§ 3.2 p.m.
§ The Minister of State, Scottish Office (The Earl of Mansfield)My Lords, I beg to move that this Bill be now read a second time. If I may begin on a personal note, it gives me pleasure to recall that some 22 years ago my father rose in his place in your Lordships' House to speak in support of what was to become the Mental Health (Scotland) Act 1960. He spoke with some authority, having been for many years chairman of the board of management of a large mental hospital. The confidence with which I recommend this Bill to your Lordships is enhanced by the knowledge that it would have met with his wholehearted approval.
The 1960 Act was, and will long remain, the most important single measure in the history of Scottish mental health legislation. It replaced a labyrinth of earlier lunacy and mental deficiency legislation, some of which dated back to 1857. It established the important principle that a mentally disordered person should have the same right to seek treatment voluntarily as any person suffering from any other illness. A corollary to this is the principle that powers to compel a mentally disordered person to remain in hospital for treatment should be used only where there is no acceptable alternative. The Bill before your Lordships does not seek to alter either the framework or the main thrust of the 1960 Act; but it makes a number of improvements so that the intention of that Act may be more effectively realised in practice. In order to clarify the aims of the Bill, we have circulated a memorandum which I hope will be found to be a useful aid to understanding. This sets out in some detail our proposals for amending the existing Scottish legislation in the light of the comments we have received on the consultative paper circulated earlier this year, which we have tried to accommodate as far as possible.
Your Lordships will, of course, recollect that an Act has recently been passed to amend the English Mental Health Act 1959. Although the Scottish legislation has its own distinctive features, it is desirable that the law on both sides of the Border should have the same effect where it applies to identical circumstances. The Bill, therefore, seeks to give effect to a number of provisions now in the Mental Health (Amendment) Act 1982 which should be reflected in the Scottish legislation.
The first five clauses relate to the Mental Welfare Commission for Scotland. It is a testimony to the value of the commission that one of the major reforms in the recent legislation for England and Wales provides for the establishment of a similar body.
120 Mentally ill and mentally handicapped people are vulnerable to neglect, abuse or exploitation, and it is essential that their interests should be protected in every possible way. The Mental Welfare Commission is an independent, impartial body with wide powers to undertake these important functions.
Clauses 1 and 5 affect the way in which the commission is administered. The commission will be given greater control over the management of their financial affairs and the recruitment of their staff. Clause 2 adds to the commission's duty to visit detained patients a specific requirement that each such patient must be visited at least once every three years. Although there is provision elsewhere to safeguard against unnecessarily prolonged detention, it is desirable that there should also be an automatic, independent review at longer intervals as an extra safeguard.
The commission's power to discharge patients does not extend to those who are subject to special restrictions—the 250 or so "state patients". Clause 3, however, provides for the commission to make a recommendation to the Secretary of State where they consider that such a patient ought to be discharged.
Clause 4, and, to take it out of sequence, Clause 28 are designed to overcome certain difficulties which the commission have experienced in the past. Clause 4 will enable them to appoint a legally qualified person to carry out an inquiry on their behalf. This will ensure that such inquiries can be put in hand expeditiously on occasions when no legally qualified commissioner is available to conduct the proceedings. Clause 28 will enable the commission to take direct action where necessary to secure the appointment of a curator bonis in any case where they consider that a patient's affairs should be managed on his behalf by a disinterested party. Broadly speaking, the changes which these clauses will make are intended to give greater independence to the commission and to assist them in the discharge of their present functions.
Clause 6 removes the term "mental deficiency" from the legislation, and replaces it by the term "mental handicap". This change was demanded by the overwhelming majority of those who responded to the consultative document.
Clause 7 makes a number of amendments affecting the appointment and functions of mental health officers. Since the 1960 Act was passed, social workers have become an integral part of the professional team whose various skills are devoted to the care of mental patients. We must ensure that they are trained accordingly and that their duties are more clearly specified. The 1960 Act was not specific as to who should be appointed as a mental health officer, and some local authorities now designate virtually all their social workers as such. There is also some doubt as to the powers and duties of such officers. Clause 7 is intended to remedy this unsatisfactory state of affairs by requiring local authorities to appoint suitably qualified social workers as mental health officers. A Scottish Office Working Party, with representation from the Association of Directors of Social Work, the British Association of Social Workers and the Central Council for the Education and Training of Social Workers, is at present considering the way in which the new provisions would be implemented.
