HL Deb 14 July 1959 vol 217 cc1204-16

6.59 p.m.

Further considered on Report (according to Order).

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 report by a medical practitioner qualified to make a special report under the said section eleven, have determined that the patient is not a proper person to be discharged.

LORD STONHAM moved to leave out subsection (2). The noble Lord said: My Lords, I beg to move the Amendment standing in my name. It will be recalled that just before we adjourned last evening the noble and learned Viscount the Lord Chancellor pointed out that his many remaining Amendments on the Bill would not take much time, but that only I knew how long my two Amendments would take. I hope they will not take more than five minutes each. If it is of any interest or assistance to the Lord Chancellor, I shall have no comments whatever on any of his Amendments, and if he makes any statements in regard to them it will be entirely at his own wish.

As your Lordships are aware from the discussion we had on this particular subsection in Committee, I have two objections to it. The first is that it seeks to make an illegality legal, and the second is that it is unnecessary. I should have thought that if those two objections could be established as valid, then it would be unanswerable that the subsection should be deleted. In dealing with those two points in Committee, the noble and learned Viscount said that the subsection was not required to detain illegally persons who were not suffering from mental disorder. I accept that, but it does not answer the point that the subsection, quite openly and advisedly, attempts to make an illegality legal. Nevertheless, the Lord Chancellor did agree that after the Rutty judgment 5,000 cases were reviewed and some 2,300 were released from order, although many of those released still stayed on in hospital.

The noble and learned Viscount also agreed with my contention that some, at least, of the remaining 2,700 who were not released from order could have been transferred to some other form of care, and also, presumably, removed from control if another form of care had been available. This being admitted, there can be surely no justification for this subsection which keeps them under an order which is not justified in those cases which it is admitted exist. Furthermore, I should have thought that it was unnecessary. If most of the released 2,300 are still in hospital, why will the others not remain there? As for the nucleus who would then be left—the nucleus of 2,700, less those who it is admitted could be released—because of their mental condition, when their cases are reviewed under this Bill when it becomes an Act, they will continue to be detained if the Tribunal is agreed that their condition warrants it according to the provisions of this Act. It appears to me that there is no need for this subsection at all, and that my two submissions are established. The Lord Chancellor has often quite rightly warned us about having unnecessary provisions in a Bill, and I should have thought that this was a classic example of an unnecessary provision which was not required, and which at the same time is harsh and quite unjustifiable. I hope, therefore, that he will agree to its removal. I beg to move.

Amendment moved— Page 97, line 37, leave out subsection (2).—(Lord Stonham.)

THE LORD CHANCELLOR

Quite clearly I did not make the matter clear on the Committee stage, and I apologise to the noble Lord. I think he will appreciate my point, and I hope that he will question me if I fail again. He will remember—and I think this summarises his position—that he accepted that many of the patients who had been "found neglected" in similar circumstances to Miss Rutty should be detained, because there is no dispute that in the Rutty case it was simply a question of whether Miss Rutty was "found neglected", not a question as to her mental state.

If I may hang my argument on a phrase of the noble Lord's at column 626 of the OFFICIAL REPORT for Wednesday, July 1, he said: Doubtless many of them are genuinely subnormal, but if so their continued detention does not depend upon the retention of this sub section. They will continue to be detained like any other subnormals or severely subnormals under the provisions of Part IV of this Bill… Then the noble Lord said, at column 627: …the removal of this subsection from the Bill will not release them unless they satisfy the other provisions regarding release of subnormals. From the attention the noble Lord has given to the Bill, I think he was probably referring to the transitional provisions of the Sixth Schedule relating to existing patients. But the difficulty is that in fact those provisions depend on the existence of valid orders under the present Acts; they apply only to patients who are liable to be detained when the main provisions of the Bill come into operation. Without this subsection the position would be that even though a patient of the Rutty type is severly subnormal or subnormal or psychopathic, and is otherwise liable to continue to be detained under paragraphs 7 to 13 of the Sixth Schedule, the doubt about the validity of the authority for his or her detention arising from the Rutty judgment would remain. Even though, therefore, the conditions for detention under this Bill were satisfied, the validity of the authority for detention would still, when the Bill came into operation, depend on the interpretation of the meaning of the Act of 1913.

LORD STONHAM

My Lords, would the noble and learned Viscount allow me to interrupt him, as it may save time? He has now established in my mind the answer to my main point. There is only one remaining point, and that is the position of those patients who would continue to be detained—an unspecified number; they were mentioned by the Minister in another place. What is the position with regard to them? Why must we retain these powers in their regard?

