MENTAL HEALTH BILL

HL Deb 01 July 1959 vol 217 cc579-636

5.32 p.m.

Order of the Day for the House to be again in Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 44:

Special provisions as to pyschopathic and subnormal patients

(2) Within the period of two months ending on the day on which a patient would cease to be liable to detention in a hospital in default of the renewal of authority under this subsection, the responsible medical officer shall examine the patient, and if it appears to him that the patient, if released from the hospital upon attaining the age of twenty-five years would be likely to act in a manner dangerous to other persons or to himself, shall furnish to the managers a report to that effect in the prescribed form; and where a report is duly furnished under this subsection the authority for the detention of the patient shall be thereby renewed, and shall continue in force accordingly after the patient attains the said age, but without prejudice to the application to the patient of the provisions of section forty-three of this Act.

LORD STONHAM moved, in subsection (2) after "himself" to insert: or is liable to be exposed to danger or serious exploitation by other persons, or would be likely to resort to criminal activities, or is incapable of caring for himself". The noble Lord said: I beg to move Amendment No. 35, and I hope it will be convenient if I discuss with it Amendment No. 86, so as to avoid the necessity for a separate discussion on that Amendment. It will have the added advantage of giving the noble and learned Viscount a clear run for the last 29 Amendments.

The words which it is proposed to add at this stage of the Bill are taken from the Sixth Schedule, on page 118, and they indicate the extraordinary difference—and, so far as I can see, the quite inexplicable difference—between the treatment proposed to be accorded to subnormal patients who enter hospitals when this Bill becomes an Act and that to be accorded to those who are there already. As your Lordships will be aware, a subnormal patient who enters a hospital under this Act, when he becomes 25 years of age, and assuming he has not been previously released, will then be released—indeed, must be released—from the hospital unless, in the opinion of the medical officer, he would be likely to act in a manner dangerous to other persons or to himself. That may be perfectly satisfactory, and may be a full safeguard for the patient. But I would submit to the noble and learned Viscount that, if that is his answer—that it is perfectly full and satisfactory—then it ought also to be completely sufficient for patients who are already in hospital now, or who will be entering hospital prior to the passing of this Bill.

If he does not agree to that, we shall be faced with the position that we shall have, in the same hospital, two classes of patients—those who are already in hospital, and those who go into hospital after this Bill becomes an Act—who are of the same mental age and of the same degree of mental deficiency; and presumably one can be discharged from the hospital at the age of 25 and the other cannot. There can surely be no possible justification for that distinction. If the noble and learned Viscount thinks that these additional safeguards should be taken into consideration for patients already in hospital, then he should accept this Amendment, and make the treatment applicable to all patients in exactly the same way. If, however, he argues that Clause 44 is quite satisfactory as it stands and that the only criterion is that the patient is not likely to act in a manner dangerous to other persons or to himself, I shall be perfectly satisfied to accept that. But in that event it will be necessary to delete these same words where they occur in the Schedule on page 118.

It can be argued—I do not know whether it will be—that for patients already in hospital it may be necessary to have these additional safeguards because they may have been there longer: they may be, as it were, institutionalised. But most of the young people who go into mental deficiency hospitals under this Bill, especially if they are there until the age of 25—they cannot, under this Bill, be compulsorily admitted after they are 21—will have to be there a considerable number of years; and therefore they will be equally institutionalised. So there appears to be no justification for any difference of treatment.

I mentioned that I should like to say a word on Amendment No. 86, which is on exactly the same point. When you look at paragraph 13 (1) (b) of the Sixth Schedule you see these words, which give another reason for not discharging one of these patients: …and that there is no suitable hospital or other establishment into which he can be admitted and where he would be likely to remain voluntarily… They are the words which, later on, I shall seek to remove. Those words do not apply in Clause 44, and they are an additional reason why a particular patient who is in hospital prior to the passing of this Bill could not be discharged, even if he satisfied the medical officer in every other way that he was not likely to do harm to himself or to anybody else; that he was not likely to be exploited, and that he was not likely to resort to criminal activities: he was, it was thought, safe to be released into the community. But to revert to the Schedule, if the medical officer said there was no place for him to go, or no other hospital to which he could be transferred voluntarily, that would be a reason for keeping him beyond the age of 25. That is unconscionable. We should be visiting upon the patient the consequences of our own failure to provide alternative means for these young people to come out of hospital. I emphasise that that would be a reason only for those who are at present in hospital, and it is not a reason under the other part of the Bill—namely, under Clause 44.

I do want to emphasise to the noble and learned Viscount that what I am asking for is equality of treatment for the same types of patient—those with exactly the same qualifications. Either we should add these safeguards to Clause 44, or, if the noble and learned Viscount is convinced that they are not necessary, we should delete them from a later stage in the Bill. Surely one or other of these alternatives must be accepted. I beg to move.

Amendment moved— Page 31, line 16, after ("himself") insert ("or is liable to be exposed to danger or serious exploitation by other persons, or would be likely to resort to criminal activities, or is incapable of caring for himself").—(Lord Stonham.)

5.40 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

May I first deal with the dilemma with which the noble Lord, Lord Stonham, very ably confronted me? As your Lordships are aware, the Royal Commission explained in paragraph 568 of their Report why the criteria which they had already suggested for future psychopathic and subnormal patients are not necessarily applicable to existing detained patients. The basis of our approach to future patients, if I may so call them, is that they should be liable to compulsory admission during their formative years, when treatment is more likely to be effective, and after that they should be detained only (except for short periods) if they have come into conflict with the criminal law. In paragraph 568, they said this. I hope your Lordships will forgive me for reading it but I think that it contains the whole argument. Some of these patients will not have been admitted to hospital until a fairly late age and will so have missed the opportunity for training while young. Some may have been so long in hospital that they have become completely institutionalised and quite unfit for life outside, and may yet not be willing to remain without compulsion; not all of these could properly be classified as severely subnormal, though in their present condition they would in fact be incapable of leading an independent life. Others of these patients will be known to have committed acts, before or since admission to hospital, which might have been made the subject of a criminal charge but were not because the patient was already under Order or was 'subject to be dealt with' under the Mental Deficiency Acts on other grounds. Others will not be known to have broken the criminal law. In each of these categories some patients will have been in hospital only a short time, others for many years. We do not think it would be right to say that these patients should simply be sorted into those who had been convicted of a criminal offence before admission and those who had not, and that when the new system comes into force none of the latter should be detained in hospital any longer. If that were done and that only, criteria which we have recommended should apply in future to people who have been living in the ordinary world and are accustomed to its standards would be applied to some patients who have been living for many years in a sheltered and artificial community; some but only some, parts of a system which is based on the assumption that most of those who need training will be given it before they are twenty-five would be applied to patients who did not receive training at that age. The Commission went on for these reasons to recommend, in paragraph 569, that there should be special grounds—I repeat, special grounds—for continuing the detention of existing patients in the psychopathic and subnormal category. Paragraph 13 (1) of the Sixth Schedule gives effect to this recommendation.

These grounds arise, therefore, from the circumstances of existing patients and are not applicable to patients newly admitted in future, to whom Clause 44 will apply. May I summarise these grounds again. They are (a) that if that patient were released from the hospital he would be likely to act in a manner dangerous to other persons or to himself, or would be liable to be exposed to danger or serious exploitation by other persons, or would be likely to resort to criminal activities; or (b) that that patient is incapable of caring for himself and that there is no suitable hospital or other establishment into which he can be admitted and where he would be likely to remain voluntarily; The words "likely to resort to criminal activities" make me venture to add something to my reply which I think is of the greatest value for the general approach towards this problem. A great deal has been said at times, and a great deal more is felt and not said by people who have not studied this problem, about the likelihood of subnormal and psychopathic patients resorting to crime. Until recently we have had no statistics by which this suggestion could be refuted or confirmed. But we know of no firm evidence to support it and in the absence of such evidence we have resisted suggestions that on this ground we should seek to alter or reverse the policy of enabling as many patients as possible to resume life in the general community after a period of training or treatment in hospital.

The forms of crime which are usually in mind in connection with subnormal patients are either persistent petty crime, such as the petty crime of pilfering, or serious crimes of violence, particularly sexual offences. At present, the Home Office Research Unit, with the assistance of the police, is conducting an inquiry into the extent to which sexual offenders have formerly been mental patients and provisional results of this inquiry are now available. They show that only a small proportion of these offenders have a history of treatment for mental disorder. During the period from July 1 to December 31, 1958, 3,630 persons were convicted by the courts in England and Wales on charges of sexual offences—that is, homosexuality, rape, indecent assault on women, unlawful sexual intercourse with girls under 15, incest and indecent exposure. Out of this total, only 261, about 7 per cent., had at one time or another, so far as is known, received treatment for their mental condition.

Those who feel that the ex-mental patient is likely to be a sexual offender are particularly concerned about the need to protect small children. I am sure that we have all come in contact with that feeling. Out of 946 cases in which offenders had committed an indecent assault on a girl under 15 years of age, only 50—that is about 5 per cent.—were offenders with a mental history. In relation to offenders who had previously received treatment for their mental condition, these figures include both those who had been mentally ill and those who were mentally deficient. Therefore, the percentage of offenders falling into the subnormal and psychopathic group—the only ones covered by the present Amendment to which we are directing our minds—would be only part of the percentages quoted. In any case, if at the age of 25 subnormal or psychopathic patients are considered liable to commit this type of offence or violence of any sort, Clause 44 allows for continued detention on the ground of danger.

With regard to petty crime, we still have no statistics either way, but again, I am advised that there is no doubt that a great many of these patients are living completely law-abiding lives, and we should not be justified in detaining in this way in hospital patients who are not considered dangerous to themselves or to other people, simply on the ground that there is a possibility they might resort to a comparatively minor form of crime. If in the event they do break the law they can, if necessary, under Part V of the Bill, be re-admitted to hospital at any age and detained for as long as is considered necessary.

I think that that is an answer—and it is one I should like the noble Lord, Lord Stonham, to consider—to each horn of the dilemma. But it is a comforting matter to all of us who are anxious about this subject to see the better (I am not going to use offensive adjectives at all) approach to that fear which I have found widely held, especially by people who live near hospitals. The figures I have given on the sexual offences are important and show that many people have overestimated this problem. When we come down to figures of 7 per cent. and 5 per cent. in all, and then, as I say, consider the psychopathic proportion of that, I think it is cheering and inspiring to us on our general thesis.

LORD SILKIN

With regard to the 261 cases of sexual offenders, does the noble and learned Viscount know what proportion of the total number of persons involved that represents?—I do not mean of the total people who have been convicted of that sort of offence, but of the people suffering from mental disorder. I would ask the same about the 50 who have been convicted of indecent assault of girls under fifteen. If it was 50 out of 50 who had been discharged, that would be a very dangerous position. Fifty out of 946 total cases does not really give us a measure of the danger of discharging these people.

Tin LORD CHANCELLOR

I thought I had given the figures correctly before, but let me give them again. I said that during the six months July 1 to December, 1958, 3,630 persons were convicted by the courts in England and Wales on charges of sexual offences; and I gave the offences. Out of those 3,630 convicted, only 261, or 7 per cent., had, so far as is known, at one time or another received treatment for their mental condition. So it is out of the number convicted that only 7 per cent. have received medical treatment. With regard to the assaults on children, it is only 50 out of 946, which is about 5 per cent.

