spoke about medical certification, and said: "Surely everything you have been saying applies to the medical certification." I think he is perfectly right. There are cases of patients so demented that they neither know whether they have been examined by a doctor or certified by a magistrate; it all passes in a dream. But there are a good many, particularly of these confusional cases—and I think you would find every superintendent of an asylum tell you the same thing—cases of people who are so excited and upset by the procedure of certification and by seeing a justice, and by the whole thing, that it very often puts them back a week, and sometimes as much as six weeks, before they begin to make progress in the quiet surroundings of an asylum. It is the kind of excitement that is very bad for that sort of unstable brain which puts them back. If you ask me from the purely medical point of view what would be better for them I should say it would be better not to have the justice. But the practical argument is what we are putting before you this afternoon, which is limited to this particular class of case—the class of case which it is hoped might recover most easily and most quickly within a short time, and where we are most desirous of not having the intervention of any official person, if it can possibly be helped.

I would ask your Lordships to remember, as I think the noble and learned Lord the Master of the Rolls said, that after all you have got two visitors to visit these people within a month and see them when they are in the asylum; you have the superintendent of the asylum himself whose duty it is to satisfy himself that they are proper people to go in; and you have the over-riding consideration of the Board of Control who see the recommendation and the statements upon it, and who are in a position to send down any one to make a special visit if they have any ground for suspicion. The patients are really very well protected, and I do hope your Lordships will reject this Amendment, and allow us to make this experiment, which, in the opinion of everyone concerned, is going to be of very great benefit to these afflicted people.

VISCOUNT CECIL OF CHELWOOD

I was going to make a suggestion, because I feel that this is a very difficult question for any of us to decide, and since it is quite plain that there is not really a very great deal of difference between the two views, I was wondering whether a possible solution might be found by a slight extension of the words in subsection (3). That subsection provides that of the two medical practitioners one is to be either the usual medical attendant or a person who is approved for the purpose. Would not it be possible to insist that in every case one of them shall be a person who has been approved for the purpose by the Board of Control? I do feel that there is a great deal of force in the proposition that one of the medical practitioners ought to be the kind of man who is accustomed to judge evidence in order to arrive at a judicial decision.

EARL RUSSELL

And fairly independent.

VISCOUNT CECIL OF CHELWOOD

And fairly independent. Of course we do trust doctors as judicial officers. Many of the coroners of this country are doctors and not lawyers, and, as far as I know, they discharge their duties quite satisfactorily. I think if we could have that slight additional precaution it would make me feel happier in giving my vote on the present occasion.

EARL RUSSELL

I think that that is a valuable suggestion, and I will certainly consider it between now and Report. There may be practical objections to it, but in all other respects it seems to be quite a valuable suggestion.

LORD DAWSON OF PENN

I would like to make it clear that the medical profession has no objection to safeguards, provided those safeguards are such as will not prejudice the cure of the patients who are ill. We frankly admit that those patients with which this Bill deals do constitute a class that has not hitherto been dealt with by the Legislature. They are people for the most part living in small houses and earning small incomes. The difficulties are much less among the well-to-do. They have large houses where persons mentally sick may perhaps have two nurses, and where the treatment can be carried out quite easily. The class of patient to which this Bill refers is a class that is grievously suffering, with very little or no opportunity of being relieved. Take the case of an out-patient at a hospital. That patient may have influenza or some simple illness. He goes there with a feeling of depression, under a power of self-criticism, subject to introspection, and may go step by step down to that absolute suffering which we all know, and for which we are perfectly powerless to do anything under present conditions. If we want to do anything with such patients now they have to be certified.

That brings me to the question of certification. The word "certification" conveys notions of a madman, and all the things that have been from generation to generation associated with that name. I am quite prepared to admit that many of the fears entertained are unreasonable, but they are there, and we, who have to do with the sick, constantly find these difficulties arising. It has to be borne in mind that the patient whom we hope to help by this Bill is often a very sensitive, a very impressionable, and sometimes a very competent person—someone who is cut a little bit too fine for the environment in which the world has placed him. These people are very easily wounded—I mean in their nervous system. They are a class which is increasing with the civilisation that we have to-day. They may be very competent in their work, they are very often efficient and capable of being leaders. We often came across them in the War. Such people may get some toxic condition arising from influenza; or, in the case of a woman, it may be due to childbirth. Under the stress or strain of that, or because of overwork, they will begin that downgrade with which we are familiar. They will have a want of confidence, will indulge in self-criticism and self-abasement, and may in the end become insane.

