MENTALLY ABNORMAL OFFENDERS

HL Deb 22 March 1978 vol 389 cc1804-12

3.13 p.m.

Lord ALLEN of ABBEYDALE rose to call attention to the outstanding recommendations made in the reports of the Committee on Mentally Abnormal Offenders (Cmnds. 5698 and 6244); and to move for Papers. The noble Lord said: My Lords, I beg to move the Motion standing in my name. The main report of the Committee on Mentally Abnormal Offenders was published in October 1975. Its findings have never been debated and I do not think that I need apologise to the House for inviting it to consider some of the issues which this strong Committee, in three years of hard work, considered so patiently and so profoundly. Perhaps I may be permitted to say what a particular pleasure it is that the noble Lord, Lord Butler of Saffron Walden, is to speak in the debate. I am also most grateful to the other speakers who have put down their names.

The cold and unemotional phraseology of this Motion conceals a complex of social problems of immense difficulty and issues which involve, in an acute form, the task of balancing the interests and security of the community against considerations affecting the lives and liberty of some of our least favoured citizens.

May I begin by taking your Lordships back to a day in 1962 when a 14 year-old boy was sent to Broadmoor for offences of poisoning. The court found that this boy was suffering from psychopathic disorder and directed that he should not without the Home Secretary's consent be discharged from Broadmoor for 15 years. In February 1971, consent was given to his conditional discharge on medical advice that he had responded well to treatment and was no longer a danger to others. In the event, it proved that his morbid interest in poisons had in no whit abated, and in June 1972 that young man, Graham Young, was sentenced to life imprisonment for two offences of murder and two offences of attempted murder, all those offences having been committed by poisoning.

As a result, certain steps were taken to overhaul the discharge procedure from Broadmoor; but in addition, the Home Secretary, Mr. Maudling, said that this case had brought to a head the view which he and the Social Services Secretary had been coming to for some time: that the time was now ripe for a wide-ranging inquiry into the whole question of the application of the criminal law to mentally abnormal offenders. The noble Lord, Lord Butler of Saffron Walden, was good enough to agree to take this on, and so the Committee was launched.

Noble Lords need have no apprehension that I am going to take them through each of the 140 recommendations made by the Committee. I propose rather to concentrate on just two main areas: first, a few of the issues raised in the report about the procedures followed by the criminal courts and, secondly, some questions relating to the disposal of those who have to remain in institutional care. In the first of these groups, I pick out three recommendations which raise especially difficult problems of individual liberty. I hope that when the noble Lord, Lord Harris of Greenwich, replies to the debate, he will be able at the least to tell us what the Government have in mind to follow up these and other recommendations—recommendations which I must again say the Government have had in their possession for some considerable time.

I begin with those cases where the accused person is unfit to plead at his trial because of his mental condition. I am conscious that in using this very phrase "unfit to plead" I am following a time-honoured practice which the Committee itself thought to be unsatisfactory. The Committee preferred the phrase "under disability in relation to the trial". Be that as it may, it has long been the law that if a defendant is found by the jury to be under such a disability the court is bound to order his admission to a hospital specified by the Home Secretary, perhaps to stand his trial later if his condition improves but not if it does not improve.

The courts do everything within their power to ensure that, wherever possible, a normal trial does take place, and the Committee itself made a number of helpful suggestions to this end. However, the point which I am especially concerned with is the Committee's recommendation that the present procedure should be changed so that even where a normal trial quite clearly cannot take place because of the defendant's disability, there should nevertheless be a trial of the facts to the fullest extent possible.

The purpose is obviously to make as certain as can be that injustice is not done to a person who is mentally unfit to stand his trial by putting him away indefinitely in a hospital for an offence which he did not commit. No one supposes that there is at present a risk of frequent injustice, but the risk certainly does exist; and although what the committee suggests involves a considerable elaboration of the law for a comparatively small number of cases, nevertheless it seems to me that it has made out a persuasive case for change.

The second of my three points is the recommendation that where there has been a trial and conviction the court should have new powers to remand a mentally disordered person to hospital for up to six months in all before deciding on his ultimate disposal. The difficulties speak for themselves, but I know that the physician superintendent of Broadmoor is strongly in favour of this and that he will not mind my saying so. In a difficult case it can very well take several months' assessment before the doctors can give a worthwhile opinion on whether an individual is likely to respond to treatment, and therefore whether a hospital order would be appropriate. The eventual decision of the court is a once-for-all decision of paramount importance to the individual and there must be a lot to be said for giving the court the best possible advice before that decision is taken.