LORD SILKIN

I have followed that. But we are trying to measure the danger to the community of releasing this type of person, and I was wondering whether 261 or 50 respectively constituted a large proportion of the people who have been released. For instance, if we take the last five years, if there had been 1,000 people released, and 261 of that 1,000 had committed this type of offence, the danger would be a real one. The same with the 50 cases: if this was 50 out of, say, 200 that had been released in the five years, there would be a real risk to the community. I think we are entitled to have some reassurance on that matter. I hope I have made my point clear.

THE LORD CHANCELLOR

I have looked at it, of course, from the other side. I think we all agree that it is a surprisingly small percentage of the number convicted. Purely from my own study of the subject, I should not have thought for a moment that the percentage of releases was anything like as high as 7 per cent. or 5 per cent. I do not want to pronounce on it, but I think that, even without that aspect, if you asked ordinary people who have not studied this subject they would be inclined to think that a much higher proportion than 7 per cent. or 5 per cent. of the people convicted of these offences had been people who had received medical treatment. I agree that to round off my statement I ought to have the other figures, and if I can get them for the noble Lord, Lord Silkin, I will. I should not have thought that they would be depressing, but that is only my a priori view, and I will try to get it confirmed.

For these reasons, we think it is necessary to apply rather different criteria to patients who have already been in hospital some time than to those who are going in in the future. As I have already explained, it is possible for anyone who is convicted by a court to be dealt with under the other sections of the Act. As with all the Amendments, I want to study carefully what the noble Lord, Lord Stonham, has said, but I thought it would be helpful to him if I dealt rather more fully with this Amendment than he may have expected, so that he would have in mind the reasons which have influenced us in drafting the Bill in this way.

LORD STONHAM

I am grateful to the noble and learned Viscount for dealing with the matter in such detail and I shall accept his invitation to study what he has said. At the moment, however, it seems to me that, although many reasons have been given for this difference, a good many of them are not relevant. The noble and learned Viscount will recall that on Monday last, when answering in an earlier debate on this particular point of the difference between subnormal and severely subnormal patients, he said [OFFICIAL REPORT, Vol. 217 (No. 91), col. 349]: It is the intention of the Bill, and of the recommendation of the Royal Commission on which it is based, that the severely subnormal group should extend well over the lower ranges of the present feeble-minded category. The people who are going to be admitted, therefore—and I should like for a moment to leave out those who have committed a criminal offence, because I do not think that that is relevant—are the ordinarily retarded mental patients, be they subnormal or severely subnormal; and we have already learned that the severely subnormal category will be much wider than we have hitherto regarded it, so that those who come in will be just as much addicted to sex difficulties as those who are in already.

The only possible justification that I can see for any difference of treatment is if it is thought that there will be in the mental deficiency hospitals a hard core of severely subnormal people who may never come out of the mental hospital. That is all right. But I should say that they are already covered by the words of this clause—in other words, they would be likely to act in a manner dangerous to other persons or to themselves. So they will never be released if they are going to be dangerous to themselves.

It seems to me that the noble and learned Viscount has not addressed himself sufficiently to this point: that there will be persons with exactly similar qualifications, or disqualifications, and some of them can be discharged at the age of twenty-five and some of them cannot. The decision whether to discharge or not to discharge will rest entirely on their date of entry. That seems to me totally unjustifiable. I can imagine its leading to a great deal of difficulty among patients, and particularly among the relatives and friends, with further damage to the patient, which is really quite inexplicable. I hope, therefore, that the Lord Chancellor will look at this point again. It seems one of manifest injustice which the words of the Royal Commission—which seem to me on this subject rather confused and not altogether relevant—do not assuage. I shall certainly study very closely what the noble and learned Viscount has said, but I think that this point must be conceded. I should be perfectly happy with the clause as it is now, and would withdraw my Amendment, but that is not the argument. The argument is that if I withdraw the Amend- ment to add these words, then they must come out on a later stage of the Bill.

THE LORD CHANCELLOR

I will study what the noble Lord has said. In answer to the point made by the noble Lord, Lord Silkin, I would say that I have not got the complete figures, but I think the figure which has been given to me will help the noble Lord. It is that about 300,000 mental patients were discharged in the last five years. That is 30,000 in six months, which is roughly nine times the number of those who were convicted in that period. I think that that is sufficient to negative the noble Lord's fear that they might be a very high proportion of those discharged, but I will try to obtain more complete information.

LORD SILKIN

That is, indeed, very reassuring.

LORD STONHAM

When I said, "at a later stage", I meant that those words would have to be deleted from the Schedule by a suitable Amendment. Is that point clear to the noble and learned Viscount?

THE LORD CHANCELLOR

I take the noble Lord's point, although I do not agree with him. He says that we must either do one thing or the other (he is not abandoning either, really) and that he will consider what I have said and before the Report stage decide whether he wants to return to the charge. He is not in the least prejudiced from doing that.

LORD STONHAM

With that understanding, and hoping the consideration will be mutual, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 44, as amended, agreed to.

Clause 45 [Special provisions as to patients absent without leave]:

THE LORD CHANCELLOR

This Amendment is partly consequential on Amendment No. 33 and does the necessary drafting. It goes with the next Amendment, No. 37. I can give a full explanation if wanted, but I think your Lordships would be perfectly safe in assuming that they are essentially drafting Amendments. I beg to move.

Amendment moved— Page 32, line 4, leave out ("of section forty-three") and insert ("or subsection (4) of section forty-three or subsection (2) of section forty-four").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move.

Amendment moved—

Page 32, line 6, leave out subsection (3) and insert— ("(3) Where the authority for the detention or guardianship of a patient is renewed by virtue of this section after the day on which, apart from this section, that authority would have expired under section forty-three or section forty-four of this Act, the renewal shall take effect as from that day.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 45, as amended, agreed to.

Clause 46 [Special provisions as to patients sentenced to imprisonment, etc.]:

THE LORD CHANCELLOR

I beg to move.

Amendment moved—

Leave out Clause 46 and insert the following new clause:

Special provisions as to patients sentenced to imprisonment, etc.

("46.—(1) Where a patient who is liable to be detained by virtue of an application for admission for treatment or is subject to guardianship by virtue of a guardianship application is detained in custody in pursuance of any sentence or order passed or made by a court in the United Kingdom (including an order committing or remanding him in custody), and is so detained for a period exceeding, or for successive periods exceeding in the aggregate, six months, the application shall cease to have effect at the expiration of that period.

(2) Where any such patient is detained in custody as aforesaid but the application does not cease to have effect under sub-section (1) of this section, then—

1. (a) if apart from this subsection the patient would have ceased to be liable to be detained or subject to guardianship as aforesaid on or before the day on which he is discharged from custody, he shall not cease and shall be deemed not to have ceased to be so liable or subject until the end of that day; and
2. (b) in any case, sections forty and forty-five of this Act shall apply in relation to the patient as if he had absented himself without leave on that day.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 46, as amended, agreed to.

Clause 47 [Discharge of patients]:

THE LORD CHANCELLOR moved in subsection (4) to leave out "and in the case of a local authority the members so authorised shall be members of the health committee of that authority." The noble and learned Viscount said: Your Lordships will see that Clause 47 provides for the discharge of patients detained or subject to guardianship under Part IV of the Act. In the case of patients subject to guardianship the order for discharge may be made by the responsible local health authority and in the case of patients detained in a mental nursing home the order may be made by the registration authority within the meaning of Part III of the Act. Subsection (4) of the clause provides that the power of discharge by an authority may be exercised by any three or more members of the authority and in the case of a local authority the members shall be members of the health committee of that authority.

The effect of the Amendment is to delete the requirement that the members of the local authority who may be authorised to exercise this power shall be members of the health committee of that authority. These words were included in the Bill following the wording of the recommendation of the Royal Commission on this point, but the intention of the Royal Commission clearly was—and it appears to be quite simple—that the members concerned should be those who have an interest in and knowledge of the subject of mental health by virtue of their membership of the health committee. Representations have, however, been made that it is unnecessary to make this a statutory requirement. As part of the relaxation of Governmental controls over local authority functions, it has been accepted by us that the statutory requirement that certain committees, including the health committee, shall be established, should at sonic convenient future date be abolished, thus enabling local authorities to conduct their affairs through committees in the way which suits them best. It would therefore be somewhat anomalous at this stage to require membership of the health committee for the purposes of this clause. I should have thought that local authorities could be trusted to ensure that orders for the discharge of patients were made on their behalf by appropriate members. I am supported—which is an envious position for any Minister—by both the County Councils Association and the Association of Municipal Corporations. I beg to move.

Amendment moved— Page 33, leave out lines 32 and 33.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 47, as amended, agreed to.

Clauses 48 to 51 agreed to.

Clause 52 [Appointment by court of acting nearest relative]:

THE LORD CHANCELLOR

This Amendment re-words paragraph (d) of subsection (3) to put right two points which were inadvertently overlooked when the clause was extensively redrafted at Report stage in another place. I beg to move.

Amendment moved— Page 37, line 22, leave out from ("has") to ("under") in line 24 and insert ("exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital or guardianship").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 52, as amended, agreed to.

Clause 53 agreed to.

Clause 54 [Duty of mental welfare officer to make application for admission or guardianship]:

6.10 p.m.

THE LORD CHANCELLOR moved, in subsection (1), to leave out "the wishes of any" and insert "any wishes expressed by". The noble and learned Viscount said: Clause 54, makes it the duty of a mental welfare officer to make an application for the admission of a patient to hospital or guardianship if he is satisfied that the application ought to be made, and having regard to the wishes of the patient's relatives. As I think I explained, this clause, like one I dealt with earlier, might as it stands be held to oblige the mental welfare office to consult the patient's relatives, and to ascertain their views as to who should make the application, in all cases, including cases of emergency which are to be dealt with under Clause 29. This Amendment and the next one are intended to make it clear that the clause does not impose on the mental welfare officer any duty to consult beyond that laid on him by Clause 27 (2) (which relates only to applications proposed to be made under Clauses 26 and 23) and does no more than require him to take account, among other relevant circumstances, of views already expressed to him by the relatives. I beg to move.

Amendment moved— Page 39, line 17, leave out ("the wishes of any") and insert ("any wishes expressed by").—(The Lord Chancellor.)

LORD STONHAM

I am not very happy about this Amendment. As the clause stands, the mental welfare officer is obliged, whenever it is reasonably practicable (I think those words are fair enough) to ascertain the wishes of the relatives. The Amendment now places the onus on the relatives of informing the mental welfare officer that they object. As we all know well, many of these relatives have great difficulty in knowing how to object and to whom they should object. It seems to me, particularly having regard to Clause 27, to which the noble and learned Viscount referred, and in which the position of the mental welfare officer has been made much easier—I might say more safe—that it is surely not unreasonable to ask or expect or require the mental welfare officer to take some steps to find out what the wishes of the relatives are. If, of course, they are inaccessible, or he cannot find them or they are a long way away and they do not reply to letters, then we have already covered that point. But he ought to be required to take steps and not leave the whole of the onus on the relatives.

The next Amendment to this clause, moreover, appears to encourage the mental welfare officer to by-pass the relatives. In many of these cases we are not dealing with well-informed people; and very often they are frightened people. I myself have had a great many of them to deal with and I do not think we ought to weaken this requirement placed on the mental welfare officer to find out exactly, or to take such steps as are reasonably practicable to find out, what the wishes of the relatives are. I think I heard the noble and learned Viscount say as almost his last words that the relatives had expressed a view, but I can see nothing in the clause which supports the assumption that the relatives have already expressed their view. The clause reads now "having regard to the wishes of any relatives," but we are asked to take out "the wishes of any relatives" and to insert "any wishes expressed by". They may not have expressed any wishes yet there is apparently no duty on the officer to take reasonable steps to ascertain them. That is why I am uneasy about this change.

