§ Order of the Day for the Second Reading read.
My Lords, I am not the normal representative of the Minister of Health in this House, but I have been selected for this duty to-day on account of the experience which I acquired a good many years ago on the London County Council, when for several years I used to visit at least two asylums every week and acted for some years as Chairman of Hanwell Asylum. My interest in, and knowledge of the subject were revived and increased when the Royal Commission was appointed in 1924 and of that Commission I was a member. It sat, as your Lordships will remember, for two years and reported in 1926. I have been responsible when on the other side of the House for asking why that Report had not been acted upon and why nothing had been done. It therefore gives me special pleasure to find myself to-day in the position of presenting to your Lordships a Bill which deals at any rate with the important parts of the recommendations of that Commission.
This Bill does not profess to create an entirely new code. That was recommended by the Royal Commission and would be very desirable, but, as your Lordships know, the system under which our legislation is conducted makes any Government reluctant to undertake too large and too comprehensive a Bill on account of the difficulties of Parliamentary time. Therefore, this Bill which is now before your Lordships is a comparatively small Bill, although the amendments which it makes are from the point of view of the treatment of patients very important. We shall welcome any improvements that your Lordships can suggest to the Government in the passage of the Bill through the House. It has been considered for several years by successive Ministers of Health with great care and we believe that we have arrived at the best solution, but it may well be that some useful 725 Amendments may be suggested and if that be so I need hardly say that we shall welcome them. The Bill is not in its main features entirely new to your Lordships' House. I see opposite the noble Earl, Lord Onslow, who introduced a Mental Treatment Bill in 1923, which your Lordships passed, and which, I think, was based on the same principle, so far as the major issues are concerned, as this Bill. I have no fear but that your Lordships will welcome this Bill to-day as heartily as you welcomed that one.
The Royal Commission was presided over by Mr. Macmillan, and no opportunity should, I think, be lost of expressing the sense of public gratitude that we all ought to feel for his conduct in presiding over that Commission. The subject was extraordinarily difficult and extraordinarily complex. The Commission consisted of twelve persons drawn from all political Parties and from all shades of thought and, after going exhaustively into all these matters, the Chairman succeeded in presenting a Report which was unanimous, except in one particular to which I will refer later. That was an achievement and is also an encouragement and a support to any one who attempts to legislate on the recommendations of that Commission. If any of your Lordships take a special interest in this subject and have the time, I would recommend them a perusal of the portion of that Report which is headed, "General Considerations," in which they will find stated in the plainest language and the simplest terms the considerations which, in the view of that Commission and in the view of the Minister of Health to-day, should animate any attempt to deal with the laws relating to mental disorder.
I will quote two or three short sentences from that part of the Report, which will strike the note on which I want to invite your Lordships to deal with this Bill. The Report says:—The keynote of the past has been detention; the keynote of the future should be prevention and treatment.And again—Contrary to the accepted canons of preventive medicine, the mental patient is not admissible to most of the institutions provided for his treatment until his disease has progressed so far that he has become a certifiable lunatic. Then and then only is 726 he eligible for treatment… Certification should be the last resort in treatment, not the pre-requisite of treatment.If we are to adopt the analogy that the Royal Commission thought we ought to have between mental disease and any other forms of disease, it surely would be rather absurd not to treat a disease until some symptom had reached a very aggravated stage. What would be thought of our modern medicine if we did not treat a case of scarlet fever unless and until the patient had come out in spots and was distributing infection to the community? What would be thought if we did not treat people with an ordinary fever until they had shown that they had it by running out into the cold with a temperature of 102° and running the risk of pneumonia?
This idea is not as new as may be supposed. As far back as 1860 the Commissioners in Lunacy stated:—The chances of recovery are much greater when the patients are placed under treatment in an early stage of the attack than when the disorder has been allowed to remain unchecked for some time.Again, in their Report for the year 1881 they stated:—For forty years and more we have directed our endeavours towards securing the early treatment of mental disorder upon which, according to all experience, recovery so materially depends.This Bill is an effort to give statutory form to these aspirations, and I think it is justified by a sentence which I propose to quote from some articles in The Times that were written by Sir Frederick Willis, a former Chairman of the Board of Control, dealing with the present position. I call your Lordships' attention for the moment to this sentence:—The evolution of asylums from mere places of detention to real hospitals has taken place.That is to say, an asylum is no longer a prison. It is no longer a place where you merely confine a man in order that he cannot do harm, to himself or others. It is not primarily a place where you confine him for that purpose, but it is a place where you send him for curative treatment in the hope that it will enable him to rejoin his fellow men. In that same article, there are some very interesting statistics of the incidence of insanity. I do not propose to read them all to 727 your Lordships, but I think it will be of advantage if I have them printed in full in the OFFICIAL REPORT.
The first statistics deal with the incidence of insanity and run from the year 1869 to the year 1926, and this is the comment that Sir Frederick Willis makes upon them:—These figures support the statement that the incidence of the disease has not been materially reduced.The change per 10,000 of population is from 4.07 in the first year to 4.48 in the last year. They also do not support the contrary statement that is sometimes made, that insanity is very largely increasing, and to that extent they are satisfactory. Sir Frederick then gives some further figures as to the recovery rate, and there it is a little disheartening to see that the rate has remained almost unchanged since 1909 and has not improved so much as one could hope it would.
We are very hopeful that, if the system proposed by this Bill is adopted, the recovery rate, or rather the number of recoveries, may be improved. I think perhaps I should make it clear that the technical recovery rate, if it means the rate per hundred of certified persons to recover, may very well become worse, because we are hoping that all the people who are successfully treated under this Bill will never become certified lunatics and will therefore be taken out of the recoverable class to which that percentage applies. But we hope that the total recoveries will be larger and that they will be more quickly effected.
[The statistics to which the noble Earl referred are as follow:—
Incidence of Insanity. Year. First admissions per 10,000 population. 1869 4.07 1879 4.46 1889 4.58 1899 4.94 1909 5.04 1919 5.25 1921 4.91 1922 4.94 1923 4.93 1924 4.41 1925 4.46 1926 4.48
Now I come to the Bill itself which really only contains three main matters of importance. The first, Clauses 1 to 4, relates to the voluntary boarder. The voluntary boarder, I may explain, is a person who is sufficiently intelligent to ask for treatment, and to wish for treatment. Clause 5 deals with the temporary boarder, who is a person who is not in that position, but who has to be treated against his will, but only for a time. Those are two important points dealing with patients. Clauses 11 to 15 give you a reconstitution of the Board of Control, to which a great deal of importance is attached. It is, I think, enough to say that the Board of Control are now constituted under an Act of 1845 to suggest to your Lordships that possibly the time has come when some amendment may be useful. The other clauses in the Bill are less important, but I should call your Lordships' attention to them as we pass.
Recovery Rate. Number of Recoveries to 100 admissions Average, 1869 to 1878 38.84 Average, 1879 to 1888 39.91 Average, 1889 to 1898 38.81 Average, 1899 to 1908 37.22 Average, 1909 to 1918 32.69 Average, 1910 to 1919 32.27 1920 32.21 1921 32.52 1922 32.29 1923 31.64 1924 34.86 1925 31.84 1926 31.85 1927 31.43]
Now, if I may turn to Clause 1, your Lordships will observe that it covers a person suffering from mental disorder who is desirous of voluntarily submitting himself to treatment, and who makes a written application. He may, without a reception order and without any formality beyond the written application, be received as a voluntary boarder, and, in the case of an unmarried person under the age of 18, the will, the voluntas, is transferred to the parent or guardian. That is possible now in the case of licensed houses and registered hospitals. It is sometimes possible in the case of single care, but it is not possible for the poorer class of the community. The present rate-aided mental hospital, or, as it used to be called in the old language, the pauper lunatic asylum, has no provision for receiving the voluntary boarder, and at the Royal Commission we had evidence of most distressing 729 cases of people who felt that they were becoming more and more unstable, more and more upset, but that a little rest, a little treatment, would probably set them right again. But no, they were unable to obtain that treatment from a recognised county asylum, because there was no power to admit them, and they had to go on until they had become so bad that they were certifiable before they could be treated. I think that proposition has only to be stated to show its absurdity.
