HL Deb 29 June 1959 vol 217 cc344-438

3.57 p.m.

Order of the Day for the House to be gain 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 26:

Admission for treatment

26.—(1) A patient may be admitted to a hospital, and there detained for the period allowed by the following provisions of this Act, in pursuance of an application (in this Act referred to as an application for admission for treatment) made in accordance with the following provisions of this section.

(2) An application for admission for treatment may be made in respect of a patient on the grounds—

  1. (a) that he is suffering from mental disorder, being—
    1. (i) in the case of a patient of any age, mental illness or severe subnormality;
    2. 345
    3. (ii) in the case of a patient under the age of twenty-one years, psychopathic disorder or subnormality;
    and that the said disorder is of a nature or degree which warrants the detention of the patient in a hospital for medical treatment under this section; and
  2. (b) that it is necessary in the interests of the patient's health or safety or for the protection of other persons that the patient should be so detained.

LORD STONHAM moved, in subsection (2)(a)(i), after "illness" to insert "subnormality". The noble Lord said: This Amendment, like other, later, ones on the same subject, draws attention to what I regard as the greatest weakness in the Bill, namely, that it proposes to deal in much the same way with patients suffering from mental illness as with those who are mentally deficient. I regard this as a grave error, because while mental illness is often temporary and frequently can be completely cured, mental subnormality—which until now we have called "feeble-mindedness"—is a defect of intelligence which is permanent. That is the vital difference between these two forms of mental illness. One is mental illness and one is feeble-mindedness. But the Bill assumes, tacitly at least, that all feebleminded people, all mentally handicapped people—at least the subnormal ones, as distinct from those who are severely subnormal—are miraculously cured at the age of 21.

On this point of subnormality and severe subnormality, I must mention that those terms are nowhere defined. We have no means of knowing where, in the mind of Her Majesty's Government, the demarcation line—and a very important one it is—is likely to come. One can only assume, therefore, which cases will be regarded as subnormal and which as severely subnormal, in the light of such experience as we may have had in the past of decisions which have been taken with regard to particular patients. Yet a man of 30, with a mental age of nine, however long he lives, will always think, act and behave within his man's body like a child of nine. In other words, in the context of manhood, he is irresponsible and incapable of living in society except under supervision. That is the extremely vital point which I want to establish. It is no answer to say that many genuinely subnormal people of the mental age of, shall we say, 11 or upwards can be trained—and it is training that is required—to live apparently normal and useful lives in society. Many of them do in fact manage to live without the need at any later time in their lives for supervision, but the fact remains that they are still mentally 11 or 12 years old.

I see every day, because she is a maid employed in my home, a middle-aged woman of 45 or 48 who was what was called a higher-grade mentally deficient person—and, I emphasise, one of the highest grade. She was discharged thirty years ago and she has been with my family for about fifteen years. She does a perfectly normal job for a perfectly normal wage. She is free to go anywhere she likes and do whatever she likes. But the fact remains that if that woman, within her limitations a normally happy and hard-working woman, has to go to town eight miles away, which involves going on a bus, it is for her an adventure, something for which training is needed. When we plan holidays, apart from her holidays, we plan whether it is to a bungalow or somewhere else where she should go. She goes to her own family—she has brothers and sisters and a parent—and someone takes her and puts her in the train and she is met at the other end, just as a child going to a preparatory school would be. Very occasionally, about every two years, she behaves in her woman's body just as a child would. She is not given notice. My wife just tells her to go and lie down. She does not give notice, either; she goes and lies down like a child would. That is not the sort of case you can look after with an annuity; she has to be with her family or friends, and she is one of the superior, higher-grade cases.

Two weeks ago the noble Earl, Lord Iddesleigh, and I were visitors at the Torquay branch of the National Association for the Mentally Handicapped (which is called "Mencap" down there), the adult employment centre where adult mentally handicapped people are employed on three days a week. We saw, I suppose, some twenty young people whose ages, though many of them looked younger than they actually are, ranged from about 20 to 30 years. They are employed there. It is a delightful place to visit. They take a great delight in receiving the one shilling per session which they earn. The brightest one there, in my opinion, was a boy of 20 who was caning a chair. He told me that he was able to go home by bus and to come back by bus. He did not want to stop work because he was on a "rush job." I asked him how long he had been on it and he said that it came in last Christmas and it was a rush job because it had to be ready next Christmas. He was a perfectly happy boy. But the point is that there is not one of those people aged between 20 and 30 who will ever be able to live in society without supervision. They are at present living at home and, thanks to the National Association, they have this work to do and are extremely happy doing it. They are living at home under the care of their parents or under the care of a friend. They could not possibly continue to live in the community unless they were under supervision in that way.

What happens to these people when the parents die or there are no relatives or friends to look after them in that way? The great difficulty is that in such circumstances there is nothing for them but a hospital. Of course they will be at a somewhat advanced age—more than twenty-one years of age, in all probability or in most cases—when that happens. But in this Bill we are depriving ourselves of the power to help them. Thousands and thousands of these people have never been in hospital at all; they have been looked after all their lives by their parents and relatives. But when that is no longer possible, or perhaps when some deterioration in their condition makes their behaviour such that they can no longer be cared for at home, then they will have to go to hospital. They can do so now, but under Clause 26 as it stands in the Bill they cannot be compelled to enter hospital for treatment. I say that for the sake of tidiness we are assuming that these children will be adult when they are twenty-one. In fact they will never be adult, and I think it would be a crime against these defenceless people if we deprive ourselves of the power to help them when the need arises.

I am prepared to agree, first of all, that there is not going to be a very high percentage of such people, but in the aggregate there will be quite a fair number of them. Also, as I would freely admit to the noble and learned Viscount, this Amendment goes much further than the broad class of people with whom I want to deal, and, indeed, if it were accepted it would bring to nought the provision that, subject to certain conditions, mentally-handicapped people must be released when they are twenty-five. But although I am willing to agree that it does go wider, and if accepted it would possibly even lead to abuses of the kind we wish to avoid, nevertheless I say that this is a very real problem which is quite undeniable; and before this Bill leaves your Lordships' House some way must be found which will enable us to provide hospital treatment for these people, even if necessary against their will at first. After all, many of them will never have been in hospital, and they are obviously going to be unwilling to go there. They may be fifty years of age and they are going to be unwilling to go to hospital until they get there. Then if they can no longer live with their parents because their parents are dead or sick, or with their friends, they will be put into hospital with people of their own mental age and who are similar to themselves and, above all, with physicians who understand them.

Therefore, while I admit that all those defects of this present Amendment and the other two Amendments that go with it are readily obvious, nevertheless I say that there is nothing wrong about the case, and I hope, therefore, that the noble and learned Viscount when he comes to reply will be able to say that this matter is receiving the Government's attention and that, if not now, he will be able at a later stage to put forward a suggestion for an addition to the Bill which will provide us with the power to help these people when the need arises.

Amendment moved— Page 15, line 42, after ("illness") insert ("subnormality")—(Lord Stonham.)


I beg to support my noble friend Lord Stonham. The issue really is the difference between "severe subnormality" and "subnormality" in the definitions. According to the definitions, a "severely subnormal" person is one who is "incapable of living an independent life", and such persons are covered by the provisions in the Act by normally being compulsorily detained. A "subnormal" person is a person with a degree of subnormality such as would enable him to lead an independent life, presumably, since that is not mentioned, but who "requires or is susceptible to medical treatment".

Now the problem—and it is a very real problem, as my noble friend Lord Stonham has pointed out—is that some people who are subnormal become severely subnormal because of the loss of the social support which they have enjoyed from their families. They are a small group; but, as I say, this is a very real difficulty and, I understand, is so regarded in the eyes of medical superintendents of mental defective institutions. If we can be assured by Her Majesty's Government that the medical superintendents of mental defective institutions do not find this a difficulty, then I think the case for our Amendment is perhaps a slender; but, in our experience, it is a real difficulty, and I hope the Government will have some solution—if not in my noble friend's words, then in their own.

4.11 p.m.


If I might deal with the general point first, obviously both noble Lords have in mind a matter of importance, to which great thought is being given, and I approach it in that way. Perhaps they will bear with me if I deal with it at slightly greater length than I should otherwise have done, and take it as a compliment to the point which they have raised. 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. Noble Lords will remember that that was stated explicitly by the Royal Commission in paragraph 193 of the Report, where they said: The broad dividing line between the patients whom we call severely subnormal and those whom we call psychopathic"— and that includes those referred to in the Bill both as "subnormal" and "psychopathic"— comes in the middle ranges of what is now called feeblemindedness,… But in some cases it may be rave to say that patients are seriously subnormal and are incapable of living an independent life even if their intelligence quotient is, say, 60 or even higher, if they have other serious defects of personality in addition, resulting in a generally subnormal personality which makes them incapable of managing their own lives or places them in serious danger of being taken advantage of by other people. They went on to estimate that from one-half to two-thirds of the feeble-minded patients in mental deficiency hospitals would come into the severely subnormal group. The Royal Commission expected that this criterion would be clear if the severely subnormal group were described as "patients incapable of living an independent life"—and that, as your Lordships will see, is the phrase used in the definition of "severely subnormal" in Clause 4 (2) of the Bill.

On the other hand—and this may be the reason for the difficulties which presented themselves to the medical superintendents whom the noble Lord, Lord Taylor, has mentioned—it may be they are under the impression that the definition of "severely subnormal" is not intended to cover much more than the present idiot and imbecile categories, and that the case for removing the age limits for the compulsory admission of subnormal patients is to meet the needs of the feeble-minded patients whom I have mentioned. That aspect of the point I am fully ready to consider.

I should have thought, as a first reaction to it after hearing the speeches, although I should like to consider them more fully, that the most appropriate way of doing this would not be by Amendments to Clause 26 or Clause 44, but by amending the definition of "severely subnormal" in Clause 4 subsection (2) by importing into it words which would show that it is meant to cover persons whose arrested or incomplete development of mind is of a degree which makes them liable to, and unable to defend themselves from, serious exploitation by others. That is, we might import into Clause 4 (2) that part of the criteria suggested—if I may look at it in advance—in the Amendment to Clause 44 to be moved by the noble Lord, Lord Stonham. That is the approach which I should like to make to the matter, and I should like to consider it again between now and Report stage.

I want to say only one word about the reasons for the age limit. As most of your Lordships will have realised, the 21 year age limit follows the recommendations of the Royal Commission in paragraphs 353 to 356 of their Report. Their view was that compulsory admission for treatment is justified for patients up to the age of 21 as a form, in effect, of extended compulsory education and training for persons who are mentally immature, but that persons who are only mildly subnormal should not be compulsorily detained in adult life, except for short periods of observation, unless their conduct is anti-social to the extent of constituting an offence against the criminal law. That is why the Bill provides for compulsory admission to hospital under Part V at any age; but, under Part IV, apart from observation under Clause 25, these patients may not be compulsorily admitted over the age of 21 or detained beyond the age of 25 unless dangerous. But I should remind your Lordships that informal treatment without compulsion is available at any time at any age; and compulsory admission under Clause 26 is also available at any age for the severely subnormal, who are defined as being "incapable of living an independent life".

I do not want to be argumentative on the matter—I could go on further—but I should like to say a word on one point which I know is in the mind of the noble Lord, Lord Stonham. I am saying it not so much as argument, but so that he will have a chance of considering the way it appeals to me. As he indicated (and Lord Taylor, I think, had the same point in mind), it has been suggested that the 21 age limit is inappropriate for patients who have been adequately looked after by their parents, and who do not need hospital or local authority care until the parents die or become incapable, by which time the patient may be over 21. We felt that most patients cared for by their families beyond the age of 21 are likely to be willing to receive similar care later from local health authorities or hospitals without compulsion; and those who are quite incapable of living independently would be "severely subnormal", as I have tried to point out, and could, if necessary, be taken into guardianship (or, if necessary, admitted compulsorily to hospital) at any age. I think that those who need care after 21 because they suffer from premature senile deterioration are a separate problem; but it will be possible to admit compulsorily at any age subnormal patients who are also suffering from mental illness of a nature or to a degree which itself warrants detention. They can be dealt with as mentally ill under Clause 26, or received into guardianship under Clause 33.

The point which I hope may be of most interest to the noble Lord was the first point I made, and I am fully prepared to have another look at Clause 4 (2) to see if we can find something in the definition which would meet what I think is the basic point the noble Lord has in mind. May I say again that I consider the Committee stage is exploratory, and as I told the noble Lord, Lord Pakenham, I never take it amiss if the Opposition want to divide on a point, although what I am most anxious to do is to find the real point so that I can have a look at it and, if possible, improve the Bill.


I feel that the noble and learned Viscount has done exactly what I hoped he would do—showed me a way out of my dilemma and how to meet this difficulty, which I believe is a real one. I accept his suggestion for an Amendment of Clause 4, provided that we can make it clear that it will apply to severe subnormals of any age. It is true that nearly all new admissions to mental deficiency hospitals are on a voluntary basis. I am not concerned about that aspect, but about the difficulty of those who have never been in hospital and have always been looked after by their parents, who are suddenly confronted as adults, sometimes middle-aged adults, by the fact that they have to go into hospital. In the initial stages, compulsion will be needed. There will not be many of them, but I think we ought to have the power, subject to proper safeguards. I think that the noble and learned Viscount's suggestion will meet the case, and with that in mind I beg to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD STONHAM moved to add to the clause: (6) All applications for admission for treatment shall be lodged with the Mental Health Review Tribunal for the district, which Tribunal shall within 28 days, either release the patient or authorise his detention, and a patient shall not be deemed to have been admitted to the hospital for treatment until such time as his case has been considered by the Tribunal and his admission for treatment authorised".

The noble Lord said: The effect of the acceptance of this Amendment would be to make all admissions, admissions for observation. I feel that this Amendment is necessary for two reasons, which I regard as important. The first is that though many patients in a disturbed condition who go into mental hospitals recover quickly, in a matter of days, if they have gone in for treatment they are labelled for the rest of their lives by the fact that they have been compulsorily treated in a mental hospital. It counts against them in after life in many ways. It is harder for them to get a job. They cannot emigrate to certain Dominions. It will be difficult for them to insure their lives. All these are quite apart from the ordinary, but inevitable, social disabilities, though these, I am happy to say, will grow increasingly less and I hope that the other three will also eventually disappear.

There would be no such disabilities if these patients were in hospital for observation and could answer "No" to the question: "Have you ever undergone treatment in a mental hospital?" That is the first justification for this Amendment, which would provide that initially every admission is an admission for observation. Secondly, the Amendment would remove the objection I have to the present proposal that the tribunal can get a patient out of a mental hospital but cannot prevent him from going in. It may be argued that this is a sophism. The patient will be in a mental hospital anyway. I agree; but he will be in for observation and not for treatment. As the Amendment proposes, there will be the safeguard that after hearing, if the Tribunal decided that the patient must be detained, it would be the Tribunal, not the doctor, who was ordering the patient to be detained for treatment.

There is one other aspect which makes this Amendment more important than your Lordships might otherwise think: that is, the change we are proposing to make in the law in respect of the mentally deficient person. In my view, that change will mean that more mentally handicapped people will be going into hospital than at present. At present it is a requirement that a justice of the peace shall be satisfied that a patient who is brought before him for detention is "subject to be dealt with", as having fallen within a certain specified category indicating his social needs. A justice must be satisfied that the person is suffering from arrested or incomplete development of mind, which has existed before his eighteenth birthday, and the degree to which his development is incomplete is such as to fall within one or other of the sub-categories mentioned in the Act.

The Bill proposes that he shall be declared to fall within one or other of the categories I have mentioned and is in need of hospital treatment, but the categories are not strictly defined and rest purely on medical diagnosis. This means that we are given, for a social decision by representatives of society, a medical decision on purely medical grounds taken by medical experts alone, and this is to become the basis for detention. In my submission, because we are removing this social decision, the new proposals will render subject to possible detention many more people than are liable at the moment. If I may say so, the Government do not seem to appreciate that a person must become "subject to be dealt with" in order lawfully to be detained and that the condition of mental deficiency is not in itself cause for detention. But it can be, as the Bill stands.

Therefore, I do not think that it is any exaggeration to say that there will be more mental deficients who qualify for hospital, whether they go voluntarily or otherwise, and this underlines the need for the first admission to be for observation, so that a patient or his relatives or a friend or representative can appeal to the Tribunal during the twenty-eight days to see whether they are satisfied that the patient must be actually detained for treatment. I believe that if this procedure is adopted, in course of time it will save many people from bearing a handicap throughout their lives which should not be placed on them. It may be argued that out of every 100 cases of patients who are compulsorily detained in hospital under Clause 26, ninety-five would be confirmed by the Tribunal; but if there were only five out of every hundred not so confirmed, it would be well worth doing.

I know it is argued against this proposal that the same tribunal, broadly speaking, although not necessarily the same persons, would consider the appeal on admission for observation and, perhaps six months later, or within six months or less, might also have to consider the appeal from the same patient for discharge from the hospital; and it is said that that is not a good thing. But for years now we have had the same officials of the Board of Control considering the same patient's appeal time and time again, and it has never been suggested that that is grossly unfair. I do not think that is a strong or valid objection to this proposal. One would even think that if the tribunal had considered the case on first admission they might be in a better position a few months later to judge of the patient's progress or otherwise. I feel that this is a real difficulty. It is quite certain that some orders for detention for treatment under Clause 26 will be made in respect of patients who recover very quickly, and in that event there is ample justification for the acceptance of this Amendment which would ensure that all patients should have the right of appeal on admission and that all admissions should in the first instance be for observation. I beg to move.

Amendment moved— Page 16, line 36, at end insert the said subsection.—(Lord Stonham.)


The only point on which I should like to confirm and support what my noble friend has said is to call attention to the degree to which this Amendment would put the initiative in the hands of the Mental Health Review Tribunals. I know that the Bill, as it now stands, contemplates that the Tribunals should be more of a court of appeal than a court of first instance, but this Amendment is closely bound up with the Amendment to be moved later, No. 18, which would restore the rôle of the justices of the peace in the first instance. If there is to be no layman who takes part in the original authorisation of admission it surely becomes doubly important that the initiative should be with some body other than the two doctors who can certify or authorise compulsory treatment alike for psychopaths, for the moderately subnormal and for those who are mentally ill.