THE LORD CHANCELLOR

I will have another look at the point. What was in our minds was the emergency case. Assuming that the relatives had expressed a view, I think it would be reasonable to act in an emergency bearing in mind the views already expressed. I should like to look again at the point the noble Lord, Lord Stonham, made, when there are no views already expressed by any relatives. It is a difficult point, because obviously in many emergency cases it would be important to act at once. I do not think there is any difference as to our intentions. We want to get it in as perfect a form as we can.

LORD STONHAM

The particular point I had in mind was that a certain mental welfare officer might know the relatives and might think to himself, although he is not entitled to, "I do not care what She thinks about it; I am going to put him away". Some steps should be taken to ascertain the wishes of the relatives.

THE LORD CHANCELLOR

I will look at it again.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment is consequential. I beg to move.

Amendment moved— Page 39, line 24, at end add ("or as restricting the power of a mental welfare officer to make any application under this Act").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 54, as amended, agreed to.

Clause 55 agreed to.

Clause 56 [Regulations for purposes of Part IV]:

THE LORD CHANCELLOR moved, in subsection (2), to leave out paragraph (d) and insert: (d) for requiring local health authorities to consult such bodies or persons as may be prescribed by or determined under the regulations in connection with the approval of medical practitioners for the purposes of section twenty-eight of this Act, and for con- fining approval to such practitioners as may be agreed upon between these authorities and and any bodies or persons required to be consulted by them respectively.

The noble and learned Viscount said: This Amendment deals with a difficulty that was not at once foreseen. If I may put it very briefly before your Lordships, it deals with the arrangements to be made for requiring local health authorities to take the advice of persons nominated by the hospital authorities before approving doctors for the purposes of Clause 28 of the Bill. Your Lordships will remember that clause and the Amendment which was down upon it. Paragraph (d) of subsection (2) of Clause 56, as it now stands, allows the Minister by regulations to provide "for the constitution of committees" to advise local health authorities on this subject. The intention was to require local health authorities to appoint a small committee consisting entirely of doctors, some of whom would be nominated by the Regional Hospital Boards or boards of governors of teaching hospitals, and some of whom would be nominated by the local authority itself. It was expected that the local authority representatives would usually include at least one of their own medical officers.

The County Councils Association pointed out to us the practical difficulties if such a body were constituted as a committee of the local authority. It would have to have on it a proportion of members who were themselves members of the local authority, and it would be quite contrary to normal practice to appoint one of their own officers. We have therefore re-worded paragraph (d) so as to allow the nominees of hospital authorities to meet informally with the medical officer of health to present agreed advice to the local health authority, so achieving the desired object, and also the object of your Lordships, without introducing unnecessary constitutional and procedural difficulties. This deals with the point which the noble Lord, Lord Taylor, raised by his Amendment at page 17, line 26. I beg to move.

Amendment moved— Page 40, line 13, leave out paragraph (d) and insert the said new paragraph.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 56, as amended, agreed to.

Clauses 57 to 59 agreed to.

Clause 60 [Powers of courts to order hospital admission or guardianship]:

6.20 p.m.

LORD PAKENHAM moved, in subsection (1) (b), after "him" to insert: including any facilities for psychiatric treatment in any prison psychiatric hospital or otherwise within the prison system".

The noble Lord said: This Amendment takes us back into that terribly difficult area where crime and mental disorders overlap and where moral and medical issues are so inextricably entwined. I am glad that the noble Lord, Lord Taylor—together, I hope, with other noble Lords—is supporting me here. Clause 60, as the Committee will see, deals with certain persons convicted before the courts, whom the courts can, in certain circumstances, recommend should be sent to and detained in hospital on the ground of mental illness, psychopathic disorder, subnormality, or severe subnormality. In subsection (1) (b) we are told that the court, in coming to a decision of this kind, is to have regard to all the circumstances—and I am now quoting the words: including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him. At this point our Amendment would add the words including any facilities for psychiatric treatment in any prison psychiatric hospital or otherwise within the prison system.

Strictly speaking, I would concede that the Amendment could be said to be verbally redundant, on the ground that any psychiatric facilities are already covered by the phrase "other available methods of dealing with him", but I hope and believe that the noble and learned Viscount the Lord Chancellor will not consider that that would be a sufficient answer to an Amendment which raises such important issues. It seems to me that there are two good reasons for tabling this Amendment. In the first place, it will prove a valuable addition to the Bill, as we have to keep before our minds in years to come the great importance of psychiatric development in the prison system, and in particular the need, which has been admitted for so long, for a psychiatric prison hospital. In the second place, it enables us to seek, and I hope obtain, from the Government—though not, I would expect, per- haps to-day—at any rate a general outline of their feelings and philosophy in regard to the future treatment of what I may perhaps be allowed to call mental delinquents: that is to say, delinquents mentally afflicted.

We have discussed the White Paper, Penal Practice in a Changing Society, more than once in this House since it was issued in February, but the Committee perhaps will not mind my reminding them that in paragraph 76 of the present White Paper we are told that work will be starting shortly on a psychiatric prison hospital at Grendon Underwood, Bucks. That was in February, and I believe that there has been some further move since then, this being July. I am told—the Lord Chancellor will put me right if I am wrong—that this projected psychiatric prison hospital will accommodate about 300 prisoners, and it is hoped that it will be completed in 1962—three years from now.

I have been told too, though I am not sure whether this is the official view—perhaps this afternoon or later we shall be told if it is so—that in the broad sense this psychiatric prison hospital will give effect to the East-Hubert Report. I do not know whether many of your Lordships have read that Report. I have been studying it over the week-end. I make reference to the Report with, I hope, a "dead-pan" expression on my face. I do not want to seem to be praising or blaming the reference to the East-Hubert Report and the implications of their ideals, because the Report which I have in my hands here and which can be obtained from any museum, I suppose, was based on investigations which were conducted between 1934 and 1938, and the issue of this Report, which it is now hoped to implement in about 1962, was published in 1939. Its most important recommendation—it is extremely interesting—can be studied briefly in paragraph 172, and I will quote that to the Committee. It says: We believe that the most satisfactory method of dealing with abnormal and most unusual types of criminals would be by the creation of a penal institution of a special kind. So a penal institution of a special kind was suggested in 1939. Six years of war passed immediately afterwards, and you can say, if you like, that we start again at 1945. But there is the fact that this was published in 1939.

We know that in this country all ideas take a long time to fructify, but some take longer than others, and, on any calculation, 23 years is really a shockingly long time for a hospital of this vital importance to come into existence. I am afraid that this does not reflect any credit on anybody, and anybody who has been in any Government of one kind or another must share the blame. However, what I am asking the Government this afternoon to say is what are the principles on which it is intended that prisoners with mental troubles or handicaps will be allocated as between these three kinds of institution; the mental hospital, the psychiatric prison hospital, when it comes into existence (and I certainly hope that there will be more than one), and, thirdly, the ordinary prisons, where there will be, we hope, an increasing amount of psychiatric treatment available.

I think I am not being unreasonable and I shall not press the noble and learned Viscount the Lord Chancellor to give a thorough or final answer to that question this afternoon. I am sure he will agree that it is not in any case a subject on which it would be wise to be dogmatic. It is clearly a field where the best answer is bound to involve a great deal of trial and error. I think everyone feels strongly that, before accepting this clause and other related portions of the Bill, the House should be given a chance of expressing its views and of giving the Government an opportunity, perhaps on the Report stage, to say how their mind is working, because at present I think it is fair to say that we have no clue at all in regard to their philosophy. I would gladly offer some ideas of my own, but I have spoken for some time already for a Committee stage speech and I am sure that the Committee would prefer to hear the noble Lord, Lord Taylor, with his special experience.

However, I cannot sit down without pointing out the great danger of not building a prison psychiatric hospital, and of not building more than one, because if we delay that course we shall have on our hands a number of prisoners who will either be rejected by mental hospitals or, if they are accepted, will destroy the whole atmosphere of the much improved system that we are trying to establish under this Bill in the mental hospitals. If these prisoners remain in ordinary prisons they will be the greatest stumbling block in the path of prison reform. Yet we cannot cast them off from aid altogether; they are human beings, and we have a duty to them, as we have to all citizens; and something in the nature of a prison psychiatric hospital is the only answer. But even then, I think that all who have gone into this question most thoroughly are agreed that one is not enough. Apart even from the question of numbers, we cannot leave together the hopeful and the intractable cases: certainly we shall need eventually a variety of prison psychiatric hospitals. The whole subject bristles with problems and responsibilities and opportunities. I feel that we are entitled, as I said before, before we leave this Bill, to know the Government's mind on this matter, even though in the broadest outline. I hope that, if not to-day, at a later stage, the noble and learned Viscount the Lord Chancellor will seek to make the Government's intentions plain. I beg to move.

Amendment moved— Page 43, line 8, after ("him") insert the said new words.—(Lord Pakenham.)

6.30 p.m.

LORD TAYLOR

My noble friend used his Amendment as a peg on which to hang a very wide argument, but I am sure that the noble and learned Viscount will not mind that. The clause itself is, I believe, a very good and valuable one, and the Amendment would force the court to think about the proper disposal of those who are before it and to have regard to all possible facilities. May I approach it from a slightly different angle from that of my noble friend? I do so from the point of view of one of the commonest kind of mental patients coming before the court: that is, the attempted and unsuccessful suicide. As a rule, such a patient is seen by a doctor who is called in. The doctor then has the dilemma of whether to inform the police or to get the mental welfare officer or his successor, the relieving officer; or to get the patient into hospital straight away.

If he informs the police it is quite likely that the patient will be taken to prison, quite properly, because he has committed an offence. There the prisoner may be remanded in custody and investigated.

On the other hand, if the doctor decides to get the patient straight to a mental hospital, the mental hospital informs the police after the patient's arrival, or the doctor does so after the patient's departure, and usually the situation proceeds much more smoothly. The doctor, in his dilemma, makes the decision whether he requires the case dealt with legally or from the hospital point of view; and almost the only type of case where he will feel it is right that the patient should be dealt with legally is the hysterical psychopath who is making a suicide attempt for demonstration purposes, in order to annoy.

It seems to me that when mental patients arrive at courts it is rather "hit and miss" as to where they end up. They may end up in Broadmoor or in a psychiatric ward; they may end up in a mental hospital. I hope that under this clause the matter will be clarified considerably and that as many as possible of these patients, particularly those who are mentally ill as opposed to psychopathic, will be sent to ordinary mental hospitals as ordinary patients—because that is what they are. It is purely fortuitous that they happen to have committed an offence in the course of their illness. Almost always they are very ill and very mad, and they differ in no way from other patients in mental hospitals. That is where they should be. That is where they will get better quickest.

There is one other strange situation which has arisen as a result of the improvements in active mental treatment, particularly electrical convulsive therapy. A deeply depressed patient who is committed for attempted suicide or infanticide or attempted infanticide is remanded for trial in a prison. Should that patient be given electrical convulsive treatment before she is tried—it is usually a lady? I do not know what the right answer is. Obviously, her mental state will be completely changed by the time she comes to trial. She may become perfectly sane and sensible. Yet at the time of committing the crime and being arrested, she will have been quite insane. It seems very inhuman that she should not be treated. I do not know whether or not treatment is generally given. I rather think it is not given before trial, but it means that the patient must remain ill for a considerable period.