121 Clause 8 amends the grounds for compulsory admission to hospital or reception into guardianship. The grounds for admission to hospital are presently to be found partly in Section 23 of the 1960 Act and partly in Section 24. One effect of the provisions of Clause 8 will be to list these grounds more conveniently in a single subsection. A more important effect will be to remove the age limits which at present restrict the admission of mentally handicapped persons and those suffering from personality disorders. When the 1960 Act was passed it was thought that such patients would be unlikely to benefit from treatment once they were beyond their early twenties. A different view is taken now, and the new criteria accordingly focus directly on the question of "treatability". Thus, whatever his age, a person who is suffering from a personality disorder or from mental impairment will not be subject to detention in hospital unless medical treatment is likely to alleviate or prevent a deterioration of his condition.
An important change is made also in the grounds for reception into guardianship. Over the past 20 years the number of persons under guardianship has declined and very few new guardianship orders have been made. There is however considerable potential value in the system of guardianship for patients who can live successfully in the community provided someone is able to exercise a degree of supervision. The amended grounds for reception into guardianship therefore refer to the interests of the welfare of the patient rather than the more narrow interests of his health or safety. The more limited powers which are to be available to guardians are set out in Clause 11.
I come now to the important group of amendments affecting the procedures for compulsory admission to hospital and the duration of periods of detention. There has been a good deal of criticism about the way in which the existing legislation has been applied and particularly about the use of Section 31 which provides for a patient who has been admitted in an emergency to be detained for a period of seven days. This was intended to allow time for a formal application under Section 24 to be completed and submitted to the sheriff for his approval. Experience has shown that most patients who are admitted in an emergency respond to treatment fairly quickly so that within two or three weeks there is no longer any need for them to be detained.
The new provisions tighten up the emergency admission procedure in two directions. First, Clause 12 reduces to 72 hours the period for which a patient may be detained after he has been admitted under Section 31. Secondly, Clause 14 introduces a new procedure for short term detention following emergency admission. If by the end of the 72 hours a psychiatrist has confirmed the diagnosis of the doctor who signed the emergency recommendation, the patient may then be detained for up to 28 days without formal application to the sheriff, though the patient can appeal to the sheriff against his detention if he wishes.
For patients who are detained for a longer term, Clause 16 will have the effect of halving the intervals at which the authority for detention must be reviewed. At present, renewal is necessary at the end of the first 122 and second years, and at two-year intervals thereafter. Once the proposed amendment comes into effect, there will be a statutory review at the end of the first six months, and the authority for detention will have to be renewed at the end of each year. As a result, patients will be able to appeal to the sheriff for discharge once within the second six months of detention and once in each year thereafter—that is, twice as often as at present.
Clause 21 introduces into the principal Act a series of new sections, the effect of which will be to enable state patients to appeal to the courts for their discharge. At present, these patients, of whom there are some 250 subject to special restrictions set out in Section 60 of the Act, may be discharged, transferred or given leave of absence at the sole discretion of the Secretary of State. This provision is intended to bring the Scottish legislation into line with a recent judgment by the European Court of Human Rights which ruled that they should have a right of appeal to a court. This will give state patients the same opportunities to appeal to the courts as are available to all other detained patients.
Clause 29 introduces a set of provisions which are intended to remove uncertainty about forms of medical treatment for mental disorder which require consent and a second medical opinion. Certain forms of treatment, which are to be specified in regulations, will be subject to independent confirmation that the patient has knowingly consented and that the treatment is likely to be beneficial. The new provisions will also allow treatment within these categories to be given without consent under closely defined conditions. They will also deal with such matters as withdrawal of consent and the independent review of courses of treatment. A number of other changes are proposed affecting such matters as the rights of patients and their relatives to be kept informed, powers to intercept patients' correspondence and, in general, the way in which patients are treated while they are detained.