As the noble Baroness has just said, this is the first Amendment which raises the question as to how far there should be lay action in the compulsory admission. I ask your Lordships to note what Clause 26 provides at the moment. It provides for the compulsory admission of patients to hospital for treatment on an application made by the patient's nearest relative, or a mental welfare officer of a local health authority, supported by two medical recommendations. I stress that last point, because the noble Lord, Lord Stonham, was envisaging the nearest relative in rather a different position. A patient so admitted may be detained, subject to powers of discharge held by various persons (and I ask your Lordships to note these powers, which are set out in Clauses 47, 48 and 123) for up to one year, after which the authority for detention may be renewed under Clause 43 for a further year and thereafter, if necessary, for further periods of two years at a time. As has been said, the patient is given a right to apply if he wishes to a Mental Health Review Tribunal at any time within the first six months after admission and after any renewal under Clause 43.

Despite what has been said, I feel that any one of these Amendments would strike at the roots of a new series of safeguards which Part IV of the Bill sets up to replace the present system. I think it is necessary to look a little more closely at the present position, because it was said on Second Reading that to rely on medical opinion alone was a serious matter when depriving a person of his liberty. But that disregards the many safeguards incorporated in the new system, which must be regarded as a whole. Those safeguards include, as I said on Second Reading, not only the procedures used at the time of admission but also the limits placed by the Bill itself on the use of these procedures, the powers of discharge and the provisions for appeal and review. The main changes in this connection are the abolition of the magistrate's order and of the Board of Control—who at present have the duty of scrutinising the admission documents and have certain powers of discharge—and the replacement by new safeguards based on the Royal Commission's recommendations. These we regard as more appropriate and more effective. Therefore I venture to remind your Lordships of the main extra safeguards which have been introduced.

First, two medical recommendations are required in all cases, one to be given by a specially experienced doctor. It is true that two are required under the Mental Deficiency Acts, but only one is required under the most common procedure under the Lunacy Act. Secondly, there is the establishment of Mental Health Review Tribunals consisting of legal, medical and lay members, to whom the patient can go, if he wishes, on specified occasions, though this procedure is not forced on him willy-nilly as the magistrate is at the moment. Thirdly, there are the wider powers of discharge. Fourthly, there are the more frequent statutory reviews of the authority to detain.

I think it is important to note the lay persons who take part under the procedures which the Bill sets up. There is, first of all, the applicant who must be the patient's nearest relative, or any relative, in an emergency, or a mental welfare officer, who is, after all, an experienced social worker employed by the local authority. Secondly, there are the managers of the hospital, who have power to discharge at any time, including immediately after admission, if they think fit. Thirdly, there are the Mental Health Review Tribunals, which include, as I have said, legal and lay as well as medical members. It would completely upset this carefully balanced system to superimpose on it automatic reference to a justice of the peace or to a Mental Health Review Tribunal in all cases, whether this is to be done before or after the patient's admission.

This Amendment would require all applications under Clause 26 to be referred to a Mental Health Review Tribunal. It is not clear—I do not think the noble Lord mentioned this in his speech; I did not understand him to do so—whether it is intended to require the Tribunal merely to scrutinise the documents or also to see the patient. Of course, as the noble Lord said, it allows the patient to be admitted, pend- ing consideration by the Tribunal, on an observation basis. Therefore, let us consider these alternatives.

If the Tribunal is only to scrutinise the documents and not see the patient, that will be no safeguard to the patient. Your Lordships will remember that that question was discussed by the Royal Commission in paragraphs 749 to 757 of their Report and they stressed, first, that no routine scrutiny of documents by a person who has not examined a patient can provide any check on their accuracy or any safeguard against deliberate malpractice or errors of diagnosis. Whether or not the documents accurately describe the patient can be determined only if the medical details in the recommendations are considered by a doctor who has himself examined the patient. Secondly, the main effect of the scrutiny of documents as at present carried out by the Board of Control is to make sure they are technically correct and, on the assumption that they accurately describe the patient, provide good documentary authority for his detention. In other words, it ensures that the hospital has proper documentary authority to detain him. But the Royal Commission recommended, and Clause 32 of the Bill provides, that this should be the responsibility of the hospital authorities themselves.

That is one of the alternatives. The other is for Tribunals to see the patient as well as the documents. If this is to be done before admission, it will impose undesirable delay. Even though in some cases the patient could be admitted for observation under Clause 25 while the application for admission under Clause 26 was being considered, in many cases the need for an application under Clause 26 would be apparent only towards the end of a period of observation under Clause 25, and the patient would then have to be discharged at the end of the observation period if the application under Clause 26 needed to be referred first to the Tribunal. That, I think, would be most unfortunate. If reference is made to the Tribunal after the patient has been admitted, it would require the Tribunal to consider details about all patients, large numbers of whom will need to remain in hospital only a short time and may be ready for discharge before the end of the 28 days in which the Tribunal has to give its decision. Many patients complete their treatment within two or three weeks.

In either case, it would clog up the Tribunals with patients who do not want to go to a Tribunal. It would, in fact, impose upon every patient, whether he wants it or not, a procedure far more formal than the present reference to the magistrate. Whether the Tribunal sees only the documents or the patient as well, it would destroy the whole concept of the Tribunals as bodies to consider appeals, and would turn them into part of the administrative machine for admissions. That would be entirely contrary to the intentions of the Bill. I am very sorry that I cannot agree with this Amendment, and I have ventured to put before your Lordships the reasons why I cannot agree.


I should like to congratulate the noble and learned Viscount upon what he has just said. He has made a most interesting speech, in the course of which he has demonstrated how much simpler and more effective the existing system of certification by a magistrate is than anything which is contained in this Bill: much more satisfactory to the relatives of the patient and to the patient himself if he is capable of any understanding of the position at all.

The noble and learned Viscount has said that this Bill contains a series of safeguards, including the right of appeal to the Mental Health Review Tribunal. But I should like to know what provision there is in this Bill—perhaps I have overlooked it—for notifying the patient, when he is detained in the first place for treatment, that he has a right of appeal to the Mental Health Review Tribunal. I know there is a provision later on, if his detention is renewed by which he is notified of the position. But unless I have missed it somehow, I do not find any provision for notifying him in the first instance and enabling him to exercise his right of appeal to the Mental Health Review Tribunal.

The noble and learned Viscount has fortified his argument by the observations of the Royal Commission upon the unsatisfactory nature of a review which consists merely of a scrutiny of documentary authorities. But let me point out that this Bill does provide for a review by the Mental Health Review Tribunal, which is what my noble friend has asked for in this particular Amendment. Are we to understand from what the noble and learned Viscount has said that any appeal to the Mental Health Review Tribunal under this Bill is going to be merely a scrutiny of documentary authorities? Surely not.


I never said that for a moment, and I do not know how the noble Lord ever thought I did. I was putting up the hypothetical argument that on this Amendment there were two possibilities—first, that there would be the appeal on the documents and, secondly, an opportunity of seeing the patient. I never suggested that under this Bill it would be only a matter of scrutiny of documents.


But is there anything in this Bill which provides otherwise—which makes it obligatory upon the Mental Health Review Tribunal to act in the alternative fashion which the noble and learned Viscount has suggested, rather than by means of a scrutiny of documents? I do not think there is anything obliging the Tribunal to do that. It is true that the Tribunal is given power as a body, or by one of its members, to inform the patient, but it is not obligatory. If the noble and learned Viscount's criticism of my noble friend's Amendment is justified, it is also a criticism of what is provided in this Bill—that there is a possibility that the Mental Health Review Tribunal will act in that fashion. With all respect, I suggest that that is not a valid criticism of this Amendment, because it is presupposing that the general procedure of the Bill will not be effective to secure what is required.

I am very concerned about this matter, because, after all, we are dealing here with the compulsory legal detention of an individual, and it is a very serious matter. I do not feel at all happy that it should depend upon the opinion of experts. I do not know of any other branch of our law in which the opinion of experts is decisive. It is certainly a very unusual thing that the decision should be in the hands of experts, especially in a matter which involves the liberty of the subject.


I do not propose to prolong the discussion. I have had a very fair but, in my submission, unsatisfactory answer. I should like to make it clear that it would be a matter for the Tribunal to decide whether or not to see the patient or whether to deal with the documents. It appeared to me that in his reply the noble and learned Viscount admitted that quite a number of patients might be in hospital for only two or three weeks, and I should have thought that that was a strong argument for the Amendment and not an argument against it, because these people will have the stigma of having been detained in a mental hospital for treatment when, in fact, they should have gone there only for observation. In my Amendment that would be possible in respect of all cases.

The other disappointing part of the reply was that it said nothing at all about the greatly changed conditions of mentally deficient people under the Bill as compared with the present position. There are to be these purely medical qualifications, the same number of doctors as at present, but less the lay influence, which is extremely important for such people. I do not say it will happen, but I can foresee the kind of case where a mentally handicapped person is being properly looked after at home and some over-zealous medical officer decides that he ought to go into a mental deficiency hospital. There ought to be a very early right of appeal against that kind of thing, and I do not think the Government have looked sufficiently into the point. Although I do not propose to press it now, I hope the Lord Chancellor will have a look at it again. With your Lordships' permission, I will withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clause 27 [General provisions as to applications]:

4.52 p.m.


This is a drafting Amendment. I do not know if noble Lords are prepared to leave it at that. If anyone has any doubt on any aspect I will deal with it in full with pleasure.

Amendment moved— Page 17, line 2, leave out from ("and") to end of line 6 and insert ("without prejudice to the foregoing provision, shall not be made by such an officer except after consultation with the person (if any) appearing to he the nearest relative of the patient unless it appears to that officer that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay").—(The Lord Chancellor.)


There is one point. The Amendment appears to relieve the mental welfare officer of the greatest part of his responsibility of consulting the nearest relative. Surely the original wording to "take such steps as reasonably practicable" should be sufficient protection. Why transpose on obligation to the negative and bring in this question of delay? The noble Viscount said that it is a drafting Amendment, but it seems to me somewhat more than that as it appears to tie up with a later Amendment to Clause 41 and Clause 54. Since one of the great virtues of the Bill is that it gives greater powers to relatives to safeguard the liberties of patients, I should have thought twice before weakening it by saying that the mental welfare officer need not consult relatives.


It will probably be better if I deal with all the points. The position at the moment is that subsection (2) of the clause precludes a mental welfare officer from making application for admission to hospital against the known wishes of the nearest relative. These objections cannot be overridden unless a county court makes an Order under Clause 52. The second half of the subsection in effect requires a mental welfare officer to take all reasonably practicable steps to ensure that the nearest relative has an opportunity to make such objection if he wishes. The wording at present might lead to practical difficulties in cases where the nearest relative lives too far away to be visited in person and can be consulted only by correspondence. It raises the question of how long a mental welfare officer must wait for a reply before he can assume that the nearest relative has no objection and he can proceed to make application. The Amendment is intended to overcome this difficulty.

It requires a mental welfare officer to consult the nearest relative unless, as Lord Stonham says, it appears to him—that is a subjective test, and not an objective test answerable in the courts—that such consultation is not reasonably practicable or would involve unreasonable delay. That leaves the decision at the discretion of the mental welfare officer in the light of the circumstances of the particular case. The reason I think it covers this point is that if the mental welfare officer goes ahead and makes application, the nearest relative can at any time, if he wishes, discharge the patient under Clause 47(2)(b). That safeguards the position of the relative in cases where his views cannot reasonably be obtained before the patient is admitted. The Amendment does not disturb the first part of the subsection, which prevents application where a known relative objects. The Amendment assumes that the mental welfare officer acts bona fide and reasonably according to his knowledge. I do not think that is unreasonable to assume if we are going to make progress in upgrading these officers. Perhaps I should have gone through the matter in detail, but I hope I have now dispelled any doubts.


I appreciate the reasons for altering the provisions of this subsection in the case where it might be difficult to get into touch with the nearest relative, but in the alternative it does appear that the mental welfare officer is now relieved of any obligation of informing the person. Surely the nearest relative ought to be informed, even if he happens to be at some distance and it is difficult to get in touch immediately. I agree that there may be good reasons for taking quick action and avoiding delay, but surely at some stage or other the nearest relative ought to be informed if the action has been taken without his being consulted in the first instance.


I said he would be informed, and the nearest relative can let him out at once if he likes.


That is not what the Amendment says. I cannot find that in the clause as it will be altered.

On Question, Amendment agreed to.

Clause 27, as amended, agreed to.

Clause 28:

General provisions as to medical recommendations

(2) Of the medical recommendations given for the purposes of any such application, one shall be given by a practitioner approved for the purposes of this section by a local health authority as having special experience in the diagnosis or treatment of mental disorders; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a medical practitioner who has such previous acquaintance.

LORD TAYLOR moved, in subsection (2), after "authority" to insert: "in consultation with a Regional Hospital Board." The noble Lord said: This Amendment is an important one. It links up with Amendment No. 5 which the noble and learned Viscount was kind enough to say he would have a look at when we moved it earlier. The discussion we have already had on the method of detaining a person who has to be detained has placed great emphasis on the two doctors, and clearly, therefore, we must take every possible care to make sure that the second doctor who is a specialist in psychiatry is, in fact, a proper person to do the job. As the Bill stands he will, for the purpose of this clause, be approved by the local health authority.

In fact there is a great shortage of psychiatrists and almost all the psychiatrists are employed by Regional Hospital Boards. The only substantial group of psychiatrists employed by local health authorities are part-time psychiatrists engaged in mental deficiency and child guidance work. They would, of course, be quite unsuitable for this purpose. Those psychiatrists who will be making the decision are exactly analagous to the psychiatrist who, under the Mental Treatment Act, 1930, was able with one other practitioner to detain a patient temporarily for treatment for a period, I think, up to two years, when there was no volition. Undoubtedly they will be ordinary specialists in psychiatry employed by the Regional Hospital Boards, though they may be part-time employees of local health authorities.

I imagine, and I think most of us imagine, that what will happen is that the general practitioner will in a doubtful case send for a consulting psychiatrist from a Regional Hospital Board, and the psychiatrist and the general practitioner will see the patient together and then decide that voluntary treatment is impossible and it must be compulsory treatment. That psychiatrist may not be a local health authority employee at all. He may be working entirely for the Regional Hospital Board, and probably more often than not he will be. Therefore it seems reasonable and right that, in deciding who this psychiatrist should be, the local health authority should consult with the Regional Hospital Board. I think that this is a sensible and workable arrangement, and I hope it will commend itself to the Government. I beg to move.

Amendment moved— Page 17, line 26, after ("authority") insert ("in consultation with a Regional Hospital Board")—(Lord Taylor.)

5.2 p.m.


Would your Lordships excuse me if I speak at this stage. It is my desire to meet the noble Lord, Lord Taylor, and if I can point out how we propose to do it I hope he will be satisfied. If he is not, perhaps he can think it over again. As our intention is the same, it might be convenient if I put it to your Lordships. The Government agree that local health authorities should be required to take the advice of medical representatives nominated by the Regional Hospital Boards and, where appropriate, by the boards of teaching hospitals also, before approving doctors under this clause. This point was raised in another place and the Government moved an Amendment there to insert what is now paragraph (d) in subsection (2) of Clause 56. Your Lordships will find it on page 40 of the Bill. That allows the Minister to make regulations constituting committees to advise local health authorities as to the approval of medical practitioners for the purposes of Clause 28.

May I say quite frankly that that was a mistake, because committees of local authorities are liable to certain rules. They could not, for example, contain an officer of the local authority, however desirable that was. Therefore, I have put down Amendment No. 43 which your Lordships will find at page 7 of the Marshalled List, saying that my right honourable friend may make regulations. 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 confining approval to such practitioners as may be agreed upon between these authorities and any bodies or persons required to be consulted by them respectively. That does not alter the general effect; it simply gets us out of the difficulty we found we were in.

I hope that the noble Lord, Lord Taylor, will consider, on reflection, that it is more appropriate for this to be dealt with by regulations under Clause 56, as special arrangements may be needed in some areas. It would not be right to leave the teaching hospitals out of the picture, but it would not be appropriate to bring them in in all local authority areas, some of which are far removed geographically from a teaching hospital. Also special arrangements will be needed in London, as four Regional Hospital Boards and twenty-six teaching hospitals operate in the London area. I think this is a proper case for regulations which allow flexibility and can always be changed to meet changing circumstances. I hope that the noble Lord, Lord Taylor, will understand that I am very desirous of meeting his point. That is how I should like to meet it. Perhaps he would consider it and if he is not satisfied inform me before the Report stage.


I am perfectly happy. I think it is a very good solution, particularly in view of the question of the teaching hospitals. I can see no objection to that arrangement; I am very pleased indeed. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

5.8 p.m.

LORD SILKIN moved, after Clause 28 to insert the following new clause:

Justices' certificate

" . Before making an application for admission of a patient under this Part of this Act the applicant shall notify a justice having jurisdiction in the place where the proposed patient resides and shall provide such justice with copies (certified by the applicant to be true copies) of the recommendations signed by the two medical practitioners and no patient shall be admitted unless the justice has seen the patient and has certified that all tile requirements of this Part of this Act have been complied with and that the patient is suffering from a mental disorder and should be detained for observation or treatment."

The noble Lord said: I beg to move the new clause standing in my name on the Marshalled List. This raises the whole question of the method of certification, which I believe is one of the most controversial subjects dealt with in this Bill. I recognise that there is here a conflict between the importance of ensuring, on the one hand, that patients who are in need of treatment in a mental hospital, who are dangerous either to themselves or to the general public, should receive that treatment and should be detained compulsorily, and, on the other that nobody is detained compulsorily unless it is quite certain that he qualifies and complies with the required conditions. What is here involved is, quite frankly, the liberty of the subject. We have all of us known or heard of cases where people have been certified as insane without proper cause, and I think everybody would be desirous of ensuring that that danger is reduced to the smallest possible extent.

In moving this Amendment I believe that the certification by a justice of the peace is a safeguard not only to tile patient but to the general public, and I think the general public are entitled to be assured that no person is compulsorily detained unless there has been some representative of the public, a lay person, to vouch for the desirability and the necessity of such detention. That has been the practice until now; it is the practice to-day, and I should like to examine for a moment why it is suggested that that practice should be altered. I recognise that the Government are here following the recommendations of the Royal Commission who came to the conclusion that lay control offers little or no protection to the patient. I want to deny that most emphatically. I submit that the very existence of the magistrate, the very fact that it is necessary to get the certificate of the magistrate, is in itself a safeguard and it is quite impossible to measure the extent to which it is a safeguard.