There is no class which has to be more carefully handled by medical men. There is no class of illness that requires a greater intuitive insight, a greater tenderness, and a greater sympathy. One false word and your influence has vanished. Very often you have carried the patients along and convinced them that all their distresses, their sleeplessness, that burden of life which has become a horror to them, are due to overwork, and that by proper treatment they will get better. Then, suddenly, they turn to you and say: "Do you think I am Do you think I am going to lose my reason?" They are so quick in feeling that. Supposing you have carried them along with you, or supposing they have reached the stage where you have to put them under treatment, and supposing at that time you introduce anything like certification, anything that has an association with certification, you get not only their friends but people who know them, the social circle in which they move entertaining certain feelings towards them. It is a fact that certification is associated with a very grim past. Anything that interferes with the secrecy and the confidential relationship of medical advice is to be avoided and that is why it is so important that the provisions of this Bill should be carried out.

You can have precautions if you like, provided they do not become so cumbersome as to render the measure nugatory. You may have precautions provided they are careful precautions that will not in any way damage the good effect of these provisions. If these patients once realise that they are thought to be insane, you have given them for the rest of their lives a sense of inferiority. They will constantly say: "I am damaged; I have been insane; I have been locked up." They get the thought that they have done an injustice to their children. They know it prejudices the chances of the marriage of their children. Your Lordships know full well from your experience how very anxious people are if there is any question of insanity in the family. It is for these reasons I would like to emphasise the benefits of this Bill.

It will enable the poorer classes to get at any rate some of the benefits which are now open to the more prosperous and happier classes. Further than that, it will do what the medical profession and those who have thought upon this matter desire: it will bring about the prevention of insanity. This Bill does not deal with insanity, and, therefore, we ask that it should be kept away from all mention of the machinery of insanity. Its whole object—and I am quite confident that it will be successful in this—is to take these people when they are suffering from mental illness in the same way as we take them when they are suffering from physical illness, and treat each according to his need, in the same way as in the case of physical illness. If that is carried out with any precautions that are suitable, provided they do not run counter to the feelings of the people whom we desire to help, I am confident this Bill will be of great good to the community.

VISCOUNT BRENTFORD

I have listened to the debate this afternoon, and I want to assure not only your Lordships but also the noble Lord, Lord Dawson, that I and those who have spoken and supported the Amendment are just as keen for the betterment of these unfortunate people as he is. But I have been very much impressed during the speech which he has made by the effect which might be produced upon the minds of these people by the inclusion of a judicial authority, by the impression that might be created upon their minds that they were thought to be mad or incipiently insane. With all that noble Lord said in regard to that I agree. I realise the dangers and difficulties that might arise to the incipiently insane person or the man or woman who has mental disorder, from the fact of the judicial inquiry which I have suggested—that in consequence they may go over the line—but the very proposal here is that, after a friendly visit from the doctors, these persons will wake up next morning in an asylum, in a registered home, in a public institution. The noble Lord referred more particularly to poor people. With all due deference I think the fact of finding themselves in a registered mental institution or in a public lunatic asylum is much more likely to have the effect of pushing the patients over the line than the mere judicial investigation which I have suggested. I submit that to the noble Lord, Lord Dawson, as being a very feasible result of the proposal he makes. On the other hand, I need hardly say that I want to do what is best for these people consistently with the rights of the liberty of the subject. I think the noble Earl opposite agrees with me in that respect. The noble Earl began his speech earlier in the afternoon by reflecting upon me for not having gone to consult him.

EARL RUSSELL

Regretting it.

VISCOUNT BRENTFORD

We have had a debate this afternoon and opinion is undoubtedly very divided. I do not want to press my Amendment, either to carry it or lose it by a small majority. I think that would be very undesirable in the interests of the patient, and in view of the desire we all have to deal with the matter in a way that will remedy the evil. I propose, therefore, if your Lordships will allow me, to withdraw the Amendment and to ask the noble Earl if he will consider the various proposals made by my noble friend on my left, Viscount Cecil, and others, which may get over the difficulty. They are worth consideration. I do not think the noble Earl would put forward a definite non possumus to anything, and if he would have that consultation which he wished I had had a day or two ago I should be very glad to confer with him, and perhaps some of my noble friends would also talk the matter over with him. Our object is, as the noble Lord, Lord Dawson, said, to give every possible security without doing harm to the patient. That, I understand, is my noble friend's desire, and I should be very glad to discuss the matter with the noble Earl in order to try to arrive at a solution which I am sure the whole House desires.