I hope that the noble and learned Viscount may like the Amendment on its merits. It does not seem to me to weaken the clause in any way, but it does widen the information before the court. I hope, also, that the court may as far as possible lean towards sending patients to a hospital, rather than to the psychiatric facilities within the Prison Service which should be reserved for the very intractable and difficult cases.

THE LORD CHANCELLOR

As the noble Lord, Lord Pakenham, anticipated, I am not going to worry about certain technical difficulties which the Amendment raises, because I want to accept his invitation to give a preliminary view of our philosophy on this matter; and I hope that if there are any further points the noble Lord wants made clear he will not hesitate to ask me about them. One may pose the question: "How is the court to reach a decision on the most suitable method of disposing of the case?"

The court will, I am sure, be guided to a great extent by the medical evidence, and your Lordships will appreciate—though I hope you will not mind my repeating myself because I believe one has to have this in mind in order to grasp the flow of the argument—that the question of making a hospital or guardianship order cannot arise until, first, the court is satisfied on the evidence of two doctors that the offender is suffering from mental illness, psychopathic disorder, subnormality or severe subnormality: and secondly, that the mental disorder is of a nature or degree which warrants detention in a hospital for medical treatment or the reception of a patient into guardianship; and thirdly, that arrangements have been made for the admission of an offender to a particular hospital or, where guardianship is recommended, his reception into the care of a particular local authority or a particular individual.

Having been satisfied on medical evidence that these requirements are fulfilled, the court must then have regard, first, to the nature of the offence; secondly, to the character and antecedents of the offender; and thirdly, to other available methods of dealing with him, before they reach a decision. In a great many cases, especially with the mentally ill and the severely subnormal, I agree with the noble Lord, Lord Taylor, that there will be little doubt in the mind of the court that a hospital order is the most suitable, if not the only, method of dealing with the offender.

The offender who is diagnosed as a psychopath will present the court with a more difficult problem and, as the noble Lord, Lord Taylor, knows better than anyone, the choice between prison and hospital in such cases will often not be a clear-cut one. The court will be able, if it wishes, to consult the doctors about their grounds for concluding that detention in a hospital is the proper course; and will be able to ask the prison medical officer, who will normally be in attendance at sessions for assizes, what treatment would be available if the offender were sent to prison; and how much help the prison medical officer would be able to give would depend on whether he has made one of the medical recommendations before the court. If the offender has been on bail, the opportunities of the medical officer will, of course, be limited.

May I now say a word about the present position as to treatment? At present psychiatric treatment by consultant psychiatrists is available in three prison hospitals: those at Wormwood Scrubs, Wakefield and Holloway; and a certain amount of support in minor therapy is given by prison medical officers. Prisoners can be sent to mental hospitals as voluntary patients under Section 22 (2) of the Prison Act, 1952, and prisoners who are certifiably insane or mentally defective are at present transferred to the appropriate hospitals and institutions and will continue to be so transferred under the corresponding provisions in Clause 72 of the Bill.

LORD TAYLOR

May I interrupt the noble and learned Viscount for a moment? When he says "the appropriate hospitals", does he mean Broad-moor or the county hospital or the area hospital to which they would normally go?

THE LORD CHANCELLOR

I do not think that it was limited to Broad-moor.

Now I come to the proposed East-Hubert institution at Grendon Underwood. The noble Lord, Lord Pakenham, made some play with the dates, but I think he will understand that Norwood East was one of the Medical Commissioners of Prisons, and Dr. Hubert was a psychiatrist engaged as a psychotherapist at Wormwood Scrubs and, therefore, although the report, I am sure, is still a valuable document, the name has been given in memory of the very great work in their own name of these two distinguished gentlemen. I am not going to avoid the point, but I say merely that this is not a case like that of the distinguished great grand-uncle (I think I have it right) of the noble Lord, Lord Pakenham, who, when asked whether he was Mr. Smith, said, "If you believe that, you will believe anything" It is a name given in honour of their services.

And now I will come to some facts about the Institution. As to the numbers, it will house 350 prisoners and will provide facilities of the kind mentioned in the Amendment. As the noble Lord, Lord Pakenham, said, it is unlikely to be opened until well into 1962; but I think these are the points which the noble Lord, Lord Pakenham, wanted to know. It is not intended to send to it prisoners who qualify for transfer to outside hospitals under Clause 72 of the Bill; that is, those who, in modern terminology, are certifiable. Imprisonment with a view to detention in the East-Hubert Institution is not, therefore, an alternative to a hospital order for offenders as to whom the court is satisfied that they qualify for hospital orders, if their primary need is for treatment in hospital. Nor is it intended that courts should select prisoners to go to the East-Hubert Institution. It is essential to the success of the Institution that its population should be selected by the prison medical service and their consultant advisers.

In so far as the Amendment might seem to encourage courts to make open recommendations that particular offenders should be sent to the institution, that would frankly be a source of embarrassment. May I refer (I am sure that the noble Lord, Lord Pakenham, is familiar with this, but others may not be, and it may be useful for it to be put shortly on the record) to a statement made on page 101 of the Report of the Prison Commissioners for 1954? I think, if noble Lords will bear with me while I read it, that it will deal with the matter in one place. They stated—and I quote: There appears to be misunderstanding in some quarters as to the functions which it is intended this new establishment should serve, and it may be well to recapitulate those originally envisaged. They were:

1. (a) As a clinic and hospital, where cases could be investigated and, if necessary, treated by psychotherapy and other means, and their disposal decided on. This would serve also as a centre for criminological research, and for co-ordinating the various aspects of prison and after-care organisation:
2. (b) As an institution in which selected cases could live under special conditions of training and treatment. Many cases who proved unsuitable for, and unmodified by, the re-educative and rehabilitative influences of the modern prison system would be allocated to this section. Its aims would be, by the application of psychiatric experience, to achieve alterations in future behaviour:
3. (c) As a colony in which a further type of offender could live, who had proved himself quite unable to adapt himself to ordinary social conditions but for whom reformative measures, however specialised, seemed useless and ordinary prison life inappropriate:
4. (d) As an observation and treatment centre for Borstal lads who because of mental abnormality appeared unsuitable for, or had failed to respond to, ordinary Borstal training and for various reasons were considered unfit for early licence."

The Report goes on: No major departure from these intentions is at present contemplated and it needs to be emphasised that it is not intended that the Institution at Grendon should become solely or even mainly an establishment for psychopaths. The orientation will be treatment/research, and to weight the clinical climate with the more difficult and often irreversible psychopathic personalities would vitiate the forward-looking therapeutic atmosphere which it is hoped will obtain. It is likely therefore that the cases selected will be those with real therapeutic promise, and it may well be that those in the third category will not be sent to this establishment at all, and certainly not initially. The plans indicated in that extract will be the bases of the plans, and the new Institution will be developed from the point at which it starts in the light of circumstances. Methods of dealing with psychopaths and their allocation as between hospital and prison will have to be worked out in the light of the developments, of facilities for treating them in hospital and of knowledge in this field and its progress. It will be a matter—I entirely agree with the noble Lord, Lord Pakenham—of trial and error, and we shall do our best to learn as we go. At the moment the emphasis in the Bill is on disposal by the courts by the ordinary means, unless, in the circumstances and conditions which I mentioned, a hospital order is clearly the most suitable course; and it is probable that many psychopaths will be sent to prison until experience has shown other and better means of dealing with them. I am sure I have heard the noble Lord, Lord Taylor, and the noble Baroness, Lady Wootton of Abinger, say that in the course of our debates. That is a fact at the moment. But we are anxious, as I said, to learn and to improve as we go along, starting broadly on the principles that we stated in 1954 and improving them in the light of experience.

I hope that what I have said will be of some help to the noble Lord. Lord Pakenham. At the end of the day it is almost impossible to get away from the great element of discretion that must exist in dealing with particular cases. But I have, so far as I can—and I am afraid it has been a rather long answer—tried to give the guiding principles. I hope that they may be of some advantage, and even if they are not fully satisfactory, the noble Lord, Lord Pakenham, will find matters in them on which he can get further information, which I shall try to obtain for him.

LORD TAYLOR

May I raise one final point with the noble and learned Viscount the Lord Chancellor on his account of Grendon Underwood? Some of us have been very worried about Grendon Underwood, and the statement which he has read out from the Report of the Prison Commissioners makes clear why we are worried. The real problem is these psychopaths. We were hoping that Grendon Underwood would be a place where they would be investigated and looked after, and where the problem would be tackled—as, indeed, it has been tackled at Herstedvester, in Denmark. We know perfectly well that psychiatrists dislike looking after psychopaths, and will dodge them if they can. They much prefer the easier patients, who recover perfectly well out- side prison—indeed, many of them recover without any treatment at all.

It would be so easy for Grendon Underwood to be filled with extremely recoverable, hopeful patients, who would recover anyway; and to leave these poor, wretched psychopaths with nowhere to go, and still with nobody wanting them. As the noble and learned Viscount read out the list of people who were going in, I thought his categories (b) and (c), and probably (d), were all psychopaths; but then when he came to the end of them there was an assurance that it would not be overweighted with psychopaths, and that they would be kept out of Grendon Underwood. My concern, at any rate—and it is, I think, the concern of many of my fellows in the field of psychiatry—is that this should be an institution primarily for the treatment and investigation of criminal psychopaths, who form the hard core of criminality and the hard core of psychiatry. We hope that it will not be blocked with perfectly recoverable depressions, anxiety states, and all sorts of minor psychiatric maladies. No doubt it would give the doctors there great pleasure to treat these cases, but it would not be doing the really tough, difficult piece of work.

THE LORD CHANCELLOR

I have checked the words again, and the words the Prison Commissioners used were …it is not intended that the institution should become solely or even mainly… That still gives the noble Lord, Lord Taylor, quite a lot of room. Judging from the enthusiasm with which this has been awaited for a long time by everyone interested in these problems, I do not think that there is a real danger of their trying to take an easy way out. However, I shall certainly convey what the noble Lord. Lord Taylor, has said to my right honourable friend.

LORD PAKENHAM

I think that all of us—not only those of us who are here to-night, but a great many other Members of this House, and others outside—will be very grateful to the noble and learned Viscount the Lord Chancellor for what he has said, and will study it very carefully. I feel that there is little more I need say until I have studied what he has said. Before the noble Lord, Lord Taylor, got up, I was thinking of calling attention to the fact that we are really left quite uncertain as to what is to happen to psychopaths. It is impossible, therefore, to feel that the Government's intentions are as clear or are as comprehensive as ideally they should be. Whether this Bill is the right moment to press the point home, or whether it is more the subject for debates on penal reform, is something that perhaps we can think over. But I am sure the noble and learned Viscount, to whom we are most grateful, will realise that we do consider that what he has said, with all his fullness and all his kindness, has left the problem of psychopaths, so far as we are concerned, quite uncovered. I do not say that it is in the slightest bit easy, but, standing here, I do not know what the Government intend to do about psychopaths. Therefore, while I beg leave to withdraw my Amendment, it is possible that I may want to return to it before the end of this Bill. I think that is rather doubtful, but I shall certainly hope to raise it again in this House on another occasion.

Amendment, by leave, withdrawn.

Clause 60 agreed to.

Clauses 61 and 62 agreed to.

Clause 63 [Effects of hospital order and guardianship order]:

6.55 p.m.

THE LORD CHANCELLOR

This is the first of a series of Amendments, the others being Nos. 46, 73, 77, 78 and 79. They all deal with the application of the provisions of Part IV of the Bill to patients who are the subject of orders or directions made under the provisions of Part V, and they are purely drafting, in the sense that they excise certain provisions which are not appropriate in these circumstances. I could go through them all in detail, but I do not think there is anything that could by any stretch of the imagination, be controversial. I beg to move.