Let me go through some of the reasons which are referred to in the Report of the Royal Commission as justifying their recommendation. The first is that in the public mind the justice of the peace is identified with the criminal law, and that to introduce a justice in this matter is a stigma on the mental patient. That must be wrong, because in these days, when the duties of a justice of the peace are so varied as between civilian and criminal matters, a justice is no longer wholly identified with crime and with the treatment of criminals. I would suggest that the stigma is not in coming before a magistrate, but in the fact of our whole approach and attitude in the past to mental illness. The stigma has been caused by the fact that the person has had to be compulsorily detained. That is one of the things that we want to try to remove by this Bill. We want to regard mental illness as in the same category as any other illness, and I do not for a moment agree with the view that the fact that a justice of the peace is brought into the picture as a safeguard against improper certification is itself a cause of the stigma. Although the Amendment requires a justice of the peace, I suggested on Second Reading that there might be some point in having a panel of suitable persons, appointed by the Lord Chancellor or by some other authority, who would be responsible for carrying out the duty of certification, if it is thought that the justice of the peace is not the most suitable person.

Then it is said that a single justice cannot possibly decide on this matter; that the mental condition of the patient is a matter for doctors, and that in many cases, indeed in most cases, the justice of the peace acts as a "rubber stamp". Really, that is a misconception of the whole relationship between the expert and the judicial authority. It is perfectly right that the doctors should express an opinion in accordance with the Bill; but the final decision should not rest with the expert—with those people who express their opinion. Surely it should be left to some independent lay person, to decide finally whether, in the light of the certificate compulsory detention is the proper course.

After all, justices of the peace, and judges of all categories, are always having to decide matters upon which they are not experts, on the basis of evidence that is placed before them. If a Judge of the High Court said "I am no authority on this particular matter. This is a highly scientific, technical matter upon which I cannot be a judge. I must leave it to those who are expert on this matter," we should have no decision at all. It cannot be left entirely to experts. That is not the basis upon which we carry on the law of this country. Justices are as much experienced in weighing up the evidence of experts as any other judicial authority—they are constantly having to do it; and I would submit that this is not as difficult a matter as many that come before justices in the course of their ordinary duties.

Then it is said that justices act as "rubber stamps"; that they see the patient for a few minutes only, and that patients are sometimes "hawked around" from one justice to another—that when one justice has refused to give a certificate another justice is asked to do it, until eventually a justice is found who is prepared to give the certificate. I think that is wrong. That can be stopped administratively if it is agreed that it is undesirable. It is as undesirable as it is if you go before one magistrate and get an unfavourable decision and you then go to another magistrate and hope to get a more favourable one. There is no difficulty about preventing that sort of thing. I would suggest that if one justice had declined to give a certificate it should be made illegal to approach another justice, at any rate for a certain length of time, or unless the circumstances had changed.

My own experience—I do not pretend to have a great deal, but I have talked to a large number of magistrates in the last few weeks on this particular point—does not bear out that the majority of magistrates are "rubber stamps". I know that those magistrates who are responsible for this work take an immense amount of trouble to satisfy themselves that the patient really is in need of detention; and in many cases they have prevented a detention—a course which has turned out to be fully justified by the result. It may be that in some cases they have prevented detention which ought to have taken place. But I would rather that six patients who ought to be detained were not detained, than that one patient who ought not to be detained was detained. I think that the importance of ensuring that nobody is compulsorily detained is so great that no effort is too important to prevent it.

I would suggest that we restore the justice as a party to the process of compulsory detention. It may be that not every justice is suitable for this task, and that it would be preferable to entrust the task to selected magistrates, That, I imagine, would not be beyond the possibilities of administration. There are the chairmen of the different benches who could undertake this task; or we could get selected magistrates in some other way. But the essential thing, whether it is done by magistrates or by others, is that we should secure lay control. Even if it is effective in only a small proportion of cases it justifies itself.

I submit that the Report, which I have read most carefully, is quite inconclusive in providing a ground for the withdrawal of this safeguard in favour of the liberty of the subject. I know that this is a matter which has given rise to a great deal of anxious thought—it has done in my own mind. But my noble friends and I who are responsible for this Amendment, and many other people with whom I have discussed the matter, have come to the conclusion that it would be a great mistake to remove this civilian safeguard; and I very much hope that Her Majesty's Government will see their way to give us satisfaction on this Amendment. I beg to move.

Amendment moved— After Clause 28, insert the said new clause.—(Lord Silkin.)


I should like very briefly to support the Amendment which the noble Lord, Lord Silkin, and his noble friends have put down. Although, with the noble Lord, Lord Silkin, I believe that the cases where trouble may arise will be extremely few, I feel that this safeguard should be there so that it can be absolute, so that patients and their relatives may feel that there is some protection from the law in this matter. I hope that Her Majesty's Government will be able to give us some satisfaction along the lines proposed, though possibly not in those words.

5.22 p.m.


In rising to support this Amendment, I should like to associate myself with every word that the noble Lord, Lord Silkin, has said. This Amendment seems to me of fundamental importance for every kind of mental disorder, but perhaps particularly for the two categories, the subnormals and the psychopaths. The psychopaths are themselves the subject of a separate Amendment which comes later, and therefore I propose to address myself in the few remarks I want to make this afternoon purely to the question of the subnormals.

It has already been said by the Royal Commission and accepted by the noble and learned Viscount on the Woolsack that the category of severely subnormal is to be extended to include more than those at present diagnosed as idiots or imbeciles, and is, in fact, to overlap the category of the rather lower class feebleminded. Now the definition in the Bill of the severely subnormal is in terms of capacity to lead an independent life—surely, a highly elastic phrase. In the strictest sense of the term, no one of us is able, in this world, to lead an independent life, but I think it is apparent in the context of the Bill that what is contemplated is an independent life primarily in the economic sense. That interpretation was already to be seen in the Radnor Commission Report in the first decade of this century and it runs right through the subsequent literature of the subject down to the Report of the Royal Commission which has recently reported; and I believe we may take it that it is first and foremost the economically independent life with which the Bill is concerned.

Meanwhile, the less severely subnormal are defined in terms of their need of special care or training—a hardly less elastic phrase. There are those who do not lead an independent life in the economic sense because they are wholly physically or mentally incapable. There are also those who do not lead that life because they do not want to do so. They are a second category who are provided for under other legislation, and your Lordships should recognise that if this clause is not included we are going to have very great difficulty—indeed, we may have difficulty anyway—in distinguishing between those who are wholly incapable of leading an independent life and those who do not wish to do so. Some very fine lines will have to be drawn in the future.

Those who do not wish to lead an economically independent life are liable to be prosecuted under Section 51 of the National Assistance Act for failure to maintain themselves or their dependants; and they can be sent to prison for a period of not more than three months. Year by year a small number of them—forty-nine in the last Report of the National Assistance Board—were sent to prison. About one-third of those prosecuted are not imprisoned but are put on probation or dealt with in other ways, and a considerable number of cases liable for prosecution are not brought to court but are dealt with through the Assistance Board's centres for re-establishment. This means that a fine line has to be drawn between those whose incapacity to lead an independent life is thought to contain no voluntary element, who will be liable to indefinite detention without judicial process, up to the age of twenty-five, and those in whom a voluntary element is present who may be brought to court and formally tried and are liable to not more than three months' imprisonment.

The discrepancy seems to me quite out of proportion to our ability to distinguish between the waster, the idler or the rather "poor fish," and the person whose incapacity brings him within the definition of this Bill. Clearly, there is in this a social element, and I think it is because there is a social element that we attach great importance to the presence of a layman who must, of necessity, be a justice of the peace (as being the one category of persons readily available) in the process of authorising compulsory treatment.

It has already been admitted that there is a social element. The noble and learned Viscount is favourably contemplating (if I may so put it) an Amendment to the definition of "subnormal" which would take in those cases in which a person's need for special care or training arises from the breakdown of his domestic arrangements. That admits that this is not a purely medical problem but is also a social problem. Moreover, it is not a social problem only because it depends on personal circumstances; it is a social problem also because capacity to maintain oneself depends upon the state of the employment market.

I should like to call your Lordships' attention to the observations of two medical men, one at least of whom (I believe both) has had wide experience in dealing with those who are now classified as mental defectives. Doctors Lyon and Heaton Ward have said that the opinion is often expressed that mental deficiency is on the increase; but, they write: it is more probably true that owing to the increased tempo of the times, the defective is unable to keep pace with modern stress and consequently falls by the wayside when employment is competitive. In times when suitable employment is easy to find he manages to keep going, and being occupied, he keeps out of trouble. That is a frank recognition by medical men that the definition of a mental defective—and the same will be true of the definition of mentally subnormal—is not a purely medical problem. It varies not only with a person's mental condition but also with the state of his domestic circumstances and the state of the employment market; and that surely means that it is not an appropriate question to be decided by medical men alone.

The noble and learned Viscount has called attention in his remarks on earlier Amendments to the carefully balanced system of safeguards which this Bill provides. But surely the outstanding characteristic of those safeguards is that the Bill does not increase the safeguards for not getting in; what it does is to increase the safeguards for getting out. It makes for more frequent review. It makes it easier, perhaps, for those who were either wrongly subjected to compulsory treatment in the first place or hate now recovered sufficiently to be released. But it can hardly be said that this Bill, except in providing for a second medical certificate, gives increased safeguards against possible mistakes—I put it no higher than mistakes—in bringing people under compulsory treatment. There is, I think, no other case in which persons can be deprived of their liberty without the consent either of some court order or at the very least of a judicial authority, and if we allow what is provided in this case we are making a radical and fundamental departure from one of the basic principles of our Constitution.


My noble friend Lady Wootton of Abinger has dealt with the question of mental subnormality. I propose to speak briefly entirely from the point of view of mental illness. In this matter the Royal Commission and the noble and learned Viscount, in speaking about an earlier Amendment, present us with something like an intellectual Morton's Fork: one is caught either on the "rubber stamp" justice, or, alternatively, on the full-scale judicial inquiry into sanity, both of which are manifestly undesirable.

I wish to show that in fact the "rubber stamp" argument is entirely false or will become entirely false if doctors do their job properly. I suggested on the Second Reading that one in fifty of admissions to our mental hospitals might in future be under compulsion. I was greatly overestimating the picture. I was talking last week to Dr. Duncan Macmillan, the superintendent of a mental hospital at Nottingham which is one of our outstanding mental hospitals. It serves 390,000 people and has just over 1,100 beds. In 1953 98.7 per cent. of all admissions to that hospital were voluntary; in 1954 98.9 per cent. were all voluntary; to-day there is one certified patient in the whole hospital, apart from acute emergencies. There is nothing peculiar about Nottingham or about the people in Nottingham. The peculiar thing is to be found in the astonishingly good work done at the mental hospital.

We may ask why that has not happened everywhere. The first answer is that Dr. Duncan Macmillan, being a great personality, has twice the number of psychiatrists in his hospital compared with the number in any other hospital in the region; and the second is that he has very good and happy relations with the Medical Officer of Health for the County Borough of Nottingham. Given this kind of situation, the number of compulsory admissions under this Bill for mental illness could go down to this order of figures; that is to say, one admission, other than acute emergency admissions. per hospital per year. Given this state of affairs, the argument against having some form of judicial element in detention seems to me to be non-existent. Moreover, one of the great virtues, which was stressed by my noble friend Lord Silkin, in having some judicial element included is that it makes the act of compulsory detention a little more difficult for the doctor to do and therefore encourages him to behave, as Dr. Duncan Macmillan and his colleagues at Nottingham have done successfully, so as to persuade persons to become voluntary patients.

5.36 p.m.


I feel that I may be reflecting the views of the whole of your Lordships' House when I say that the noble Lord, Lord Silkin, and the noble Lords who have supported his Amendment have rendered a very valuable service by moving this Amendment and contributing to the discussion that has ensued, for it has provided the Committee with the opportunity of debating in detail the most important subject of whether the safeguards in this Bill are sufficient to protect the liberty and the rights of freedom of the individual subject. Whether or not the individual is mentally ill, subnormal or inadequate, the same principle applies: that there must always be eternal vigilance at all times in order to protect the individual liberty and the rights of freedom of the subject.

I am, however, opposed to this Amendment, for, after the most careful consideration, I, like my noble and learned friend the Lord Chancellor, have come to the conclusion that the many safeguards incorporated in this Bill and regarded as a whole cannot in fact be improved upon. In my opinion the Bill provides not only more safeguards than have been provided hitherto but more effective safeguards. As my noble and learned friend the Lord Chancellor said, these include not only the procedures for admission but also the increased powers of discharge and the provisions for appeal and review.

The broad argument is surely this: either we put in our safeguards at the beginning or we put them in at the end. Under previous legislation we tried putting them in at the beginning, with the certifying authority being a justice of the peace. The cause whereby that was initiated was not due to the pungent arguments enunciated by the noble Lord, Lord Silkin, but largely because a justice of the peace in the early days of the asylum was the person appointed by the public as the appropriate guardian of all those who could be conveniently disposed of in an asylum; and that, broadly, is the reason why we have in subsequent legislation had the magistracy as the authority for certification.

I cannot but differ from the noble Lord, Lord Silkin, when he says that there are many magistrates who have wished to retain the power that they are now possessed of because they are of the belief that they represent the public interest as laymen. The noble Lord who has now resumed his place as Chairman of this Committee, if he were permitted to do so, would, as Chairman of the Magistrates' Association, support me when I say that that body, I think unanimously, agreed that the problem confronting the individual justice was such that it was almost impossible for him or her to bring to bear a considered view on a matter that is one of profession and highly technical. In my experience, duly authorised officers have often intimated to me that once the medical decision has been made the choice of magistrate is often directed towards those who are known to take the quickest course.

There are many areas where the duly authorised officer together with the medical practitioner—in the case of the Lunacy Acts only one medical practitioner—have had cases requiring certification which have been cases of great emergency; and it is a natural, human instinct that, having had that problem to contend with, they should, by the quickest and most convenient means, get hold of a justice of the peace to sign the necessary document. Therefore I should be prepared to oppose most strongly the argument that was so forcefully put forward by the noble Lord, Lord Silkin, namely, that it is not a hollow mockery to apply to a justice of the peace as at present. The power does in fact lie with the doctor; and under this Bill we have made provision that there should be two doctors, and that one of them should be an expert in psychological medicine.

In order to check what the two doctors do, we are putting our safeguards at the end. I respectfully submit that we cannot have it both ways. I think that, in respect of the Amendment which was discussed before, we have a very satisfactory safeguard by reason of the governors of the hospital themselves being able to discharge. I should like to quote, if I may, Dr. Jackson, a legal member of the Royal Commission, who in 1958 spoke at a conference of the National Association on Mental Health. He said: There is a very great deal of evidence that there is often a substantial lack of confidence in compulsory powers because of their present form, and we should be, I think, as much concerned with eliminating grounds for lack of confidence or doubts about the matter as we should be about possible abuses. That implies, inevitably, that there should be an independent and reliable check. Dr. Jackson goes on to say: Now the present check, which comes normally at the beginning of our certification procedure, is not, I think, one that can stand up to examination as a serious check against the abuses, or as a serious provision to allay any doubts that there may be. If you were to turn lawyers loose upon this and make their check at the beginning a reality, I think you would be very surprised how far it would take you. I remember that Dr. Jackson, in his remarks, quoted an American lawyer from a certain State in the United States of America who showed where they had got to through applying the principles of a legal or lay check before a person was deprived of his liberty. He explained that there, in that State, it came very near to putting the person in a dock and charging him with the offence of being mentally disordered. A person in that State was tried in a semi-judicial court, with lawyers appearing on either side, calling witnesses and examining them and cross-examining them, and the decision was reached, of course, by a truly judicial process. I am not saying that the noble Lord, Lord Silkin, was suggesting that anything of that kind should happen in this country; but, if we are to apply logical argument, I think that the end of logicality leads to such a conclusion as the result Dr. Jackson pointed out, to which I have referred. Therefore, for the reasons that I have very inadequately and briefly tried to state, I hope that the noble Lord, Lord Silkin, and those who have supported his Amendment, will not press it to a Division.

5.45 p.m.


I am very grateful to my noble friend Lord Feversham for expressing his views from the wealth of his experience in this field—and even more grateful because I entirely agree with them. They are, therefore, an aid to me. However, I would point out that this is the most far-reaching Amendment that is possible. It would include the procedure for applications for observation under Clause 25; emergency applications for observation under Clause 29; applications for treatment under Clause 26; and also applications for guardianship under Clause 33. It is interesting to remember that, even under the present law, a magistrate's order is not required when the emergency procedures are used. Sections 20 and 21A of the Lunacy Act, 1890, allow a patient to be detained for up to 17 days without a judicial order, and it is because this procedure has been so widely and successfully used as a method of obtaining a period of observation before deciding whether to proceed to certification that the observation procedure in Clause 25 has been inserted in the Bill. It would, in my view, be most retrograde to require reference to a justice of the peace in such cases. In cases of emergency, it would be highly damaging because of the delay involved.

I should like to deal now with the arguments of the noble Lord, Lord Silkin—and I want to make it quite clear that anything I say is not said in denigration of the work of magistrates. They are a great charge of my office, and I have the greatest admiration for the work they do. Lord Silkin did not think that in these days there was any stigma because magistrates' work was concerned mainly with crime. As a matter of history, since 1888 magistrates' work has shifted from being administrative to being preponderantly concerned with crime. Up to 1888, as noble Lords who are interested in the subject are aware, they did a great deal of administrative work in the country—indeed, I come back to the point that my noble friend Lord Feversham raised in that regard. But since then, and despite the lamentations of Maitland, their work has changed from being administrative to dealing with the criminal law; and now they deal with 97.5 per cent. of the criminal cases in this country. I should have thought that the weight of the point had, therefore, rather increased.

But I think there is an important point in what my noble friend Lord Feversham has referred to—namely, the origin of this power. This arose out of the administrative functions in the old days. As my noble friend said, the justices were originally the managers of the asylums. In making an order for the patient's admission they were, in fact, both accepting a patient as suitable for treatment in the asylum and also authorising the cost of his maintenance to be met from public funds. The difficulty is that we have not there the judicial process which, as the noble Lord, Lord Silkin, said, could rise above technical difficulties. It is true that where there is a difference between parties, or a charge brought by one party against another, the justices, on hearing the witnesses examined and cross-examined, knowing the case which is alleged, and giving the other side a chance of dealing with it with both sides probably being represented, can deal with the most difficult technical points. But here we are dealing with the procedure under which the justices do their utmost—and it is a very good best. But it is unfortunate that a single justice acting alone in conditions which do not provide the usual judicial approach should have this serious task set upon him; and I think that it is this fact which provides the worry which so many people feel: whether the justice is really performing a judicial function or merely becoming a necessary step which is easily taken. Undoubtedly there has been a great deal of feeling that it is little safeguard to people, in that in these circumstances it is difficult, even impossible, for a justice to come to a sound independent opinion on the patient's mental condition and need for treatment.