EARL RUSSELL

I think I ought to say at once that of course I shall be only too delighted to confer with the noble Viscount. There is really only one object and that is to benefit the patient. If we can devise anything which would not hinder the patient's recovery and yet be an additional safeguard, there would be not the slightest objection. I shall be glad to consult with the noble Viscount.

Amendment, by leave, withdrawn.

EARL RUSSELL

The next two Amendments are drafting Amendments.

Amendments moved—

Page 4, line 14, after ("not") insert ("so") Page 4, line 14, leave out ("by any of the persons aforesaid").—(Earl Russell.)

On Question, Amendments agreed to.

LORD SANDHURST moved, in subsection (11), after the second "not" to insert "save as hereinafter provided." The noble Lord said: The Amendment which I am now moving is really dependent upon a new subsection which I will move later. I think it is a very important Amendment, but I hope it will not be a controversial one. Under the Bill as it stands the non-volitional patient will be able to receive treatment for a period not exceeding six months. My object is to enable the Board of Control, upon the application of one of the persons mentioned in subsection (2)—that is one of the persons making the original application—to extend the period in a case where the patient has not recovered but his early recovery appears reasonably probable. I propose that the period should be extended for a further period of such length, not exceeding three months, as may be specified by the Board of Control, provided that the total of such further periods shall in no case exceed six months. My Amendment is really taken almost straight out of the Mental Treatment Bill of 1923, which contained a similar clause. The only substantial difference, I think, is that in my Amendment I propose that the extension shall be by steps not exceeding three months at a time. It seems to be obvious that if a patient enjoying the advantage of temporary treatment without certification has not fully recovered but is likely to recover, it will be a great pity to compel him to accept certification in order to complete recovery. I do not think there can be any prejudice to the patient by the adoption of this Amendment as I have drafted it. I beg to move.

Amendment moved— Page 6, line 12, after the second ("not") insert ("save as hereinafter provided").—(Lord Sandhurst.)

EARL RUSSELL

The Government have no objection to this Amendment, nor to the next Amendment. The noble Lard has stated the effect of them. It does not, I think, really make the thing any more dangerous because, as I apprehend, if you discharged a patient for a week you could then start on a further six months. That would be a very silly way of carrying on treatment. If the treatment is desirable, it had much better be continuous.

On Question, Amendment agreed to.

Amendment moved—

Page 6, line 13, at end insert the following new subsection:— ( ) Where it is anticipated that a person who is undergoing treatment as a temporary patient under this section will not recover within the period of six months, but his early recovery appears reasonably probable, that period may from time to time be extended for further periods of such length not exceeding three months as may be specified in directions given by the Board of Control upon the application of one of the persons mentioned in subsection (2) of this section, accompanied by such evidence or recommendations as the Board may by rules prescribe, provided that such further periods shall in no case exceed six months in all.

On Question, Amendment agreed to.

THE EARL OF CRANBROOK moved to insert the following new subsection after subsection (11):— ( ) If a person received as aforesaid at any time recovers his volition he shall be discharged within twenty-eight days unless steps have been taken to detain him under the provisions of the principal Act or unless he becomes a voluntary boarder under the provisions of Section one of this Act.

The noble Earl said: This Amendment is intended to meet the case of a non-volitional patient who recovers volition after treatment and expresses a violent dislike to continuing the treatment. As I read the Bill, that patient might be retained for the full six months, which I think would spoil the whole principle of the Bill as it would prejudice other people against submitting themselves to treatment. I put the period at twenty-eight days in the Amendment because the process of recovering lost volition is, I am told, apt to ebb and flow, and, twenty-eight days will be ample time to see whether recovery is going to be complete or whether certification will be necessary. I hope the noble Earl will accept the Amendment because I feel that it will improve the Bill.

Amendment moved— Page 6, line 13, at end insert the said new subsection.—(The Earl of Cranbrook.)

EARL RUSSELL

The position is that the Government welcome this Amendment, but they would rather not have it inserted at this stage, for drafting reasons. It only appeared on the Paper this morning and there has hardly been time to consider it. We would rather have it put down for Report stage if the noble Earl does not mind, and meantime we shall be able to consider other questions and see whether it is necessary to make any alteration to enable it to fit in.