Amendment moved— Page 46, line 4, leave out from ("than") to ("as") in line 5 and insert ("sections thirty-one and thirty-two, or section thirty-four as the case may be)")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is a consequential Amendment. I beg to move.

Amendment moved— Page 46, line 20, at end insert ("and the remaining provisions of the said Part IV shall not apply.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is one of the series of Amendments which I mentioned to your Lordships when I discussed Amendment No. 24. I beg to move.

Amendment moved—

Page 46, line 32, at end insert— ("(5) Where a patient is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, any previous application, order or direction under this Act by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect: Provided that if the first-mentioned order, or the conviction on which it was made, is quashed on appeal this subsection shall not apply and section forty-six of this Act shall have effect as if during any period for which the patient was liable to be detained or subject to guardianship under the order, he had been detained in custody as mentioned in that section.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 63, as amended, agreed to.

Clause 64 agreed to.

Clause 65 [Power of higher courts to restrict discharge from hospital]:

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved— Page 47, line 22, leave out from ("duration") to ("shall") in line 24 and insert (",renewal and expiration of authority for the detention of patients ").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This also is one of the series of Amendments that I mentioned when we dealt with Amendment No. 24. I beg to move.

Amendment moved—>

Page 48, line 7, at end insert— ("(4) A hospital order shall not cease to have effect under subsection (5) of section sixty-three of this Act if an order restricting the discharge of the patient is in force at the material time.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 65, as amended, agreed to.

Clauses 66 to 92 agreed to.

Clause 93 [Patients absent from hospitals in England and Wales]:

THE LORD CHANCELLOR

Your Lordships will see that Clause 93 deals with the retaking in Scotland, Northern Ireland, the Channel Islands, and the Isle of Man, of patients absent from hospitals in England and Wales. The effect of certain drafting Amendments in the Commons was to apply the clause to patients subject to guardianship, and the present Amendment restores the provisions of the clause to what was originally intended. I beg to move.

Amendment moved— Page 69, line 38, at beginning insert ("Subject to the provisions of this section").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment is consequential. I beg to move.

Amendment moved—

Page 70, line 26, at end add— ("(4) This section shall not apply to any person who is subject to guardianship.").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 93, as amended, agreed to.

Clauses 94 to 123 agreed to.

Clause 124 [Rules as to procedure]:

7.1 p.m.

LORD SILKIN moved, after subsection (1) to insert: (2) Rules made under this section shall make provision—

1. (a) for the applicant to be represented by any person selected or appointed by him;
2. (b) for the applicant and any person appointed by him under paragraph (a) of this subsection to receive copies of all documents to be submitted to or considered by the Mental Health Review Tribunal;
3. (c) for the submission of oral evidence by and on behalf of the applicant; and
4. (d) for the oral examination and cross examination of all witnesses including persons by or on behalf of whom any documents have been prepared for consideration by the Mental Health Review Tribunal."

The noble Lord said: This Amendment is purely procedural. It sets out matters which, in our opinion, should be taken into consideration in making rules under subsection (1). There are later Amendments to be moved by the noble and learned Viscount which deal with two of the matters referred to in my Amendment. As usual they deal with them in much better language than the language used in my Amendment. But paragraphs (c) and (d) of my Amendment are still left. I have no doubt that, generally speaking, evidence will be permitted, but since we are setting out in some detail the rules of procedure before the Tribunals, I think that it would be proper to say in terms that oral evidence and examination and cross-examination will be permitted. I do not suppose for a moment that it is intended that these should not be permitted, but we think it better that that should be stated. It would look as if the whole of this clause might be looked at again in the light of the Amendments to be moved by the noble and learned Viscount. The effect of his Amendments, which we would gladly accept, is that my own Amendment would not stand. Therefore, having moved it, I propose in due course, when I have heard what the noble and learned Viscount has to say about it, to withdraw my Amendment in favour of his, in the hope that at the next stage it may be possible to incorporate something relating to the giving of oral evidence before the tribunal. I beg to move.

Amendment moved— Page 84, line 7, at end insert the said subsection.—(Lord Silkin.)

THE LORD CHANCELLOR

I am grateful for the manner in which the noble Lord has moved his Amendment. I think that it would be convenient if I tried quite shortly to give a description of the procedure which we envisage for the Mental Health Review Tribunals and in the light of which I would make my rules. We envisage that the general arrangements would follow the recommendations in paragraph 448 of the Royal Commission report: they would be, first, that when the patient's application is received, the Tribunal would call for a written report from the hospital authorities, including a medical report. Secondly, the Tribunal would visit the hospital and interview the patient and any other person it wished; the medical member or members of the Tribunal would examine the patient. Thirdly, if the patient or other applicant asked for it, but not otherwise, the Tribunal would arrange for a hearing on more formal lines, with the hospital authorities and the patient present together and making their statements in person or through representatives. Fourthly, the Tribunal would be able to make any other inquiries it wanted; and, lastly, the Tribunal would make its decision, based not only on what had been put to it by the patient and other persons in writing or orally but also on its own inquiries and its own assessment of the patient's mental condition.

That being our objective we come up against the age-long problem of formality or informality. It is a difficult one, and those, like the noble Lord, Lord Silkin, and myself, who have been bred to the law have a natural bias in favour of clear rules of procedure, because on the whole we find that justice is obtained better in that way. On the other hand, we must face the fact that a great number of laymen think that lawyers are rather bewitched by procedure and forms, and have tried in various fields to introduce the informal procedure of general conversation. One finds that the rebound from that is a complaint about inquisitorial procedures.

I hope that your Lordships will not misunderstand me. I put it in rather light terms, but it is a very serious problem. Anyone who, like the noble and gallant Viscount, Lord Stansgate, has been interested in, for example, the law of Parliamentary privilege, knows that there are many complaints in various books against that procedure, because it provides no method of presenting the case of the accused, or for the accused person to be represented, or any formalities of that kind. I instance this only to show how difficulties arise, and I am very anxious, in the rules which I have to make for these Tribunals, to have an informal hearing. I think that in many cases, where there is not a complaint so much as a desire to have a case looked at again, informality would be good. On the other hand, one can well imagine that when the patient or relatives and the hospital have come to an issue, they would want a formal presentation. Therefore I should prefer if I were given a considerable flexibility in regard to the rules.

Subsection (2) deals with the specialities about which I can make rules in particular. I am a little afraid that paragraphs (c) and (d) of the noble Lord's Amendment would tie me down to formality, and I should like to consider that point again. The noble Lord, Lord Silkin, said that the substance of his paragraph (a) is met in an appropriate and flexible form by the Government's Amendment No. 53. It would be possible under that Amendment to provide in the rules not only for the representation of the applicant but also for that of the patient when the application is made by, for example, the nearest relative under Clause 48 (3). Similarly, the noble Lord's paragraph (b) is met by Amendment No. 54, our paragraph (e), which enables the rules to provide for copies of all documents produced to the Tribunal to be made available to the applicant and to any patient in respect of whom an application is made. But it does give the Tribunal discretion to withhold documents if it considers it desirable to do so in the interests of the patient or for other special reasons. Noble Lords will remember that in paragraph 448 the Royal Commission explicitly stated that the doctors treating the patient—and the members of the Tribunal—must be able to use discretion in deciding how much of the medical report should be made available.

With regard to paragraphs (c) and (d), to which the noble Lord, Lord Silkin, referred, again I should like to consider between now and the Report stage what he said. Even in the second class of cases where the patient desires a more formal hearing, I think that there are still advantages, despite the difficulty I have mentioned, in having the proceedings as informal and as flexible as possible. I hope your Lordships will not think it conceited of me to say that there are certain safeguards, one of which is that the rules will be made by the Lord Chancellor. Secondly, they will be submitted in draft to the Council on Tribunals, because it is the Government's intention to apply the Tribunals and Inquiries Act. The result is that they will be made by the Lord Chancellor and submitted to the Council on Tribunals; and then, of course, they will be sent, with the Council's suggestions, to the Lord Chancellor and will come under the general supervision of the Council. But I think that, in view of what I have said about the recommendation of the Royal Commission, one will have to be flexible about whether the Tribunal should state its reasons, because it may be equally bad for the patient to know the reasons. That is a matter we have to consider, but obviously the same reasoning applies. The third safeguard is that the rules will be subject to the Negative Resolution procedure.

I should like to have the opportunity of studying Lord Silkin's speech in cold print, but I hope he agrees that my general approach to the matter is the same as his would be if he were faced with this problem. We must try to get a procedure which will make quite sure that no individual is prejudiced in any way but which is at the same time sufficiently flexible to ensure that no person is frightened by it. Possibly the noble Lord, Lord Silkin, remembers when the Beveridge Report dealing with workmen's compensation was introduced. One of the matters which surprised me (because I had always thought that workmen's compensation cases were conducted in a kindly and reasonable way; and, like the noble Lord, Lord Silkin, I have in my time appeared in many hundreds) was that when the Beveridge recommendations were produced in another place so many of our trade union colleagues testified to the frightening effect on the ordinary person of going into a court. That was one of the biggest shocks my professional sense has ever had. I want to avoid that by making this procedure flexible, yet at the same time to give protection. I hope the noble Lord, Lord Silkin, will for the moment be content with that as a statement of my general approach. I will consider before the next stage what he has said.

LORD SILKIN

I can assure the noble and learned Viscount that his general approach is the same as mine. We do not want applicants, especially applicants who are suffering from mental trouble, to be frightened by the atmosphere of one of these Tribunals, and we should certainly like the proceedings to be conducted as informally as possible. On the other hand, I think he ought to provide for cases where it becomes necessary to cross-examine the doctor on the grounds upon which he is expressing an opinion; and it is a little difficult to do that informally. I do not think the decision as to whether the doctor ought to be cross-examined or not should rest solely with the Tribunal. If there is a desire on the part of the applicant or his advisers to cross-examine, then I think they ought to have the right to do so. But if that point can be met in the rules, or if it can be met by an understanding that that will be the case, and the rules that the Lord Chancellor is going to submit can be amended from time to time in the light of experience, then I think the safeguards that he has given should be adequate: that the Tribunals will approve them; that they will be approved by the House and be subject to the Negative Resolution procedure; and that he himself will frame them.

I think also he is right in saying that there should be reserved to the Tribunal power to withhold, in certain circumstances, the reasons for their decision, or even to withhold certain documents which might be damaging to the interests of the patient. I should myself be willing to trust the Tribunal to make a fair decision on that. So what we are left with is that the Lord Chancellor will consider whether it is necessary to have in the rules some reference to the question of examination and cross-examination of witnesses, while preserving in the general case the informality that both he and I desire.

LORD STONHAM

Before my noble friend withdraws his Amendment, there are two points I should like to put to the noble and learned Viscount for consideration. I am wholly with him about having this procedure as informal as possible, but would he look closely at the procedure of the pensions appeal tribunals. I have been concerned in the rôle of appellant's friend on a good many occasions, and I am sure it is impossible to get rid of the sense of fear and excitement in the mind of the appellant or, in this case, the patient. The pensions appeal tribunals treat appellants extremely kindly, and they are as informal as they can be. If that procedure could be followed, I am sure it would be excellent.