I dealt on Second Reading with the arguments with regard to the position of the medical profession, and I am not going to repeat them. I do not think that the doctor-patient relation has any effect. We all agree that it is inevitable, from the nature of the subject, that a large part of the responsibility for deciding whether a patient should be detained must be in medical hands, and it seems to me that it is of little advantage to the patient or to the doctor for the doctor to shelter behind a magistrate and the procedure which I have described. A far greater safeguard is the requirement for two medical opinions in every case. In addition, there are the other persons—the applicant and those holding the power of discharge—with whom the doctor shares the responsibility; and, finally, there are the new Mental Health Review Tribunals. The Tribunals will include medical members, who can themselves make an independent medical assessment of the patient's medical condition, and also legal and lay members. It is not accurate, as was suggested on Second Reading, that the patient cannot go to a Tribunal until after six months. Under Clause 31(4) he can go at any time within the period of six months after admission. I think that the noble Lord, Lord Douglas of Barloch, was in some doubt about that point, but I think that he will find that that is so.

As my noble friend Lord Feversham says, the Magistrates' Association—and I assure your Lordships that their President had nothing to do with this, though I am very proud of that honour—support the provisions of the Bill for abolishing the judicial order and introducing the Tribunals. Although it is not, perhaps relevant, it is not without interest that when an Amendment on these lines, limited to Clause 26. and suggesting that the question of treatment should be left to a justice, was moved in Committee in another place, it was defeated by an over-whelming majority—26 votes to 2, with 4 abstentions. That is not wholly relevant, but in view of the colouring of opinions in support of the Amendment it is only fair to note that a similar Amendment did not receive support when it came up in another place.


I am sure that this Amendment will receive more support in your Lordships' House. We shall probably have to test that in a moment. I rise only for two reasons. One is to apologise for the defects of my drafting. Unfortunately, I had to draft this clause myself, and I acknowledge at once that the drafting is defective, in that it covers cases of emergency and guardianship which I had not intended to cover. But if the noble and learned Viscount's only complaint about the Amendment was the drafting, I am sure we could accommodate one another. Secondly, I want to say—and I am sure that both the noble Earl, Lord Feversham, and the noble and learned Viscount will agree—that the opportunity of getting a discharge after compulsory detention by means of an appeal before a Tribunal is not the same thing as preventing detention at the outset. It is quite a different thing. It is like saying that it does not matter if a man is convicted of an offence because he always has the right of appeal. The important thing is the compulsory detention; and the fact that a patient can go before a tribunal and get his detention reviewed is irrelevant.

Let me explain what it is that the doctor has to certify. Here I should like to follow the point which my noble friend Lady Wootton of Abinger made. This is something more than merely a medical question. Under Clause 26, a certificate must be in a prescribed form, and the medical practitioner has to include in every case a statement that certain conditions have been complied with. Subsection (3) says: … each such recommendation shall include— (a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in the said paragraph (a); The medical practitioner has to give the grounds for his opinion and a statement of the reasons for that opinion … specifying whether other methods of dealing with the patient are available, and if so why they are not appropriate. These are not purely medical questions. They are quasi-legal questions. They are surely the kind of thing on which a magistrate should be completely qualified to satisfy himself. It is one thing to express an opinion; it is quite another to give the grounds of the opinion. Those grounds may be defective. It would be quite open to a magistrate to say that if those were the grounds upon which a medical practitioner expressed an opinion, he thought that they were defective.

I saw somewhere the case of a person who was asked what were the different oceans in the world, and was not able to give the answer. He was also asked the difference between a presidency and a monarchy, and these were two of the grounds upon which he was regarded as mentally defective. There are many people walking about and doing useful jobs of work who would find some difficulty in giving utterance to their opinions. They may have clearly in their minds what is the difference between a presidency and a monarchy, for example, but they could not express it. Surely that kind of thing as one of the grounds for an opinion is something that ought to be checked.

I feel that the question of whether or not a person should be compulsorily detained is a mixture of medical and lay opinion, and it is a safeguard against improper detention that somebody accustomed to sifting evidence and to weighing up what is right and wrong should be required to certify. I hope that the Government have not said the last word on this matter. I know that it is very controversial. Many medical people take one view, which is not necessarily shared by the whole medical profession, and a large number of civilians take another. We are going to have to vote on this, but I hope that the Government, even in spite of the obviously successful Whipping in which they have indulged this afternoon, will be prepared to think again on this matter at the end of the day.

6.1 p.m.


As one who has not been Whipped on this occasion, but who might add perhaps just a little, partly from a medical point of view and partly from that of a justice of the peace, having had the distinction of being a justice of the peace for nearly twenty years, I would stress that I yield to no one in my fervent regard for the liberty of the subject and the rights and privileges of the individual. I ask myself whether this Amendment, or indeed the procedure that we now have to follow to-day, is an adequate safeguard. After careful consideration, I feel that it is not a safeguard, and, in fact, carries certain risks. I will not argue at the moment that this Amendment, if accepted, would run counter to the whole philosophy of this Bill, which is that physical and mental treatment should be regarded in the same light, and that a person should not have to go through a particular procedure to undergo mental treatment any more than he need do in regard to physical treatment—that is a point to which I shall return in a moment.

Why do I think that the present procedure is no judicial or other safeguard? No justice of the peace, except fortuitously, has any medical or legal qualification or experience. Most justices of the peace, in their legal capacity, act with a colleague and are guided by a clerk. That is not the case here. What has happened, in my experience, is that certification has been essentially a formality, although occasionally further opinions are sought. But there have been many examples, which I could quote, in which the refusal of a justice to certify a patient has led to disaster. Only the other day, very near my own hospital, a patient who was a pyromaniac, who felt that everyone was setting fire to her own house and who, in turn, threw lighted papers through the letterboxes of her neighbours' houses, was, according to the doctor, certifiable. A justice was asked to sign the certificate. After consideration he concluded that she was not certifiable. These patients are extraordinarily cunning, particularly when they meet a third person. The following morning she was found drowned in the lake at West Kirby. I could amplify that case with others in which harm has followed an approach to a justice to certify.

We all know of cases of wrong certification, and I have tried to find out whether there is any example of a wrong certification being prevented by the intervention of the justice of the peace. I have asked the Magistrates' Association, and they know of no such case. I have asked the National Council for Civil Liberties—which for many valid reasons is strongly in favour of this particular Amendment—and they know of no such instance. I feel that in this respect the judicial procedure as a safeguard has perhaps been exaggerated and that it is in many respects a historical relic.

I would say to the noble Lord, Lord Silkin, and to the noble Baroness, Lady Wootton of Abinger, with great respect, that it is difficult to say that a judgment is purely medical. Practically every judgment which a doctor makes is both medical and social. Whether his treatment is to send his patient to the North of Africa, to live in a dry warm climate, or to New Brighton, from Liverpool is essentially a social and not a medical judgment. The whole of medicine is to-day being properly weighted, as the noble Lord, Lord Taylor, well knows, with the social implications of medical decisions and the part which social factors play in the etiology of disease. Again, a doctor may not be trained as a lawyer in the weighing of evidence, but as a scientist he is so trained and is experienced in what weight is to be put on evidence.

It is true that other objections have been raised, both on the Second Reading in this House and in another place: that doctors might conspire together to certify a patient; that they may be unscrupulous; or, as has been said this afternoon, that they may want to get rid of someone who is troublesome. But now there are two doctors involved. One is the family practitioner, but the other is an independent expert in this field. Surely it is unthinkable that they would both conspire in circumstances in which before long the Mental Health Review Tribunal might find that they had been guilty of a conspiracy. So I confess that I am not unduly impressed with the argument that they might conspire, be unscrupulous, or wish to get rid of troublesome patients.


The noble Lord will appreciate that nobody has put forward an argument about conspiring.


I said that it had been put forward; and I mentioned that specifically this afternoon the argument had been put forward that they might wish to get rid of a patient who was a nuisance. That point has been put forward this afternoon in this Committee. The noble Lord, Lord Silkin shakes his head, but I am certain that the noble Lord sitting on the Benches behind him made that statement, and he will see it to-morrow in the Record.

The noble Baroness, Lady Wootton of Abinger, paid a high tribute to the medical profession on the Second Reading of this Bill, but she suggested that, although they were competent to come to medical decisions of this kind, they not infrequently might have to do so in a hurry. They are not, of course, the only people who have occasionally to hurry. She then suggested in relation to their responsibilities that this [OFFICIAL REPORT, Vol. 216, col. 717]: lays them open to the exercise of powers which the public would regard as arbitrary in other connections". But what is the power which this compulsory detention for treatment is conferring on the doctor? It is a power to treat a patient who is ill; and it is, indeed, a power which the doctor has to exercise in other circumstances, not only in the case of patients who can come to a decision themselves, but in the case of children; and in the case of patients, for example, who are unconscious: in those cases the doctor has to take decisions and has to deal with the patient.

I would suggest that in this instance a patient who is mentally ill, and particularly the patient who is mentally subnormal and severely subnormal, is clearly not in a position to decide whether or not he shall have treatment. Someone has to take the decision, and the decision, as in other circumstances, is taken by the doctor—and taken, I may say, with the greatest responsibility. In my experience—and I have now a long and extensive experience in this field—doctors who certify have the weightiest considerations before them before they certify, for they realise that there is a risk that they may be regarded as depriving a subject of his freedom, something which they would take away only after the most careful scrutiny and care.

I do not propose to keep your Lordships more than one moment longer. I would say that the British Medical Association and the Royal Medico Psychological Association have expressed themselves as in agreement with the provisions of this Bill in relation to compulsory detention and the methods whereby it shall be carried out. The Magistrates' Association, as the noble and learned Viscount has already said, have made it quite clear that they think the public and the patient will be served better under the provisions of the Bill than under the present procedure. Finally, I would again ask your Lordships to bear in mind that it is fundamental to this Bill that we should regard the treatment of illness as one, and that we should not think in the dichotomous terms of physical illness and mental illness. Just as we have urged that all hospitals should undertake the treatment both of physical and mental disease, so we should concede that no method of treatment should be determined by any outside authority, in whichever hospital the patient may be.


Let me first clear away what I think is a misapprehension in the mind of the noble and learned Viscount. I did not question the right of the patient to appeal to the Mental Health Review Tribunal under Clause 31(4). What I asked was: how was the patient notified under this Bill that he had that right. I do not know where there is any provision for informing him of his right. Nor, with all respect, is it correct to say that this Amendment has anything to do with Clause 33: that clause deals with an application for guardianship, whereas this Amendment deals with an application for admission. I agree with my noble friend Lord Silkin that when we put down this Amendment what we really had in mind was applications for admission under Clause 26. The other provisions with regard to admission of patients are of an emergency or temporary character and do not carry the serious implications of Clause 26. It is that at which our Amendment was directed. Maybe it is defectively drafted and is capable of improvement, but the noble and learned Viscount has rejected it even as regards Clause 26.

The noble Lord who has just sat down said that this Amendment is contrary to the whole philosophy of the Bill, which is intended to eliminate distinctions between mental and other illness. But I know of no legal provisions comparable to what is in the existing law, or in this Bill, for compulsorily detaining people for treatment for illnesses which are not mental.


If the noble Lord will look at the law relating to infectious diseases, he will find that patients may be compulsorily removed to hospital and treated there.


I am well aware of that. I said that there was no provision in our law which is comparable in principle to this. The provisions to which the noble Lord has referred are provisions which are intended for the protection of the public against the transmission of infectious diseases, and they are of a quite exceptional character and special nature. There is a distinction, and it is no use our trying to escape the fact, between mental illness and other illness. Mental illness is of a character in which it becomes essential, either for the safety of the patient or of his relations or of the public, to detain him compulsorily. This is a fundamental and inescapable fact which cannot be glossed over in any way whatever. That is the crux of the problem which is now before the Committee.

I agree that what we are proposing here, and what exists at the present moment, is not a judicial procedure, in the sense of being a litigation in which there are opposed parties; and nobody has suggested that such a procedure should be introduced. But it is, nevertheless, a procedure of a judicial character, because it requires an independent mind to be brought to bear upon the problem, and that is the essential point which we wish to secure in some way or other. I have been somewhat surprised at some statements which have been made this afternoon about justices acting as certifying magistrates. I myself have never acted in that capacity, but I am well acquainted with a number of justices who for long periods have acted as certifying magistrates. I know with what concern and what seriousness they take the duties which are imposed upon them, and the way in which they interview the patient, the patient's next of kin and the doctors who have made the recommendation for certification, and the trouble they take in order to satisfy themselves that this is a necessary step in the interests of the patient or in the interests of the safety of other persons. It is to my mind, so far as I am familiar with this problem, a caricature of the situation to suggest that these serious-minded persons are mere "rubber stamps", or that their inquiry is not of some serious value.

The noble Lord, Lord Cohen of Birkenhead, has suggested that numerous dangerous lunatics are allowed to be at large because of the inefficiency of certifying justices. I do not think that that suggestion can be seriously supported. If that had been so, serious complaints would have been made long before this, because this procedure has been going on for a long time. We are not trying to weaken this Bill in so far as it requires certification by two doctors, one of whom is the patient's own doctor, and will in the normal case have had some fairly long experience of him; but we are not content to leave this matter solely in the hands of experts. I am not going to make aspersions on doctors generally—I am not going to follow the noble Lord in the line which he has taken of making wholesale condemnation of certifying justices—but I could, if it were necessary, give some illustrations to the House of the quite astonishing character of the serious effects which have been wrought upon patients by ill-considered psychiatric treatment. These effects are well known to people familiar with this matter, and that is another reason why we are not entirely happy to see this decision left in the hands of experts, without any independent mind being brought to bear upon it.

Moreover, this is a social problem. The motivating force in a great many cases may be the patient's next of kin who has come to the conclusion, or says he has come to the conclusion, that he can no longer look after the patient. The motivation may be that he is too indifferent or too careless to want to do it any longer. There are many social implications in this matter, and I should feel a great deal more happy if there were some person accustomed to weighing evidence, as a magistrate is, or a panel of persons picked from those with experience in such matters to be the referee.

On Question, Whether the said Amendment shall be agreed to?

6.30 p.m.

LORD TAYLORM moved, after Clause 28 to insert the following new clause:

Application to be signed by Justice

".An application for admission for treatment made on the ground that the patient is suffering from psychopathic disorder must be scrutinised, approved and signed by a justice of the peace, and the justice of the peace shall take such steps as are necessary to satisfy himself that the evidence of psychopathic disorder is such as to bring the patient within the definition set out in this Act."

The noble Lord said: I beg to move the new clause standing in my name and that of my noble friend, Lady Wootton of Abinger. This new clause is not in any way a firm and final clause; it is an attempt to solve an exceedingly difficult situation. I must say that I had some little anticipation that the previous Amendment might be defeated, and it was in the anticipation of such a thing happening that we felt that there was still a very strong case indeed for dealing in a special way with this one small group of patients.

Whereas mentally ill patients who will be compulsorily detained under this Bill or indeed under existing legislation are ill now for comparatively short periods—that is to say, for perhaps two or three

Their Lordships divided: Contents, 22; Not-Contents, 41.

Alexander of Hillsborough, V. Latham, L. Silkin, L.
Amulree, L. Lawson, L. Stansgate, V.
Burden, L. Lucan, E. [Teller.] Stonham, L.
Crook, L. Macpherson of Drumochter, L. Taylor, L.
Darwen, L. Ogmore, L. Uvedale of North End, L.
Douglas of Barloch, L. Pakenham, L. Wilmot of Selmeston, L.
Henderson, L. Shepherd, L. [Teller.] Wootton of Abinger, Baroness.
Iddesleigh, E.
Addington, L. Dovercourt, L. McCorquodale of Newton, L
Albemarle, E. Dundee, E. Margesson, V.
Atholl, D. Dynevor, L. Merrivale, L.
Auckland, L. Elliot of Harwood, Baroness. Mills, L.
Barnby, L. Feversham, E. Milverton, L.
Bathurst, E. Fraser of Lonsdale, L. Newall, L.
Blackford, L. Fraser of North Cape, L. Onslow, E. [Teller.]
Clitheroe, L. Goschen, V. Rathcavan, L.
Cohen of Birkenhead, L. Grenfell, L. St. Aldwyn, E. [Teller.]
Craigmyle, L. Hampton, L. St. Oswald, L.
Cunliffe, L. Hawke, L. Sinha, L.
Derwent, L. Howard of Glossop, L. Strang, L.
Digby, L. Kilmuir, V. (L. Chancellor.) Waldegrave, E.
Lansdowne, M. Willingdon, M.

Resolved in the negative, and Amendment disagreed to accordingly.

months as a result of modern treatment—in the case of a psychopath the detention is likely to be much longer, and often very long indeed. The Bill provides that psychopaths over twenty-one, and psychopaths under twenty-one who are promiscuous or sexually immoral, can be dealt with only by process of law. The sentence for psychopathy is treatment for an indeterminate period. As a result of the court's activity these people get an indeterminate sentence.

Now under the Bill, young psychopaths who have not committed an offence but who may be thought to be going to commit an offence and who are in fact a danger to themselves or others but who are not conventionally mad, may equally be detained indefinitely for a period up to the age of twenty-five. A psychopath of seventeen or eighteen may be detained compulsorily for seven years on two doctors' certificates, and no doubt rightly, but it is a very serious decision indeed. There has been much discussion about the association of a legal element with a medical element in this decision. Here we are not concerned with a legal element; we are concerned with a non-medical element, with what medical people would describe as a lay element, and that is what we are desirous of achieving under this Amendment; that in the case of the young psychopath under twenty-one there shall be some non-medical person as well as the two doctors associated in making this decision.

It should be borne in mind that in the definition of psychopathy your Lordships rejected an Amendment which suggested that there was a mental abnormality, and retained the present definition that it was a persistent disorder of personality associated with abnormal aggression or seriously irresponsible conduct. In fact, the treatment of these people is largely non-medical; it is largely disciplinary, and they are the most difficult people of all to treat in any ordinary mental hospital. At present they get certified accidentally. My noble friend, Lord Cohen of Birkenhead, was recently speaking about a pyromaniac whom the J.P. refused to certify. I should say that he was absolutely right not to certify her, because that person was, from the noble Lord's description, a grossly hysterical psychopath and not insane at all. The patient to whom the noble Lord, Lord Cohen of Birkenhead, was referring should have been dealt with under the criminal procedure for setting light to letter boxes, and not by certification.