THE EARL OF CRANBROOK

In that case I will withdraw.

Amendment, by leave, withdrawn.

EARL RUSSELL had given Notice to move, in subsection (13), after "Act," where that word secondly occurs, to insert "and of Section one hundred and sixteen of that Act (which relates to the management and administration of the property of certain persons of unsound mind)." The noble Earl said: This Amendment requires re-drafting. It has been discovered that it is not satisfactory in its present form and I wish to leave it over until the Report stage.

Clause 5, as amended, agreed to.

Clause 6:

Powers and duties of local authorities.

(3) Subject to the approval of the Board of Control, a local authority shall have power—

1. (a) to make arrangements, whether by the provision of institutions or otherwise, for treatment as out-patients, either gratuitously or on such terms as to payment as they think fit, of persons suffering from mental disorder;
2. (b) to make and carry into effect agreements with any other local authority providing for co-operation between them, or for the joint exercise and performance of any powers or duties for the time being vested in or imposed on them, and for the apportionment between the authorities of the expenses incurred under the agreements;
3. (c)to make provision for the after-care of any persons who have undergone treatment for mental disorder and to contribute to the funds of voluntary associations formed for that purpose;
4. (d) to undertake research in relation to mental disorder and the treatment there 1107 of, and to make contributions towards the expenses of any body of persons engaged in such research.

LORD COTTESLOE moved, at the beginning of subsection (3), to leave out "Subject to the approval of the Board of Control." The noble Lord said: We have dealt with the medical and largely with the legal aspect of this Bill, and to my mind it is a very admirable Bill in those respects. Now we come to the administrative clause. By that clause the local authorities are given not only duties but powers to do certain things. They are given powers to make arrangements for treatment of out-patients, to make agreements with other local authorities for co-operation and to provide for aftercare, to contribute to the funds of voluntary associations and, not least important perhaps, to undertake research. All those things are committed to the local authority as having power to do them. But we begin the clause with the words "Subject to the approval of the Board of Control" and I should like to ask the noble Earl in charge of the Bill whether at this time of day that is a necessary provision.

The local authorities have much more than come-of-age. The county councils have been in existence for forty years. They have had given to them under the Local Government Act of the present year greatly extended powers and responsibilities, which I believe it is generally recognised they are entirely competent to undertake and carry out. The approval of a Ministry or of a higher Board in my experience really effects very little. Where authorities are competent there is always the same correspondence and delay, perhaps for weeks or months, in obtaining approval and in the end, in my experience, it very seldom happens that we do not come round again to the original point and that sanction is given in almost, if not quite, the original form of the proposals, after delay, after expense, and after a good deal of circumlocution which is not only difficult but expensive.

This is perhaps rather a large point to raise and it may be that in accordance with precedent, the Bill has been so drafted as to make this necessary. I am not sure that the precedent we should go to is not that of the Local Government Act of the present year which expressly relieves local authorities to a very large extent from that meticulous supervision which has in fact hampered their liberty, their discretion and their actions for a good many years. There is no precedent, so far as I can ascertain, for what is proposed in paragraph (b), for sanction having to be obtained for agreements between local authorities to co-operate. The view which I have put forward is strongly held not only by the County Councils Association but by the Mental Hospitals Association and I should be very grateful, and I am sure the local authorities generally would be very grateful, if the noble Earl could meet them in this matter.

Amendment moved— Page 7, line 3, leave out ("Subject to the approval of the Board of Control").—(Lord Cottesloe.)

EARL RUSSELL

The county councils have no doubt come of age, but many of these powers are comparatively new and I am sure the noble Lord has heard of the magic word "co-ordination." It is thought that a central authority like the Board of Control would be useful, and I might almost say necessary, for co-ordinating these powers. The noble Lord said there was delay and correspondence, but think how often have the county councils been saved from making a mistake and what wise advice have they received in that correspondence! The same suggestion was made to the Royal Commission. The County Councils Association put their case and here are some of the recommendations.

In connection with research the Commissioners said:— Some machinery will be needed to focus the activities of the several central laboratories to prevent overlapping. We think that this duty can most appropriately be entrusted to the Board of Control, and that this might be effected by the provision contemplated in the Mental Treatment Bill. They then stated that that suggested supervision was opposed on behalf of the County Councils Association and they went on to say: We have carefully weighed the objections put forward, but we are of opinion that the development of this highly technical service and the expenditure of public money thereon should be under the guidance of the responsible central authority. As regards after-care, they said:— We think that local authorities should be empowered subject to the approval of the Board of Control. Again, as regards out-patients clinics, the Royal Commission said:— We do not desire to prescribe too narrowly the lines cm which this provision should be made. Subject to the approval of the Board of Control the powers should be sufficiently wide to enable various expedients to be tried. I am afraid we cannot accept this Amendment.