I have tried to be brief in describing the main provisions of the Bill—indeed, I think I have succeeded—in order not to detain the House with a long speech. I have therefore only attempted to outline the main provisions; but I shall be happy to answer any questions which noble Lords put to me in the course of their speeches, either at the conclusion of the debate or by correspondence. In any event, we shall be able to examine the Bill in detail when it comes before your Lordships' House in Committee. I beg to move.
§ Moved, That this Bill be now read a second time.—(The Earl of Mansfield.)
§ 3.15 p.m.
§ Lord Mackie of BenshieMy Lords, this subject is not my particular field, but it is a subject on which every thinking person has considerable views and considerable fears. The Bill brings forward a liberal outlook and brings forward more safeguards against the fears that everyone has, and which we read about from time to time, of someone who has been confined for years and should have been released many years earlier. The Bill is certainly an advance in this direction. In Scotland the appeal to the sheriff every 123 year is clearly something which will allay people's fears on this score.
On the question of treatment which is dealt with in Clause 29 of the Bill, the Government have, in line with the English Bill, produced considerable amendments and safeguards which I think were the result of an amendment moved in the English Bill by my noble friends Lord Winstanley and Lord Hooson, and the noble Lord, Lord Kilmarnock. They are to be congratulated on the work that they have done to deal with this very vexed question of treatment, and the consent therefor, and to lay down the rules covering people who are in care.
May I ask the Minister whether relations are consulted at any time as regards consent? I see nothing about that in the Bill. It may be irrelevant, but perhaps the Minister will be good enough to tell me whether that is so. The other feature that is much to be welcomed is the fact that the commission is obliged to visit and review each case every three years. Again, that must be a valuable safeguard against the fears to which I have referred. Taken all in all, I believe our friends and our experts regard the Bill as a great step forward. I welcome it.
§ 3.19 p.m.
Lord Campbell of CroyMy Lords, I thank my noble friend Lord Mansfield for having introduced the Bill so clearly. I welcome legislation to bring the 1960 Act up to date. I remember the Act well. I was a Member of Parliament when the Bill was passing through another place. Now we should be seeking improvements to obtain the best possible balance between personal liberty and the need for medical care and treatment.
As regards liberty, I do not suggest that in this country there could be the direction of people to mental institutions—a method which we know Communist states use for dealing with dissidents. That is a sinister reminder of how procedures can be abused. No, I am making this suggestion because the freedom of an individual can be affected by the dilatory handling of cases, overlooking improvements or not reporting or noticing recovery. This can happen simply due to overwork when there are more cases than can be dealt with by the number of staff, and particularly qualified staff. There are also cases where members of an individual's family find it exceedingly difficult to cope with someone who is highly eccentric and think that that person should be detained in a mental hospital. Those are the types of cases which have to be considered carefully from the point of view of the rights of the individual.
The 1960 Act established the Mental Welfare Commission in Scotland. For England and Wales a similar commission is now being created, 22 years later. I think that that is in itself a good reflection upon the role that the Scottish commission has played since the 1960 Act. I know that there has been some criticism, but I stick to the view which I expressed in the Second Reading debate on the Bill for England and Wales some months ago, that the commission in Scotland has in general been successful and has done a good job. This Bill continues the commission, giving it some additional powers and duties. I applaud in 124 particular the duty which will now be imposed upon it, if the Bill is passed, to visit every detained patient in Scotland at least once every three years.
Since 1960 there have been considerable advances in medicine, in the treatment of mental illness. Over the past 20 or 30 years those advances have transformed the type of existence which sufferers can lead. I am glad to say that it is now possible for a large proportion of those who would previously have had to be locked up to circulate in the community. This can be done by a prescribed regime of drugs or other treatment, without unacceptable risk to the person concerned or to others. Close or distant supervision may be needed. Such a regime is invariably better for the mentally disabled person than being institutionalised. It also relieves pressure on scarce mental nursing resources. This is a welcome trend and we owe it to the success of medical research. However, it does require a matching increase in knowledge and understanding of mental illness by the general public.