The other point I am rather anxious about is that we should not be placed in the position that we deny to a patient who has not committed any crime the rights which in this Bill, under Clause 62 (3), we give to a person who has been convicted by a court and appeals. All the items which my noble friend asked for in this Amendment are, of course, merely listing what is open to someone convicted by a court under Clause 62 (3). We ought not to have the feeling that we have denied to a patient who has not committed an offence the rights which are given to one who has been convicted by a court.

THE LORD CHANCELLOR

I will gladly consider that point.

LORD SILKIN

I am sorry if I appeared to shut out my noble friend. If I had done, we should have missed two very useful suggestions. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

I beg to move.

Amendment moved—

Page 84, line 26, at end insert— ("(d) for regulating !the circumstances in which, and the persons by whom, applicants and patients in respect of whom applications are made to a tribunal may, if not desiring to appear in person, be represented before the tribunal").—(The Lord Chancellor.)

LORD STONHAM

I am probably entirely wrong, but as I read this paragraph it would appear that the words "if not desiring to appear in person" means that if the patient does not wish to appear he cannot have a friend or representative with him.

THE LORD CHANCELLOR

"Appear in person" is a term of art. It means "to conduct one's own case".

LORD STONHAM

I am quite clear that he can appear in person, but can he appear in person and have a friend with him as well? It certainly was not clear to me by these words; but then I am not a lawyer.

LORD SILKIN

It is quite clear.

THE LORD CHANCELLOR

Does the noble Lord mean someone who just sits beside him but who does not take part in the case?

LORD STONHAM

I have, no doubt it is my lack of intelligence in this matter. From the wording of the paragraph it seems to me that you either appear in person without assistance, or you do not appear and somebody represents you.

THE LORD CHANCELLOR

I do not think the noble Lord need worry. The point is covered. But for his peace of mind I will look at it again.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move.

Amendment moved—

Page 84, line 30, at end insert— ("(e) for making available to any applicant, and to any patient in respect of whom an application is made to a tribunal, copies of all documents produced to the tribunal in connection with the application except where the tribunal considers it undesirable in the interests of the patient or for other special reasons; (f) for requiring a tribunal to furnish such statements of the reasons for any decision given by the tribunal as may be prescribed by the rules, subject to any provision made by the rules for withholding such a statement from a patient or any other person in cases where the tribunal considers that furnishing it would be undesirable in the interests of the patient or for other special reasons").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 124, as amended, agreed to.

Clauses 125 to 132 agreed to.

Clause 133 [Correspondence of patients not subject to detention]:

THE LORD CHANCELLOR

Your Lordships may remember that I mentioned Amendments Nos. 55, 56 and 57 when we were discussing an Amendment on the last occasion, and that the noble Lord, Lord Silkin, said that he would not move the Amendment to leave out the Clause. These Amendments deal with the point which I mentioned, which was the undertaking of my right honourable friend to excise the people in local authority homes. The Amendments are for that purpose, and I beg to move.

Amendment moved— Page 89, line 15, leave out from ("shall") to ("apply") in line 16.—(The Lord Chancellor.)

LORD SILKIN

These Amendments are acceptable so far as they go, but the noble and learned Viscount has undertaken to look further into the whole question of censorship of correspondence. Therefore, I give him notice that I will not move the next Amendment.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move.

Amendment moved— Page 89, line 18, leave out from ("purpose") to end of line 30 and insert ("but not being liable to be detained therein, as it applies in relation to a patient detained in a hospital under Part IV of this Act.").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move.

Amendment moved— Page 89, line 31, leave out ("other").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 133, as amended, agreed to.

Clause 134 [Warrant to search for and remove patients]:

7.26 p.m.

THE LORD CHANCELLOR moved to add to subsection (4) and in the execution of a warrant issued under subsection (2) of this section the constable to whom it is addressed may be accompanied—

1. (a) by a medical practitioner;
2. (b) by any person authorised by or under this Act to take or retake the patient."

The noble and learned Viscount said: Clause 134 provides for the issue of a justice's warrant authorising entry of premises in two sets of circumstances. Subsection (1) deals with cases where there is reasonable cause to believe that a mentally disordered person is being ill-treated or neglected or is not under proper care or control. In such cases the constable to whom the warrant is issued must, under subsection (4), be accompanied by a mental welfare officer and a doctor. Subsection (2) deals with cases where powers of entry are needed to obtain access to patients who are already liable under the Bill to be taken to some place (for example, to hospital under Clause 31) or to be retaken (for example, under Clauses 40 or 139). In these cases no provision is made, in the clause as it stands, for any person to accompany the constable when he enters the premises. It is not necessary in these cases to impose this as a requirement, because it is here a question of taking or retaking a known patient who is already liable to be detained. I want to tell your Lordships that in practice we expect that the constable would take with him a doctor or the person who has applied for the warrant under subsection (2), and that this Amendment removes any doubt about his power to do this. I beg to move.

Amendment moved— Page 90, line 26, at end insert the said words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 134, as amended, agreed to.

Clauses 135 to 137 agreed to.

Clause 138 [Provisions as to custody, conveyance and detention]:

THE LORD CHANCELLOR

This is drafting. I beg to move.

Amendment moved— Page 92, line 41, leave out ("detained or kept in custody") and insert ("kept in custody or detained")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 138, as amended, agreed to.

Clause 139 [Retaking of patients escaping from custody]:

THE LORD CHANCELLOR

Clause 139 confers powers to retake the persons described in subsection (1) of Clause 138, if they escape; these include persons who are being taken to or detained in a place of safety under subsections (1) or (3) of Clause 134, or under Clause 135. Clauses 134 (3) and 135 (2) place a limit of 72 hours on the period for which such persons may be detained in the place of safety. Clause 139, as it now stands, places no time limit on the period during which persons can be retaken after escape. But subsection (2) of this clause does not apply to these persons because they are not liable to be detained in hospital or subject to guardianship when, for example, they are being taken to or detained in a place of safety under Clauses 134 or 135. The Amendment remedies the omission by providing in effect that such persons may not be retaken after the end of the 72 hours during which they may be detained in the place of safety or, if they escape while being taken to the place of safety and before reaching it, after 72 hours from the time of escape. I beg to move.

Amendment moved—

Page 93, line 33, at end insert— ("(3) A person who escapes while being taken to or detained in a place of safety under section one hundred and thirty-four or section one hundred and thirty-five of this Act shall not be retaken under this section after the expiration of the period of seventy-two hours beginning with the time when he escapes or the period during which he is liable to be so detained, whichever expires first.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 139, as amended, agreed to.

Clauses 140 to 143 agreed to.

7.30 p.m.

LORD TAYLOR moved, after Clause 143 to insert the following new clause:

Research

"—(1) The Minister may undertake, or cause to be undertaken, research into the nature, causes and treatment of mental disorders, as defined in this Act.

(2) The Minister shall undertake, or cause to be undertaken, from time to time research into the manner in which the provisions of the Act are operating. The results of such research shall be laid before Parliament."

The noble Lord said: beg to move the new clause standing in the name of my noble friend Lord Pakenham and myself. This is the last Amendment I shall be moving, your Lordships will be pleased to hear, but I should like, if it is in accord with the practice of your Lordships' House, to say a personal word of thanks to the noble and learned Viscount the Lord Chancellor for the great courtesy and kindness with which he has received our Amendments. Sometimes if they have been a little off the wicket he has driven them for a good four, but when they have been on the wicket I must say I think he has been wonderfully reasonable and we are reasonably hopeful. One realises that it is a very difficult time for him, with a great deal of legislation flowing through; and one realises also that a Bill gathers momentum as it proceeds through Parliament and it may be that it is rather difficult to get Amendments as fully considered as they would be in another place at this stage. Yet we hope very much that we have advanced arguments which he will be able to study and deploy with his colleagues, and that we may have made a real impression on this Bill.

I come to the new clause, and your Lordships will see that it is in two parts. The first enables the Minister to undertake research into the matter of this Bill. The second enforces on the Minister research into the working of the Bill. The Title of this Bill is the Mental Health Bill, and it is a strange thing that in a great measure like this there should be no reference to research. We are well aware that the Government have power to carry out research into mental illness under the Act which constitutes the Medical Research Council, and our attempt to insert this clause is no criticism whatsoever of the excellent work which the Council are doing—if one may say so, the increasingly good work which they are doing. They have already established two new committees in psychiatry and are establishing two new research units.

There are, however, limitations to what the Medical Research Council can achieve, and I well remember that, when the drafting of the National Health Service Act itself was under consideration, the question arose as to whether medical research should be mentioned in that Act. The official view taken then was that it was quite unnecessary because it was already covered by the Medical Research Council. Nevertheless, it is included in the National Health Service Act, in Section 16. That section says: Without prejudice to the general powers and duties conferred or imposed on the Minister under the Ministry of Health Act, 1919, and the duties imposed on the Committee of the Privy Council for Medical Research under the said Act, the Minister may conduct, or assist by grants or otherwise any person to conduct, research into any matters relating to the causation, prevention, diagnosis or treatment of illness or mental defectiveness. If it was thought appropriate to insert a research section into the National Health Service Act, despite the existence of the Medical Research Council, we feel that it is equally appropriate to insert it into this Mental Health Bill. It is particularly appropriate, indeed, because Section 16 of the National Health Service Act refers to the "treatment of illness or mental defectiveness". We are now abolishing mental defectiveness under this Bill, and that means that the particular section relating to research into mental defectiveness in the National Health Service Act will become meaningless. We therefore feel it is not only appropriate but necessary that the first part of this new clause should be in this present great and valuable Bill.

Another argument which may be advanced is that it is undesirable to have more than one official channel flowing towards medical research, a multiplicity of ways by which money can be obtained for carrying out medical research. But, of course, often a committee controls each of these channels. Somebody has an idea and applies to one committee. The idea is turned down. They then apply to another one. It is accepted and it proves fruitful. Committees are very human affairs, and time and again have blocked for quite reasonable reasons, good research

One cannot help thinking what would have happened if in 1934 Dr. Meduna, of Budapest, had had to approach the Medical Research Council with a theory which he then held. It was that there was a biological antagonism between schizophrenia and epilepsy. He noticed that people who had schizophrenia never developed epilepsy, and vice versa, and he thought if he could produce epilepsy artificially it might cure schizophrenia. It was a stupid hypothesis, but he went ahead. He discovered that by giving a dose of insulin it was possible to induce the effect of epilepsy, and as a result the whole of the modern physical treatment of mental illness came into being. Likewise, in 1938 two Italian gentlemen, Cerletti and Bini had the ridiculous idea of connecting patients up to the mains and giving them fits. They connected the patients to the mains, and that was how electrical convulsion therapy began. Yet had they approached a respectable committee of the Medical Research Council, one feels they might have received very little encouragement indeed; they might have been turned down as cranks or psychopaths.

The same thing exactly happened with Professor Fleming, with penicillin. Fleming was a difficult man in some ways. I remember we were told, when I was a student, that he had certain strange ideas about a substance called penicillin; that it was about as useful as lysozyme, which was quite useless; that he had "a bee in his bonnet" about it. He certainly had "a bee in his bonnet", but he happened to be right. Had he been able to attract £15,000 or £20,000 a year at that time for research, penicillin might have been isolated eight years earlier; but he was not able to because he was "out of the establishment", as it were. That is a risk with all medical research. We have a good group of people allocating money honestly: they do excellent work, and they organise excellent work. But if there is only one channel, then one block of the official channel may frustrate the extraordinary, slightly off-beam work which may be just that which is going to prove most fruitful. That is why we want the Minister of Health, as well as the Medical Research Council, to have this power—which indeed the Minister has in respect of illness under the National Health Service Act, though not now in respect of mental subnormality. So much for the first part of our new clause.