THE LORD CHANCELLOR

We pass from necessity to desirability, and I should like to deal with that. The first reason is that these patients ought to be dealt with in the same way as others of the same mental condition. There are safeguards to ensure that no patient of the Miss Rutty type will continue to be detained under the Bill unless he comes within the definitions of severely subnormal, subnormal, or psychopathic, or is mentally ill, and unless also he satisfies the conditions for continued detention which apply to these categories of patients. The safeguards in the Sixth Schedule include, in the case of subnormal patients who are found to be unfit for discharge at or over the age of 25, on the grounds set out in paragraph 13 (1) of the Sixth Schedule, the right to apply to the Tribunal on being informed of their unfitness for discharge. This is dealt with in paragraph 13 (2). In addition, there are the additional safeguards provided in Clause 147 (2), which ensure that no order is confirmed until after a thorough process of review. The confirmation of the order is in itself essentially an interim measure, paving the way for the application of the Sixth Schedule.

The noble Lord said that he was principally concerned with those patients who, though subnormal, could be discharged if there were other suitable accommodation to which they could go. This is really a separate question and is not confined to patients affected by the Rutty judgment. It arises generally on paragraph 13 (1)(b) of the Sixth Schedule, which sets out the conditions on which subnormal patients over 25 may continue to be detained and to which the noble Lord has tabled Amendment No. 45. I have gone some way to meet him on that. As we shall be discussing it in a moment, I will not say more now.

The other point is that I think the noble Lord wondered whether it would be better to make a new application under Part IV of the Bill. He will appreciate that this would not be possible with patients over 21, as almost all the "Rutty" cases must be by now, if they fall into the subnormal or psychopath groups, as many of them will. I think we have tried to find the safeguards and I hope that the noble Lord, Lord Stonham, will see that, although a mistaken interpretation was accepted for some thirty-five years, we have tried, and are trying, to deal with the matter in the best interests of the patients and with adequate safeguards.

LORD STONHAM

My Lords, I am once more extremely grateful to the noble and learned Viscount the Lord Chancellor, for that detailed explanation, which I feel this time I did fully understand. It really amounts to this: that the subsection to which I object is necessary to continue the detention of those patients who are not found neglected but who are in fact mentally retarded and who ought to remain in hospital, with the possibility that some of those still remaining may properly be fit for discharge order. If that should be the case, then they can be so discharged under the provisions of paragraph 13 (2) of the Sixth Schedule. I am completely satisfied on that point.

Before I ask your Lordships' leave to withdraw the Amendment, may I just say to the noble and learned Viscount that the explanations he has made, although in a sense it is really of little importance that I should be satisfied about them, will be most carefully studied, as will the many other statements he has made during the various stages of this Bill, by people who have been troubled about them, by people whose duty it will be to administer these things. I am sure these explanations have not merely not been a waste of time but will be extremely valuable. Whilst I do not wish to prolong unduly the noble and learned Viscount's labours on what has been an extremely arduous day, I hope he will allow me to express the view that, whatever achievements may have been his in the past, and whatever he may achieve in the future, I do not think in a single Bill (and I believe he has handled more Bills than any living active Parliamentarian) he is likely to do more to reduce the sum total of human misery and increase the chances of happiness. I personally, and, I am sure my noble friends, are extremely grateful to him for it. We realise also that those to whom we cannot refer have also done a very wonderful job on this Bill, the people who are only criticised but never praised in public. I am sure that not only have they too done great work on this Bill, but that, because of the way things have been handled, they will continue to implement it in a way which will be of great advantage to everyone. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.16 p.m.

THE LORD CHANCELLOR

My Lords, with your Lordships' permission I can make a group of Amendments Nos. 38 to 43A which are all consequential and drafting Amendments. I beg to move.

Amendments moved—

Clause 148, page 98, line 14, leave out ("Part I of")

Clause 148, page 98, line 18, leave out subsection (3).

After Clause 148, insert the following new clause:

Application to Scotland

(".The following provisions of this Act shall extend to Scotland, that is to say—

but except as aforesaid, and except so far as it relates to the interpretation or commencement of the said provisions, this Act shall not extend lo Scotland.")

Clause 149, page 98, line 40, leave out from ("Ireland") to ("as") in line 41 and insert ("(except section ninety and any provision of Part VIII)")

After Clause 149, insert the following new clause.

Application to Northern Ireland

("(1) The following provisions of this Act shall extend to Northern Ireland, that is to say—

but except as aforesaid, and except so far as it relates to the interpretation or commencement of the said provisions, this Act shall not extend to Northern Ireland.")