There is another point, of course, about the voluntary boarder, and that is the danger which any doctor suffered who took such a person into single care, and who was always liable to prosecution for harbouring an uncertified lunatic. He was not allowed to take charge of a person who was certifiable unless he was certified. These people are not intended to be certifiable people; it is hoped that they will never reach that stage, and there will be some protection here in the fact that the early treatment is recognised as a possibility. I should call your special attention to subsection (3) of Clause 1, by which you will notice that a person who is received as a voluntary boarder, although he has entered voluntarily, is not allowed to leave at a moment's notice. He must give 72 hours' notice. In a sense you may say that you are imposing on the voluntary person imprisonment; in a purely legal and technical sense that is, of course, absolutely correct; but it is quite plain that it would not be safe, and it would not be in the interest of the patient, to allow him to leave at a moment's notice, since the very occasion when he would be insisting on leaving, and requiring to leave, would probably be just that occasion when he had become so mentally unbalanced as not to be able to look after himself or give himself proper care. This period of delay of 72 hours, therefore, which is by no means necessarily interposed in every case, but only where the medical officer thinks it necessary, gives the opportunity either for the patient, as very often happens, to come back to a better mind before the 72 hours are up, and to say, "I will withdraw my notice and stop," or, if it has unfortunately become necessary, to proceed to the extreme measure of certification. Without that provision it might well happen that 730 the treatment would fail of effect and that the patient would destroy the whole value of it by his impetuous action in some special moment of excitement, or owing to some irritation caused by some thing that had happened.
What are the protections of those patients? In Clause 2 your Lordships will notice, in subsection (1), that notice of a patient's: reception is to be given within two days to the Board of Control. That notice is equally to be given to the Board of Control if he dies in or departs from the institution where he is being treated; and finally, should the patient become incapable of volition, should he no longer be able to exercise a choice, or a will, he is not to be kept as a voluntary boarder for more than a month; but before the end of that period he has to be discharged unless either he has again become capable of volition—a thing which often happens—or steps have been taken to certify him. In all these cases the Board of Control is the body that, I think, the public may rely upon to see that the patient is not unfairly treated.
THE EARL OF ONSLOW
Will the voluntary boarder come under the provisions of Clause 5, temporary treatment, if he becomes incapable of volition?
Yes, and I think that that period of one month would probably be used in order to apply Clause 5 to him. That, I hope, might be possible in every case where it was not necessary to proceed to full certification. I am much obliged to the noble Earl for pointing that out. But the effect upon the minds of the Royal Commission of all the evidence that we heard, and also of the evidence we heard from the Board of Control, was that the real safeguard for every person, either insane or alleged to be insane, or partially insane, who is detained or under treatment anywhere, was the existence of the Board of Control itself—and by this Bill the powers of the Board of Control are to some extent increased. If notice is given to the Board of Control there can be no secrecy, if a visit is paid by the Board of Control there can be no concealment, and there can be no deception of the experienced officials that they would send to visit. That is really far more of a safeguard to patients than any other 731 safeguard, but I shall have to deal with that more fully when I come to Clause 5.
Under Clause 3 you will notice that a commissioner, that is, not necessarily a member of the Board of Control, but a commissioner as provided by a later clause—an official visitor of the Board of Control—may at any time visit a voluntary boarder, and he may report on the case, and then the Board of Control, if they are of opinion that his state of health is unfit for him to remain as a voluntary boarder, may order the superintendent to discharge him, or may take steps to deal with him, if necessary, as a person of unsound mind. With those protections I think there can be very little to be said against the voluntary boarders. The man enters of his own free will, his maximum detention is 72 hours if he gives notice to leave, his maximum detention is one month if he becomes incapable of free will, and at all times he has over him the controlling hand of the Board of Control, who can give orders as to what in their view is proper to be done in his case. That does not seem to the Minister of Health to leave much opportunity for abuse.
Now I come to what is, I think, perhaps a little more contentious, and that is Clause 5. That clause provides for what is called the temporary patient, a person who is suffering from mental disorder, incapable of volition and likely to benefit by temporary treatment. In his case, if an application is properly made and a proper medical certificate is given, he may be detained for six months. That period of six months is a period in which, according to the evidence and the statistics, a very large number of recoveries take place. It might not be, perhaps, as long a period as would really be useful, but the Minister of Health has been very moderate in his estimate and has only suggested detention for six months. In what way do the circumstances in which such a person is detained differ from the circumstances of full certification? So far as the application is concerned, there is no great difference on which I need dwell. The application must either be made by the husband or wife or a relative. If not, it must state why it is not made by them and what the interest of the person making it is. The patient must then be examined by 732 two doctors. In the ordinary case of certification of the rate-aided patient only one doctor is required.
But the great difference is that there is no interposition of the justice of the peace. In our view the two doctors provide a far greater safeguard than any number of justices of the peace, and your Lordships will notice that it is provided that one of the two doctors is either to be his usual medical attendant—that is in subsection (3)—or, if not, he is to be an official person officially appointed who can have no interest of an improper character in the matter. The Royal Commission suggested a rather different form of treatment for the same purpose by what is called in their Report a provisional order, and they did there introduce the justice of the peace. The provisional order has been thrown over by the Ministry of Health because, although the intention was to remove the stigma of certification, it is fairly obvious, I think, that in a very short time it would have been held as exactly equivalent. You had the doctor, the justices and all the other incidents of full certification. Therefore, this suggestion is put forward.
What harm is that likely to do? Let me read to your Lordships a short quotation from the Report of the Royal Commission. They say thatin practice instances of sane persons being wrongfully certified or improperly detained must be of the rarest occurrenceThey also say:—We think it proper to record that in none of the cases which were investigated by us were we satisfied on the evidence that improper detention had been suffered.They go on to say in connection with another matter—Ill-usage is not deliberately or systematically practised in mental institutions.My next sentence is, again, a quotation from Sir Frederick Willis—The only hope of reducing the incidence of insanity and improving the recovery rate is to alter the law so as to allow and encourage the early and skilled treatment of persons mentally ill.On the point of the justice of the peace the Royal Commission said that they reluctantly recommended retaining the justice of the peace. They recommended it merely because they were afraid of Parliament and uninformed public opinion. But they added this sentence 733 to which I am sure your Lordships will give full weight—If we were free to consider exclusively the medical treatment of the patient we should have little hesitation in accepting this suggestion.That is, the suggestion of certification without the justices.
There still exists, I think, in some places the feeling which was aroused, possibly naturally and justifiably aroused, nearly one hundred years ago against confinement in asylums and asylum treatment. For that feeling there exists no justification to-day. Every person connected with these institutions devotes his whole thought and his whole attention to curing his patient if he possibly can, and, if he cannot entirely cure him, at least to ameliorate his condition. The fear which then existed is a fear which need exist no longer. So far as rate-aided institutions are concerned, there is no temptation to them to detain the patient one day longer than they can help. They are full; they are overfull; they have difficulty in finding accommodation. The trouble recently has rather been, perhaps, the other way—that sometimes people are discharged almost before they are fit to be at large.
I submit to your Lordships that we should recognise now that a doctor is not that sinister figure which in former times he was represented to be, anxious simply to confine a man to a dungeon for life, but that he is treating mental disorder in exactly the same way as he treats any other disease, with a sole view to its cure. When we use such phrases as "the liberty of the subject"—and no one attaches more importance to real liberty of the subject than I do—let us reflect upon what the circumstances are. If your daughter has a fever is she not restrained in bed instead of being allowed to run out in the cold air to die of double pneumonia? You do not invoke the justices to do that. You do not even invoke the ordinary certificate. You do it as a matter of course. If one of your Lordships were delirious and in a fever you would be without volition within the meaning of this Act for the time. You would not know what you were doing. You would not appreciate that you were being treated. Nobody hesitates in those circumstances to restrain personal liberty until the time when it is necessary to 734 restrain it is passed, and that restraint is, of course, in the obvious interest of the patient. When the patient has recovered the patient is grateful for it. Precisely the same thing happens in the case of mental treatment. The vast majority of these patients are grateful when they recover for the treatment they have received and recognise the good that has been done them. I do not think we ought to be led away by mere words on this matter.
Then there is still another thing to be remembered, and that is the number of visits which may be paid to these patients. First of all, there are the Board of Control, entitled to visit at any time and as often as they like. Then there is the superintendent of the asylum himself who, of course, visits his patients regularly, though you may, if you choose, regard him as an interested party. Then, in the case of the rate-aided asylum, there is the visiting committee or, in the case of the licensed house, the visiting justices. Then there are the patient's friends who are at liberty to visit the patient and hear his own account, for what it is worth, of his treatment. Finally, in the case of patients who have property yon have the Lord Chancellor's visitor. So that I think your Lordships may take it that these people are, and will be, well protected. You will observe in subsection (9) that in addition to the Board of Control's visit, within one month the patient is to be visited by two members of the visiting committee or, if not, by two of the visitors of licensed houses, and that after that visit they are to sign a statement either to the effect that it is proper the patient should continue to be detained or that it is not proper, and then they shall, within two days again, report to the Board of Control stating their opinion. You will notice in subsection (12), dealing with the powers of the Board of Control, that at any time they may order that a person received as a temporary patient shall be discharged or that steps shall be taken to deal with him as a person of unsound mind.