THE EARL OF ONSLOW

I hope my noble friend behind me will not insist upon the Amendment because, although, as he said, the Local Government Act has done away with a good deal of the control or supervision or interference or whatever you may like to call it of rural authorities and local authorities, and it is the policy of all Parties to give to local authorities the widest possible discretion in the administration of their affairs, yet you are dealing here with a very special subject of administration. You have got a very special Board, constituted, as we shall see in a moment, by technical advisers, legal, medical and so forth, and it is no derogation to local authorities to ask them to accept the advice of this highly specialised Board. It is really very necessary because you do want to get the treatment and administration of all this mental disease on one more or less uniform system. You cannot have violent changes in every area. Take the ease of after-care mentioned by the noble Earl. A man may move from one place to another. He may have aftercare first in one county and then in another or he may move from a county borough to a county. Is it not desirable that the type of after-care should be prescribed so that we may have one smooth system? Otherwise, while you might have excellent methods, they might vary, and it is undesirable that they should vary. The same thing applies to clinics and so forth. It is no derogation to local authorities to ask them to submit to the co-ordination—because it is co-ordination and not interference—which the Board of Control will exercise with regard to this question of mental disease.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7:

Provisions as to visiting committees.

(4) A local authority may appoint as members of a visiting committee persons who are not members of the authority by which the committee is appointed, so however that the number of persons so appointed shall not exceed one-third of the total number of the committee.

(6) Two members at least of every visiting committee appointed under this section shall be women.

EARL RUSSELL moved to add to subsection (4) the words "or where the whole of the committee is not appointed by that authority, one-third of the members appointed by that authority." The noble Earl said: This is really no more than a drafting Amendment to provide for co-option in the case of joint committees.

Amendment moved— Page 8, line 37, at end insert the said words.—(Earl Russell.)

On Question, Amendment agreed to.

EARL RUSSELL moved, at the end of subsection (6), to insert:— and where under an agreement to unite a separate visiting committee is appointed in respect of any mental hospital, one at least of the members appointed after the commencement of this Act by each local authority which appoints three or more members of the committee shall be a woman.

The noble Earl said: This is also a drafting Amendment for the same reason. Where committees are joint committees it is to provide for the appointment of women.

Amendment moved—

Page 9, line 2, after ("women") insert the said words.—(Earl Russell.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clauses 8 to 10 agreed to.

Clause 11:

Reorganisation of Board of Control.

11.—(1) The Board of Control shall, notwithstanding anything in the Mental Deficiency Act, 1913, consist of the chairman (who shall be a paid commissioner) and not more than four other commissioners, all of whom shall be paid commissioners.

(2) Of the members of the Board of Control one at least shall be a legal commissioner, one at least shall be a medical commissioner, and one at least shall be a woman.

(5) The commissioners other than the chairman who are at the commencement of this Act members of the Board of Control shall as from that date cease to be members thereof:

Provided that—

1. (i) nothing in this section shall affect the tenure of office, salaries, rights (other than the right to be members of the Board), privileges or titles of the commissioners so ceasing to be members of the Board;
2. (ii) such of the said commissioners as are paid commissioners shall be eligible to be reappointed to the Board.

(8) Where a person in the service of a local authority in respect of whom contributions have been paid under the Asylums Officers' Superannuation Act, 1909, is appointed to be a commissioner or assistant commissioner he may be allowed to reckon years of service under the local authority as years of service for the purpose of determining the amount of any superannuation allowance or gratuity which may be payable to him under the Superannuation Acts, 1834 to 1919.

EARL RUSSELL moved, in subsection (1), to leave out the words "notwithstanding anything in the Mental Deficiency Act, 1913." The noble Earl said: This is only a drafting Amendment. We leave out these words here and similar words are inserted at the end of the clause.

Amendment moved— Page 10, line 19, leave out from ("shall") to end of line 20.—(Earl Russell.)

On Question, Amendment agreed to.