These psychopaths are a most difficult group of people and they are not insane; it is a matter of conduct. It is a very small problem. All the psychopaths over twenty-one and all the sexual psychopaths will be dealt with by the courts. It is merely this very small residual group. I should guess that there might be twenty to one hundred psychopaths per hospital region per year to be dealt with. They might require very prolonged treatment, two, three or four years, in order to make some sort of job of their characters.

May I give a typical case? The general practitioner is called in. He probably knows the family very well. The son has been threatening to kill his mother and behaving in a menacing manner for months. The doctor says, "Why do you not go to court?" The mother says, "I cannot possibly take my son to court." This is a typical situation that will arise. The son will be an aggressive psychopath, more or less an amoral individual, but not in any way mentally insane. The general practitioner calls in a consulting psychiatrist. The consulting psychiatrist and the general practitioner talk about it and they may—as in my opinion they should—decide that this boy should be compulsorily detained. But unless the consulting psychiatrist is fairly tough about it there is a very real risk that this will not be done. It would greatly strengthen his hand and that of the general practitioner if in these very difficult purely social cases there were some lay person who would stand alongside the doctors in making the decision.

One is not alone in thinking this. Last night I was discussing the matter with Dr. Denis Hill, and he gave me permission to quote him. He is the psychiatrist at King's College Hospital and the representative of psychiatry on the Medical Research Council. He said, "For goodness sake do something about the psychopath in that Bill! Try to get some non-medical element into it, because it places an impossible burden on the psychiatrist. It is not right." Similarly, one was discussing it with the senior medical member of the Royal Commission on Mental Health. He entirely disagreed with our previous Amendment, but he felt very strongly—firmly, at any rate—that in the case of the psychopath there was a strong case for associating some lay person in this very difficult decision.

We are not saying that the justice of the peace is the right person; we are merely saying that somebody other than the two doctors should join in making this decision. In our Amendment we have suggested a way in which this might be done, to try to force the doctors to put their evidence into a good sensible form. We have suggested they should have to submit the evidence to a justice of the peace and that he should then have to be satisfied on the evidence presented by the doctors that this patient came within the definition of psychopathy as set out in this Bill, and only then would the psychopath be detained. if you like, that is a paper safeguard. But I think it is really more than that, because, first of all, it would force the doctors to state in ordinary, common or garden language what was the defective behaviour of this person which made it desirable, either in the person's interest or in the public interest, that he should be indefinitely detained and subjected to what is really a most stiff decision indeed—indefinite detention for psychopathy, because psychopathy is such a persistent and difficult thing to treat. Then, if the justice of the peace is not satisfied, he or she can take such steps as they wish to satisfy themselves, not as judicial persons but as ordinary, common-sense lay persons.

That is what we are asking for, and that is what we are asking that the Government should accept or consider and look at in principle. We are worried about the claims which some foolish psychiatrists make. There are, thank goodness, very large and increasing numbers of sensible, level-headed, decent people doing psychiatry, but there are a number of woolly, foolish people still in this profession. I think that if you discuss it with the sensible, decent, levelheaded psychiatrists they will all say what we have been saying: that in the case of a psychopath, at any rate, there is an overwhelming case for having someone besides a doctor to arrive at the decision. I beg to move.

Amendment moved— After Clause 28 insert the said new clause.—(Lord Taylor.)

6.42 p.m.


This is a mild Amendment. It is much milder than the proposal which preceded it because, as your Lordships will notice, it does not require that the prospective patient should even be personally seen by the justice. Having lost the previous Amendment, we put this forward because the psychopath presents, as my noble friend Lord Taylor has said, a special problem in this context. The numbers are likely to be small, but we must also bear in mind that in the case of the psychopaths hardly any, perhaps none, will be willing to accept voluntary treatment. It is in their case that compulsory treatment is likely to be the crux of the matter and is likely to be the common form, because, by definition, the psychopath is the kind of person who does not recognise that there is anything wrong with him, who is anti-social in his attitudes and who will not accept suggestions for his reform which seem to him to be completely unnecessary.

By the same token it is in the case of a psychopath that the social, or indeed the moral, element in a decision is preponderant. As I think the noble Lord, Lord Cohen of Birkenhead, said, it is perhaps true that in every medical decision there is a social element, but the proportion of the social and the medical varies greatly in different cases, and in the case of psychopathy the social, or indeed the moral, element reaches its maximum. The psychopath is distinguished pre-eminently in the terms of this Bill as it now stands by his persistent tendency to abnormally aggressive or seriously irresponsible behaviour. Every society has to tolerate a certain level of abnormally aggressive and a certain level of seriously irresponsible behaviour, so long as imperfect human nature remains what it is. The point at which toleration is not possible is not in itself even primarily a medical decision; it is a moral judgment.

I know that the whole philosophy behind this Bill is to assimilate mental and physical illness; and, in cases of severe mental disorder of any kind, whether illness or subnormality, that assimilation is possible. But I think that there is an element of romantic illusion in the belief that, in all its manifestations, and particularly in those which are primarily concerned with anti-social behaviour, mental illness is of the same kind as physical disorder. It is not only a romantic illusion; I think it may be a dangerous illusion. It becomes a dangerous illusion if we allow persons to be detained indefinitely or for long periods without judicial process, without the presence of any layman when the decision is made, without even the guarantee of a layman that the decision has been made consistently with the terms of the Bill.

May I conclude with just a word or two on the general competence of the justice of the peace to perform this function? It is said by the noble Earl, Lord Feversham, that the justice acquired his functions in a very different context, as being a convenient person who could conveniently dispose of tiresome people. That may well be true; but I think it is neither here nor there. Functions change. The functions of this House as well as its composition have noticeably changed in recent history, and, indeed, through the course of history. Secondly, it is said that there is a tendency for those making the application or for the doctor to look for the pliable justice. I do not know that we evade this danger by substituting one profession for another calling. After all, I think it has to be said that the doctor who has a very tiresome patient may be tempted to look for the pliable psychiatrist. Even the medical profession is not immune from these human failings.

Finally, there is still a world of difference between opening the door after the creature has been caught and not forcing him into confinement. It is not only the fact that subsequent action—action at the end, as it was rather revealingly called—may be substituted for action at the beginning; it is that if a person, in all the confusion of being threatened with detention, sees a lay person or knows that a lay person handles his case, he has a certain confidence that some outside, detached and totally disinterested, perhaps even ordinary, person is guaranteeing the validity of this decision. Inside he has to be notified of his rights. We all know that though there may be—we have yet to find it, but there may be—provision for such notification to be regularly given, again rules are not always kept 100 per cent. in institutions, especially when those concerned are hard pressed. Things are forgotten, or rules are kept merely in a rather formal way—a piece of paper is handed to somebody who is in a state of flaming indignation, as a psychopath would be, and he probably tears it up before he knows what it contains. That is a different matter to knowing that someone independent, lay, will have seen that his case is properly certified before detention is effected.


The noble Lord who moved this Amendment has brought to the attention of your Lordships that there is a body in the medical profession and in psychiatry who view with apprehension the duties that are going to be imposed upon them in regard to the compulsory detention of the psychopath under 21 years of age. I know that that apprehension does exist, and I think it is a real one. I sympathise with many of the aspects that the noble Lord has laid before your Lordships this evening, but there are two observations I should like to make. The first is that the psychopath under 21 years of age who is most probably brought before the psychiatrist with a view to compulsory detention has, either on the social, moral, or even medical grounds to which the noble Lady referred, done some action that may well have brought that person to the attention of the social worker employed by the local authority or to another social worker, such as a probation officer.

At the first day of consideration of this Bill in Committee the noble Lord, Lord Taylor, laid great emphasis—and I was glad to hear it—on the necessity of comprehensive case committees, and I feel that in respect of the psychopath under 21 in a great number of cases, though not in all, it is more than probable that, by his prior behaviour before he comes into the hands of the psychiatrist, he will have come before the type of personnel we wish to see composing the comprehensive case committee; and therefore it seems that the necessity of obtaining a lay opinion, which the noble Lord has emphasised, may well be provided for from the lay opinion of that case committee.

A second observation I would make is that by the nature of the behaviour of a psychopath under 21 years of age it would appear that the need for compulsory detention is because he is a danger to himself or to members of the public, and that is the main reason why detention is necessary. If that is the case, is it not asking a very great deal of a justice of the peace, with the limitations of his medical knowledge, to go against medical opinion, against the opinion of the mental welfare officer, in view of the fact that by doing so there may be such a case as was quoted under the last Amendment by my noble friend Lord Cohen of Birkenhead?. I feel that that is too much to ask of the magistracy of this country, and I should therefore like those deciding this very difficult question to be assisted by the proper administration and working of the comprehensive case committees, which embrace social workers of many other spheres, rather than to place the onus on the justice of the peace.


I wonder whether I could underline a point made by the noble Baroness, Lady Wootton of Abinger? I would stress what seems to me to be the extraordinary importance of one of the points, among many important points, made by the noble Baroness. It seems to me that she rightly felt that the whole stress of the argument—if you like, the strongest part of the argument—that convinced so many noble Lords and led them to go into the Lobby last time, and which means so much to those who have worked in the mental field, is that physical sickness and mental sickness must be equated.

I went into the Lobby with my colleagues very happily last time, but I feel that the case of those supporting this Amendment is even stronger and a great deal clearer, because the noble Lady put her finger on a point of profound importance which, incidentally, she has developed for the benefit of all of us in her remarkable book, when she argued that, whatever we may say of mental and physical sickness in ordinary cases, we are on much more dangerous ground when we begin to say that the trouble from which the psychopath is suffering must be equated with physical sickness, because then we are in process of stepping, without noticing it, across the gulf between medicine and morals. We can say that physical and mental sickness are to be placed on the same footing and, if you like, that the unfortunate person is not to be blamed for either, and that no stigma must attach; but with the psychopath we are dealing with misconduct. We have moved from physical sickness to mental sickness and to misconduct, and the next step, to crime, is short. So we are moving rapidly to the doctrine that all crime is sickness, and I venture to think that unless we have something like this Amendment we shall finish up, as most Members of the House, and certainly the noble and learned Viscount, would not wish, by accepting that proposition.


For once I feel in very great difficulty with the argument of the noble Lord, Lord Pakenham. Although we sometimes disagree I usually see the force of his argument. But here I should have thought that whether one takes the definition as it exists to-day in Clause 4 (4) or the definition which was argued for on our last sitting, it involves essentially a medical judgment. I feel that we are getting into a dangerous sphere exactly the other way round from the one the noble Lord, Lord Pakenham, pictured. I should like to develop that matter, because it is fascinating that there should be so utterly different an approach by people who are obviously trying to approach it in the most helpful way.

I should have thought it was a complete fallacy to suppose that because behaviour enters into the definition of "psychopathic disorder" a layman is more competent to recognise psychopathy than other forms of mental disorder. On the contrary, I should have thought that it was a most difficult diagnosis requiring expert medical judgment to decide, in the words of the definition, whether the behaviour is the result of "a persistent disorder of personality," and whether that disorder of personality requires, or is susceptible to, medical treatment. As I explained to the noble Lord, Lord Taylor, that was the point which really worried me on the place of "persistent" in his Amendment, and that is the point which I want to consider. The further difficulty which I feel with regard to the approach of the noble Lord, Lord Pakenham, is that a layman trying to judge this issue would be unable to do more than look at particular examples of behaviour; and if a patient is to be detained on the grounds of behaviour alone that, in fact, turns that type of behaviour into crime without a charge being made.


I did not suggest for a moment that psychopaths should be detained on behaviour alone, nor did I suggest for a moment that they should be detained by a layman or magistrate alone.


Perhaps I could just finish the argument because it has given me great concern. The whole justification for dealing with psychopathy under the Bill is that this is now recognised as a form of mental disorder—even though its diagnosis in individual cases may be difficult—to be treated therapeutically. In this decision a medical assessment of the cause of the behaviour and the need for treatment is fundamental, and I should have thought that the danger in the approach of the noble Lord, Lord Pakenham, was that we came off the anterior disorder and concentrated on the conduct.

I will read this debate very carefully, as it may be that I have misunderstood the way his mind was working. But, the House having rejected the general principle, I cannot accept an Amendment on this limited ground, especially holding the view I do as to the extreme importance of the medical opinion in this matter.


I am afraid that the noble and learned Viscount has misunderstood, but it is my fault, because I know how quick his intelligence is and how inarticulate I am. I was simply trying t0 repeat what my noble friend Lady Wootton of Abinger had said, thinking that something so good should be said twice; but I have clearly added to the confusion, so it would be better if my remarks were ignored and the noble and learned Viscount replied to what she said.


I assure the noble Lord and the noble Baroness, Lady Wootton of Abinger, that I shall consider the remarks of both of them. But I shall ask the noble Lord, Lord Taylor, to be content with that at the moment: I promise I will reconsider it.


I thank the noble and learned Viscount the Lord Chancellor for his remarks. He speaks of the decision about psychopathy being made on grounds of behaviour alone and says that surely it will not be. But that is what happens. It is made entirely on grounds of behaviour alone and that is why we are at the meeting point, as it were, of medicine, morals and crime. We do not know anything peculiar, medically speaking, about psychopaths, except that they behave in an abnormal way, and continually and persistently behave in an abnormally anti-social way. There is no great wondrous test that can be performed to demonstrate psychopathy. It is just that psychopaths are persistently rogues, as it were, persistent vagabonds; and the law having failed, alas! so often to correct these persistent vagabonds, they end up with the psychiatrists, who also fail to correct them: for we do not know how to deal with them any more than the law does. We say: do not treat us as priests or mystic people who can deal with them; and let the laity and the non-medical folk share the decision for shutting up these people for such a long time. What is so awful is that they can be, and will be, shut up for such a long time, particularly as compared with the mentally ill, who will now be shut up for only a short period.

Then it is said that it is a form of mental disorder to be treated therapeutically. That is an aspiration rather than a fact. There is no method of treating psychopathy other than by kindness, discipline and morality, and all these things are better exercised in penal institutions than in medical institutions, though psychopaths cause just as much trouble in both. I am sure that the noble and learned Viscount the Lord Chancellor will look at the matter again. We are very grateful that he should promise to do so, and if there is a solution to this very difficult problem we are sure that he will find it. May I have leave to withdraw the Amendment?

Amendment, by leave, withdrawn.

Clause 29 [Admission for observation in case of emergency]:

7.5 p.m.

LORD MILVERTON moved to add to the clause: (5) Every Regional Hospital Board shall by notice which may be varied from time to time by subsequent notices inform each local health authority within their region to which hospital maintained by the Board an emergency application may be made in respect of a patient within the area of the local health authority and upon an emergency application in respect of such a patient being made to the managers of that hospital they shall forthwith admit the patient to the hospital.

The noble Lord said: I rise to propose the Amendment standing in my name. This Amendment does not involve discussion of any of the great principles which have been agitating the Committee this afternoon, but is aimed at endeavouring to carry out the purpose of the Bill more efficiently. Clause 29 provides a special procedure in connection with the admission of patients for observation in case of emergency. The principal differences between the ordinary and emergency applications are that an ordinary application must be made either by the nearest relative or by a mental welfare officer, and must be founded on the recommendations of two medical practitioners, signed on or before the date of application; whereas an emergency application may be made either by a mental welfare officer or by any relative of the patient and must include a statement, verified by supporting medical recommendation, that it is of urgent necessity for the patient to be admitted and detained under the Act and that compliance with the ordinary procedure would involve undesirable delay. It may also be founded in the first instance on one medical recommendation, but the application ceases to have effect after 72 hours unless it is supported by a further medical recommendation.

Clause 54 of the Bill makes it a duty, a statutory obligation, of the mental welfare officer to make an application for admission to hospital in respect of a patient within the area of the local health authority where he is satisfied that such an application ought to be made and is of opinion that, having regard to the wishes of any relatives of the patient or any other relevant circumstances, it is necessary or proper for the application to be made. But nowhere does the Bill impose any obligation on the hospital authorities to receive these patients.

When this Bill was being considered in Standing Committee in another place a somewhat similar Amendment was proposed, although it had a rather wider application, and was opposed by the Minister of Health. Briefly speaking, what he said was that the matter should be approached on a purely administrative basis, and he referred to the difficulty that if we put in a statutory requirement it gives priority to those compulsory procedures over voluntary applications where there is an admission list, thereby pushing people towards compulsory procedures and away from the voluntary procedures, which in fact was the reverse of what the Government were trying to do. He went on to say that the Regional Boards were fully alive to the emergency responsibility and to the responsibility for making necessary arrangements, and that he proposed to issue departmental orders to the Boards that they should make effective arrangements suited to local circumstances.

In seeking this Amendment I am not disputing or dissenting for a moment from what the Minister said about compulsory procedures and voluntary applications so far as those procedures and applications relate to ordinary none emergency cases. But in those cases it is proper that admission to hospital should be governed by the relative urgency of the particular case. But surely the whole reason for the emergency procedure under Clause 29 is to by-pass the ordinary procedures in cases where, as the relevant recommendation will have to say, it is of urgent necessity for the patient to be admitted and detained under the Bill and where compliance with the ordinary procedure would involve undesirable delay. Not infrequently, I understand, these patients are of a violent nature and not easily controlled, and I suggest that in those cases administrative arrangements are not enough.

The Bill imposes a statutory duty on the mental welfare officer—who, incidentally, is not ordinarily a person possessing medical qualifications—and he has to apply to the hospital authorities for the admission of the patient. In the meantime, he has no accommodation in which to put the patient while this application may be considered. Surely a way must be provided whereby he can be quickly relieved of this personal responsibility. Accordingly, I suggest that, in view of this statutory obligation on the mental welfare officer, there should also be a statutory obligation on the Hospital Board to enable that officer to fulfil his duty.

All that the Amendment seeks to secure is that the hospital authority, which has a medical staff, would relieve the mental welfare officer, at the earliest possible moment, of the responsibility for urgent cases, thus avoiding the possibility of his having an urgent, and perhaps violent, case on his hands and nowhere to send it, simply because, for some reason or other, the administrative arrangements of government may have broken down. Under such arrangements there is nothing to prevent a Hospital Board from saying that they do not take such cases, and the welfare officer would then be left in an insoluble dilemma.