I think the public really have no reason to fear these provisions. Our whole object nowadays is to assimilate the treatment of mental disease to the treatment of other disease. For his own safety, and sometimes for the safety of other people, it is unfortunately essential that the 735 patient should be placed under restraint and deprived of his liberty, which, as I have tried to point out, is sometimes only an incident and may be of only a few days' duration. That it should be necessary to put upon him the stigma of full certification for that purpose, or that he should have become so bad that he must be fully certified before you treat him at all, is a thing which I think we can no longer tolerate. We look upon the provisions in this Bill as likely to do a great deal to prevent people ever reaching the stage of certification, and to empty, in that sense, our certified wards, and to send the people back without that stigma which is a very serious stigma both in the matter of reputation and in the matter of employment.
I leave that part of the Bill and I turn to Clauses 11 to 15. These are the clauses which reconstitute the Board of Control, and this reconstitution is in accordance with the views which the Royal Commission expressed. As a member of that Commission I welcome it, and I will explain to your Lordships what the present position is. It is that there are about twelve Commissioners, some medical and some legal. They have the duty not only of regulating policy and principles, but of visiting all these various institutions which this and the principal Act impose upon them. The result has been that they are so busy running about the country that they are never able to have real consultative committee meetings in London, as they should have, to decide upon the principle and the policy to be applied. These clauses propose to divide the Commissioners into two parts. There will be five in all who will constitute the Board of Control, and the idea is that those five shall have primarily as their duty the co-ordination of the control of all the general matters relating to administration, of which there are a great many—provision of drugs, the qualification of nurses, the staffing of asylums, the construction of asylums: your Lordships can imagine the thousand and one matters of policy that are proper to be centred and fully discussed—and that those five people shall be able to meet regularly and without interruption and discuss these matters. They will be called the Senior Commissioners.
There will be other Commissioners, and there will also be Assistant Commissioners, 736 and those Commissioners and the Assistant Commissioners will primarily do the visiting that is required. Clause 13 provides that one Commissioner may carry out visits which are at present sometimes required to be made by two. In a great many cases the law requires two Commissioners to visit when there is no sort of reason why more than one should do so. I may, perhaps, tell your Lordships that it has been found impossible to carry that out for some time now on account of the difficulty of the numbers; but under this clause, as the Commission will now be constituted, the visiting will primarily be done by the Commissioners and the Assistant Commissioners.
Five members of the Board of Control will meet regularly and control policy, but will, of course, themselves visit these institutions from time to time in order to keep abreast of what is being done and to learn with their own eyes what is going on. You will see in Clause 11 first of all that there is to be a Chairman. That is in subsection (1). In subsection (2) there is to be a Legal Commissioner, a Medical Commissioner and a woman. That accounts for four, leaving one place vacant which can be filled up by another Medical Commissioner, or as may be thought most desirable. The existing Commissioners who are not members of the new Board of Control will continue as Commissioners, and there will also be Assistant Commissioners. Subsection (7) provides that such salaries shall be paid to these Commissioners as the Minister and the Treasury may determine. The Royal Commission, as your Lordships will see if you read the Report, expressed a very strong view that the position of the Chairman of the Board of Control was so important and so responsible that a substantial salary should be attached to it. Clause 12 mainly provides that the Chairman shall be primarily responsible for the arrangements. I think the only other clause I may call your Lordships' attention to is Clause 15, giving a power to make rules, which was, I think, also in the Bill of 1923. The Royal Commission attached a great deal of importance to this reconstitution of the Board of Control, because it became very evident to them that it was impossible for the work to be done as it should be done 737 under the present constitution, and I think perhaps it is, from the point of view of administration, a reform which will be as useful as any reform could be.
The other clauses I need not say much about. Clause 6 requires the local authorities to provide the necessary accommodation for temporary patients. It is not likely to increase their total accommodation. In fact, we hope on the whole and in the end it will diminish it. Clause 7 provides for the appointment of a Visiting Committee. Clause 8 is a clause which provides for the circumstances which have called for a provision of this nature. If we come to the miscellaneous clauses, I ought to call your Lordships attention to the substituted subsection (2) in Clause 16, which is an attempt to provide some further protection for the medical men who give certificates. Recent actions, particularly, perhaps, the Harnett case and other actions your Lordships will remember, have not unnaturally frightened medical men, and they are very chary of giving certificates for which they may be shot at, particularly, as in the Harnett case, twelve years later. It is a very grave responsibility for a professional man to take. It not only costs him money, it may ruin him professionally; and the result was that after that case there was a very great shyness on the part of doctors in giving these certificates in proper cases. I think no one can blame them for that. They were not paid more than an odd guinea or two and they were taking a very serious risk. We were pressed on the Royal Commission by the doctors to give them complete immunity. Those of us on that Commission who were lawyers felt that that would be contrary to the principles of our law, and that we could not go as far as that. The doctors themselves said, when asked: "No, we are not asking, and we do not ask, immunity for a rascal or a rogue or even for a thoroughly reckless person. But we do say it is a little hard that people who are exercising their profession honestly and to the best of their ability should be shot at in this way."
THE EARL OF ONSLOW
Does this immunity apply to certificates regarding people not capable of volition under Section 5 of this Bill?
§ VISCOUNT BRENTFORD
Yes, if the noble Lord looks at subsection (2), he will see it refers to anything done under this Act.
Yes, I think so. I would not like to answer off hand, but I think it applies to this, too. I was saying that we considered this very carefully. The legal members of the Commission gave attention to it and took advice for several days and talked the matter over and finally recommended the form of words which your Lordships now find embodied in the substituted subsection (2). The effect of these words is not to give the doctors immunity, but to shift the onus. Let me read what the Bill says:—…such proceedings shall…be stayed on such terms as to costs and otherwise as the Court may think fit, unless the Court is satisfied that there is substantial ground for alleging that such act was done in bad faith or without reasonable care.I cannot help feeling that that will present some difficulty to His Majesty's Judges, but there are Statutes containing somewhat similar provisions on which they now and then act. There is a Statute about vexatious actions, and there are other Statutes of that kind. What it really means is that the plaintiff will have to satisfy the Judge in limine that he has some sort of a case. It does not follow that it is a good case, or that he will win it, but he will have to satisfy the Judge at an early stage that he has a prima facie case and that there is something which properly requires investigation. It is not by any means a final protection to the doctors—very far from it—but it is some protection, and I hope it may do something to protect them from suffering from legal actions when they have done the best they can.
Clause 17 makes urgency orders applicable to rate-aided persons. Curiously enough urgency orders were only applicable to private patients. Why, I do not know. It is a useful form and the rate-aided person could only be taken to a workhouse if he was found wandering or in other circumstances when he was dangerous to himself or to others. This will give the opportunity of making an urgency order in all proper cases for removal to a mental hospital. 739 Clause 18 is one to which a good deal of importance is attached. The people maintained in rate-aided mental hospitals were called pauper lunatics, the place in which they were maintained was called a pauper lunatic asylum, and the whole thing was done under the Poor Law. The extraordinary result of that legislation was this. Your Lordships will hardly credit it but there is no doubt that what I am saying is correct. If a person became suddenly mad in the street, was taken by a relieving officer to the workhouse, was there certified and sent to an asylum, even if subsequently it was discovered that he was a person of means, even if he repaid to the Poor Law authorities the whole of the expenses to which they had been put, he became and remained a pauper. That is clearly a ridiculous state of things. It is desired now—and the passing of the Local Government Act last Session makes it possible—to assimilate the treatment of this form of disease with the county medical services. This clause provides in terms that—A person shall not be deemed to be in receipt of poor relief or be deprived of any right or privilege or be subjected to any disability by reason only….of anything done to him under this Act or under the principal Act. It is time that was done
Clause 19 is merely a provision enabling county councils to use those workhouses which will come into their possession under the new Act. Clause 20 carries out what I have just been speaking about, the change of name. I hope I have succeeded in convincing your Lordships that the change of name implies a change of spirit, and that the treatment will be different, and that therefore it is appropriate that these hospitals and the people who are treated in them should receive new names and new appellations.
One word about the things which are not done under this Bill. As I have already said it has not made a complete code. That is for obvious Parliamentary reasons. It has not assimilated completely the method of certification in private and pauper cases which for historical reasons no doubt differ in the Lunacy Act of 1890. That would have meant re-writing the complete code and it has therefore been left over. The Bill has done two things which meet the points that matter; it has given the 740 urgency order to the rate-aided persons and has removed the pauper stigma from the rate-aided cases. Neither has the Bill dealt with the vexed question of licensed houses. So vexed is the question of licensed houses that it is the only question on which the Royal Commission disagreed. There were six on one side and six on the other. You could not have a more perfect disagreement. But Parliament must some day or other make up its mind what it is going to do about licensed houses. The licensed house is an institution for the treatment of insanity, which is run by a doctor or several doctors, or at any rate has to be staffed by a doctor, whoever is the owner for private profit, and the public are perfectly right, no doubt, in looking with the very gravest suspicion upon places of that kind.
