MENTAL DEFICIENCY (SCOTLAND) BILL. [H.L.] (Hansard, 6 February 1940)

§ THE SECRETARY OF STATE FOR INDIA AND BURMA (THE MARQUESS OF ZETLAND)

My Lords, I can probably best explain the purpose of this Bill if I remind your Lordships in the first instance of the law with regard to this matter as it stands to-day, and then of the circumstances which have rendered some change in the law desirable, and indeed I think necessary, and if, finally, I inform your Lordships of the nature of the change which it is proposed to make. Mental defectives in Scotland may be detained either by a judicial order or at the instance of a parent or guardian or of a local authority with the consent of the parent or guardian as the case may be. Under the law as it stands such an order for detention of a mental defective is operative for one year, and if the General Board of Control, the body appointed by His Majesty for controlling these persons in Scotland, are of opinion that the order should be extended and that the detention consequently should continue, they are under obligation to intimate to the defective and to the parent or guardian or other person concerned their intention of extending the order. In that case there is a right of appeal by the person concerned to the Courts within fourteen days of intimation having been given.

That is the present state of affairs and that was the state of affairs, of course, when a case was taken in the Courts which was known as Innes (or Page) against the General Board of Control. Some of your Lordships who are not aware of the intricacies, and I might almost say the incomprehensibilities, of Scottish law and procedure may wonder why this case was between Innes (or Page) and the General Board of Control. The reason is, I understand, that in the case of a married 459 woman it is the practice in the Courts of Scotland to give her maiden name as well as her married name, not I presume with any suggestion that there is any doubt as to the validity of her marriage, but to be doubly sure that the person has been properly identified. The effect of the decision by the Court of Session in this case was this: that if the intimation had been sent but had not reached the person concerned then the original order must be held to have lapsed and the person must be released. In this particular case intimation was given, but it so happened that the person to whom it was given had in the meantime changed her residence and the intimation was returned through the postal authorities to the General Board of Control. The Court of Session held in spite of that that the original order must be held to have lapsed.

In order to get over that difficulty, which quite clearly might frequently arise, it is proposed to amend the existing law in this way. In future, if this amending Bill becomes law, the General Board of Control will be entitled, in the event of their being convinced that a continuation of detention in any particular case is desirable, to extend the order and it will not be necessary under the amended law for intimation of that to have been received. On the other hand as a quid pro quo the person concerned will in those circumstances be given the right of an appeal to the Sheriff at any time—not only within fourteen days of intimation having been given but at any time—against the proposed order, subject only I think to the restriction that appeals shall not be made more frequently than once in two years or something of that kind. That point is dealt with by the earlier clauses of the Bill. But it is also necessary to validate existing orders which in view of the decision in the case of Innes (or Page) against the General Board of Control may in some cases be held to be invalid. Clause 4 therefore validates the existing orders but at the same time provides for an immediate appeal to the Sheriff in any case in which a person concerned considers that the order is unreasonable. I think that that briefly explains the provisions of the Bill and I beg therefore to move that it be now read a second time.