The second part is something new and something which we hope we may see often incorporated, if not in this Bill, in future legislation. In industry the term "feedback" is becoming common. Whenever a new process is developed or a new idea worked out, there has to be some kind of intelligence machinery to inform the industrialists how the thing is going and to watch it all the time. We believe that this is equally essential in Parliamentary legislation. Of course, there are, and all Ministers receive, returns made by the various units of whatever service is operating. But returns are somewhat inaccurate. In one hospital region, there are two mental hospitals, one of which is always the first in sending in its return, and it is always the better and more complete return. But the hospital happens to be by far the worst hospital in the region—I will not reveal its name. The other hospital is always the last to send in its return. They are usually rather badly filled in and scrappy, but everybody knows that it is not merely the best mental hospital in its region but perhaps one of the two best mental hospitals in the country—I refer to Warlingham Park. So returns are extremely unreliable.

The second way by which Ministers get information on working Acts is by inspection. The Board of Control is "going by the board"—though in fact all its officers will remain as officers of the Ministry. But their inspections were not so detailed as to qualify for the term "research". The third way is by detailed field study—by going and looking and seeing and studying how this Act of Parliament is working.

This Bill is a leap in the dark. We do not know how it is going to work. It has been thought up by the Royal Commission wisely and carefully, but we have no real prototype for it. The nearest to a prototype is the Mental Treatment Act, 1930. The patients were dealt with in a similar manner to the proposals contained in this Bill, but, for quite other reasons, these arrangements failed. We believe that this Bill will work, but I think it quite probable that snags and difficulties will arise. Why should not Parliament know how its work is progressing, and apply modern methods of social research to see whether we are achieving what we set out to achieve and, if not, how we can put it right? That is what the second part of the clause seeks to do. I hope that this kind of provision for social research into the working of Acts of Parliament may in due course become general. I beg to move.

Amendment moved— After Clause 143 insert the said new clause.—(Lord Taylor.)

THE LORD CHANCELLOR

May I point out to the noble Lord, Lord Taylor, that we have dealt with his first point but in a way slightly different from the one he proposes? If he will be good enough to follow me, he will find that Section 16 (1) of the National Health Service Act, 1946, provides, as he told us, that, without prejudice to these general powers or to the duties imposed on the Committee of the Privy Council for Medical Research under the 1919 Act, the Minister may conduct, or assist by grants or otherwise any persons to conduct, research into any matters relating to the causation, prevention, diagnosis or treatment of illness. The noble Lord quoted "or treatment of illness or mental defectiveness." If lie has a copy of the Bill and if he will look at page 133, line 1, he will find there a Schedule repealing various enactments. He will see that in the National Health Service Act, 1946, in section sixteen the words 'or mental defectiveness' shall be omitted. So that gets rid of his first trouble. Then, if he will look at line 21, he will see these words: In section seventy-nine, in subsection (1), in the definition of 'hospital' the words 'or mental defectiveness' shall be omitted; and in the definition of 'illness', for the words 'mental illness' there shall be substituted the words mental disorder within he meaning of the Mental Health Act, 1959'". So the Minister has power to conduct or assist research into mental disorder as described by the Act.

Secondly, the Committee of the Privy Council for Medical Research is of course set up under Statute and has the duty of promoting medical research of all kinds. Thirdly—I do not think the noble Lord mentioned this—the National Health Service Act, 1946, by Section 16 (2), empowers Boards of Governors of teaching hospitals, Regional Hospital Boards and hospital management committees to conduct research into the causation, prevention, diagnosis or treatment of illness, which now has the meaning which I have explained—namely, including mental disorder.

On the other point, it is, of course, the duty of a Minister of the Crown to conduct research of a very different kind—that is, to see that any Act for which he is responsible is being properly carried out; and he is usually greatly assisted in carrying out his duties by Questions in Parliament, by debates on the Adjournment, and by putting down his Vote and moving that his salary be reduced by £100 or £1,000 if the House of Commons is feeling more discontented with him. But, in addition, the Minister of Health is under a duty to produce an Annual Report on the proceedings of his Ministry, and he would be greatly in default if, after the passing of this Bill, he did not refer to its working in subsequent Annual Reports. Therefore although I and my right honourable friend are most fully behind everything Lord Taylor has said as to the desirability of research, I hope that in view of my explanation he will not find it necessary to press this Amendment. If he has any other thoughts about the second half of his Amendment I should be pleased if he would communicate them to me before the Report stage.

LORD GRENFELL

As I understand it, the Lord Chancellor has said that this provision is incorporated through the National Health Service Act. I shall speak for only a short time, but I would mention this fact, namely, that not a lot of money has in the past been allocated to research into the subject. Although it was authorised, it has not actually been done. I am thinking rather of the new discoveries which are being made regarding the possible cause of mongolism in children. My noble friend Lord Taylor will know better than I do whether we are on the brink of great discoveries, but I should like to put it rather forcefully, in this way if I may: that not only is this a great tragedy but it is a mental sickness which is costing a great deal of money, because we have to keep many people at the taxpayers' expense who really can be of little help or use to the community as a whole.

We cannot just leave research to the voluntary associations. It is a duty of the Government to get the finance and to put it forward, to help the people who are working so hard in this sphere of medical science. I hope that this point will be taken carefully into account in the future, and that mental health research will not in future be the "Cinderella" of research in medical science. I would not attempt to go further than that, except just to ask my noble and learned friend to nut that forward to his right honourable friend.

7.51 p.m.

LORD PAKENHAM

May I ask one question of the noble and learned Viscount? Would he see any objection to our returning to this question on the Report stage? I have various views on this matter which it is really my duty to explain on behalf of the National Society for Mentally Handicapped People; and the noble Earl, Lord Feversham, who was anxious to be here and is a leading figure, in many senses, in this country, hoped that in his absence I would say a few words. But the hour is late. The noble and learned Viscount has explained the position from one point of view, and I wonder whether he, or my noble friend, Lord Taylor, would see any objection to returning to this topic on the Report stage.

THE LORD CHANCELLOR

I think that would be very convenient because there are certain more cheerful aspects of this matter which I did mention on Second Reading. I have in mind the two units that I mentioned, one on the epidemiology of mental disorders and the other on psychiatric genetics: and the two new committees, one on clinical psychiatry and the other on the epidemiology of mental disorders. I should have thought it would have been very convenient to have perhaps a rather fuller debate on this matter which we all consider most important. I am sure I am only doing what every one of your Lordships would like me to do when I say that I will especially convey to my right honourable friend the point made by my noble friend Lord Grenfell in regard to the matter which we know is so near his heart.

LORD TAYLOR

May I thank the noble and learned Viscount for his reply and particularly for agreeing to my noble friend's suggestion that this matter be dealt with at the Report stage? I wonder whether I am right in assuming that in view of the contents of the Seventh Schedule, research now comes within the ambit of the Bill—consequentially, as it were.

THE LORD CHANCELLOR

Yes, certainly.

LORD TAYLOR

Would we, then, be correct in debating research on the Seventh Schedule, or would it be more appropriate to put down a further Amendment on the Report stage?

THE LORD CHANCELLOR

It could be either this Amendment again, or another. It is not for me to draft the noble Lord's Amendments, but some general words encouraging my right honourable friend towards research will give him the paving stones for discussion.

Amendment, by leave, withdrawn.

Clause 144 agreed to.

Clauses 145 and 146 agreed to.

Clause 147:

Transitional provisions

(2) For the purposes of Part III of the said Sixth Schedule, an order sending a person to an institution or placing a person under guardianship, made before the ninth day of March nineteen hundred and fifty-six on a petition presented under the Mental Deficiency Act, 1913, shall be deemed to be valid notwithstanding that that person may not have been found neglected within the meaning of section two of that Act when that order was made if—

1. (a) that order has been continued, at any time after that date, by order made by the Board of Control under section eleven of that Act after consideration of the reports and certificate required by that section; or
2. (b) the period for which that order was in force on the said date has not expired before the commencement of this Act, but the Board, after considering a special report from the medical practitioner responsible for the care or treatment of the patient, have determined that the patient is not a proper person to be discharged.

7.55 p.m.

LORD STONHAM moved to leave out subsection (2). The noble Lord said: Since this is the last Amendment which will be moved from this side of the Committee, may I join with my noble friend Lord Taylor in expressing most grateful thanks to the noble and learned Viscount not only for the extreme care with which he has explained and dealt with the long list of Amendments, but also for his kindness. I feel that if, at the end of the day, when we have finished with this Bill, we have been able to make any improvement it will be in large measure due to the way in which the noble and learned Viscount has dealt with what my noble friend has called our "bowling". My noble friend was good enough to suggest that the noble and learned Viscount had scored a few glancing fours off the bowling, which carried the implication that he had not yet scored a six. This, therefore, is his last opportunity for that. I hope, however, that he will not take it but will rather do for the first time something which, with all his kindness, he has not yet been able to do on any previous Amendment; that is, to say a short, straight, sweet and simple "Yes"—which I should certainly very much appreciate.

My main ground for moving to delete this subsection is that it seeks to make an illegality legal—which, to me, is offensive and intolerable as a matter of principle. Secondly, in my view, in cases where it does not perpetuate an injustice it is unnecessary. After the High Court judgment in the Kathleen Rutty case, it was ascertained that some 6,000 persons who were detained in mental deficiency hospitals as having been found neglected were not, in fact, so found, and therefore were illegally detained. After that judgment, some few thousand of them were released, leaving about 2,700 still detained in mental hospitals and, as I have indicated, detained illegally.

Doubtless many of them are genuinely subnormal, but if so their continued detention does not depend upon the retention of this subsection. They will continue to be detained like any other subnormals or severely subnormals under the provisions of Part IV of this Bill when it becomes an Act. So we cannot be condoning an illegality, and deliberately doing so, because of a fear that people who ought not to be released, because of the state of their mental retardedness, will be released if this subsection is removed from the Bill. The right honourable gentleman, the Minister of Health, has admitted that a considerable proportion of these 2,700 people still illegally detained would not now be detained but for the fact that they have nowhere to go. That is to say, we are punishing them, we are keeping them in mental deficiency hospitals, because of our failure to make proper provision. We are continuing to make them pay for the fact that some local authorities have used the Mental Deficiency Act as a means of dealing with awkward and inconvenient children under their care.

I think that has certainly happened, and that is a disgraceful practice which we are now asked, in effect, in this clause to condone. I would submit that it would be quite shameful if we were to agree to this. I do not dispute that many of the 2,700 are generally subnormal, but the removal of this subsection from the Bill will not release them unless they satisfy the other provisions regarding release of subnormals. If they do that they ought to be released, and if the Amendment is accepted it will, in my view, compel local authorities to make proper provision so that perfectly normal people now in detention can be released and given a fair chance to start life again. It will not wipe out the unfortunate injustice that they have suffered, and may have suffered for many years, but it will at least give us an opportunity to make such restitution as lies in our power. I beg to move.

Amendment moved— Page 97, line 33, leave out subsection (2).—(Lord Stonham.)

