HL Deb 07 December 1982 vol 437 cc133-43

4.1 p.m.

Second Reading debate resumed.

Baroness Elliot of Harwood

My Lords, I think the moment has come when we may perhaps return to the question of the Scottish mental health Bill. I have listened with great interest to the speeches that have been made, and I shall speak for only a very short time. I should like to congratulate the Minister on the way in which he introduced the Bill, and to say that the principle on which it is based—namely, that people suffering from mental disorder should have the same protection and rights under this legislation as they would have if they were suffering from physical illness—is one with which I entirely agree. The fact that certain conditions of mental illness are different from physical handicap and require different treatment only makes it more important that such treatment should be very carefully planned and administered—and that the Bill is designed to do.

I also believe that we in Scotland are sometimes ahead of England in legislation such as this, and indeed in regard to other social legislation. The noble Lord, Lord Campbell of Croy, stressed that point in his speech today. I remember that when I was chairman of the probation committee of my county council, as well as the social work committee, there was some anxiety and criticism when we adopted the system of children's panels to deal with delinquency. The system has been a great success, and has been followed in other places. I think that our mental health provision has been good, but, like everything else, it can be improved.

The proposals for the alterations in the administration of the Mental Welfare Commission so that it can employ its own staff should enable it to be very closely in touch with the patients for which it is responsible; and the commission will be encouraged to visit detained patients more frequently, which I think is excellent. But further to that, as the interest of the general public in mental health is growing, it would be good if the commission published an annual report, rather than the occasional reports that are now published, and I am sure that an annual report would be very widely read.

I believe that it is important that in any given area the social workers who are responsible for families in difficult cases should work more closely with the commission and with the hospitals, with which their responsibilities for family care are closely linked. That leads to the close association that there should be between mental health officers and social workers in any given area. The proposal that, prior to an application for a patient to be admitted to a hospital, the mental health officer must interview the patient and inform the social worker would, I believe, make for better co-operation between these two important people. It would help the effectiveness of the commission if its membership was arranged on a wider basis, to include some of the voluntary organisations that are helping in the field; and the delegation of duties in appropriate circumstances would help to speed up things. That can be copied from the success of the children's panels, to which I previously referred, where close co-operation between the voluntary and statutory representatives works extremely well.

I rather regret that the Bill does not make a clear distinction between mentally handicapped people and mentally ill people. Mentally ill people require treatment different from that given to mentally handicapped people, and this point is universally accepted.

I agree with the proposals for guardianship to be organised outside the hospital but within the community. This should help the rehabilitation of the patient and would enable the guardian to see that any medical treatment or occupation training or education was continued in a limited way. It would keep the patient in the community, rather than in the hospital. I hope that in Scotland there will be a statutory duty to ensure that any patient discharged from hospital will be under the supervision and care of a social worker, or someone designated from the hospital for the purpose. That will be difficult to organise unless there is help from the voluntary organisations, and that is why I am so keen to bring in a combination of statutory and voluntary care which would make the problems easier to handle, and which would, I believe, prove effective.

Statistics provided by the Scottish Office show that there is a marked decrease in relation to guardianship. This might be because for the mentally ill the system does not work as well as we had hoped, but I have known of voluntary organisations that have worked very closely with the statutory bodies, and that has generally improved the provision and has been a great asset to the patient. To sum up, I believe the Bill to be a very useful one, and, with amendments in Committee, it could help to make the Mental Welfare Commission that we have in Scotland even better than it is today.

4.7 p.m.

Lord Ross of Marnock

My Lords, the noble Earl the Minister referred to the fact that his father had spoken on the original Bill, now the 1960 Act, the main Act. The noble Lord, Lord Campbell of Croy, referred to the speeches that he had made on it. Need I say that I remember very well the 1960 Bill going through the Scottish Committee, and I believe that one or two speeches were made by myself at that time? The interesting thing is that that Bill was regarded as representing quite a radical change, and indeed itself it marked a radical change in the attitude of the public to mental illness. For the first time it was considered that mental illness was just as likely to afflict anyone as was bodily illness, and the stigma—which I am sorry to say someone spoke about today; I think that it was the noble Lord, Lord Taylor of Gryfe—was removed by the Bill. It was seen to be natural that people might become mentally ill, and it was right that that fact should be marked by a new attitude in legislation. It was a great step forward. Bearing in mind that the old board of control that had existed was wiped out and was replaced by a Mental Welfare Commission 22 years before the English got round to it, it was a very important development.