The Amendment proposed does not necessarily involve any question of re-designating hospitals as mental hospitals. It leaves the Regional Hospital Board free to notify to the local health authority where emergency cases can be taken—whether to general hospitals or special hospitals is a matter for that Board to decide. The main thing—and, surely, the important thing—is that emergency cases should be handed over to the care and responsibility of a hospital authority with a minimum of delay. It will be for them to decide where and how a patient can best be dealt with. In view of these considerations, I hope that the Government will give sympathetic consideration to this Amendment. I may say, in conclusion, that it is a matter which local authorities regard as one of some importance; and this Amendment has the full support of the County Councils Association and of the Association of Municipal Corporations. I beg to move.

Amendment moved— Page 18, line 48, at end insert the said new subsection.—(Lord Milverton.)


I should like briefly to support the Amendment moved by the noble Lord, Lord Milverton. It seems to me that this Amendment does not raise any point of principle; it seeks simply to provide a reasonable and proper safeguard in the many difficulties that duly accredited mental welfare officers encounter in dealing with mentally sick cases. Every officer who has had experience in dealing with mentally sick people knows that he is often called upon to take immediate action during the night, and, for some unexplained reason, frequently at week-ends. As the noble Lord, Lord Milverton, has said, the mentally sick person may be violent or suicidal. At the present time, the mental welfare officer is aware of the hospital in his area which will admit a case of sudden and urgent necessity. Surely, in the best interests of the mentally sick, it is essential that this procedure should continue, and that the mental welfare officer should know the hospital which will receive a case of the character which I have described. Any officer having in his care a violent or a suicidal person has not the time nor the opportunity to inquire from one hospital to another if it can take a patient.

This is not an academic Amendment. From my own knowledge as a member of a county borough council I can assure your Lordships that officers attach a great deal of importance to the Amendment; and that, if they are effectively to carry out what are, as the noble Lord, Lord Milverton, has pointed out, their statutory duties, then it is only fair, right and proper that they should know beyond peradventure how they can, in cases of sudden and urgent necessity, carry out the duties placed upon them. May I add that the Corporation of the City of Sheffield is gravely concerned that sick persons, and the officers of that Corporation, should be subjected to the risks which will occur if an Amendment similar to the one which is now under discussion is not written into the Bill, and if the Minister refuses any accommodation in the matter. But I feel that the case for the Amendment is so overwhelming, arising, as it does, not from mere consideration of the matter in debate, but out of practical experience—that I trust that the Minister will be able to give us some hope in regard to it.


I wonder whether it would be for the convenience of the House if your Lordships took Amendment No. 25 at the same time. It is virtually the same point. One heartily supports the Amendment moved by the noble Lord, Lord Milverton; and, in Amendment No. 25, we merely make it a little wider, to cover cases admitted for treatment as well as for observation. It is a strange thing that this Bill removes the duty on the hospital service to provide beds for psychiatric patients, which duty it has had up till now, and which, I suppose, in a sense, it still retains under the National Health Service Act. Where a patient is a danger to himself or society it seems common sense that there should be a statutory obligation on the Regional Hospital Board—not on the individual health authority—to receive such a patient.

It has up till now been the situation that an individual hospital has had to receive patients from its catchment area even though it has had no beds; it simply has had to put up beds until the place was grossly overcrowded. It would obviously be better that that should be a centralised function, and that the doctor who sees a patient should be able to ring up one officer at a Regional Hospital Board and make the arrangements through that officer for admission to whatever hospital has a bed, just as in the case of the mental welfare officer, of whom my noble friend, Lord Burden, was speaking. The noble Lord, Lord Milverton, said that a hospital might say: "We do not take such cases". That is precisely what hospitals do say whenever they know it is the case of a psychopath. They always say that, and who can blame them? Because these psychopaths create serious trouble. But somebody has to take them. Your Lordships are taking the responsibility of passing a law which places on the medical profession the duty of certifying these people for compulsory detention, but if we are not to provide the places where they are to be detained, then indeed it is a strange world.

7.20 p.m.


I should briefly like to support the Amendment moved by the noble Lord, Lord Milverton, because one has some experience of what has occurred in the past, even under the National Health Service Act, when the power of relieving officers to admit sick persons to hospital was taken away. One finds now that it is almost impossible to get sick elderly people into hospital. I trust that the same thing will not occur in mental health, where I gather the procedure works well. When the Bill becomes law, I hope that this very valuable power will be preserved for us.


I have a great deal of sympathy with the difficulties which have been expressed on this Amendment. On the point made by the noble Lord, Lord Amulree, the position is that since 1948 mental hospitals have been the only hospitals which might be ordered to admit patients, and by making the statutory document for the detention of a patient an "authority" rather than an "order" the Bill puts mental hospitals into the same position as other hospitals, which seems fair and reasonable. I know that there has been anxiety, and that local authorities fear that they may be left with patients on their hands who need admission to hospital but for whom no bed can he found.

The noble Lord, Lord Milverton, with great candour, dealt with the difficulties which my right honourable friend had found. I think that we have to consider carefully a point which my noble friend mentioned: that a duty to admit linked to the procedures which authorise detention can result in the misuse of the powers of detention, as there is a clear temptation to use them in order to obtain priority for admission. Cases where the patient is not unwilling to be admitted may be equally urgent, and it would be wrong to make compulsory detention a method for obtaining priority. Your Lordships will remember that the Royal Commission criticised this aspect of the present law, particularly in relation to elderly patients, for whom there is at present a general shortage of accommodation in chronic sick, mental and general hospitals and local authority residential homes. Patients may be certified and sent to a mental hospital, though some of them might be equally well cared for in a geriatric or chronic sick hospital.

There is a further difficulty. To place an obligation to admit on mental hospitals and not on others means greater pressure and overcrowding in mental hospitals, and one comes to the view that the difficulty which the Amendment seeks to cure is really due to shortage of beds; and this shortage, of course, cannot be cured by imposing a duty to admit. I should like to satisfy your Lordships that they are prepared to deal with the problem.

The Minister has given assurances that Regional Hospital Boards will make suitable arrangements to ensure immediate admission in all cases of real emergency. It is indeed the duty and practice of hospitals not to turn away acute emergencies. It is our intention that mental and general hospitals shall continue to have a sufficient number of emergency or short-stay psychiatric beds to deal with acute emergencies on much the same lines as the hospitals at present designated under Section 20 of the 1890 Act. We have no reason to think that these arrangements will not be satisfactory. Discussions with Regional Hospital Boards since the Royal Commission proposed that the "order" to admit should be replaced by an "authority "have shown that they are fully alive to the need to make proper arrangements. In due course, when issuing formal guidance to them on matters arising from the Bill, the Minister will ask them to ensure that effective local arrangements are made and to suggest what form they might take. The detailed arrangements are likely to vary to suit local circumstances.

Difficulties are much less likely to arise with acute emergencies than with cases which are not acutely urgent and which can, if necessary, wait for admission. This occurs mainly with mental defectives and with the elderly mentally infirm. For both these classes I suggest that the real answer is to provide adequate accommodation in various types of hospital—general, chronic sick and mental—and in local authority residential homes, and also to make greater use of existing accommodation by quicker turnover of patients. In both respects there has been great improvement in recent years. From 1953 to 1957, there was an increase of about 3,500 beds in chronic sick hospitals, 3,500 in mental deficiency hospitals and 1,500 in hospitals for the mentally ill. During the same period there was an increase of over 17,000 in the number of patients treated in chronic sick hospitals and 31,000 in hospitals for the mentally ill. This shows a greatly increased turnover due to success in treatment and rehabilitation.

That is the picture as we have it. Again I should like to consider what my noble friend Lord Milverton and those who support him have said. I would respectfully suggest that he does not press his Amendment to-day, so that before the next stage I can have a chance of considering the problem once again with my right honourable and learned friend. As I have tried to indicate, we are very much alive to the importance of the problem, and I hope that my noble friend will think that I have been both conciliatory and fair in the answer that I have given him.


Before the noble Lord withdraws his Amendment, I should like to ask the noble and learned Viscount whether that undertaking applies to the Amendment in the name of my noble friend Lord Taylor and myself. If it does, I have no doubt that my noble friend would be prepared to withdraw upon the acceptance of a similar undertaking. But even at this late moment before we adjourn, I cannot refrain from expressing surprise that the noble and learned Viscount should give the impression that certain people might be certified in order to get priority for detention. If that is so, what becomes of his earlier argument about the sincerity and genuineness of this certification? If it is possible for doctors to take this sort of action to get priority, surely it is a matter for some kind of control over them. But we will return to that point.


I am dealing with the system for which the noble Lord is arguing, not that which will come into force after the Bill.


Before the noble Lord, Lord Milverton, considers the point put to him, may I put this to the Lord Chancellor? The experienced men who have drawn up this Amendment are fully aware that nothing must be done to enable some people to jump the queue, and to suggest that that is possible is, I think, rather to doubt the ability and knowledge which mental welfare officers, who will know many of these people because they will be in their area, have acquired over a number of years. I ask the noble and learned Viscount to take this point into consideration. All that a mental welfare officer with a suicidal case or a violent case has got is an ambulance with a driver; he has to get that case into hospital. All we are asking is that he should know where to go with it and not have to telephone from one hospital to another to find out where it can be placed. That is the simple, concrete issue we are putting forward—at least, I am—and I hope that the Lord Chancellor will give consideration to it.


I certainly shall.


In rising to ask permission to withdraw this Amendment, I should like to thank the Lord Chancellor for the courtesy of the consideration he has given to it. I hope that due weight will be given to the fact that this is only in emergency cases, and in each emergency case there has to be this certificate of urgent necessity and of the need of eliminating any delay, which does put it in a separate category. Perhaps I may have the temerity to add, also, that if it is the case that these people will automatically get their place in a hospital, and there is really no doubt about their getting it, it seems to me that there can be little objection to making it a statutory duty. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

[The Sitting was suspended from twenty-seven minutes after seven o'clock until five minutes past nine o'clock.]

Clause 30 [Applications in respect of patients already in hospital]:


This is a drafting Amendment. The deletion of the words "receiving treatment as" brings the wording of subsection (2) into line with that of subsection (1), page 19, lines 4 to 5. I beg to move.

Amendment moved— Page 19, line 15, leave out ("receiving treatment as").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 30, as amended, agreed to.

Clause 31 [Effect of application for admission]:


This also is drafting. As it stands at present, subsection (1) of the clause leaves doubt whether the application may be acted upon as soon as it is signed, with the supporting medical recommendations, or whether it is not made until it is brought to the notice of the managers of the hospital. The Amendment makes it clear that the former is intended. I beg to move.

Amendment moved— Page 19, line 25, leave out ("made") and insert ("completed").—(The Lord Chancellor.)

On Question, Amendment agreed to.


This is also a drafting Amendment. In effect, it combines the present subsection (2) and the last three lines of subsection (1) in a new subsection (2). I beg to move.

Amendment moved—

Page 19, line 44, leave out from beginning to ("be") in line 46 and insert— ("(2) Where a patient is admitted within the said period to the hospital specified in such an application as aforesaid, or, being within that hospital is treated by virtue of section thirty of this Act as if he had been so admitted, the application shall").—(The Lord Chancellor.)

On Question, Amendment agreed to.


This Amendment is the first of a series of eight related Amendments which are essentially drafting. The object is to clarify the position of the patient who, while liable to be detained under an application or order or direction made under Part IV or Part V of the Bill, becomes the subject of a fresh application, order or direction, or is sentenced to imprisonment. Your Lordships will appreciate that this can happen when a patient is absent from hospital, either with or without leave. It is important in such circumstances to know to what extent the original authority for detention in hospital or for guardianship is superseded. The other Amendments in the series are Nos. 26, 32, 38, 47, 49, 75 and 76. None of these raises any major point of substance. They all carry out steps in the procedure which I have explained. I beg to move.

Amendment moved—

Page 20, line 13, at end insert— ("(5) Where a patient is admitted to a hospital in pursuance of an application for admission for treatment, any previous application under this Part of this Act by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 31, as amended, agreed to.

Clause 32 agreed to

Clause 33 [Application for guardianship]:


I beg to move the next Amendment standing in my name and that of my noble friend Lord Silkin. In moving it, I merely wish to thank the Lord Chancellor for his remarks on the previous Amendment, and to say that in view of those remarks I beg leave, having moved our Amendment, to withdraw it.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

Clause 34 [Effect of guardianship application, etc.]:

9.9 p.m.


This is the second Amendment in the series of Amendments which I have just described to your Lordships. I beg to move.

Amendment moved—

Page 23, line 9, at end insert— ("(6) Where a patient is received into guardianship in pursuance of a guardianship application, any previous application under this Part of this Act by virtue of which he was subject to guardianship or liable to be detained in a hospital shall cease to have effect,")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 34, as amended, agreed to.

Clause 35 [Regulations as to guardianship]:

On Question, Whether Clause 35 shall stand part of the Bill?


I have a small point to raise on this clause. It is following the same line of thought as the point I raised on Clause 7—the adequacy of the arrangements for the spiritual welfare of patients. Under this clause the Minister has to make regulations to see that persons who are given the guardianship of patients do their duty by them. In Clause 34, to which we have just agreed, guardians are given all such powers as would be exercisable by them or him in relation to the patient if they or he were the father of the patient and the patient were under the age of fourteen years In other words, the patient is being treated as a child and the guardian has parental powers and consequently parental duties. One of the duties of a parent is to see to the religious upbringing of a child, and the religious care of these patients must likewise be seen to. In the Children Act, 1948—I think it is in Section 1—there is a little, nicely drafted phrase which says that children who are put out in the care of guardians—that is, boarded out—should, where possible, be put under the care of someone of their own religious persuasion. I would ask the noble and learned Viscount whether the Minister is seized of the importance of ensuring that, where possible, the guardians chosen under this part of the Bill will be of the same religious persuasion as the patients put into their care? If so, will he make suitable regulations, as he is empowered to do by this clause.


I can assure my noble friend, Lord Craigmyle, that it is, and it will be, the practice for every care to be taken to respect the religious views of the patient or, in the case of a child, the parents, in the circumstances which he has described. I do not think my noble friend need worry on this point.


I am much obliged to the noble and learned Viscount.

Clause 35 agreed to.

Clause 36:

Correspondence of patients

(2) Any postal packet addressed by a patient so detained and delivered by him for dispatch may be withheld from the Post Office if it appears to the responsible medical officer that the packet would be unreasonably offensive to the addressee, or is defamatory of other persons (other than persons on the staff of the hospital) or would be likely to prejudice the interests of the patient, or if the addressee has given notice in writing to the managers of the hospital or to the responsible medical officer requesting that communications addressed to him by the patient should be withheld; but this subsection does not apply to any postal packet addressed as follows, that is to say:—

  1. (a) to the Minister;
  2. (b) to any Member of the Commons House of Parliament;

LORD SILKIN moved, in subsection (2), to omit all words from "Post Office" down to, and including "patient or". The noble Lord said: I beg to move the Amendment standing in my name. This is the clause which deals with the censorship of correspondence of patients, and the noble and learned Viscount will remember that I and a number of my noble friends had a word to say about this matter. We have given careful consideration to the first two subsections of Clause 36 and, on consideration, we are prepared to accept the limitations on incoming correspondence. We think that there might be a case for withholding correspondence from a patient if it is calculated to interfere with his treatment. But we are of opinion that the same considerations do not arise in the case of outgoing correspondence. After all, withholding of correspondence is interference with liberty, and although the patient is, of course, already under restraint, we do not feel that he should be subjected to greater interference than is absolutely necessary for his welfare medically.

Subsection (2) of the clause gives four grounds on which outgoing correspondence can be withheld. The first is that it is unreasonably offensive to the addressee; the second is that it is defamatory of other persons; the third is that it is likely to prejudice the interests of the patient. I can see no connection in any of those three grounds with the physical welfare of the patient. Those three grounds have nothing to do with the treatment of the patient. The withholding of this kind of correspondence will not in any way further his progress towards recovery. It is just designed to save annoyance of other people. The part that deals with its being likely to prejudice the interests of the patient again is much wider than necessary for his physical treatment.

The fourth ground for withholding correspondence is if an addressee does not want to receive letters from the patient; he can then say so and in those circumstances the correspondence will be withheld. The purpose of my Amendment is to provide that where a person does not want to receive correspondence from a patient, then the medical officer should be entitled to withhold it, but for no other ground. If a patient persists in sending unreasonably offensive letters to an outside person that outside person can say, "I do not want to receive any more letters from this person" and they will not be received. I think that that adequately meets the case.

The second ground is defamation of other persons. The noble and learned Viscount knows very well that "defamation" is a very tricky term; it puzzles even lawyers as to whether a statement is defamatory or not. It is certainly not for the medical superintendent of a hospital to withhold correspondence on the ground that it is defamatory. The next ground is that it is likely to prejudice the interests of the patient. It is not limited to his progress towards recovery; it refers presumably to the financial or other interests of the patient. Surely that is not the business of the medical superintendent and he should not withhold correspondence on that ground alone. I admit that as the clause stands it is well meaning, it is benevolent; but it has nothing to do with the recovery of the patient at all; it is extraneous and is an infringement of the liberty of the person.

On this occasion I am fortified by the Report of the Royal Commission. The Amendment which I am moving is in the identical terms of the recommendation of the Royal Commission, which is to be found in paragraphs 299 and 489 of their Report. They say that patients' letters to persons outside the hospital should not be censored or stopped except at the request of the person to whom the letters are addressed but that the hospital should have discretion to withhold from patients incoming letters which it would harm them to receive.

May I say, in passing, that I have another Amendment to delete Clause 133—that is the clause which extends the provisions of Clause 36 to voluntary patients, patients who are not being compulsorily detained—which is an even greater infringement of the liberty of the subject. Of course, my arguments would apply with even greater force to those patients, and I want to read the concluding part of paragraph 489 of the Royal Commission's Report because they say: these recommendations (including the recommendation that these powers should be very sparingly used) apply to patients detained in hospital (or under guardianship) under compulsory powers as well as to other patients. That applies to Clause 36 and also to Clause 133. For those reasons, I beg to move this Amendment. I greatly hope that the noble and learned Viscount the Lord Chancellor will give us some encouragement in this matter because we attach a lot of importance to this question of the liberty of the subject.

Amendment moved— Page 23, line 37, leave out from ("Office") to ("if") in line 41.—(Lord Silkin.)