THE LORD CHANCELLOR

May I say first on this Amendment that it is not the case that this subsection is required in order to detain illegally people who are not suffering from mental disorder. It was never suggested in the Rutty case that Miss Rutty was not a mental defective within the meaning of the Mental Deficiency Act, 1913. The question at issue was solely the interpretation of the words "found neglected" in Section 2 (1) (b) of that Act, which sets out the grounds on which defectives may be detained in hospital or placed under guardianship. For forty-three years, from 1913 until 1956, those administering the Act (the justices, the local authorities and the Board of Control) took a wide view of the meaning of these words, interpreting them as covering, for example, defectives in Poor Law institutions and in children's homes who were in need of, and were not receiving, the care and supervision appropriate to their mental condition. I am the last person who should criticise a decision of the Courts, and I am not doing it for a moment, but it is material that the view which I have just stated was given support in an obiter dictum in the Radcliffe case in 1915 and was not challenged until the Rutty case in 1956; that is, the practice was based on an approving obiter dictum in a case in 1915 which had never been questioned.

In the Rutty case the Divisional Court interpreted the word "neglected" in a much narrower sense. This decision does not mean that the orders in other similar cases automatically became illegal or would necessarily have been upset by the courts if challenged. The Court of Appeal have, indeed, in two subsequent cases expressed, again as obiter dicta, some doubt as to the correctness of the decision in the Rutty case. That decision did, however, throw doubt on the validity of the orders in similar cases, of which there were some 5,000. The Board of Control therefore immediately reviewed those cases, and since then some 2,300 have been discharged from order, most of them remaining in hospital informally. None of the 2,700 who remain subject to detention has asked to leave hospital.

The subsection which the noble Lord seeks to leave out provides for the validation of the orders in these remaining cases but—and I emphasise this—only after the order has been reviewed, either when the order comes up for renewal in the ordinary way, under the provisions of the Mental Deficiency Acts (in this event the Board of Control consider the case on reports both from the medical officer of the institution and from the independent visitors of the institution) or, in cases where there has been no statutory review since March 9, 1956, on a further special review by the Board after obtaining and considering a report on the patient. When the main provisions of the Bill come into operation the patients who remain subject to detention will again have to be reviewed and classified according to the definitions in the Bill, and the provision in the Sixth Schedule relating to renewal and right of application to the Mental Health Review Tribunals will apply. There will thus be full safeguards for these patients.

With regard to the suggestion of the noble Lord, Lord Stonham, that these patients should not continue to be detained merely because there is nowhere else for them to go, I want to say only this: it is true that there are some who could be transferred to some other form of care if it were available, but this, I want to emphasise, does not mean that they are not properly cared for where they are and, in particular, does not imply that they are not mentally disordered. As I said, the point at issue in the Rutty case was not whether Miss Rutty was mentally defective but whether she was "subject to be dealt with" under the terms of the Act and under the interpretation of the words "found neglected". I feel that it would be really inhuman to discharge these patients from hospital if they have nowhere else to go, and I hope I have made clear that there are the most complete safeguards.

It is one of the difficulties of legislation and of my own profession that on certain rare occasions an Act turns out to have the meaning which was not the meaning which Parliament intended to give it; and it happens on even rarer occasions that, as in this case, the second highest Court in the land gives an obiter dictum of approval to a construction of an Act which forty-one years later turns out not to be approved by the Divisional Court that has to deal with the matter. One can only regret these imperfections of legislation. I assure your Lordships that full consideration of this matter will show that nobody is going to be adversely affected or be deprived of the chance of having his case fully examined.

LORD STONHAM

I am most grateful for the last words of the noble and learned Viscount. They go to meet my point. I would make it perfectly clear that I did not say, and I certainly do not think, that these people are not being well cared for. That was not in my mind at all. The real point is this. If—and the noble and learned Viscount has confirmed that there are such cases—the state of their subnormality were such that if they had somewhere to go then they could go and could be released, I feel that it is a gross failure on our part if arrangements do not exist whereby they can be released. We ought not, therefore, to put this subsection in a Bill and, as it were, legalise an illegality. I cannot possibly go into the other argument which the noble and learned Viscount adduced, because I have no knowledge of that at all and it would be completely valueless to do so. I am dealing merely with the law in the case as it is now. He said, I think, that it was quite wrong to say, as I suggested, that this clause is required to detain in hospital people who are subnormal. I am glad of that assurance. I am not certain, however—in fact what he said confirmed my fears—about people who could be released not being released because there is nowhere for them to go. It seems to me that what we shall have to do, therefore, is to press for redesignation, and press local authorities, wherever they are, to see that some other provision is made for them rather than that they should go on staying in a mental hospital when it is admitted that that is not necessary. With those remarks, and again with my thanks to the noble and learned Viscount, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved— Page 98, line 3, leave out from ("a") to ("have") in line 5 and insert ("report by a medical practitioner qualified to make a special report under the said section eleven").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 147, as amended, agreed to.

Clause 148 [Minor and consequential amendments and repeals]:

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved—

Page 98, line 25, at end insert— (6) The repeal by this Act of the provisions of the Lunacy Act, 1890, and of the Mental Deficiency Act, 1913, relating to the superannuation of officers or employees shall not affect any arrangements for the payment of allowances or other benefits made in accordance with those provisions and in force at the commencement of this Act."—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 148, as amended, agreed to.

Clauses 149 to 151 agreed to.

First Schedule agreed to.

Second Schedule [Section substituted for Education Act, 1944, s. 57]:

THE LORD CHANCELLOR

This meets a point on which my right honourable friend gave an undertaking in another place. I beg to move.

Amendment moved— Page 101, line 3, leave out from beginning to ("for") in line 8 and insert ("It shall be the duty of every local education authority to ascertain what children in their area are suffering from a disability of mind of such a nature or to such an extent as to make them unsuitable for education at school; and for the purpose of fulfilling that duty any officer of a local education authority authorised in that behalf by the authority may by notice in writing served upon the parent of any child who has attained the age of two years require him to submit the child").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

At present, the local education authority must give a child's parent fourteen days within which he can appeal to the Minister of Education. The Amendment extends the period of appeal from fourteen to twenty-one days. I beg to move.

Amendment moved— Page 101, line 32, leave out ("fourteen") and insert ("twenty-one").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This has the same effect, in the new Section 57A of the Education Act, as the Amendment at page 101 has in the new Section 57. I beg to move.

Amendment moved— Page 102, line 7, leave out from beginning to ("and") in line 9 and insert ("the local education authority shall cause to be served on the parent of the child the notice authorised by subsection (1) of section fifty-seven of this Act, and subsection (2) and (3) of that section shall apply accordingly;").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This extends from fourteen to twenty-one days the time allowed for parents to appeal. I beg to move.

Amendment moved— Page 102, line 23, leave out ("fourteen") and insert ("twenty-one").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved— Page 102, line 40, leave out ("sections fifty-seven and fifty-seven A") and insert ("section fifty-seven").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment is consequential. I beg to move.

Amendment moved— Page 102, line 45, leave out ("those sections") and insert ("that section").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This, also, is a consequential Amendment. I beg to move.

Amendment moved— Page 102, line 47, leave out from ("of") to ("officer") in line 48 and insert ("that section to a medical or other").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Second Schedule, as amended, agreed to.

Third Schedule [Application of Part IV to patients admitted to hospital or placed under guardianship under Part V]:

THE LORD CHANCELLOR

This Amendment is consequential. I beg to move.

Amendment moved— Page 106, leave out lines 14 and 15.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment, also, is consequential. I beg to move.

Amendment moved—

Page 106, column 2, leave out line 16 and insert— ("In subsection (2), the words 'or subsection (2) of section forty-four' shall be omitted").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved—

Page 106, column 2, leave out lines 18 to 23 and insert— ("For references to an application for admission or a guardianship application there shall be substituted references to the order or direction under Part V of this Act by virtue of which the patient is liable to be detained or subject to guardianship ").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is a further drafting Amendment. I beg to move.

Amendment moved— Page 106, line 18, column 3, leave out ("The section") and insert ("Subsection (1) and paragraph (a) of subsection (2)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is a consequential Amendment. I beg to move.

Amendment moved— Page 107, leave out lines 8 and 9.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is another consequential Amendment. I beg to move.

Amendment moved— Page 107, leave out lines 16 to 19—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This, also, is a consequential Amendment. I beg to move.

Amendment moved— Page 108, leave out lines 8 and 9.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Third Schedule, as amended, agreed to.

Fourth and Fifth Schedules agreed to.

Sixth Schedule [Transitional provisions]:

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved— Page 112, line 37, after ("treated") insert ("for the purposes of the provisions of Part III of this Act relating to mental nursing homes").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is another drafting Amendment. I beg to move.

Amendment moved— Page 113, line 19, leave out ("said provisions") and insert ("provisions of Part III of this Act relating to mental nursing homes")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is a further drafting Amendment. I beg to move.

Amendment moved— Page 117, line 3, leave out ("three") and insert ("two") [years].—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This, also, is a drafting Amendment. I beg to move.

Amendment moved— Page 117, line 4, leave out from ("may") to ("apply") in line 6 and insert ("between the expiration of the said period of two years and the expiration of the current period of treatment").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is another drafting Amendment. I beg to move.

Amendment moved— Page 117, line 18, leave out ("but not more than two years").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is another drafting Amendment. I beg to move.

Amendment moved— Page 117, leave out line 20.—(The Lord Chancellor.)

On Question, Amendment agreed to.

8.17 p.m.

LORD STONHAM had given notice to move, in paragraph 13 (1) (b), to leave out all words from "himself" to the end of the paragraph. The noble Lord said: In view of the earlier discussion on this point, I do not propose to move this Amendment.

THE LORD CHANCELLOR

This is a drafting Amendment. I beg to move.

Amendment moved— Page 118, line 39, leave out from ("that") to end of line 40 and insert ("none of the conditions set out in paragraphs (a) and (b) of sub-paragraph (1) of this paragraph are").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This, also, is a drafting Amendment. I beg to move.

Amendment moved— Page 119, line 21, leave out ("was liable to be detained") and insert ("immediately before the commencement of this Act was liable to be detained in a hospital").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is another drafting Amendment. I beg to move.

Amendment moved— Page 119, line 32, leave out ("serving") and insert ("subject to").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is a further drafting Amendment. I beg to move.

Amendment moved— Page 121, line 39, after ("applies") insert ("or a short-period patient").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This, also, is a drafting Amendment. I beg to move.

Amendment moved— Page 123, line 38, leave out from ("and") to ("any") in line 39 and insert ("notwithstanding anything in section one hundred and one of this Act, such rules may provide for treating as sufficient for conferring jurisdiction under the said Part VIII").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Sixth Schedule, as amended, agreed to.

Seventh Schedule [Minor and consequential Amendments]:

THE LORD CHANCELLOR

As this is the last Amendment, may I say how deeply touched I was by the kind words which the noble Lords opposite said about me. I have tried to give the service to the House to which the House is entitled and which it expects from the Lord Chancellor. But, on this Bill, the whole atmosphere in which we have discussed it has, for the Government, made the conduct of the Bill a pleasure, and I am deeply grateful. I beg to move.

Amendment moved— Page 141, leave out lines 48 and 49.—(The Lord Chancellor.)

LORD PAKENHAM

I know that my noble friend Lord Lawson would wish me to associate myself and him with what was said by our noble friends behind us, the noble Lords, Lord Stonham and Lord Taylor, in paying tribute to the noble and learned Viscount the Lord Chancellor. I need not say more, except that it seems that in handling this Bill the noble and learned Viscount the Lord Chancellor has taken on the character not only of a great Lord Chancellor but also of a great psychiatrist. With a little more practice, he would have had the noble Lords on these Benches "stretched on the couch", with most satisfactory results. But, in all seriousness, we are deeply grateful to him.

On Question, Amendment agreed to.

Seventh Schedule, as amended, agreed to.

Remaining Schedule agreed to.

House resumed.