So I am sad to say—and this point was evident in at least the speech of the noble Lord, Lord Taylor of Gryfe—that in Scotland considerable disappointment has been felt by the directors of social work, the British Association of Social Workers and the Scottish Association of Mental Health, that the Bill now before us, though an important one, and in most cases welcome, is only a small Bill compared with what they had expected. They had thought that there would be another leap forward. Well, I am afraid that they did not read the Government's consultation paper very carefully; otherwise they would have appreciated that there was nothing on the way in the form of a revolutionary step forward. We must remember that the Green Paper—I have a copy here—was given away for nothing. It was well worth the price. It was issued on 29th April, a Friday, so that anyone receiving it by post would not have it until the month of May. The replies to the request for consultation had to be there before 30th July; and the fact that we received the proposals for the amendment of the Mental Health (Scotland) Act along with the consideration of the consultations in November shows that there was very little time given for the consultations, though it is fair to say that people made the effort, and I gather that about 100 organisations submitted suggestions. I think it was the Scottish Association of Mental Health which organised a conference, and in a short time they had more than 100 people concerned and provided very valuable reading—that is, to anyone interested in the subject.

May I submit from my own knowledge of the Scottish Office what really has happened here? When the Mental Health Bill for England and Wales was going through, important changes were made that really had to be made on a United Kingdom basis; a draft Bill was prepared for Scotland, and it was only changes made to that draft Bill at the last minute, or some of them, which led to the speed with which things developed. I have never known a Bill go to the draftsman and, at the same time, for consultations to be going on and decisions to be made by the Government—and all done in a short time.

The Government had already made up their mind what they were going to do. It was going to be limited; and we had only to read the first page of the introduction to realise that everyone was being warned off in relation to hopes that there was going to be a new, comprehensive regime for mental health. I am perfectly sure Lord Taylor of Gryfe will have noticed that the legislation is primarily concerned with conditions in relation to mentally disordered people and their liberty, and the safeguards which are necessary to ensure rights and interests, and that the whole question of local authority services had nothing to do with the Bill.

One of the important things about the original Act, the 1960 Act, is Section 7, which dealt with general provisions in relation to local authority services and said: In relation to persons who are or have been suffering from mental disorder, the purposes for which arrangements are authorised or may be required to be made by a local health authority", are—and then there are paragraphs (a), (b), (c), (d), (e), and (f). They deal with the provision, equipment and maintenance of residential accommodation, and the care of persons for the time being resident; the appointment of officers to act as mental health officers—we hear plenty about that, but nothing about the rest—the exercise of guardianship, et cetera, and the provision of ancillary or supplementary services. All these things have no place in the Bill for the simple reason—and this has been already referred to in the introduction—that to tackle these things, and to make them mandatory as some people would like them to be, would have resource implications, and, frankly, we cannot afford the money. That is really what it comes down to, and why we have this limitation within the Bill.

Of course, we had to have a Bill. We should have had such a Bill a long time ago. In 1960 there were certain references to hospitals. The hospitals have been reorganised since 1960. We no longer have the importance of the boards of management of hospitals. We have area health authorities, which deal comprehensively with the health services within an area. The local health authorities are not the kind of authorities that they were in 1960, because local government was reorganised in 1970. There was a time when the medical officers of health in the boroughs and in the counties were the great medical panjandrums.

There is something hanging over here. The Government admitted in their own paper that there are some phrases which have not got the meaning that they had, but they are keeping them in because they have redefined them in another Act to include so and so, and so and so. It is a very indigestible piece of legislation, and I congratulate the Minister on the way he got through it. His was a very carefully read speech, and I am sure his father would have been proud of it. Mind you, how his father would have reacted if he had been on the Back-Benches is a very different matter, because I can remember his explosive temper. He and I used to go to address the Police Federation, which usually held its conference in Perth. He would address them on a Thursday in favour of certain aspects of penal law and I would have to go on the Friday to quieten them down after his address. The noble Earl will know what I am referring to. But there you are; these aspects of prevention of illness, care and after-care, are in different hands now from those in which they were in 1960. In 1968 social work came along. Later on, of course, that was reorganised and given to the regions, but there is no mention of regions or anything else here.