When Parliament last dealt with this question in 1890, it adopted a quite illogical and a quite indefensible halfway house attitude. The existing private licensed houses were allowed to go on; no new licensed houses were allowed to be created. No number of beds were allowed to be added to those already in existence in the licensed houses then existing. In effect, Parliament said: "We are not quite sure whether this thing is so bad that it ought to be swept away altogether, but at any rate we are not going to let it be increased," and the number of beds in 1890 is the number of beds up to this date. That is not a logical attitude. I am not going to say which of the two other attitudes is right, but it is obvious that one must be right. Either a licensed house is a necessary institution serving a beneficent purpose in the case of a private patient who can afford to pay for treatment, or it is an evil that ought to be swept away. Actual inconvenience is caused by this because in fact licensed houses are not so geographically distributed as to be convenient. That has nothing to do with this Bill, but, as I was mentioning what was not in it, I thought I ought to mention the matter on which the views of the Royal Commission were divided half and half.
I have been through this Bill very carefully with the Chairman of the Royal Commission and he has authorised me to say that he welcomes it as an 741 instalment, and a most useful instalment, of the reforms which the Royal Commission proposed. I beg to move.
§ Moved, That the Bill be now read 2a.—(Earl Russell.)
§ VISCOUNT BRENTFORD
My Lords, I have not had the opportunities that the noble Earl has had of dealing with this matter, though for a certain time while the Commission was sitting I occupied the position of Minister of Health and therefore I was in somewhat close touch necessarily with the Board of Control and the questions, so far as the administration is concerned, which were submitted to this Royal Commission of which the noble Earl has spoken. For many years the question how best to deal with insanity has troubled Parliament and this country, and I am very glad to be able to associate myself with the noble Earl in what he said in regard to the modern view of the treatment of insanity—that it should be taken at the earliest possible stage and be put as: far as it can be put upon the same lines as ordinary disease. But of course, I shall be bound to say before I finish my observations that there is distinctly a difference between the disease of insanity, whether it is mere lack of volition or complete insanity, and every other physical disease to which flesh is heir to. That is, of course, the question of the liberty of the subject.
For a couple of hundred years at least there have been Commissions and Inquiries and Acts of Parliament of every kind, and before the Act of 1890, which is really the foundation of the existing Lunacy Laws, there were forty or fifty Acts dealing with this question. If you look at the Act of 1890 you will see running throughout that Act the meticulous care of Parliament for the liberty of the subject. It is upon that side of the question that I want to address a few remarks to your Lordships, because the noble Earl very frankly stated in his speech that he was prepared to consider Amendments to the Bill. Speaking for myself, and I think I may say also for my friends, while I do not intend to oppose the Second Reading of the Bill, there will be certain points to be raised on the Committee stage which I think ought to be mentioned now because they appear to be of considerable importance. I hope the noble Earl, when he has heard what these points are, will consult with 742 us as to necessary Amendments in order that his Bill may go through in a satisfactory form.
The Royal Commission was appointed in 1924 and I should like to join with what the noble Earl said in regard to the great gratitude we owe to my friend, if I may call him so, Mr. Macmillan, who acted as Chairman of that Commission. I should like also to call attention to the names of three members of the Commission—first, the Chairman, Mr. Macmillan, a lawyer of very great eminence, who was a Law Officer in the last Socialist Government, the noble Earl himself and the present Attorney-General, Sir William Jowitt. That Commission was appointed to enquire into the existing law and administrative machinery in England and Wales in connection with the certification, detention and care of persons who are or are alleged to be of unsound mind. Secondly, they were to enquire into the extent to which provision is, or should be, made in England and Wales for the treatment without certification of persons suffering from mental disorder. I should like to say at once—I want to clear uncontentious points out of view—that I entirely accept the view of the Commission that there is no ill-treatment, or rather that no cases of ill-treatment were proved to them. I was in touch with some of the Commissioners while the Commission was sitting, I read some of the evidence and I know that they had cases put before them, but they were not satisfied that there was any real ill-treatment. That, however, does not quite go far enough.
The noble Earl told us quite frankly that there was both Parliamentary hesitation and uninformed criticism in regard to the question of the liberty of the subject. Under the existing law whenever a man or woman has to go into one of these homes, private homes, single-case homes, or rate-aided institutions, there has to be an inquisition of some kind or another by some kind of judicial authority. As the noble Earl knows, the great inquisition has now almost gone into desuetude: that was the inquisition by a Master in Lunacy with, or without, a jury. I can remember that in my younger days, when I practised the law more than now, that was a not uncommon occurrence; but that has gone nowadays. 743 There is now a petition for a reception order certified by two medical men and then there is a safeguard that the petition must be presented to a special justice of the peace who has the power, if he so desires, to see the patient before the reception order is issued. In passing may I remark that that is not only a safeguard for the patient, but for the medical men themselves.
The noble Earl is asking—I will refer to that later—to take away a great deal of the legal responsibility of medical men and at the same time he takes away the one great safeguard both for the medical men and the patient who is proposed to be placed in a hospital. If one looks at the Bill itself—I think perhaps that is the best way of dealing with the question—it will be seen that the voluntary boarder is dealt with under Clause 1. The noble Earl referred to such a person as a man or woman who desires, and rightly desires—sensibly desires, if you like—to place himself or herself under control for the purposes of being benefited by medical treatment in—I must not call it an asylum, but in a mental hospital. I agree that if a man or woman has sufficient sense to realise the desirability of treatment he or she may quite rightly place himself or herself there, but the noble Earl has referred to another case, and that is the case of a young person under the age of eighteen. Why eighteen is fixed I do not know, but I suppose that anybody over eighteen is for the purpose of this clause to be treated as an adult entitled to put himself into a mental home. The case of the young person under eighteen I think should be most carefully considered by your Lordships' House, which has always stood for the liberty of the subject, has always protected the liberty of the subject.
Take the case of a boy or girl of seventeen who may be a little silly, as the expression is used in some parts of the country, who may be also a great burden at home, troublesome to the parents. That young person without any assent on his or her part, a boy or girl of seventeen, nearly eighteen, may be placed as a voluntary patient—there is not much that is voluntary about it—on the written request of the parent, the guardian, or a person who acts in the position of guardian. In my view the Bill needs 744 amendment in that respect. There is not even to be a medical certificate, much less any judicial authority. It is merely left to the parent or guardian to say: "I am very worried by Tom or Jane, who is very troublesome. I will lock him (or her) up." The noble Earl smiles, but under the Bill I think it is quite possible to do that. There is to be no doctor's certificate and no judicial authority at all. Of course I know that there is a Board of Control over and above all doctors and all cases, but the noble Earl, if I may say so, proved or rather tried to prove too much in regard to the position of the Board of Control.
If the control of the Board is so effective in regard to these people who may be placed under voluntary detention, or under Clause 5 in temporary detention, because they are incapable of volition—that I will deal with in a moment—if the safeguard of the Board of Control is so great, why trouble at all about medical certificates, why trouble at all about the reception order which still, I take it, will exist under the old law for the man who is flagrantly and patently insane? It is rather remarkable to retain, as the noble Earl said in bringing in his Bill, the greatest safeguards, including the judicial safeguard, in the case of the man who is flagrantly and patently insane, and whom everybody would put into an asylum, while for the more doubtful cases the safeguards are swept away. I do suggest to the noble Earl that he must reconsider the first clause of the Bill. As regards adults, I should prefer the age to be 21 rather than 18, and I am not sure that the young man or woman of 18 or 21 ought to be allowed to put himself or herself into a mental hospital for treatment without any medical or judicial certificate. That is the position under the noble Earl's Bill, and I am not satisfied that parents or guardians or "any person who undertakes or performs…. the duty of a parent or guardian "—it is a curious expression—ought to be allowed to put people at the age of 18 into homes for medical care.
If I may turn to Clause 5 relating to the temporary treatment of persons without full certification, here we find a reference to people who—I think this is a new expression; I have not been able to find it in any Act of Parliament relating to 745 lunacy—are incapable of volition. It is difficult to know quite what that means. The gradations of lunacy are so many and shade from one to another so easily that I think the noble Earl has tried to find a new expression to provide for these temporary cases. I wonder whether the noble Earl would consider me incapable of volition if I said: "I am blowed if I will go into a hospital." I will use no stronger language than that. The patient may be slightly insane, but he has enough volition to say: "I will not go in;" and yet he may be a person for whom treatment would be highly desirable. I think that this portion rather needs amending, and I am certain that there must be an Amendment dealing with this question of a judicial decision.