THE EARL OF ONSLOW moved, in subsection (1), to leave out "four" and to insert "five." The noble Earl said: Perhaps I might discuss together this Amendment and my subsequent Amendment to this clause, which provides for two Medical Commissioners. I mentioned the matter on the Second Reading. My point is that, in the Bill which I had the honour of introducing to your Lordships and which received a Second Reading in this House some six years ago, we provided for eight Commissioners, two of whom should be Legal Commissioners and two Medical Commissioners. I dare say that this was too many, that it was unnecessary to have eight Commissioners and perhaps even to have two Legal Commissioners. I should like the noble Earl, if he can, to answer me a little fully. It is very important that the Board of Control, having grave duties thrust upon it and duties that will be graver still under this Bill, should be as strong as possible. I think we require very urgently a medical man with the full authority of the Board to be available at any moment at the Board of Control. If you have only one Medical Commissioner, I am disposed to ask the noble Earl if it will not be difficult, in the case of his illness, to have that officer's advice and authority. It is very necessary that you should have available the full authority of a Medical Commissioner. Perhaps my noble friend will suggest, as a way out, that the duties of the Medical Commissioner should be delegated to another Commissioner, not a member of the Board.

EARL RUSSELL

I could accept the two Medical Commissioners, but not the total of five in addition to the chairman.

THE EARL OF ONSLOW

I was coming to that in a moment. I have a reason against it. If he could tell me that there would always be a medical man with full authority, that would go a very long way to meet the difficulty that presented itself to my mind. In regard to the suggestion that we should retain five Commissioners and make two of them. Medical Commissioners, I would point out that you might have a layman who was a most excellent person in every way and, if you have to have a Chairman, a woman, two Medical Commissioners and one Legal Commissioner you have no room for an outside man. I have no doubt that the Board of Control will manage its affairs very well indeed, and it is very unlikely that the difficulty that I am bringing forward will arise. I think I would rather leave the possibility of putting in an outsider, who might be an excellent man in every way but would not have technical qualifications, than suggest that there should be two Medical Commissioners. Perhaps the noble Earl can tell me whether there would always be two medical men available, whether they were the Medical Commissioner and his deputy or not, who could perform the duties.

Amendment moved— Page 10, line 22, leave out ("four") and insert ("five").—(The Earl of Onslow.)

EARL RUSSELL

I was hoping to meet the noble Earl, but I rather gather that my suggestion will not meet his view. I had hoped to meet him by using, instead of the words "not more than four other Commissioners," the words "four other Commissioners," so that there certainly would be four, and then to accept his other Amendment, so that it would read: "two at least shall be Medical Commissioners." I rather gather, however, from what the noble Earl said that he would not like that arrangement, since it would not leave a vacant place for anyone else.

THE EARL OF ONSLOW

I think I would rather leave it as it is.

EARL RUSSELL

There is, of course, the possibility of the woman member being a medical person. The, Government are very reluctant to increase the numbers of other commissioners to five. I hope the noble Earl will not press that point. If he asks whether any senior Medical Commissioner could have as deputy another Commissioner, that would certainly be so.

THE EARL OF ONSLOW

Would he have full powers, to be exercised in case of emergency?

EARL RUSSELL

The only power he would not have is the power of sitting on the Board.

THE EARL OF ONSLOW

Would he have all the other powers—all the administrative powers?

EARL RUSSELL

Yes.

THE EARL OF ONSLOW

I think that would meet my point.

EARL RUSSELL

Then we can leave it as it is.

THE EARL OF ONSLOW

I would rather leave it as it is than lose the chance of getting a good outsider.

EARL RUSSELL

I think perhaps the noble Earl is right, from the point of view of administration.

Amendment, by leave, withdrawn.

LORD SANDHURST moved, in subsection (2), after "Control," to insert "other than the Chairman." The noble Lord said: This Amendment, which is a very short one, is partly aimed at the same object as that of the noble Earl who has just spoken—namely, that there should be at least four members of the Board of Control.

Amendment moved— Page 10, line 24, after ("Control") insert ("other than the Chairman").—(Lord Sandhurst.)

EARL RUSSELL

We will accept that.

On Question, Amendment agreed to.

EARL RUSSELL moved to add to proviso (ii) in subsection (5) "and if any such Commissioner is so re-appointed, he shall hold office on the same tenure as that on which he held office before the commencement of this Act." The noble Earl said: The words above do not entirely cover this.

Amendment moved— Page 11, line 11, after ("Board") insert the said words.—(Earl Russell.)