Thirdly, I come to the special verdict, and I had better explain what I mean. I am afraid that this involves me again in trying to say in a rather amateur way what I understand the law to be, and I hope the lawyers will listen to what I say with even more than their customary tolerance. For several centuries it has been recognised that if a person, at the time of his unlawful act, was mentally so disordered that it would be unreasonable to impute guilt to him, he ought not to be held liable to conviction and punishment under the criminal law. The present Statute provides for a verdict of not guilty by reason of insanity if it appears to the jury that the accused did the act with which he is charged but that he was insane at the time. As to what constitutes insanity, the criteria are still, in theory, those laid down by the judges in 1843 in reply to questions posed by this House in the celebrated case of M'Naghten. If an insanity defence succeeds it always follows that the accused is committed to a hospital specified by the Home Secretary and that he cannot be discharged without the Home Secretary's consent.

When we had capital punishment there was obviously a considerable incentive for the defence to seek this special verdict. That incentive has gone, and there are now few cases, but the Committee thought that it would be right to try to devise criteria to be put to the jury which reflect the present knowledge rather more accurately than do the M'Naghten rules, stretched and extended though they have been over the years by the ingenuity of the courts. Not all their witnesses agreed that the effort should be made, but the Committee thought that the present rules were quite unsuitable for inclusion in any modern criminal code. It is also possible that if the law is changed so as to give the courts a wider discretion as to disposal, and if therefore it does not follow that the special verdict automatically leads to indefinite detention in a hospital under the orders of the Home Secretary, the attempt to seek the special verdict may come back into rather greater use.

Something also turns on what happens about the defence of diminished responsibility, but I must not be tempted to go into that today. I am not going to say more about the carefully argued attempt made by the Committee for redefining and replacing the M'Naghten rules and introducing a new verdict of not guilty on evidence of mental disorder, but it would be interesting to know whether the Government think that this is an attempt which ought to be made. I know, too, that the noble Lord, Lord Butler of Saffron Walden, devoted a good deal of thought to this issue, and if, when he comes to speak, he could say a few words about it, I am sure we should all be very grateful. So much for my rather brief excursion into the criminal law.

I now come to my other group of questions about those who have to remain in institutional care. Perhaps I may be rash enough to say a brief word here too about the present law. The court has power in defined circumstances to order a mentally disordered person to be admitted to hospital for treatment, and except for a magistrates' court it can, in addition, make a restriction order if it thinks that this is necessary for the protection of the public. If a restriction order is made the individual cannot then be discharged without the Home Secretary's consent.

Then the Home Secretary for his part has a similar power to order a prisoner's removal to hospital, and power as well to attach a restriction order in such a case. Removal to a hospital for treatment, either by order of the court or by transfer from a prison, is not carried out unless the hospital is willing to accept the individual. The Committee found that these provisions were not working as they should. The trouble is this. On the one hand, we have the four special hospitals—Broadmoor, and the somewhat surprisingly named Park Lane, primarily for cases of mental illness and personality disorder, and Rampton and Moss Side for cases of subnormality. These hospitals are for those requiring treatment under conditions of special security on account of their dangerous or violent propensities. Not all their patients have been before the courts, but a good many of them have. The hospitals are overcrowded and the criteria for admission are strict.

On the other hand, the ordinary NHS hospitals have increasingly been subscribing to the open door therapeutic policy. I think it is fair to say that in recent years psychiatrists have become more reluctant to take on the care of dangerous or potentially violent patients or those with personality disorders, and look on treatment behind locked doors as inconsistent with what they are trying to do for the great majority of their patients. The staff, too, for reasons I can well understand, are tending to become less tolerant of accepting disturbed behaviour, and the skills in handling such behaviour are tending to be lost. The result is that between the special hospitals on the one hand, and the ordinary NHS hospitals on the other, there is a gap which is tending to widen. It was to fill this gap that the Butler Committee thought it right to put in an interim report in April 1974, practically four years ago, asking urgently for the setting up of regional secure units with some 2,000 beds, just a little less than the total occupancy of the four special hospitals.