Clause 151, page 99, line 28, leave out subsection (2).

Third Schedule, page 106, line 10, column 2, after ("which") insert ("he was").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Sixth Schedule [Transitional Provisions]:

THE LORD CHANCELLOR moved, in paragraph 13 (1)(a), to leave out "or would be liable to be exposed to danger or serious exploitation by other persons". The noble and learned Viscount said: My Lords, this is the first Amendment on the point which I referred to a moment ago in relation to the Amendment of the noble Lord, Lord Stonham. As he and all your Lordships appreciate, it is consequential on the Government Amendment to Clause 4, at page 2, line 46, which amends the definition of "severe subnormality" so as to make it clear that patients whose arrested or incomplete development of mind is such as to make them incapable of guarding themselves against serious exploitation fall within the definition of severely subnormal.

Paragraph 13 (1) of the Sixth Schedule lays down the circumstances in which patients already detained when the Bill comes into force, who were not originally sent to hospital on orders made by the courts or by the Home Secretary, and who under the Bill are classified as subnormal or psychopathic, may continue to be detained in hospital beyond the age of 25. One of the grounds in the paragraph as it stands in the Bill is that the patient, if discharged, "would be liable to be exposed to danger or serious exploitation by other persons". As the Amendment to Clause 4 (2) now makes it clear that any patient whose mental retardation is such that he is incapable of guarding himself against serious exploitation should be classified as severely subnormal, the words which the Amendment would delete are not appropriate in relation to subnormal or psychopathic patients, as any patient to whom these grounds apply should be classified as severely subnormal. It is necessary to delete the reference to being liable to be exposed to danger from other persons as well as the reference to serious exploitation, as inability to guard oneself against serious exploitation in effect includes inability to guard oneself from danger from other persons. The words proposed to be deleted are therefore no longer necessary or appropriate.

The noble Lord, Lord Stonham, has tabled a separate Amendment to this paragraph of the Sixth Schedule, which would delete these words and others in addition. As he will appreciate, this Amendment which I am moving will delete one of the additional grounds in the Sixth Schedule (that is, exposure to danger or serious exploitation, as I have just explained); but there remain in the Sixth Schedule the two grounds which do not appear in Clause 4; namely, that the patient on release would be liable to resort to criminal activities, and that the patient is incapable of caring for himself and there is no suitable hostel or establishment to which he could be admitted where he would be likely to remain voluntarily. I can only say that I have dealt with part of what the noble Lord had in mind. I am sorry that I have not been able to deal with the other part. We have considered it and, if necessary, I can answer any points on it. I beg to move.

Amendment moved— Page 118, line 22, leave out from ("himself") to ("or") in line 23.—(The Lord Chancellor.)

On Question, Amendment agreed to.

7.21 p.m.

LORD STONHAM moved in paragraph 13 (1) (a) to leave out from "himself" to the end of head (b). The noble Lord said: My Lords, I beg to move the Amendment standing in my name. As the noble and learned Viscount has pointed out in the Amendment that has just been accepted, he has conceded half, and the most important half, in my view, of the case that I put in Committee. On that occasion I sought to add words to Clause 44; now I am trying to do it the other way round by deleting words from paragraph 13 of the Sixth Schedule. In both cases the object is the same: namely, to ensure that there shall be exactly the same treatment for subnormal or severely subnormal patients who enter hospital under this Bill when it becomes an Act, as is accorded to those who are already in hospital. I should have thought that that proposition was quite unanswerable.

The noble and learned Viscount having agreed to part of my proposal, I think there are only two things left which affect patients in hospital and will not affect those of a similar type, the same age, suffering from the same mental retardation or disability, who come in under the Bill. Those two things are found in the words: would be likely to resort to criminal activities; or…is incapable of caring for himself, and that there is no suitable hospital or other establishment for them to go to. On the point of being likely to resort to criminal activities, the Lord Chancellor was good enough to give us on a previous occasion the details of certain criminal prosecutions of those people who had had previous treatment in a mental hospital or a mental defective institution, and we were all very pleased to see that the incidence of crime was quite small. Whether, however, the incidence is small or large, in my submission it is likely to be precisely the same for those already in hospital as for those who come in later. Therefore the first question that I should like the Lord Chancellor to answer is, why retain this phrase in the Sixth Schedule? It seems to me to make for inequality, and I cannot see that it is justified.