Let me tell your Lordships why I mentioned the names of these three members of the Commission—namely, Mr. Macmillan, the noble Earl himself and the present Attorney-General. The noble Earl referred to the question of judicial authority, and I will tell the House quite definitely that the noble Earl and the Government have thrown over the Commission and the Report which these three gentlemen, including the noble Earl himself, signed. I do not want to weary the House, but this is so important that perhaps your Lordships will forgive me if I read the clause on page 160 of the Report. It runs as follows:—We recommend "—and this is a unanimous recommendation—that for the purposes of the provisional treatment order "—that is the one that I am dealing with—and of the reception order, the order should be made only by a judicial authority specially appointed under Section 10 of the Lunacy Act, that for this purpose an effective selection should be made of the magistrates most suited to undertake the duties, and that Section 24 (4) of the Lunacy Act of 1891 should he modified accordingly.We consider that both in regard to the provisional treatment order and the reception order the judicial authority should be required to exercise a directed discretion, i.e., he should be required to consider whether it is necessary to see the medical practitioner or practitioners who are responsible for the recommendation or the certificates; whether further investigation is necessary in regard to any delusions alleged in the certificates or recommendation; and whether the patient should be informed of the allegations.746 That is the first portion to which I desire very strongly to call the attention of your Lordships' House.
It is remarkable also that when the Mental Treatment Bill was brought into your Lordships' House by my noble friend Lord Onslow, and was passed by this House, there was again a provision in regard to temporary treatment, and there was a distinct subsection, to which the noble Earl did not refer, in which it is stated:—Where the person to be received as a patient is incapable of volition or is a minor, there must be annexed to the recommendation for treatment a statement signed by a justice of the peace or a minister of religion to the effect set out in Part II of the Schedule to this Act.That, as I am sure my noble friend will agree, was a concession, a breach of the judicial principle which had always up to this time been regarded as essential in dealing with people who were non compos mentis. But though that Bill passed your Lordships' House, it did not pass the other House and is not, of course, the law of the land. The law of the land at the moment quite clearly is that there must be a judicial decision.
I should like also, if I may, to deal for one moment with the portion of the Report which was read by the noble Earl, showing the hesitation of the Royal Commission. I think it is the more forcible from the fact that they did hesitate. They said:—If we were free to consider exclusively the medical treatment of the patient, we should have little hesitation in accepting this suggestion. But "—these are the words that the noble Earl did not read; probably he overlooked them—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.The noble Earl signed that document, as did his colleagues, including the present Attorney-General, and though they signed it with reluctance the very fact that they signed it with reluctance means that they were so impressed that, though they would have liked a Bill in the form in which the noble Earl has introduced this Bill, they were convinced that the jealousy of the law of England for the liberty of the subject was such that it was unwise and undesirable to have it.
747 I appeal from the noble Earl as sponsor of this Bill to the noble Earl as a member of the Commission who signed this Report, and I earnestly wish, and I most distinctly ask him, that when the Bill comes to Committee some form of judicial inquiry—I do not want to be ton dogmatic—shall be grafted on to it before any man or any woman who is incapable of volition, which means in the incipient stage of insanity, who is unable to understand what he or she is doing or what is being done for him or her, should be locked up in any form of mental hospital without, as in the past, some form of judicial inquiry. I think this is the more essential because of what the noble Earl said about transferring the onus of proof (Clause 16) in regard to the medical man. I am willing and anxious to do all that I can in this respect. I well know, as a lawyer and as one who has held Ministerial office in the other House, the scandal—I think it is not too strong a word—of certain actions taken against medical men. We want to get rid of that. I am sorry that I do not see any noble and learned Lord here to-day, but I should have liked the opinion of one of the Judges upon this proposal of shifting the onus of proof.
I will only say here and now that I am prepared to do all that I can to help the Government, but, if the medical man is to be given this protection, at least the patient must have the protection of a judicial inquiry that he has up to the present time. You are taking away with both hands. You are taking away both the judicial inquiry and the right to sue the medical man who may have made a mistake in these matters. But more than that. If your Lordships will look at this clause of the Bill it does not only apply to the doctors. Not at all. I will read it:If any proceedings are taken against any person for presenting any such petition or for signing or carrying out, or doing any act with a view of signing or carrying out, any such order, report, or certificate, as mentioned in subsection (1) of this section…—and so on. It is not only the doctor. I do not know why it has been thought necessary to put into the Bill this protection, not only for the doctors but for the person who signs the petition for the reception order, the husband, the wife, the parent or the guardian. At least, there is no reason for transferring the onus of 748 proof in regard to them. But I do quite definitely ask the Government to consider that point also before the Bill reaches the Committee stage.
With the other clauses, if I may respectfully say so, I largely agree. With regard to the Board of Control, I think it desirable that there should be a more centralised board. I should like to hear from the noble Earl more about the composition of the Commissioners, and I know that my noble friend Lord Onslow is very keen indeed that the Board of Control should be strengthened, particularly the medical element in it. I am quite sure that after the House has heard my noble friend the Government will be prepared to accept a reasonable Amendment in that direction. There is one other thing, in regard to the transfer of powers from the Minister of Health to the Board of Control, about which the noble Earl said nothing. I have not referred to all the Acts of Parliament, but I have been through the Schedules, and I think there are certain of those powers which ought to remain in the hands of the Minister. After all, the Minister of Health is a Member of Parliament, and, as a Minister, he can be called to account for the exercise of his powers in the House of Commons or in this House. The Board of Control cannot be so called to account. You may say, of course, that the Board of Control is appointed by the Minister, and the Minister has some shadowy control—not so much if this Bill becomes an Act as he has to-day: and I should like the noble Earl, if he would, to consult with the Minister as to how far it is necessary to transfer all those powers. I think the House, if your Lordships read them carefully, will see that it is too great a transfer of powers from the Minister to the Board of Control.
Those are the views which I felt bound to express to your Lordships' House. I am sure that in this Bill there are the germs of great good; that, taken as a whole, it will very largely improve the medical position, the medical care and the medical treatment, particularly the incipient medical treatment of those who are a little bit over the border line between sanity and insanity. At the same time, I must quite respectfully suggest to the Government that, while that is important, it is still perhaps more 749 important that this House and Parliament should jealously guard the liberty of the subject, and should not allow the proposals of this Bill to be carried into execution without at all events a very much more careful consideration of an Amendment which I shall hope to submit, grafting on to the Bill something like the existing protection—in a modified form if the noble Earl so desires—to give some form of judicial or magisterial inquiry before these men and women, who have no volition of their own, can be placed in medical homes.
My Lords, it is really hardly necessary that I should express approval of the action of the Government in taking their courage in their hands and introducing this Bill, which I have regarded as very necessary for some considerable time past—ever since, in fact, the Royal Commission reported, and indeed before that time. It was a matter of great regret to me that the Bill of 1923 did not become law. Therefore, speaking in general terms, I approve of the Bill. But there are two or three points which afford me more gratification than any other parts of the Bill. In the first place, I congratulate the Government on not attempting to overload it. They are very wise in endeavouring to deal only with the most pressing aspects of the matter, not only because of the question of Parliamentary time, but also because if you endeavour to make a Bill too big you may endanger it altogether by arousing opposition which you may not have time or opportunity to deal with.
Unlike the noble Viscount who has just spoken I was extremely glad that the Government have had the courage to differ in some respects from the Report of the Royal Commission, and not to connect the question of temporary treatment with any judicial or legal proceedings. It seems to me that what you want is as far as possible to emphasize the medical aspect of the matter, and to dismiss from your minds any question of placing the patient in the position of one who is a sort of criminal—for that is what it comes to: he has to have some sort of trial as to whether he ought to be at large or not. I feel very strongly that it is most important, both from the point of view of the patient's treatment, and also from the point of view of the education of the public, that the medical 750 aspect of the case should be emphasized in the manner in which the present Bill emphasises it. Another provision of the Bill which I particularly welcome is one which the noble Earl did not mention, and that is the provision for the aftercare of the patients by local authorities, or with the assistance of the local authorities through after-care associations. There is no doubt that the after-care of patients is nearly, if not quite, as important as their treatment during the period of detention. That does not apply only to poor people. One meets constantly with extreme nervousness on the part of the friends and relatives of patients, and it is very important indeed to find an established society which will endeavour to assist in the after-care of patients who have been under treatment, particularly in cases where opportunity is wanted to place a patient out on trial.
There are two or three suggestions I should like to make, which I think may even contribute to the improvement of the Bill. With regard to the voluntary boarder, I should be glad if the loss of volition for a month did not automatically put an end to the status of the voluntary boarder. Up till now the Board of Control have, I believe, exercised a discretion in regard to the position of voluntary boarders, and what I would suggest in alteration of the provisions of subsection (3) of Clause 2 is that instead of requiring the voluntary boarder's status to be terminated in the case of loss of volition, notice should be given to the Board of Control, and they should have power, as they have under the next clause, to determine whether the patient should be treated as a non-volitional case or certified. I know that the fear of certification is a deterrent to persons who might take advantage of the position that they can acquire as voluntary boarders. I know of cases in which voluntary boarders have been frightened away from an institution by the fear of certification. In Scotland, where their methods are at least as enlightened as they are in this country, the patient is allowed to retain his position as a voluntary boarder so long as he does not insist upon the right to be discharged. I may mention here how pleased I am to see that the period of notice is increased to 72 hours from 24 hours. The 72 hours can be taken advantage 751 of, as the noble Earl pointed out, in case there is need to place some restraint on the patient.