The noble Lord has raised a most important point. It is one about which we have been greatly worried, and I should like to put the points that worry us. I think he will see, before I come to the end of my remarks, that I am trying to be co-operative on this matter; but there are one or two points which I find most worrying. The noble Lord, Lord Silkin, has put the position with complete accuracy. I agree that he has the support of the Royal Commission. The position is that under the present law the medical superintendent has full discretion to stop outgoing letters. I want to say, first, that we fully share the distaste for any form of censorship; and there is no intention of having all patients' letters read as a matter of routine. I think that that is a very important start—that we entirely agree about that, and that will not happen. The trouble is that mental disorder leads some patients to write highly offensive letters containing, for example, vehement and possibly obscene allegations, not only against the addressee but also against third parties or against the patient himself. That is the trouble. As your Lordships may know, I get an enormous number of these letters. One-third of the time of my Private Secretary and Assistant Private Secretary is taken up with reading letters of that kind, and quite a number of them come straight up to my residence marked "Private" and "Personal" in order that I shall open them myself. Therefore, it is not a matter that is outside my personal ken.


Under the clause the noble and learned Viscount will continue to receive them.


Let us deal with that difficulty when it arises. Seriously, I am not quite sure whether, nowadays, it serves a very useful purpose, in view of the special position of the Judges of the Chancery Division. But we have been anxious about this matter, and consider that the power to withhold such letters is needed in certain cases for the protection of others. The letters may be extremely distressing and even harmful to the patient's relatives or friends or other addressees. I do not want your Lordships to think that such letters have done me any harm. I have managed to survive without any noticeable decay—but then I have been a Minister of the Crown for eleven years and am used to all forms of attack, as your Lordships are well aware.

Quite seriously, I believe that there is nothing so frightening for, for instance, an old lady as to receive an allegation either about herself or her near relatives. I feel that that is a point which one has to take into account. I hope I pay the greatest attention to the claims of personal liberty, but what worries me is that a patient's offensive behaviour, due to mental disorder, may be one of the reasons for that patient's being admitted and detained; and it seems a bad thing that that offensive conduct should continue, by means of correspondence, after the admission order has been made. In fact that would frustrate one of the reasons for the admission.

There is, however, one other factor which I should like your Lordships to consider—the patient's own interest. I think it is fair to look forward to the time when the patient, as we hope, recovers and comes out. The knowledge that his friends or relatives have received such letters may be most distressing to him when he comes out and returns home; and the fact that people have received such letters may make it difficult for them to accept the patient when he returns to the community. I have heard of cases of people being overwhelmed with joy at the thought that certain letters had not gone out; that is to say, when they realised, on recovering their normal mentality, that the offensive things they had written when they were troubled had, in fact, not gone out.

In our view the powers in the subsection should be there so as to allow the doctors to read and stop the letters of patients whom they know, from the nature of their illness, to be likely to write offensive ones. This brings me back to the point with which I began—that there will be no need for routine censoring of all letters. The noble Lord, Lord Silkin, has put a point of weight to me. He has asked: "Why not wait till the first letter goes out and then let the addressee protest? Then it will come within the part that we would allow to remain in the clause". But the difficulty there is that the first letter may do all the harm. One of the most tragic aspects of this problem is the complete conviction on the part of the person who is detained as to the truth of the allegations he makes against other people and himself. I am sure that every one of your Lordships can recall the most tragic cases of extremely good-living people whose minds have given way and who have been convinced that they themselves and other specific people have been guilty of conduct of which before their illnesses they would never even have thought and which has given them immense trouble. That might easily be brought about by one letter. I find that a very troublesome and difficult point.

When I mentioned this point on Second Reading the noble Lord, Lord Taylor, told me that a number of hospitals had already abandoned the practice. I rather think that, when they say that they have given up censorship, what they mean is that they have given up the routine censorship of all correspondence; and the recent inquiries made from the Ministry since the noble Lord made his speech on the Second Reading have convinced us that a number of doctors consider that they must be able to stop letters of the kind described in the subsection and that they ought to have the power which the subsection gives to allow them to do it, even if it is only occasionally.

It might be convenient if I dealt with the general problem of the other Amendments, because I think your Lordships can then judge whether we are meeting the matter reasonably or not. In Amendment No. 28 my noble friend Lord Craigmyle raises the question of the minister of religion. There again it is rather difficult to get an Amendment that fits the whole problem. If one could limit it—I think this is what my noble friend Lord Craigmyle wants—to the patient's own minister of religion, to his parish priest or someone with whom he has sonic genuine relationship, that would be all right. But the Amendment as my noble friend has proposed it would require all letters addressed to any minister of religion to be sent unopened and a clergyman who was the target of obscene or libellous letters from a patient would not even be able to ask the hospital authorities to withhold them from the post, as he could under the proposal of the noble Lord, Lord Silkin. It is again a fact, I am told, that mentally ill patients' delusions are often directed against particular individuals, frequently the patients' own friends or relatives or persons holding public positions, such as clergymen; and such people may be made the target of particularly offensive letters. Therefore again I feel some difficulty in depriving all clergymen of the protection given by the clause.

I think that the answer to the essence of the point of my noble friend Lord Craigmyle is that once hospitals know that a patient is communicating with his own minister they would almost certainly refrain from interfering in any way with the correspondence unless, in the sense of the Amendment of the noble Lord, Lord Silkin, the minister him self asked for the letters to be stopped. I discussed the point with my right honourable friend the Minister of Health and he authorised me to say that he would issue formal advice to hospital authorities to ensure that this is done.

Then I come to the next Amendment of the noble Lord, Lord Silkin, if your Lordships will allow me to deal with it in this way. He proposes to insert: his solicitor or any person who is acting as agent for the patient. Here, I entirely agree in principle. What I should like to do in regard to that is to take a regulation-making power which would cover the solicitor. I might even be able to find a form of drafting which would cover the point of my noble friend Lord Craigmyle with regard to ministers of religion. I should very much like the help of the noble Lord, Lord Silkin, on the question of the agent and to see whether we can find words for the regulations which would meet the category he has in mind. I should certainly in principle be prepared to help in regard to that point.

Coming on now to the further point that Lord Silkin was good enough to mention—that is, Amendment No. 58; to leave out Clause 133—there, again, I think I can come some way to meet the noble Lord. The clause applies the provisions of Clause 36 of the Bill, on the withholding of incoming and outgoing letters, to hospital in-patients who are not subject to detention. As it stands in the Bill, the provision also applies to residents in local authority homes. But I would ask your Lordships to look at Amendments Nos. 55, 56, and 57, which I have put down. They would exclude such residents in local authority homes, and would restrict the clause to patients in hospitals and mental nursing homes.

Again the reasons for the existence of the power to control some mental patients' incoming and outgoing letters are not connected with the detention. They arise from the mental disorder itself, which may make some patients in need of protection from harmful incoming letters and may make others prone to write offensive outgoing letters. Many patients who, under the Bill, will be informal patients, not subject to detention, will be suffering from just the same sort of illness, illusion, disorder, or whatever you like to call it, as patients who are detained, and will have all the same mental characteristics. I am sorry my noble friend Lord Cohen of Birkenhead is not here, but I am told that that view is strongly supported by medical opinion, including the Royal Medico-Psychological Association.

I have considered the point which I am sure was in the mind of the noble Lord, Lord Silkin—namely, whether this restriction might make patients reluctant to accept voluntary admission and voluntary treatment. The Ministry tell me they are satisfied that this is not a real danger. Various restrictions have to be imposed on patients as part of their treatment, whether they are subject to detention or not; and in fact mental hospitals at present exercise the same control over the correspondence of voluntary patients as over that of certified patients. If the power to control correspondence depended on the authority to detain, there might in some cases be pressure for taking powers of detention which would otherwise be unnecessary, just in order to be able to protect the patient or other persons with regard to the correspondence. But I would remind your Lordships that my right honorable friend did say that, although he could not go the whole way, he felt that the arguments which have weighed with us were much stronger in relation to hospital in-patients than those in relation to residents in local authority homes; for such residents will not be suffering from acute forms of mental illness which would result in their writing offensive letters; nor is the need to protect them (in particular, subnormal patients) from undesirable incoming letters likely to arise to the same extent as with more seriously disordered patients. And that is why we put down the Amendments Nos. 55, 56 and 57.

That is the position. I do not think it is at all an easy problem; at the end of the day we have each to weigh up our views as to how it is going to affect the patient. But I do ask your Lordships to believe that the arguments I have put to your Lordships, although, naturally, they have been given to me from the experience 'of the Ministry, are all arguments which I have considered, and they all seem to me serious arguments and to fit in with my own experience with regard to friends, clients, and people in cases in the past.

Though I shall be more than delighted to hear anything your Lordships have to say, I hope that, if we approach it in that way, your Lordships may after consideration perhaps find a via media or find reasons which will convince me. I assure your Lordships that I have not a shut mind on this subject and I hope that your Lordships do not take it amiss that I have gone into the whole matter. I wish to show that we are not stonewalling and that we have made these various inquiries. I am quite ready to consider other points, but I think that I have put points of great weight.

9.41 p.m.


I am sure that the reply from the noble and learned Viscount has convinced your Lordships that he is not stonewalling and that this problem has been extremely well considered, but I hope he will not mind if I say that I find his reply very disappointing. I was rather surprised to hear him call in aid the noble Lord, Lord Cohen of Birkenhead, because in a previous discussion on another Amendment relating to justices the noble Lord made clear that the reason why he disagreed with the Amendment was precisely because the whole intention was that physical and mental illness should be dealt with in exactly the same way. Here we have a case where patients are being dealt with in entirely different ways.

For the moment I do not want to deal with Clause 133, with which the noble and learned Viscount has dealt, but to concentrate on his remarks with regard to the Amendment. I cannot hope to compare the volume of offensive letters which I receive with that received by the noble and learned Viscount, but for some years I was a member of another place and chairman of the Mental Health Committee of a Regional Board with some 1,700 patients. I have had my share of offensive letters, a share probably made somewhat larger by the fact that I strongly discountenanced in hospitals in my care any question of censorship of letters, so that I have had some experience of the kind of letters these unfortunate people send. I have discussed this with my noble friends and they have told me the kind of letters and the kind of things which are included in some of the letters which come from mental hospitals, but in my experience I can say with truth that I have received considerably more offensive letters from patients in general hospitals of the group of which I am now chairman than I ever received during the years in which I was responsible for 1,700 patients in mental hospitals. Of course, that proves nothing, except that the sending of scurrilous and offensive letters is by no means confined to those who are in mental hospitals. The point I want to make is that no one would dream of interfering with the right of a patient in a general hospital to write a letter to anyone or say in it what he wishes to say, subject, of course, to Common Law, with which we are not concerned at present.

We cannot dodge in and out behind this business and say one thing when dealing with justices—that we must not do anything which will make a difference between a patient physically ill and one who is mentally ill—and then say, in the case of a mental patient, that this is a mental fixation or that the letters might offend somebody or they might do themselves harm and we are not dealing with a physical disease. The noble and learned Viscount has made it clear that so far as he is personally concerned, and I think every noble Lord would agree, censorship is offensive to us and we would not accept its continuance unless we were strongly convinced that it was essential in the interests either of the patient or of the person to whom the letter was addressed. But I am bound to say that the points the noble and learned Viscount put to us, and which he said were points that worried the Government on this question, so far as my experience goes are without validity.

The noble and learned Viscount the Lord Chancellor said that knowledge that his friends had received such letters would distress the recovered patient—that is a paraphrase of what was said, but I do not think it is an unfair one. So far as my experience goes, the recovered patient who sent those letters when he was not in his right mind—and I have had experience of this—does not remember those letters.


Oh yes, he does.


My noble friend says, "Oh yes, he does". I can only say that his experience conflicts with mine. I put the point that the very reason why those letters are written is because the patient is at least temporarily deranged, and when he is in his right mind they do not have the same effect.

Dealing, first of all, with the Amendment moved by my noble friend Lord Silkin, the Lord Chancellor indicated that some inquiry had been made into the earlier statement made by my noble friend Lord Taylor on Second Reading, to the effect that a large number—if not the majority, in my view, the more enlightened—of medical superintendents no longer censored patients' letters. In my experience, that is the case. So that what we are doing in this Bill, if this clause goes through without Amendment, is saying to those people in effect: "You have not been censoring these letters, but the law now says that you will" But the point cannot, I submit, be disputed that for years medical superintendents have not been censoring these letters. So far as we are aware—and no evidence has been shown to the contrary—this has not caused any great harm. Let us consider what harm it may cause in future. The Government have, in my view wisely, put into the Bill a list of some six exceptions of classes of persons where the medical superintendent cannot hold up letters; and the noble and learned Viscount has suggested that in some way two more classes of exceptions may be added as the result of suggestions made by my noble friend Lord Silkin and the Amendment of the noble Lord, Lord Craigmyle.


What I have in mind is that we should add to the list: "and such other persons as the Minister might by regulation prescribe", so that we should have flexible machinery by which we could add any classes; and we should at once consider solicitors, ministers of religion and the agents—it is a rather difficult drafting point—whom the noble Lords have in mind.


I was not attempting to misrepresent the noble and learned Viscount in any way, and I am grateful to him for making clear to me what was no doubt already clear to noble Lords. But at least that list will be enlarged, and there will be a number of classes of persons where the medical superintendent will not be able to withhold letters. I would say that all that is left to the patient to write to is his relatives, his friends or possibly his employer; they are the only classes of person from whom letters are likely to be withheld. I should have thought that they were the very persons from whom letters should not be withheld, because of damage to the patient. Why should he not write to his relatives or friends? In most cases they will understand where the letter has come from, and if it is offensive and makes them sad, they will at least have the feeling that they are not hurting the patient, but may be helping him.

I feel very strongly on this matter. It is an essential and basic part of this Bill to treat these unfortunate people in the same way as people who are physically ill, and to stop them writing letters to their relatives and friends is, I think, harmful to them. It is going to destroy whatever confidence they may have, particularly when it is now made clear that this is going to apply to voluntary patients as well as those who are detained under order. It is something which is not only abhorrent to all of us in principle, but I think in this particular case is harmful to the people we most want to help. I should have thought, particularly in view of the caution with which my noble friend introduced this Amendment, that at least the deletion of these words ought to be accepted so that the detained patient will be able to write letters to his friends or relatives, subject only to the fact that if they should then say to the medical superintendent, "We do not want any more of these letters; will you please hold them back", then he has only to look at the address on the envelope and hold them back.

I am most grateful to the noble and learned Viscount for promising that at least he will look at the whole question again. But I ask him not to attach too much importance to the offensive letters he has received with every other word underlined—or perhaps every word of his are underlined—but to regard the poor people who write them as getting some relief from those letters. Even if we suffer from them, we can give them that relief and help them, and get rid of this abhorrent business of censorship.


There is one further point I should like to raise on this clause. Everyone with some experience of a mental hospital will know that patients write regularly to the chairman of the hospital management committee. He is known to them; he is round the hospital. But on a strict interpretation of this clause, together with the exceptions which are mentioned, any letter from a patient to the chairman of a mental hospital committee may be censored or detained, because obviously a chairman is not "the managers of a hospital", nor is he "any other authority or person having power to discharge the patient" I do not say that all medical superintendents would take that reading, but it is a possible reading. Therefore, on a strict interpretation of the clause, it is not only the medical superintendent who is involved, because there are other medical officers with, so to speak, equal rank dealing with patients. I am sure it is not the intention of the clause that patients' letters to a chairman, whatever the character of them may be, should be withheld by any medical officer or other officer of a mental hospital.


I am glad that the noble and learned Viscount has emphasised in his remarks on the Amendment that if we are, under the terms of this Bill, to create an informal atmosphere in mental hospitals, there should not be any differentiation between "formal" and "informal" patients. That applies in respect of whether we have a restricted censorship which will apply only to the patient who is the exception, or whether we have no censorship at all. I am glad that my noble and learned friend took this Amendment and the Amendment of the noble Lord, Lord Silkin, on Clause 133 at the same time, because they have great bearing one upon the other. I recognise that there is much to be said on either side with regard to this argument, although I must confess that I myself fail to understand why it has aroused the degree of expression both in another place and in your Lordships' House. As the noble Lord, Lord Taylor has already said, in general these clauses will affect very few patients. I was very impressed by what Mr. T. P. Rees, late Medical Superintendent of Warlingham Park and member of the Royal Commission, said to me the other day. He said that a medical superintendent should be empowered to prevent a patient doing something when he is ill which he would regret when he is not ill.

That point has been very much touched upon by the noble Lord, Lord Stonham, but I hold the view that, irrespective of the reaction there may be to letters sent by patients when ill on the part of relatives and neighbours, the patient himself will not be orientated within the community to the same degree if it is generally known in his district that at one time or another he has, because of his illness, resorted to defamation or abuse or obscenity. Therefore, on the whole, I think that this power, which will be used only seldom, may in a limited number of cases be useful for the medical superintendent to assert in the case of individual patients. In the discussion of this issue I do not think we have to go as far as Lord Silkin did and say that this question of censorship is a great infringement of the liberty of the subject. We all know that censorship of any kind is abhorrent in this country and to our democratic way of life. Nobody wishes to see censorship. But I think that for a very limited number of cases the power ought to be retained in the Bill.


I have made some further inquiries of medical superintendents, and they say that by no censorship in hospitals they meant no general censorship: in the rare case they do censor, and legitimately censor. The present law is that the censorship is carried out jointly by the management committee of the hospital and the superintendent. There was a time when every censored letter had to be read to the entire management committee—indeed, I am not sure that is not still the law but it has fallen into desuetude, and the superintendent may sometimes refer to the management committee and sometimes take full responsibility himself. This Bill gets rid of the medical superintendent and in his place substitutes a "responsible medical officer"; so instead of there being one person in the hospital responsible for this activity, there will be perhaps six responsible medical officers.

Once again one feels that, where such action as this is taken—a legitimate and proper interference with the liberty of the subject—it ought to be a joint medical and lay act. One would have liked to think—and one would hope that perhaps the Lord Chancellor and his advisers might look at the possibility of this—of the responsible medical officer having to work with one lay member of the management committee, perhaps the chairman or such other members as appointed, before starting to operate censorship in any particular case. I find censorship objectionable in principle, though we accept that it is necessary. One feels that where there are six to eight doctors who operate it it would be a good thing if they had a common policy which came through a common lay person to whom they had to justify their acts. I think that might help.

10.0 p.m.