With regard to the second point about there being no suitable hospital or other establishment for the patients to go to, it seems to me, since we do not place a similar disability on those who will now come in, that we are visiting on the patients now in hospital our own sins of past omission. We have not provided other accommodation for them, and they have got to stay where they are. That seems to me to be quite unfair. But the whole point of this Amendment is that I am asking for the same treatment, the same conditions, for patients of the same mental standard, of the same age in the same hospital; and if we do not grant that, then I can foresee quite considerable difficulties and a number of manifest injustices. The Lord Chancellor having conceded half the case—and an important half of the case—I still hope that he will go the whole way. I beg to move.

Amendment moved— Page 118, line 22, leave out from ("himself") to the end of line 28.—(Lord Stonham.)

THE LORD CHANCELLOR

My Lords, we have given consideration to the two points which I mentioned in moving the last Amendment and which still remain in the Sixth Schedule—the two grounds which do not appear in Clause 4. I do not want to go through a great deal of legislative history, but Lord Stonham will appreciate that there are some existing patients who did not enter hospital under court orders but who nevertheless have had a criminal history; and in future patients of this sort would enter on court orders with no age limits for admission or discharge. But, by reason of that, it is right, I think, that the propensity to crime should be one of the grounds on which existing patients may continue to be patients. In future, as I indicated, different arrangements will apply—the patient will enter on a court order in the first place, and patients already in hospital who were originally admitted under court orders may, under paragraph 9 (3) (a) of the Sixth Schedule, be detained irrespective of age. That is the first point.

On the second—that is, incapability of caring for himself, and the fact that there is no suitable hospital or other establishment to which he can be admitted, where he would be likely to remain voluntarily—again we felt that there will remain some patients who have been in hospital now for many years, who cannot appreciate the problems that they would meet if they left hospital, but nevertheless wish to leave. We feel that we should be neglecting our duty of caring for these patients if we allowed them to insist on leaving hospital in a condition in which they could not care for themselves. This consideration will not apply with equal force to patients admitted in the future in adolescence and given suitable training during their formative years. Many of the present patients do not receive such training. Many enter hospital only in middle age, and, as I said, I think it would be inhuman to allow them to leave hospital in a condition in which they would only come to grief.

That is the difference between us. I am sorry that I am not able to meet Lord Stonham any further, especially after the really delightful things that he said of me on the last Amendment, which I treasure for myself and also for those who have helped me so much in endeavouring to master this Bill. It has been a real pleasure to me to be in charge of this Bill. It is a most fascinating field of human endeavour, and it has been made all the more pleasant by the great assistance that I have had from noble Lords in this House. If he will allow an old comrade to say so, it confirms the warm appreciation that we feel for a noble Lord entering this House, that he should work so hard on this Bill.

LORD STONHAM

My Lords, Once more I am grateful to the noble and learned Viscount. I am not going to pursue the matter. The noble and learned Viscount almost answered the point on the criminal activity aspect. The Schedule says: or would be likely to resort to criminal activities", whereas in the other respect the reference was to people who had a criminal record. It is not quite the same thing. Such is the spirit with which this Bill has been dealt with, not only here but in another place, that I am quite sure that if there is anything unsatisfactory about these matters and those unsatisfactory things are revealed in the light of experience, then we shall find means, either administratively or in other ways, to put them right. None of us, not even Lord Chancellors, can be right on everything, and if there is anything wrong and we have let anything get by us, I am sure we shall find a way later on to put it right. We shall watch these things, and meanwhile I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.31 p.m.

THE LORD CHANCELLOR

Amendments 45A, 45B and 45C are all drafting Amendments. I beg to move.

Amendments moved—

Page 119, line 47, leave out ("after the commencement of this Act")

Page 120, line 7, leave out ("after the commencement of this Act")

Page 122, line 32, at end insert— ("(3) The sentence or other period of detention of a person who was liable to be detained or subject to guardianship immediately before the commencement of this Act by virtue of an order under section nine of the Mental Deficiency Act, 1913, shall be treated for the purposes of this Part of this Schedule as expiring at the end of the period for which that person would have been liable to be detained in a prison or other institution if the order had not been made").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Seventh Schedule [Minor and consequential Amendments]:

THE LORD CHANCELLOR

My Lords, Amendments Nos. 46 to 60 are all Amendments affecting the Seventh Schedule which provides for minor or consequential Amendments of other enactments. The general effect is to divide the Seventh Schedule into two parts: Part I consisting of Amendments which in their effect are limited to England and Wales only, whereas those referred to in Part II extend to Scotland and Northern Ireland as well as to England and Wales. I do not say I should do it happily, but I am quite prepared to go through each of the Amendments if your Lordships should so desire, but if you do not, I will simply move that Amendments Nos. 46 to 60 be agreed to.

Amendments moved—

Page 124, line 2, at end insert—

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