Again, I should like to see a little more discretion in regard to non-volitional patients. There was a provision contained in the Mental Treatment Bill of 1923, that in the case of a non-volitional patient who shows signs of recovery but has not completed his recovery at the end of six months, the Board of Control should be able to extend the period of six months for a further period of three months and, if necessary, for a still further period of three mouths, so that it should not exceed twelve months in all. That is a provision which I should very much like to see added to this Bill.
I very much regret that one recommendation of the Royal Commission has not been adopted. On page 93 of their Report the Royal Commission comments upon the power of the petitioner in regard to the discharge of a patient, and points out that the power may be used to the detriment of the patient because the only restraint upon it is that the medical superintendent may certify that the patient is dangerous or unfit to be at large. The Royal Commission then go on to recommend that he should also have power to certify that discharge to the petitioner would be contrary to the welfare of the patient. If rules are made under subsection (5) of Clause 5 of the Bill—what is intended, I suppose, is to assimilate the position of an applicant for voluntary treatment to that of a petitioner—I hope there will not be unqualified power to direct the discharge of the patient, and that regard will be had in any rules that the Board of Control may make to the recommendation of the Royal Commission in this respect.
I should also like to enquire as to the qualifications of the proposed Assistant Commissioners. I am not quite clear from what the noble Earl said, and from my reading of the proposals in the Bill, whether Commissioners will be appointed in future as well as Assistant Commissioners. The noble Earl's language led me to suppose that it might be the intention, but as far as I can see from reading the Bill the only Commissioners there will be besides the Senior Commissioners are those who are already Commissioners and who will continue to be Commissioners under the proviso in their 752 favour. The only power to appoint appears to be a power to appoint Assistant Commissioners. I wish to emphasise the importance of the qualifications of Assistant Commissioners being at least as good as those of the Commissioners of the present day. Patients are often very shrewd. They are like schoolboys in this respect, that they know when they get the best. I am a little afraid that they may lose confidence if they feel that they are not being visited by first-class men. Prima facie I would suggest that the qualifications should be the same as those provided by, I think it is, Section 151 of the principal Act.
Parenthetically I may remark, that although I should not adhere to the necessity for having an equal number of legal and medical Commissioners—I may be prejudiced because I am a lawyer—I think that some value is to be attached, and ought to attach to the legal qualifications. I have found in my own experience patients expressing a desire to see me because I was a legal Chancery visitor, and there is a tradition on the Board that Lord Justice Bowen had expressed the opinion that the legal visitor must always go in his rotation although the medical visitors might exchange circuits, because the patient was entitled to see a legal visitor at least once in three years. Therefore I think that the legal element ought still to be recognised as having some value in the qualification of a Commissioner. A further suggestion I would make is that in the appointment of Assistant Lady Commissioners regard should be had to nursing qualifications. It is exceedingly desirable, I think, that some at least of the lady visitors should have nursing experience.
That is all I have to say regarding the treatment aspect of the Bill. But I am anxious as to whether the provision for shifting the onus will be sufficient to relieve the minds of the legal profession, particularly having regard to the real increase of responsibility, as pointed out by the noble Viscount, that would be thrown upon them in—I will not use the word "certifying"—but recommending non-volitional cases. There is no doubt that the intervention of a magistrate greatly relieves a medical man of responsibility. I have observed in the course of my studies that there is 753 judicial authority for doubting generally whether the sole and legal cause of detention is not the judicial act of the magistrate and not at all that of the certifying physician. But that would certainly not be so in regard to the non-volitional cases. Therefore I think that the position of the medical man who has to take a serious responsibility should be strengthened as far as possible. I am afraid that I do not see any very great protection in the shifting of onus because, as things stand at present, if an action is brought a medical man has to go into Court prepared with all the evidence to justify his position, and it is a very poor case which cannot produce some prima facie evidence which throws the onus upon the medical man. Therefore, if possible, I should like to see some provision inserted which would make the position of the certifying physician or recommending physician somewhat safer than it is at present. I may possibly venture to put on the Paper some Amendments in the directions I have indicated.
§ LORD DAWSON OF PENN
My Lords, this Bill appears to me to make an attempt at long last to adapt legal enactment to informed opinion. I venture to say this Bill will be rendered nugatory unless this House can persuade itself to disentangle its old ideas about machinery, for it is useless to have a new idea and seek to embody it in legislation unless you are prepared to take a new view of your methods to correspond to the newer methods of your idea. That is the first and general criticism I would make of the speech of the noble Viscount opposite (Viscount Brentford). This idea has been growing for years. Informed opinion has been wanting reform, and the public has gravely suffered because it has not had the reform I take it that the object in mental as in bodily disease is early diagnosis and early treatment with a view to prevention of more grave maladies arising. As the present law exists, obstacles are placed in the way of such early diagnosis and such early treatment. The law is based on the assumption that mental ailment is insanity, insanity which is the final result of many deranged mental processes, and there has grown up, therefore, in the public mind the notion that any kind of mental disease is associated with some slur, some disability, some permanent 754 disadvantage inflicted on that person and on his family. The result is that anybody who is afflicted with mental ailment, and the friends of that patient, unconsciously enter into a conspiracy to prevent that ailment being handled, for the simple reason that they know there is only one way of that condition being treated, and at any rate there is a danger, if it is thus treated, of that patient being dubbed insane and treated as an insane person. To my mind, therefore, it is necessary to make the machinery of this Bill as new and fresh in its shape and form as the ideas which inspire it.
If you leave what we think of as insanity and come down to mental derangement, you will find that it is constantly side by side with physical derangement. It is often a matter of chance whether a patient who has been ill suffers from a mental complication or a physical complication. There is a close connection; the two are often blended with each other at one stage as distinct from the end result—namely, insanity. The two conditions want to be treated as nearly as possible alike. We want the world to look upon the one as on all fours with the other. I will give you a simple example. You take a patient who is afflicted with typhoid fever. There are certain complications that follow on typhoid fever. It is a matter of chance whether that patient suffers from a clot on the brain or from some temporary mental derangement. Why should you treat one differently from the way you treat the other? It may be you have been restraining that patient in the acute stage of the illness, restraining him if necessary through delirium, and why should not you apply the same medical treatment to the mental complications as you do to the bodily complications? We have to keep constantly before us in building up any new Act of Parliament that now conception.
I will venture to say this, that with the civilisation such as we have to-day, with the increasing speed and strain of life, with that characteristic of civilisation in which the material progress is going too far ahead of man's powers of adaptation, it will inevitably follow that you will get a larger number of temporary mental troubles; and you will find a blend, you will find a physical trouble 755 followed by mental symptoms, and mental symptoms followed by physical ailment. There is a greater merging as between the one and the other. The fact is that disease, if I may use the expression, breeds less and less true. It conforms less and less to type. In the days of acute infections, when the causes of disease took the form of an invasion by a virulent agent or infection from without, the force of the external agent was such that it reduced the sufferers almost down to a common type, with the result that the type of illness was relatively easy and uncomplicated to treat and manage. But in these days, when acute infections are gradually being wiped away, when the external agents are less strong, the colour and the pattern of disease is more likely to be determined in greater degree by a man's make-up, his family history, his environment, the strain he has been liable to meet. The result is that you get a more complex picture than in days gone by, and in that complex picture you very often find such conditions of mind as we are discussing this evening. I would, therefore, plead with your Lordships, in approaching this question, that you should see to it not only that we have buried the old ideas of mental ailment, but that the machinery is new in its outlook, and not cramped by a too-close adhesion to the machinery of previous Acts of Parliament.
If I may cast my fly from the general considerations I have ventured to put before your Lordships to the clauses of this Bill, it is, if I may say so, a really considerable advance, which, I may tell your Lordships, will have the support of all the best thought in the medical profession. I come now to the first class of mentally afflicted people, temporarily mentally afflicted people—namely, what I may call the voluntary boarder class. And if I may stop here for a moment, may I make an appeal to the noble Earl who introduced this Bill to get rid of that terrible word "boarder"? I want to call them mental patients. When he calls them mental boarders I cannot but see the remnants of his former legal training. He has seen them, perhaps, mentioned in previous Acts of Parliament, and he cannot quite shake himself free from that association. They are not boarders; they are patients. 756 They are just as much patients as patients suffering from physical disease, and I suggest they should be called patients. But that is only by the way. As far as the first criticism of the noble Viscount opposite is concerned, I cannot see any objection, in fact, I see rather an advantage, in protecting the young up to the age of 21, and strengthening that clause by not giving sole power to the parents, tout providing that there should be a medical certificate. That would be an improvement in the Bill.