I gather that in the English Bill there is a statutory provision for aftercare. There is not in the case of Scotland, and this is something which I think the Mental Welfare Commission have been concerned about. This is where things get lost. Our provision in Scotland in relation to social work embraced after-care, and it embraced the probation service, the children's service and the welfare services. They were all taken together, very sensibly. But now we have something that is specialised, that was in this Act of Parliament, and that is the mental health officer. If you use the phrase "mental health officer", what do you immediately think of? I am perfectly sure that noble Lords would not immediately think of a social worker. In the English Bill the phrase is "approved social worker". I do not think that meets the Bill either. What I fear—and I want the Government to consider this—is that there is a difficult position in relation to this mental health officer because he is one of the people who, whether or not he likes it in particular cases, and even though he objects to it, must make the application for someone to be admitted to hospital under duress. I do not think they will welcome this. Indeed, I think I have seen something suggesting that this is a matter for the medical profession rather than for the social work aspect.

So I think there are some things which have not yet been fully thought through in relation to this Bill, and it may well be that we shall have an interesting Committee stage. But let us not belittle the Bill, because in belittling the Bill we belittle the problem, and the problem is serious from the point of view of anyone who has had to be concerned about it, either as one of a family or as an individual—and we welcome the changed attitude.

The noble Lord, Lord Taylor of Gryfe, referred to the number of readmissions, and thought this was something terrible. It is not, really. The whole change that took place from 1960 was about a liberalisation in relation to a much greater freedom; about allowing people to leave hospital and then allowing them to come back. They readmitted themselves in most cases, and this was encouraging. I want to say that some of the statistics that we have been given are very misleading indeed; and we have not been given the full explanation.

I want to start with the Mental Welfare Commission. I think it is comprised of nine to 11 members, one of whom must be a woman. I think three must be medical practitioners, and one must be a lawyer, advocate or solicitor, and then there are the rest. How many have been appointed? Can we be told that? It may well be that there is scope for amendment here to bring in people from outside these professions, people with a considerable interest in mental health. Voluntary organisations in relation to mental health have been growing up in various parts of Scotland and I am sure that there is knowledge, as indeed there is ability there, and these people should be used. What is the position at the moment? Has the Mental Welfare Commission any staff at all?—because they already have corporate status, and they are going to be given permission in relation to headquarters and taking on staff. Have they any staff at all at the moment? Or is all the staff provided by the Scottish Office?

This may be one of the roots of the problem at the moment where people feel that the Mental Welfare Commission is remote, that it is too passive, that it is not sufficiently active, and that it should have a greater role. Once again, let us remember the menace of that phrase, "resource consequences". This is why I am sure that we are not going to have any great change in relation to the Mental Welfare Commission. But let us be fair to it. It has been there; it has done a very good job and could do a better job if it had more people to do it. The only thing I see here is that it now has power to appoint somebody outside the commission so that it can undertake certain formal inquiries; but that someone, again, has to be a lawyer; and that may not please everybody who has been concerned about the Mental Welfare Commission.

From that particular point of view, it has been given far more work to do because, rightly, it has been brought in to have to be informed in relation to treatment, in relation to detention, in relation to emergency detention; and it has a very much more important job to do. I think that the Scottish Council of Civil Liberties suggested that we should have virtually local mental welfare commissions, but I think that that is taking it far too far in relation to the problem. But it must be opened up a bit more; it must be seen to be opened up a bit more, and certainly the visit once every three years is important.