When more people with mental illnesses are in circulation, there must be provisions for a sudden relapse or for the failure to continue with a régime of drugs. This can happen and can leave the mentally ill person in a very difficult state outside hospital. In considering, therefore, the new arrangements being proposed in the Bill for detention, treatment and rights of appeal, we should bear those matters in mind. I hope that there will in future be a larger proportion of those with mental disorders who can circulate safely outside hospitals or institutions.
I now come to Clause 13, which I know is controversial. This clause seeks to give a new power in Scotland to a nurse to detain in hospital for up to six hours a patient whom the nurse considers would be a danger either to himself or to others if released at that moment. The six hours is simply to cover the period before a medical practitioner is available to give an opinion. This matter was discussed during the past year as regards the Bill for England and Wales, and the period of six hours has been accepted in that case. I believe that it is right. It is important in the kind of situation that I have described that a nurse should be able to stop someone who looks as though he may go out and try to commit suicide, from going out for this limited period until a doctor can give his opinion. We are fortunate in having nurses trained in mental illness who work with patience and dedication, in Scotland as elsewhere in our country. They do important and essential work. Their contribution is an especially valuable one. However, their numbers are limited and we must make sure that they are able to apply their experience and knowledge to the important areas of this problem.
I now turn to what are called "state patients". Under Section 60 of the 1969 Act, these are the patients whose movements and detention have to be approved by the Secretary of State. In Scotland. Carstairs—the state hospital where those who are considered dangerous are usually detained—is the equivalent of Broadmoor. I recall, when I was Secretary of State for Scotland, having to deal personally with the cases of men in Carstairs who were being considered for release for short periods, for long periods or for transfer elsewhere. The noble Lord, Lord Ross of Marnock, 125 will I am sure remember doing the same when he was Secretary of State. The first matter of importance in this connection must be the safety of the public. Noble Lords will remember the case of the poisoner who left Broadmoor and then quietly tried to poison people. After that, an inquiry was set up into the whole system. In Scotland there have been former inmates who have run amok and caused serious injuries after being in Carstairs. So I reiterate that the safety of the public must come first when state patients who are known to be dangerous are being considered.
There are of course anxieties in general about the recommendations of psychiatrists—anxieties in both directions. To the lay observer, psychiatry is by no means an exact science. Some—after incidents of violence of the kind I have just described—consider that psychiatrists are too prone to recommend letting people out. Others, such as those in some civil rights groups, are worried by a contrary theory, that psychiatrists are liable to detain patients unnecessarily. In this context, I am glad to note that Clause 21 of the Bill introduces an appeals procedure for those patients who are under special restrictions—that is to say, those whose movements require the approval of the Secretary of State for Scotland. I suggest that the Bill should provide a framework of provisions for dealing with every kind of case on its merits in the conditions of today and of the foreseeable future.
§ 3.29 p.m.
§ Lord Taylor of GryfeMy Lords, I should like to measure this Bill against the problem, as I see it, in Scotland, and to quote one or two figures in connection with mental health. In 1979, the admissions to Scottish psychiatric hospitals were 24,526. First admissions were 9,956, but readmissions numbered 13,927. That indicates that the problem is not being tackled effectively, since the readmissions were of people who had been mentally ill and who had got into the "revolving door" principle of being out for a brief period and back in again for treatment. It is a very serious problem in Scotland and a very serious problem nationally. The cost of in-patient care for the mentally disordered in the National Health Service in 1979 was no less than £96 million. The number of beds occupied in Scotland by the mentally ill was something like 45 per cent. of all beds available in Scottish hospitals. This indicates the size of the problem with which this Bill is designed to deal.