To my mind the newest and the greatest idea in the Bill is that part of it which refers to those of lost volition. A large part of the benefit that is going to accrue from this Bill will depend on the wisdom and the courage of Parliament in the clauses that set forth that idea. Take those persons who have lost volition. That is a condition which quite commonly follows physical illness. Take as an example a woman who has puerperal fever. She will go through a chapter of physical illness with a raging temperature and, supposing that she survives that first stage, one of the complications she is liable to is that she may become heedless, helpless and almost completely indifferent. She loses her volition. Are you going to say that before we can do anything to that patient we must seek a judicial authority? If you are going to do that, you are going to remove the benefit of the clause. You are going to revive by the insistence on judicial authority all the old prejudices which were entangled round your old Acts. You are going to have men saying: "I am not going to have my wife brought before a judicial authority and stamped as insane." If you insist on that you will bring back the old stamp of insanity. I ask the House to show a little more courage.
Now I come to judicial authority. I would ask you to believe that technical knowledge has grown, that the medicine of to-day is not the medicine of fifty years ago. It is true of medicine, as of any skilled calling, that it becomes so technical that you have to trust the people who have studied the calling. That is going to be a problem of government in the future. So technical and so extensive and so rapidly does knowledge grow that Government Departments will not be able 757 to master all the knowledge of this or that skilled calling. They will have to fall back on the skilled advice of each profession in turn. Medical men now have greater knowledge and greater judgment. There is a public opinion rising up in the profession that grows stronger and stronger each year. It is the public opinion in the profession which is the great safeguard against abuse. If you once introduce judicial authority, wholly unsuited to judge of the merits of the question and more and more unsuited every year, two things will happen. You will not have the advantage of this great part of the Bill. It will not be taken advantage of by the patients, nor will the doctors try to make them take advantage of it. We are not going to have our skilled opinions overhauled by local magistrates who do not understand the A, B, C, of our profession.
§ VISCOUNT BRENTFORD
Does the noble Lord intend that to apply in the future to the case of the wholly insane?
§ LORD DAWSON OF PENN
I am dealing entirely with these difficult cases of mental illness. Just as I do not want to go to a magistrate to ask if I may restrain a delirious patient, I do not want to go to him to restrain a patient who is suffering from a complication after that illness. When you come to certified insanity it is another problem. That patient is in a state of disablement. That patient is so disabled that, either for his own safety or that of the community, he has to join a cloistered class. You will therefore make such a serious inroad on that patient's liberty and for such a length of time that it is necessary to have more control in that case. The position of the noble Viscount is that he likes the idea, but he wants to apply all the old-fashioned machinery to this idea. If he is going to apply the old machinery to the new idea, I suggest that the benefit of that part of the Bill will be to a large extent lost. Take influenza. After every epidemic of influenza there is a certain proportion of people who cannot get well some from physical, some from mental causes. They want the most careful and gentle handling. They want to be taken care of. They may lose their volition; they may be so depressed, so heedless, so indifferent that they want to be taken care of. If they are poor and cannot 758 afford the luxuries of the rich they require to be gently taken away and taken care of. This question of temporary loss of volition—there are ample precautions in the clause—should be left to the decision of medical men, two if you like. But there should be no interference in this kind of symptom, any more than with the physical symptom, by any kind of outside authority.
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. 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." I think this is, if I may venture to say so, a substantial endeavour to bring legislative enactments up to the level of informed opinion. I think the two clauses dealing with voluntary boarders and with those persons who because of physical illness have temporarily lost volition, if they are applied and carried out without undue restraints and without crippling provisions, will go very far to prevent much mental disease and a great deal of mental suffering, and will add to the sum total of the health of the community. I beg to support this view. No doubt Amendments are needed, but I hope those Amendments will not, by a sense of timidity or by too close a clinging to ancient legal forms and ceremonies, prevent what is a very considerable idea from receiving its proper fructification.
THE EARL OF ONSLOW
My Lords, before the noble Earl replies I should like to ask one question. It relates to a matter which was referred to by my noble friend behind me and that is the position of the Board of Control under 759 the Bill. I think we should all agree that in view especially of the fact that the powers and duties of the Board will be considerably increased under this Bill, you should have the most efficient body you possibly can get. In the Bill for which I was responsible in 1923 it was proposed to have eight paid Commissioners, two of whom should be legal and two of whom should be medical. You are now asked to reduce, and I dare say it may be right to reduce, the number to five, of whom one shall be legal and one shall be medical. The point I would like to put to my noble friend opposite is that this medical man will be really the chief medical officer of the Board and the responsibility on the medical officer seems to be a very heavy one. I am wondering whether, perhaps, it would not be safer to say that there should be two Medical Commissioners.
It is quite likely that in fact the fifth Commissioner will be a medical man—that is possible at any rate—and I think that if that were the case it would be a very right and proper appointment. But suppose he dies or the other Medical Commissioner dies, then you may appoint a non-medical Commissioner and so you would have rather uneven procedure. At one time you would have two medical members and at another time only one. I should hesitate to suggest that it should be laid down that the fifth Commissioner must be a medical man, because then you would lose the opportunity of appointing some one who would be very suitable although without technical qualifications, and I think it is necessary that you should have that power. What I am wondering is whether the noble Earl would consider the question of increasing the number of members by one and of making the additional member a Medical Commissioner.
§ LORD DANESFORT
My Lords, I welcome this Bill as a long over-due measure of reform; but there are one or two points in it which I venture to think the noble Earl should consider before we reach the Committee stage. The first point to which I wish to draw attention is that already referred to by the noble Viscount, Lord Brentford, which arises under Clause 1, subsection (2). It seems to me an extreme provision that a parent or guardian of a young person under eighteen should be able to lock up a child 760 or ward by simply alleging that the child is suffering from mental disorder. Your Lordships will notice that the only way such a child can get out of the asylum or place of detention or whatever you like to call it, would be by the guardian or parent giving 72 hours' notice. The child himself or herself has no right whatever that I can find under this Bill. I do not know whether there would be any roundabout method by which an action in Chancery might be commenced by somebody on behalf of the child; but that the child should have no protection against being locked up, it may be at the age of ten or twelve, and remaining so up to the age of eighteen without adequate reason, seems to me a grave danger. The noble Lord, Lord Dawson of Penn, suggested that before a child should be locked up or detained—perhaps locked up is a rather disagreeable expression—under this clause there should be a medical certificate. That would go some way, but I do not think it would go nearly far enough to protect the interests of the infant.
The second point with which I wish to deal is the question of the protection of the doctors who sign certificates or make recommendations. Judicial proceedings have shown that they may be subject to great hardship, enormous expense, great anxiety, loss of time, money and everything else, all, as it may turn out, without adequate reason. I doubt myself whether Clause 16 is sufficient to protect them. The man who brings an action against a doctor must have an exceedingly bad case if the defendant can get the action dismissed on application under Clause 16. Under Clause 16 the Court may dismiss the action—summarily, presumably—unless the Court is satisfied that there is substantial ground for alleging that such act was done in bad faith or without reasonable care.I venture to think that the noble Earl, who is a very competent lawyer if he will allow me to say so, will see that the number of eases in which action would be stopped in an early stage by the operation of this clause might be extremely small.
I hope before we come to the Committee stage that he may be able with the assistance of others to devise some really substantial protection for the doctors. 761 Otherwise you will have the inevitable result that doctors will be very, very careful before they make any recommendation or give any certificate, even if they do not altogether refuse. I must say that if I were a doctor—which I am afraid I shall never be competent to be—I should feel inclined to do that. I do not know what you get for making a recommendation or giving a certificate, but it is some relatively small fee I imagine. Why should I, if I were a doctor, run the risk of an action taking me up to the House of Lords for this wretched, or at any rate comparatively trifling, fee? I feel very strongly about this because, while I think it is quite right that an aggrieved person should have an opportunity of bringing an action into Court, it very often happens that the aggrieved person is a person who imagines himself aggrieved, and who has money enough to give a great deal of trouble to the doctor against whom he feels resentment.