The Government accepted this recommendation—at any rate for 1,000 beds to start with—and undertook to make the capital sums available. This was not a proposal to be killed, as so many are, by shortage of money. The Government then accepted a proposal in the main report, that in addition they should provide the money to run the units and special terms were settled for the nurses who would be employed there. What happened? My Lords, practically nothing; or perhaps, to be kinder, very little. In 1976–77 a revenue grant of £5.2 million was allocated to the 14 Regional Health Authorities for interim security purposes. Between them they spent £351,263, rather less than 7 per cent. of the total. Some of the rest was used as a kind of gift from heaven—a somewhat unusual role for the Elephant and Castle—and put to general expenses, like painting wards.

The Department, as I understand it, have allotted a similar total during the current year, but increased somewhat to take account of inflation, although I believe they have said that this time the money must be spent on psychiatry even if not actually on interim security. I know that the picture is patchy and that in three or four of the regions some interim provision has been made, but where it has been made it falls a long way short of the idea which the Butler Committee had, and in a number of the regions, so far as I can ascertain, nothing has been done at all. I have occasionally come across some problems of underspending of Exchequer money in my time—and I believe the Treasury are having some little local difficulty of this kind at the moment—but I have never come across underspending quite on this scale.

What are the reasons? First, there have been staff and trade union difficulties, as readers of the Guardian will know very well. There have been objections, very understandably, from local residents. But most important, I think, have been the reservations quite genuinely felt by the psychiatrists themselves. Whatever the cause, the results are plain. The courts are often frustrated because no hospital will take the offender before them; for lack of any alternative they have to send him to prison, which does not exist for the treatment of mental disorder, and whence he will return to the community when his fixed sentence is finished. A very experienced Lord Justice has told me that, so far as the courts are concerned, the position is now very much worse than it was in the 1960s. Broadmoor remains overcrowded, in part because it cannot move to local hospitals enough patients who no longer need the special security provided at Broadmoor. And the prisons, at any rate up till the other day, have practically given up asking the hospitals to take convicted offenders who are in need of treatment in a psychiatric hospital. According to the last report of the Prison Department, there are several hundreds of such prisoners.

Against this background, a Written Answer which Mr. Moyle gave to a Question in another place on 16th February, tucked away though it is without very much publicity, seems to me significant. This Written Answer is at column 345 of the Commons Hansard for 16th February. He said that several regions had interim secure facilities and that 10 of them had submitted proposals for regional secure units, but he added that the first two or three units were not likely to come into operation until 1980 or 1981, which, incidentally, will be just about 20 years since this idea of units was first mooted by a departmental working group, as the Committee's report records.

I know that the Social Services Secretary, as well as the Home Secretary, is taking a personal interest in these problems, and am very glad to see that the noble Lord, Lord Wells-Pestell, is going to take part in this debate. I hope that when he does he will be able to enlarge somewhat on Mr. Moyle's written reply. Does it mean that the problems which have impeded progress for all these years have now been solved? Will the units be of the size and run on the lines recommended by the Butler Committee? Is the Committee's philosophy still accepted? Have the problems of staff co-operation and planning objections been overcome? Do we really have to wait for several more years before the first two or three units are brought into being? And has there been a change of heart among psychiatric consultants?

This last question is vital because, although the provision of a number of new units would be a remarkable step forward after all this time, I hope that no one will suppose that every single one of the violent or dangerous offenders who do not quite meet the criteria for the special hospitals can be accommodated in these new units and that the doctors can then forget all about them and regard the problem as solved. The special units, once they exist, must not be simply mini-Broadmoors. There must be much more in the way of an overall and flexible programme, and I frankly do not see this being brought about without some change of heart in the profession.

I had hoped to touch on one or two other recommendations—the proposal for a new form of indeterminate sentence for very grave offences, a suggestion I view with some qualms I confess, and the suggestion for a new national advisory board to oversee the working out of a consistent policy—but I have already been speaking for too long. Even so, I have only been able to scratch the surface of just a handful of some of the problems discussed in the report. I have said nothing about arrangements about discharge, about the care of violent psychopaths, about the need for research, for example, for the treatment of offenders suffering from personality disorders, or about provision for non-institutional care.

But, before I sit down, I should just like to say this: this is an area where, if you are involved, it is very tempting to hope that someone else will take on a very awkward responsibility. It is an area, too, where a mistake over one individual will achieve far more publicity overnight than any success there may be in caring for thousands of people in institutions or in the community. There are extremely difficult problems here. I am glad to have the privilege of at last initiating a discussion of the praiseworthy attempt made by the Committee in their extremely valuable report to find some answers to these problems and, as I said at the beginning, to strike a balance between the interests of the community and the interests of the individual which is fitting for a compassionate and civilised society like ours. My Lords, I beg to move for Papers.