I must say that although there are elements in the Bill which are attractive and necessary, I think that an opportunity has been missed. Instead of amending existing legislation, we should be introducing a new Bill which would be a much more comprehensive Bill, because when you amend an existing Act it is obviously limited in its scope. The noble Lord, Lord Campbell of Croy, stated that in this field we have been pioneers in a number of directions and it is a great pity that the Government are not grasping this opportunity for pioneering in new legislation which would be more comprehensive and more effective.
The Bill before us amending the 1960 Act should achieve certain objectives. It should provide a framework which will stimulate and sustain a comprehensive mental health care service, and it is by that 126 standard that it will be judged. It should, in fact, encourage the provision of a comprehensive framework which will stimulate and sustain a mental health care service. Another objective should be the improvement of primary and secondary safeguards of individual's rights in detention, treatment, care and information. The Bill goes some way to meeting that. A clarification of the roles of different disciplines has to be better set out, because throughout the Bill there is not the clear distinction between two distinct problems—the problem of mental illness and the problem of the mentally handicapped. They are two entirely different areas dealt with in the same Act and they ought to have separate treatment.
As I say, it would have been very welcome in this House if the Government had allowed a broad debate in Scotland on the requirements of this service and had introduced a new Bill. In fact, in looking at the English Bill, there was much more consultation—there was a report and a Green Paper—before the English Bill emerged. I do not think it is desirable that the Scottish Bill should be almost a copy of the English Bill when there are opportunities to do a little bit of pioneering, as we have done in other areas of the law in Scotland. I think it is necessary that we should be quite specific about the mandatory requirements of local authorities to provide community care parallel to institutional care. If there is anything wrong with the present system it is that it leans too heavily on institutional care and not enough on community care, and that ought to be rectified.
With regard to the Mental Welfare Commission, we, of course, welcome the powers of that commission, but we think that it ought to report annually and that it ought to have a much broader and wider membership than is provided for in the Bill. There is no reason why a former patient should not be on this Mental Welfare Commission, or why social workers who are involved in community care should not be more adequately represented in the Mental Welfare Commission. It should have a wider membership and it should be seen to be representative of a wider range of interests. I think, too, that the Mental Welfare Commission's responsibility for the mentally ill should be spelt out not simply as in relation to institutional care but also in relation to community care. The commission should not be looking only at individual cases, but should have a responsibility for looking at the broad policy and broad strategy of dealing with this problem. On occasion, it should also be permitted to challenge matters of clinical judgment. I should like to see an upgrading of the powers and authority of the Mental Welfare Commission. The proposed amendments relating to the Mental Welfare Commission are generally acceptable, but in my view they fall short in the categories which I have mentioned.
Once again, it is a fundamental weakness of the Bill that it does not distinguish the two forms of mental disorder, as I indicated earlier, and this causes great public confusion as to people who are mentally ill and those who are mentally handicapped. I think that something should be introduced in the Bill in order to make that matter more explicit.
With regard to the code of practice which will guide the mental health officer, when people emerge from 127 institutional care there should be provision for aftercare by trained social workers in this field. When we release prisoners we invariably provide for a social worker to be attached to the ex-prisoner who is released so that he can find his way back into the community. The case of the mentally ill is even more difficult than that of the prisoner because there is the stigma that that man has been in a mental hospital. In the present climate it is extremely difficult to find employment, housing or opportunities for mentally ill people in order to help them find their way back into the community, and it is that which is at the root of the revolving door principle to which I referred earlier.
The changes in relation to emergency admission and the introduction of short-term detention are generally welcome. The power to detain patients already in hospital which is given to nurses in Clause 32(2), in the view of the practitioners in this field is quite unacceptable. While the requirement of recording and notifying the Mental Welfare Commission would constitute some element of safeguard, it is felt that the extension of the rights might undermine the therapeutic relationship between the nurse and the person who is under care. In our view, it is important that compulsory detention be regularly and frequently reviewed in order to ensure that it remains necessary. At the appropriate stage we shall introduce amendments to the Bill in order to establish some of the points that I have tried to make on Second Reading.
I do not think that this is a bad Bill and I welcome many of its provisions, but we have an opportunity to do something better than that for which the Bill provides, and I hope that we shall do so by appropriate amendment.