The only other point to which I wish to draw attention is the power given in Clause 15 and the Third Schedule to the Board of Control to make rules applying certain sections of certain Acts which are specified for the purpose of this measure, but with a very important addition. They are given power to make such modifications and adaptations as may appear to the Board to be convenient or necessary. I do not know whether the noble Lord, Lord Dawson of Penn, will think me old-fashioned. I see that he does not like old fashions brought into this Bill at all. But I am old fashioned enough—and I do not hesitate to say so—to prefer rules to be laid down by Act of Parliament rather than by a Department. In other words, I do not like legislation by Departments, and in this I am strongly confirmed by a recent very remarkable work, which no doubt many of your Lordships have read, by the present Lord Chief Justice, Lord Hewart of Bury, in which he points out the grave danger, and indeed the great impropriety, of allowing a Department to make regulations with the effect of laws, binding the subject, when those regulations have never come before either House of Parliament—in other words, legislation by bureaucracy. How far that will go in this particular case I am not in a position to say, but I hope the noble Earl 762 will look into this matter and see that he does not give the Board of Control more power than is absolutely necessary for the purpose of carrying out the Act. Let me ask him this further question. Is there any provision in this Bill for submitting these rules to either House of Parliament? Perhaps the noble Earl will consider that. If there is no such provision, I would venture to suggest to the noble Earl that he should put in a clause specifically providing that any rules made by the Board of Control under the authority of this Bill shall be laid before both Houses of Parliament in turn and a reasonable opportunity given to consider them. Subject to those observations, I must congratulate the noble Earl on his admirably clear statement and the Commission on their most valuable work.
§ THE EARL OF CRANBROOK
My Lords, I cannot help feeling that the two noble Lords in front of me have a very poor opinion of the medical officers in charge of institutions. Clause 1 says that any person voluntarily submitting himself may be received into an institution. I cannot conceive it possible that any medical officer would receive an unfortunate child who has been brought there by his parents if he were in a completely sane condition. It is also laid down very definitely that both the Board of Control and the Committee are under the obligation to discharge people dealt with under this Bill if they are in a sane condition. I feel that both safeguards are quite sufficient for any of the persons to whom noble Lords have referred. I should like to concur with the noble Lord, Lord Sandhurst, in asking the noble Earl, Lord Russell, if he will consider extending the period of one month which is allowed to persons submitting themselves for voluntary treatment who lose their volition. A great deal of play has been made with the question of detention, but I take it that a person in this condition is incapable of expressing an opinion one way or another as to whether he would like to go out, and, if the medical superintendent is of opinion that such person is likely to benefit by staying in, I feel strongly that the patient should not be subjected to the stigma of certification or even of the order of reception as a non-volitional patient. He should stay 763 on as a voluntary patient until he is cured. I hope that the noble Earl will see his way to agree on this point and to extend the period.
One point that has not yet been touched upon is the question of authorities being allowed to have out-patient clinics. I feel that this is a great step in advance. I hope that the time will soon come when out-patient clinics for the treatment of incipient cases or cases already discharged will be established all over the country. They will save a great deal of money and they will save many people from going into institutions. I feel also that they will bring mental treatment closer in line with the general medical practice. I hope that this Bill is the forerunner of another Bill which will bring all public health duties together instead of leaving them separate as they are now, with mental work divided from public health work. I think that the only hope of getting this work done efficiently and well is to bring all hospitals together, so that the difference felt in the public mind will be killed by patients being able to go from one hospital to the other. I hope that your Lordships will give this Bill a Second Reading and that the noble Earl will consider the questions that I have raised.
My Lords, I did not mention the out-patient clinics because I was anxious not to detain your Lordships longer than was necessary, but I am very much obliged to the noble Earl, Lord Cranbrook, for calling attention to them. He is quite right. I regard this as a very valuable feature in treatment. I think that the clinics are going to be of the greatest use. The noble Earl and Lord Sandhurst asked me questions about extending the period of one month, and I have been asked other questions of that character. I must, of course, remind the House that I am not the author of this Bill, nor does it come in my Department, and I should have to consult the Minister of Health as to those points. I am not proposing to take the Committee stage until Monday, December 9, and this, I think, will give adequate time to noble Lords to put down any Amendments that occur to them. With regard to the observations of Lord Danesfort, I think he is really making a mountain out of a molehill, if I may say so, with regard 764 to the regulations. I am not afraid of the Lord Chief Justice or of his book.
The regulations and the adaptations are obviously necessary. You are applying an Act to a state of things that did not exist. For example, as a result of the Local Government Act of last year, workhouses will now be used as hospitals. It is essential that there should be adaptations and modifications of the Act in order to make sense of it. I will discuss this point in detail with the noble Lord when we come to Committee if he thinks it worth while to pursue it. As a matter of fact, I think he is wrong regarding what has to be proved for the protection of the medical man; but that also we will discuss when we come to Committee. I am not sure that it is a very substantial protection. I think any skilful pleader would be able so to frame the plaintiff's plea that a Judge would find it very difficult to stop an action in limine. I can only tell your Lordships, as I said before, that this was the very best that all the legal skill brought to bear on the matter could think of. If your Lordships are prepared to extend it further, I do not know that I should be prepared to oppose it.
I have to thank the noble Viscount opposite [Viscount Brentford] for being perfectly frank in the things he said and for letting me know where he was going to attack us, but I must say that it does rather break my heart, at this time of day, to hear this sort of statement made about the necessity for the intervention of justices and for considering the liberty of the subject and the protection of the subject in this way. Your Lordships heard what the noble Lord, Lord Dawson of Penn, said about it. Every psychiatrist, every alienist, every doctor connected with an asylum and, as the noble Lord opposite has shown your Lordships, everybody connected with asylum administration knows and realises that the one and only thing the doctors are thinking of is the benefit and health of the patient. You are dealing with delicate machinery when you are dealing with a diseased mind and trying to put it right, and you do not want to interpose more in the way of formality 765 than is necessary. There I am sure that the noble Viscount, in spite of all that he said, entirely sympathises with the Government. He is anxious that these people should be treated in the best way possible, and he does not want to interpose any more machinery than he thinks absolutely essential for their protection.
§ VISCOUNT BRENTFORD
If the noble Earl will forgive my interrupting, all I want to do is to do exactly what the noble Earl desired to do three years ago in the Report of the Commission.
The noble Viscount wrongs me. The Commission clearly says they came reluctantly to that conclusion because of uninformed public opinion—not in this House of Parliament, but in the other House of Parliament. I cannot say how it grieves me to hear the noble Viscount's speech here, but I was going to implore him to do this—and I am sure he will, because I know he is as anxious as we are that these people should be treated, so long only as he is satisfied that there is no danger involved—would the noble Viscount consult with me, or, perhaps better still, with the Minister of Health, on these points, and see what could be done to adjust his view with these which are held very strongly by every one who knows about the matter? We really feel that; the interposition of anything which is too formal, or indeed almost in any way formal, in this matter would do great harm. The average poor person associates a magistrate with the criminal law, and with nothing else. He has a sort of feeling that he has been to a Court, which is, of course, a disgrace. There is also the feeling, as the noble Lord, Lord Dawson, emphasized, that you have been in some way certified far more than when a doctor says you ought to have treatment. I am sure the noble Viscount will take what opportunity he can before the Committee stage of going a little more closely into the matter of the very strong feeling of those who are interested in these questions, and try to meet us. We feel that if anything too formal is insisted upon Clause 5 will lose its entire value. I say that quite clearly, and with the full assent of the Minister of Health.
766 I have to thank your Lordships for the reception you have given to the Bill, and I also thank Lord Sandhurst for his suggestions, which I shall be very glad to consider when he puts them on the Paper. I should be glad if any noble Lords who have Amendments to make would put them on the Paper as early as possible, because matters of drafting in this case are complicated, the questions involved are complicated, and a great many points have to toe looked up. I can assure them that the utmost attention will be paid to them, and we shall welcome any assistance in making this a better Bill. We do think it, as Lord Dawson said, a new charter of treatment, particularly for the partially and incipiently insane, and we feel that immense good may be done by it, but only if the whole thing is kept fluid and flexible. The noble Viscount said that all through the Act of 1890 there run these precautions for the liberty of the subject. I know they do, and that is precisely what spoils the Act of 1890, and what makes it so difficult to apply in practice. When you want to treat patients the object of everybody concerned is to make them well, and the practice in Scotland shows an enormous advance upon our practice. There they are treated in a very fluid and flexible way, with enormously good results from the point of view of the health of the patients. After all, if we are satisfied in our own minds that there is no real danger of any wrongful act, I think we ought to give full value to the health of the patient.
THE EARL OF ONSLOW
May I ask one question? In the Bill of 1923 it was "a justice of the peace or a minister of religion." Would the noble Earl show the same objection to a minister of religion as to a justice of the peace? After all, he is not a judicial person.
Obviously I must not commit the Minister of Health, but I can see at once that there would be infinitely less objection to the minister of religion, because the matter is then taken away from the air of the police court. But, on the other hand, I tell the noble Earl frankly that in the majority of cases, even now under full certification, the intervention of the justice of the peace counts for very little, 767 and that is why the Royal Commission said that so far as the justice of the peace is concerned they thought if he continued to intervene he ought to be a selected justice, with some understanding as to what he is dealing with, and it ought to be an effective intervention in the case of full certification. But nowadays it is often the merest formality, which adds nothing to the safety of the patient, and is to no one's benefit.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.