On Question, Amendment agreed to.

EARL RUSSELL moved, at the beginning of subsection (8), to insert "The following provisions shall have effect in any case." The noble Earl said: This Amendment and the two Amendments that follow are drafted to prescribe how the continuity will be effected.

Amendment moved— Page 11, line 21, at the beginning insert ("The following provisions shall have effect in any case").—(Earl Russell.)

On Question, Amendment agreed to.

Amendments moved—

Page 11, line 25, leave out from ("commissioner") to end of the clause and insert: (a) The Superannuation Acts, 1834 to 1919, shall apply to the said person subject to the following modifications—

1. (i) if he has served in an established capacity in the permanent Civil Service of the State for less than ten years but the respective periods during which he has so served and during which contributions have been paid in respect of him under the Asylum Officers' Superannuation Act, 1909, amount in the aggregate to ten years or upwards, there may be granted to him under and subject to the provisions of the Superannuation Acts, 1834 to 1919, an annual superannuation allowance equal to one-eightieth of the annual salary and emoluments of his office for every completed year during which he has served as aforesaid; and
2. (ii) for the purpose of determining whether an additional allowance under subsection (2) of Section one of the Superannuation Act, 1909, may be granted to 1115 him or whether a gratuity may be granted to his legal personal representatives under Section two of that Act, any period during which contributions were paid in respect of him under the Asylum Officers Superannuation Act, 1909, shall be taken into account as if it were a period during which he had served as aforesaid; and

(b) on his retirement from the permanent Civil Service of the State in such circumstances that an annual superannuation or compensation allowance might be granted to him under the Superannuation Acts, 1834 to 1919, as modified by this subsection, he shall be entitled to receive during life a superannuation allowance under and subject to the provisions of the Asylum Officers' Superannuation Act, 1909, as if on being appointed a Commissioner or Assistant Commissioner he had retired from the service of the local authority in circumstances entitling him to a superannuation allowance under that Act.

Page 11, line 29, at end insert: (" ( ) (9) The provisions of this section shall have effect notwithstanding anything in the Mental Deficiency Act, 1913").—(Earl Russell.)

On Question, Amendments agreed to.

Clause 11, as amended, agreed to.

Clause 12 agreed to.

Clause 13 [Provision as to the exercise of powers of visitation and inspection]:

EARL RUSSELL

I have a drafting Amendment to this clause.

Amendment moved— Page 11, line 39, after ("1927,") insert ("or by this Act").—(Earl Russell.)

On Question, Amendment agreed to.

Clause 13, as amended, agreed to

Clauses 14 to 16 agreed to.

VISCOUNT BRENTFORD

had an Amendment on the Paper to insert the following new clause after Clause 16:—

Amendment of Section 338 of principal Act.

". Subsection (6) of Section three hundred and thirty-eight of the principal Act shall cease to have effect, and the following subsection shall be substituted therefor: (6) Rules made under this section after the Mental Treatment Act, 1929, comes into operation shall be laid on the table of both Houses of Parliament, and if an Address is presented to His Majesty by either House of Parliament within the next subsequent twenty-one days on which that House has sat after any such rule has been laid before it praying that the rule may be annulled, the rule shall be annulled and it shall thenceforth be void, but without prejudice to the validity of anything previously done there under or to the making of a new rule.

Provided that where any such rule modifies or adapts this Act or any other enactment the rule shall not come into force unless within the said period of twenty-one days it has been approved by a Resolution passed by each House of Parliament."

THE EARL OF ONSLOW

On behalf of my noble friend Lord Brentford, I beg to move this Amendment. I think your Lordships will see his intention in bringing it before you. It is an old question that was discussed a great deal in principle on the Local Government Act when it was passing through your Lordships' House. The object of the Amendment is, of course, that these rules should be passed by Parliament. The suggestion is a familiar one—namely, that the safeguard of Parliamentary sanction should be provided. I do not know that I need explain the Amendment at any length, for the point has often been discussed in your Lordships' House.

EARL RUSSELL

The Government could accept this Amendment without the proviso. I think it is unnecessary that we should have an affirmative Resolution. The rest is, I think, quite the usual and proper modern form. If the noble Earl would move the Amendment without the proviso we should be glad to accept it.

THE EARL OF ONSLOW

I will certainly do so, on behalf of my noble friend. My noble friend is not here and, of course, if he should wish to raise the point again on Report I am sure that your Lordships would not question his right to do so.

