MENTAL DEFICIENCY BILL. (Hansard, 27 June 1938)

§ THE LORD CHANCELLOR (LORD MAUGHAM)

My Lords, this little Bill is of some importance because it is intended to adjust a position of serious difficulty which arises from a recent judgment of the Court of Appeal in connection with the administration of the Mental Deficiency Acts. I think I can tell your Lordships very shortly what the point of it is. Under the Acts there is a Board of Control which has to look after mental deficients, a number of whom are in institutions. The Acts provide that in the first instance the mental deficient is sent to an institution for a year as a result of an order made by the Board under the Acts. The order expires at a particular quarter clay immediately after the calendar year. There is then provision made for a further consideration of the alleged mental deficient's case, and he is detained, if the Board think fit, for one more year. That makes a second year. Then at the end of the second year there is a further inquiry, and he may then be detained for a period of five years.

Under the Mental Deficiency Act, 1913, passed twenty-five years ago, there is a section under which the order remains in force for the periods I have mentioned, expiring at a particular quarter day, and if at the end of each period of one to five years respectively the Board, after considering certain special reports and other matters, comes to the conclusion that the continuance of the order is required in the patient's interest, the Board can make a further order for that purpose. Now what happens? The Board of Control, after taking advice not long after the Act of 1913 was passed, came to the conclusion that although at the end of the periods I have mentioned—that is to say, at the end of the quarters in question—they had to look into the reports and statements that have been made to them and examine the certificates which have been given to them in reference to a deficient, they could have a few days after the end of the quarter in question for the purpose of satisfying themselves that the continuance of the order was necessary. There 307 are 3,000 patients who have to be dealt with each quarter. That involves a review of some 6,000 documents. The Board were advised that they could have a few days after the end of the quarter in which to make the order, and they have done so for the best part of a quarter of a century.

An alleged mental deficient, however, who had been detained on a number of occasions applied, by habeas corpus, asking the Court to say that his detention was wholly illegal because the order under the Act was made on July 6 instead of June 24, and on his application going to the Divisional Court that Court, consisting of three Judges, decided that the Act must be construed so as to give a little time to the Board to consider the reports and the certificates and then to make the order. However, the person in question was not at all discouraged by that decision, and he went to the Court of Appeal. There a Court of three Judges came to the opposite conclusion, two of them expressing the opinion that it was clearly a slip in the drafting of the Act, and that it was a matter which ought to be put right by legislation. As the law now stands there are thousands of persons of this kind against whom orders have been made in complete good faith after taking counsel's opinion and exercising every care, and at the moment those orders are invalid orders. There is this position and the future to be considered. It is impossible, as the law stands, for the Board of Control to perform the function of doing all the work at particular quarter days of examining 6,000 documents, and in addition looking into certificates and reports and seeing whether they are justified in continuing an order.

The judgment of the Appeal Court having invalidated these orders arising from a slip made in drafting a quarter of a century ago, the present Bill proposes to set right that slip, and the orders so made are declared to be valid notwithstanding the fact that they have been made as stated. Under subsection (1) of Clause r it is provided that an order made under the Mental Deficiency Act, 1913, may be continued by an order made by the Board of Control at any time within one month after the date on which, but for the provisions of this subsection, the detention order would be limited to expire in accordance with the provisions of 308 Section 11 of the 1913 Act. Probably the whole month will not be needed. It is only a matter of a few days in most cases, but what sometimes happens is that the documents have to be sent back for further consideration, and it really is not in the interests of the deficients that the Board of Control should not have time to consider the matter before they make the necessary orders. Under subsection (2) of Clause 1 there is a provision that where such orders have been made not strictly within the limit of Section 11 of the 1913 Act, then, unless it is shown that an order has not been made in good faith, the detention order will be deemed not to have expired and will be continued as if the order purporting to continue it had been made within the required time and otherwise in conformity with the provisions of Section 11.

Then there is a proviso that nothing in the subsection is to affect any legal proceedings commenced before May 24, 1938, or any order which has been the subject of such proceedings. In other words the applicant in the case which I have mentioned as having recently been the subject of consideration in two Courts is to get the benefit which he had obtained by the order of the Court of Appeal. In those circumstances I hope your Lordships will give this Bill a Second Reading. I beg to move.