I agree with the noble and learned Viscount that this is not at all an easy problem; I hope that I recognised that in the remarks I made. It is, of course, easy to make a case either way. In the end, as with so many other matters connected with this Bill, one has to strike a balance. I do not attach quite the same significance to these offensive communications or these harmful ones as the noble and learned Viscount does. I think that anyone receiving such a communication would realise that the writer was out of his mind and not responsible for what he was saying, and would make the proper allowance. I think that most people recognise that those who are out of their minds, and are detained in a hospital for that reason, are liable to send that kind of communication. I have not received as many offensive letters as the noble and learned Viscount. I do not know whether that is pure chance, or what is the reason. I have received quite a number of offensive letters from people who are not in mental hospitals, but they do not sign their names.

However, I was going to make the very suggestion that my noble friend Lord Taylor has made. I think this matter is worthy of being looked at again on both sides. The noble and learned Viscount has said that there is no intention of having every letter by a patient read as a matter of routine, and that only where there is reason to believe, by virtue of the particular type of mental illness or otherwise, that a patient is liable to send offensive letters would the responsible medical officer think of taking action. That is, of course, not stated in the clause, and if that could be strengthened to ensure that action is initiated only in cases where there is good reason to believe that a person is liable to send that kind of communication, I think that would go a long way to meet our apprehensions.

I very much support my noble friend, and I was going to make the same suggestion as he made: could there not be some kind of second opinion? As I said in my opening remarks, "the responsible medical officer"—and I read it as being one person, not half a dozen; but the noble and learned Viscount can say what is the intention—is not necessarily the best judge as to what is defamatory, and it is a great responsibility that he is taking upon his own shoulders. There are not even two doctors involved in this matter. If the chairman of the hospital committee, say, could be joined, so that no action is taken without his agreement, then I think we should have gone a long way to removing the apprehensions which a great many people genuinely feel and, at the same time, to meet the apprehensions which the noble and learned Viscount put before us and in respect of which, with respect, I would agree there is some substance. I hope the noble and learned Viscount will be willing to look at this point again from that angle, as we who have put forward the Amendment will. The noble and learned Viscount nods his agreement, and with that I am prepared to withdraw my Amendment. I will not move Amendment 29, or the deletion of Clause 133.


Thank you very much.

Amendment, by leave, withdrawn.

LORD CRAIGMYLE moved, in subsection (2), after paragraph (c) to insert: (d) to a minister of religion;

The noble Lord said: The noble and learned Viscount has to some extent taken the wind out of my sails by already dealing with the Amendment, but I think that a few words are still necessary on the subject. It may perhaps need a few words to re-establish my position on his weather gauge. What persuaded me to leave this Amendment on the Marshalled List in spite of seeing the Amendment which we have just considered was the comparison between the position in regard to a letter to a minister of religion and a letter to an honourable Member of another place. It seems to me that the arguments both for and against allowing such correspondence to he withheld are almost identical in each case. The arguments for the withholding of such correspondence would be the possible offensive nature of them; the argument against, that some gem of wit, learning or erudition might get in between the lines of some such correspondence and cause a wrong to be set right, or something like that.

If the Amendment which we have just been considering had been accepted by the Committee, we should then have had only the people in the little list at the bottom of page 23 and the top of page 24 who would not have been able to prevent themselves from receiving offensive communications. Should a minister of religion be able to stop himself receiving the sort of offensive communications which a Member of the House of Commons cannot stop himself receiving? I should answer firmly "No". The least that such a letter to a minister of religion can do is to cause the recipient to pray for the sender. That may very well be more than would happen in the case of a similar letter addressed to an honourable Member of another place—I do not know.

Then there is this possibility. The noble and learned Viscount seemed to think that I was interested only in enabling the patient to correspond with his own chaplain. That is not quite the case. There may be frequent cases where a mental patient, for whatever reason—whether attributable to his illness or not—may wish to correspond with a minister of a persuasion other than his own. Of course, that opens up the most appalling prospects. It may be that the particular mental disease from which this unfortunate patient is suffering is directed to anti-Semitism, and, having got hold of the name and address of one or two eminent rabbis, he then starts writing exceedingly offensive letters to them.

But it is possible that he may be suffering from the strange mental disease of anti-Toryism, or something like that, and will start writing offensive letters to Conservative Members of another place. So I come back to that basic comparison between a necessity of allowing free and unfettered correspondence from mental patients to a minister of religion for precisely the same reason as they are allowed free and unfettered correspondence to Members of the House of Commons. I beg to move.

Amendment moved— Page 24, line 2, at end insert the said paragraph.—(Lord Craigmyle.)


I will give most serious consideration to what my noble friend has said. I do not want to say anything further without having weighed the matter up. At the moment one has in mind, of course, the distinction that a Member of another place is charged with the duty of putting before Parliament the grievances of his constituents; and that is a special reason why there should be no possible means of stopping the matter coming to him. As I say, I should not like, without thought, to state the grounds of distinction from a minister of religion: but, as I said in reply to the noble Lord, Lord Silk in, ministers are liable to become targets of attacks and to be used in conjunction with other innocent people as the object of very scandalous and filthy allegations.

I hope, therefore, that my noble friend, Lord Craigmyle, will allow me to consider this point in special relationship to the possibility I mentioned in my answer to the noble Lord, Lord Silkin—namely the possibility of giving my right honourable friend power to deal with various matters by regulation. I should then like to consider again, in view of what my noble friend has said, the position of ministers of religion. I assure him that I do not underestimate the importance of the point he has in mind; but perhaps in view of that he will not press his Amendment further at the moment.


I am certainly much obliged to the noble and learned Viscount. It may even be that the flexibility of administrative machinery as opposed to the words of a Statute may be the answer, not only to this particular point as to who should be the exceptions to the rule but to the major point as to the nature of the rule itself. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 36 agreed to.

Clauses 37 and 38 agreed to.

10.13 p.m.

Clause 39 [Leave of absence from hospital]:

LORD STONHAM moved, in subsection (5), to leave out "six" and insert "twelve" [months]. The noble Lord said: I beg to move the Amendment standing in the name of my noble friend Lord Taylor and myself. As the Bill stands at present, if a subnormal patient reaches the age of 21 and is then on leave or licence, and so remains without recall for six months, he cannot thereafter be recalled by the medical officer. The purpose of the Amendment is to increase the six months to twelve months. I have always been opposed to long periods of licence, and some years ago I was instrumental in an arrangement which was made whereby if a person had been successfully on licence for two years the medical superintendent was required to show cause why the patient should not be recommended for discharge from the order. I mention that point to indicate that I am opposed to long periods on licence.

It is my hope that patients will be discharged from hospital as soon as they can safely be discharged, and that whenever possible they will not have to wait until they reach the age of 21. But in my view—and on this occasion I am fortified by my noble friend, and certainly have the overwhelming support of medical superintendents at mental deficiency hospitals throughout the country—the period of six months is by no means safe. I do not want to repeat the arguments made on an earlier Amendment, but it is the case that mental deficiency is a defect of intelligence; and no matter how old the person grows he will still remain of the same mental age. A person with a mental age of 12 does not become adult in mind when he or she reaches the age of 21. I need not stress the point; I am merely stating a fact, which must of course be acknowledged. Therefore we have to have regard to the fact that when mentally retarded people are sent out from a hospital on licence they virtually fall into one of three categories.

The first category is those who can successfully take their place in society without any kind of supervision. I would submit to the noble and learned Viscount that that class of person will not normally still be in hospital at the age of 21. The higher grade people who can successfully accommodate themselves to life in the outer world are not our trouble at all. Then there is the second category of people, those who are not completely successful but who can carry on in the outer world with some supervision. Finally, there is the third category: the people who, after trial, are found to be unsuitable for life in the community and have to go back to hospital. I do not think that would be disputed.

We are concerned only with the two last categories, those who can carry on under some supervision and those who eventually, after trial, have to go back to hospital. These are essentially people who will be kept longer in hospital; they will not go out on licence at, say. 16, 17, or 18, because they are longer coming to the point where they can be trusted, as it were, to go out into the outer world. It will be those two categories, the less likely or less satisfactory ones, with whom we shall mostly have to deal at the age of 21. They are the ones likely still to be in hospital. They may go out at 20 or even at 21, and six months is a quite insufficient period in which to tell whether a boy, who will always be a boy, has thoroughly learned in hospital the trick of living as a man—because that is what it amounts to. We are training these people who will be in hospital to go out into the world and live as men and women. They do not automatically become men and women when they reach the age of 21. It is the experience of everyone who has had knowledge of these things that six months is not sufficient to be certain of this.

I should, of course, like to see, although I have not asked for it in the Amendment, a period of six months renewal on licence, with, if necessary, an appeal to the Tribunal. I am not asking for this, but I think twelve months is the absolute minimum to be adopted with any hope of safety with these patients. It has always been my attitude to give these people the maximum possible chance, and I have always encouraged medical officers with whom I have been in contact to take some risks, despite some tragic failures—Straffen, for example, was a boy from my region. Despite that kind of failure, I have always encouraged the medical superintendents to give others a chance, but I submit that we dare not remove all safeguards for the patient.

I hope, therefore, that the Government will accept this quite modest Amendment. Powers will not be used unless they are required, and never except in the interest of the patient and, as a secondary consideration, in the interests of the community. But I think if we do not enlarge this period up to twelve months, as is stated in the Amendment, there is a considerable risk of tragedies, and we should have to accept responsibility for them if they occurred. The medical superintendents overwhelmingly favour a longer period.

There is one other point on this matter which I would put to the noble and learned Viscount, and it concerns medical superintendents in charge of retarded people. If they send such patients out on licence at 20½ or 21 and they cannot be recalled after six months. I think they are much more likely not to take the risk and to keep the patients in until the age of 25, when, under the law, they must discharge them, subject to certain conditions. Therefore, unless there is a longer period with a possibility of recall, we may have the position in which people who might otherwise be sent out at the age of twenty or so are prevented from being sent out into the world on trial. I would submit to the noble and learned Viscount that in these cases guardianship is not a satisfactory alternative to treatment in a hospital. One has to remember that most of these people will have been in that hospital since they were children, often under the same medical superintendent. If they are recalled to that hospital, they will be going back to someone who knows them, somebody they trust, and somebody they know—and that is infinitely better than coming under guardianship. I therefore trust that the noble and learned Viscount will accept this Amendment, because I think it is the minimum that we can ask for in order to give a reasonable assurance of the safety of these patients whom we all desire to help. I beg to move.

Amendment moved— Page 26, line 22, leave out ("six") and insert ("twelve").—(Lord Stonham.)

10.21 p.m.


I think that there has been some confusion about these provisions, both on the part of the medical superintendents who have been worried about them and on the part of the noble Lord who has stated the case this evening. The object of Clause 39, to put it briefly, is to ensure that patients are not kept on leave of absence (and thus subject to arbitrary recall to the hospital) for very long periods, as has happened in some cases under the Mental Deficiency Acts—and with that principle Lord Stonham has expressed his general agreement. Now there has been criticism by medical superintendents of mental deficiency hospitals and others of the six months' limit, on the assumption that at the end of the six months the patient must exist on his own in the world without the sort of support and supervision that he has had while on leave of absence. It seems to me that that is due to a misunderstanding of the object and effect of the clause.

Clause 39, as I said, deals only with patients who are subject to detention while in hospital. It allows for leave of absence without a break in the authority for detention, during which the patient may at any time be recalled compulsorily to the hospital on the instructions of the responsible medical officer. We agree that six months is often not long enough to tell whether a patient is going to succeed in establishing himself in the community. Many patients need to go back again to hospital after absences of longer than six months. We also agree that many patients, particularly sub- normal patients, need care and supervision in the community for much longer than six months. But Clause 39 does not deal with arrangements for care and supervision and after-care: it deals with only the power of arbitrary recall to hospital. Arrangements for care and supervision are needed for many patients, including those who have never been subject to detention in hospital at all. A reasonable period of follow-up by the staff of the hospital is normal, but the main responsibility for the after-care of patients who are living in the community falls, under the National Health Service Acts, on local health authorities. In fact, local health authorities supervise at present about 81,000 mental defectives who are living in the community, some of whom have never been in hospital, and others who have been discharged from hospital. It is true that some mental deficiency hospitals themselves supervise patients who have left the hospital on licence for as long as they remain on licence. It was suggested in another place that local authorities might not have sufficient staff to take this over and for that reason the six months' period should be longer so that hospitals can continue until local authorities are equipped to take over. But, in fact, local authorities in many areas already do the job of supervising patients on licence. This is done for over half the 3,500 patients on licence, and works very well. As they also are already coping with about 81,000 other patients, this clearly is not a valid argument.

If it is felt that the patient still needs to be under legal control beyond the six months he can be transferred to guardianship under Clause 41, and then if he needs to return to hospital later he can be transferred back again under Clause 41. The local health authority itself will be able to act as guardian. Your Lordships have said much about the question of personal liberty. A transfer back to hospital from guardianship gives the patient the right of application to a mental health review tribunal, whereas recall from leave of absence under Clause 39 has no such safeguard but is quite arbitrary at the discretion of the responsible medical officer. The six months' limit is mainly intended as a safeguard against any possible misuse of this arbitrary power of recall. It is also wrong that patients should live under the shadow of such a power, even if it is not in fact used. If a patient who has managed to live outside hospital for as long as six months is later thought to need re-admission, this should be subject to the safeguards provided in the Bill in the procedures for a fresh admission or for a transfer. Therefore, I think that there has been some misapprehension on the Clause 39 point. I think that our general view in support of liberty ought to make us support the shorter period which is in the Bill.

10.27 p.m.


I do not think there has been any misapprehension either on the part of my noble friend or myself or on the part of the superintendents. What the noble and learned Viscount has said is exactly what we had in mind. I understand that the medical superintendents in mental defective institutions hoped to see the Government on this and were unable to see them: I gather that they were unable to meet the Minister or his representatives. They are the people who have to run this matter, and it is a little sad that they were not allowed to put their point of view on what, after all, is an arbitrary period of time. If six months is allowed, why not twelve months? It is a question of the pragmatic usefulness of the time for the operation of recall. I think it is a fact that medical superintendents in mental defective institutions are more willing to discharge patients early and take a risk about recalling them to see how they go.

I have had a bitter personal experience of this. As a Member of another place, I approached the Minister of Health to override a medical superintendent in just such a case, against the superintendent's better judgment. I must say that I was hopelessly wrong in this. My noble friend Lord Stonham said that there were boys who would always be boys, but I was thinking of the girls who will always be girls. They are much more likely to get into trouble and to be led astray in this early period of discharge. However, this is a purely technical matter. It is a small matter but very important. If the Government resist this Amendment, I imagine that the Bill will have to be amended later, simply on the facts of the situation. Time will prove whether the Government are wrong or whether we are wrong.


I am willing to have a look at that, although, of course, I am not making any promises. I have put a case, which I have read several times, and it seems to be a good one. On that basis perhaps noble Lords will not press the Amendment now. I am entirely in their hands.


I would venture to ask the noble and learned Viscount the Lord Chancellor to give special consideration to the point made by the noble Lord, Lord Taylor, about the girls. These people are in considerable moral danger, and in the course of children's committee work I have seen a good deal of that danger, which seems to be increasing. We take this seriously and are most anxious that every possible step should be taken to find a remedy.


I am grateful to my noble friend Lord Iddesleigh, and I will certainly bear that point in mind.


I am grateful to the noble and learned Viscount for his further reply. However, I would ask him when he does review this situation to have regard to the fact that guardianship is no possible substitute for the kind of relationship which has existed between medical superintendents and their patients: it is almost a fatherly relationship or, if you like, father-confessor relationship, and it is wholly desirable that if they do send these patients out on licence they should be able to feel that if they do slip up—either boys doing the things boys do, or girls slipping up on the moral side, which is often more frequent—they should be able to come back. That is most important. If the Lord Chancellor looks at it, I think he will arrive at the same conclusion that we have come to. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clauses 39 and 40 agreed to.

Clause 41 [Regulations as to transfer of patients]:


It may be that it is convenient that we should not go further this evening. I do not know whether the noble Lord, Lord Stonham, has had a chance at looking at Amendments Nos. 32, 33 and 34. They seem to be the purest drafting, and unless the noble Lord has any points to raise we might dispose of them before we finish.


I have no points to raise on any of those Amendments.


Then I beg to move Amendment No. 32.

Amendment moved— Page 29, line 1, leave out subsection (6).—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 41, as amended, agreed to.

Clause 42 agreed to.

Clause 43 [Duration of authority]:


I beg to move.

Amendment moved— Page 30, line 15, leave out from ("patient") to end, A line 37 and insert ("who is liable to be detained in pursuance of an application for admission for treatment would cease under this section to be so liable in default of the renewal of the authority for his detention, it shall be the duty of the responsible medical officer to examine the patient; and if it appears to him that it is necessary in the interests of the patient's health or safety or for the protection of other persons that the patient should continue to be liable to be detained, he shall furnish to the managers of the hospital where the patient is liable to be detained a report to that effect in the prescribed form. (4) Within the period of two months ending with the (lay on which a patient who is subject to guardianship under this Part of this Act would cease under this section to be so liable in default of the renewal of the authority for his guardianship, it shall be the duty—

  1. (a) where the patient is subject to the guardianship of a local health authority, of the responsible medical officer;
  2. (b) in any other case, of the nominated medical attendant of the patient,
to examine the patient; and, if it appears to him that it is necessary in the interests of the patient, or for the protection of other persons, that the patient should remain under guardianship, he shall furnish to the guardian and, where the guardian is a person other than a local health authority, to the responsible local health authority, a report to that effect in the prescribed form. (5) Where a report is duly furnished under subsection (3) or subsection (4) of this section, the authority for the detention or guardianship of the patient shall be thereby renewed for the period prescribed in that case by subsection (2) of this section.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 43, as amended, agreed to.

Clause 44 [Special provisions as to psychopathic and subnormal patients]:


This is a drafting Amendment. I beg to move.

Amendment moved— Page 31, line 11, leave out from ("cease") to end of line 12 and insert ("under this section to be liable to be detained in a hospital in default of the renewal of the authority for his detention,").—(The Lord Chancellor.)

On Question, Amendment agreed to.


It may be that this is a convenient moment for us to adjourn our discussions to-night. We have had quite a long sitting, I think your Lordships will agree. I understand that it would meet the general convenience if we debated the Bill to-morrow at a convenient time. If that commends itself to your Lordships then we might adjourn the debate on the Committee stage.

House resumed.