EARL RUSSELL

Certainly not.

Amendment moved—

Page 13, line 22, at end insert the following new clause: (" . Subsection (6) of Section three hundred and thirty-eight of the principal Act shall cease to have effect, and the following subsection shall be substituted therefor: (6) Rules made under this section after the Mental Treatment Act, 1929, comes into operation shall be laid on the table of both Houses of Parliament, and if an address is presented to His Majesty by either House of Parliament within the next subsequent twenty-one days on which that House has sat after any such rule has been laid before it praying that the rule may be annulled, the rule shall be annulled and it shall thenceforth be void, but without prejudice to the validity of anything previously done there-under or to the making of a new rule.—(The Earl of Onslow.)

On Question, Amendment agreed to.

Clauses 17 and 18 agreed to.

Clause 19 [Amendment as to persons of unsound mind liable to be removed to workhouses]:

EARL RUSSELL

My Amendments to this clause are drafting Amendments.

Amendments moved—

Page 14, line 15, leave out the first ("a") I and insert ("any such")

Page 14, line 15, leave out the second ("a")

Page 14, line 16, leave out ("appropriated or")

Page 14, line 16, leave out ("for the purpose")

Page 14, line 20, after ("1875") insert ("as the council may approve for the purposes of this section").—(Earl Russell.)

On Question, Amendments agreed to.

Clause 19, as amended, agreed to.

Remaining clauses agreed to.

First Schedule [Form of application for reception of a temporary patient]:

LORD SANDHURST moved, after the second form in Part I of the Schedule, to insert "3. I undertake to visit the said…at least once in every three months of his temporary treatment." The noble Lord said: This is designed to impress upon the applicant for non-volitional treatment the duty of visiting the patient. Every application or petition for an ordinary reception order has to contain an undertaking to the effect that the petitioner undertakes to visit the patient twice a year. There is no similar undertaking inserted in this Schedule. It is, I regret to say, notorious that there is no effective means of enforcing that undertaking, and I rather understand that the Government, did not think there would be any advantage in inserting such an undertaking in the present Schedule. Nevertheless, I feel that an applicant for non-volitional treatment ought to realise that it is his duty to visit the patient in whom he professes to be interested, and even if he does not keep his undertaking I think it is a good thing that he should be expected to give it. I say this more especially as one of the sections which it is proposed should be adapted by rules under the Third Schedule is one which would or might enable, the applicant to direct the discharge of the patient with the approval of the Board of Control, and another section may give him power to remove the patient to another place. If he is given those powers, he ought to realise that it is his duty to visit, and I beg to move.

Amendment moved— Page 16, line 22, after ("follows") insert ("3. I undertake to visit the said…at least once in every three months of his temporary treatment").—(Lord Sandhurst.)

EARL RUSSELL

No doubt it is his moral duty to visit the patient, but we think it is undesirable and unnecessary to put a legal duty upon the applicant. The noble Lord is more accustomed to persons who are persons of property, to whom time and distance are of no great importance, but under this Schedule we are including rate-aided patients, and the Government would rather not have this in the Schedule, and would be glad if the noble Lord did not press his Amendment.

Amendment, by leave, withdrawn.

First Schedule agreed to.

Second Schedule agreed to.

Third Schedule [Matters with respect to which rules may be made by the Board of Control]:

LORD SANDHURST moved to insert, "5. Prescribing the evidence required on application for extension of temporary treatment." The noble Lord said: This is consequential upon the new subsection added to Clause 5 which enables the Commissioners to extend the period of non-volitional treatment.

EARL RUSSELL

We will accept the Amendment.

Amendment moved— Page 20, line 16, at end insert ("5. Prescribing the evidence required on application for extension of temporary treatment").—(Lord Sandhurst.)

On Question, Amendment agreed to.

Third Schedule, as amended, agreed to.

Fourth Schedule [Repeals]:

EARL RUSSELL

These are all drafting Amendments.

Amendments moved—

Page 21, line 8, after ("subsections") insert ("(2)")

Page 21, line 27, leave out ("who") and insert ("and")

Page 21, line 28, leave out ("and")

Page 21, line 30, after ("State") insert ("who")

Page 21, line 38, after ("(5)") insert ("(6)")

Page 21, line 39, leave out ("provision") and insert ("proviso")

Page 21, line 40, leave out ("seven") and insert ("eight").

On Question, Amendments agreed to.

Fourth Schedule, as amended, agreed to.