One thing to which the Mental Welfare Commission itself drew attention was the number of mentally handicapped people in the community who receive no visits from anybody. There may well be a gap there as to whether or not people suffering from mental illness or mental handicap are getting the kind of attention they need. Again, we come down to resources. We have not had the expansion of local government services to the extent that we need. Would it be a good idea to ask the Mental Welfare Commission to make an assessment and to draw up for the benefit of the House, for the benefit of Parliament, for the benefit of the Scottish Office, just exactly what is the layout of services within the community? I do not suggest that they should have a right to determine what they should be, but they could advise the Government what the services are and where the gaps are, and certainly that would help us decide how we next proceed in making improvements in relation to the Bill.

On the question of the state prisoners, I, like the noble Lord, Lord Campbell of Croy, used to sit and wonder whether I should agree to a certain person being discharged or transferred. This is not an easy one. Not all the people concerned are right. And here you are dealing probably with the most dangerous of all the people who are in detention. The noble Lord mentioned some particular cases which are clear in my mind. I remember what happened on one occasion when some people within that prison decided to break out; another prisoner tried to stop them and he was immediately killed. Others were killed as well. As I recollect it, if we had graded all these people in terms of their degree of danger we would not have got it right in relation to what actually happened. This is one of the difficulties about it.

However, if we are giving—and I am glad that we are giving—to people who have been detained more rights of appeal to the sheriff, then it is right that advances should be made thereto; so that, from that point of view, I have no complaint about it. As to the safety of the public, I am perfectly sure that that aspect will be safe in the hands of the sheriffs and the courts as well as the Secretary of State in their handling of these particular cases. The matter of treatment is one of the other aspects that have changed over the years. Not all the treatments that were hailed as great miracle cures 10 years ago are still considered so today. There are considerable dangers and difficulties in respect of treatment of mental health patients. As I understand it, these treatments are now being graded. Certain treatments cannot be given. Treatments which affect or damage the brain tissue cannot be given without the consent of the patient. That is absolutely clear. And then there are to be two practitioners from a panel to be appointed by the Mental Welfare Commission. This is a new task for the Mental Welfare Commission. And there are another two people, one of whom could be a nurse. But one of them could be neither a nurse nor a medical practitioner but someone who has something to do with the treatment that is given. Who does the Government have in mind in respect of that? Frankly, I myself cannot foresee the kind of person to be involved here.

There are other cases of a less degree of danger in which the difficulty about getting the patient's consent is recognised and where treatment can proceed without the consent of the patient. But, once again, the Mental Welfare Commission is brought in. They have got to know about it. Of all the statistics that I have seen, one of the most disturbing relates to emergency provisions. Whereas we expected that all the protections of Section 24 were to be invoked—those concerning medical practitioners, outside practitioners, the Mental Welfare Commission and the rest—before a person could be detained, it was sad to discover that 95 per cent. of the people in our mental hospitals were detained under emergency provisions, provisions which were supposed to be imposed only when absolutely necessary and to avoid the delays of the longer procedures. I have seen that figure of 95 per cent.

That means that what we expected to happen has not happened. These people can be detained for seven days, but there is nothing to prevent a further emergency provision for another seven days and yet another seven days, and another. I do not say that there has been abuse but there could have been abuse, and certainly the figures are such that emergencies have been happening far too often compared with the regular form of detention. Now we have a new procedure. The Mental Welfare Commission has been brought in and there is, too, the question of the 28 days, the shorter period, with a review, with checks and balances along the line. I think it is far better, far safer, than the procedure we have had hitherto. The point that was mentioned by the noble Lord, Lord Campbell of Croy, but not mentioned at all by the Government, although it was debated on the English Bill, was the right of a nurse—not any nurse but a nurse with specified qualifications, although we do not yet know what they are because we have not been given that information—to detain a patient for six hours until a doctor can be brought to the patient. Where in Scotland is there a mental hospital where no doctor is available before six hours have passed?

From the point of view of the protection of the nurse as well as from the point of view of the protection of the patient, we could give a little more consideration to this matter; and let us not put it into a Scottish Bill simply because it is in an English Bill. I do not remember anybody writing to me about the need for this change in legislation. I hope the Government will be able to justify this with Scottish examples rather than say in effect: "It is an English Bill and we had better have it for ourselves as well."

The important aspect which has come through to me in reading the various papers that were sent to the Government in respect of changes in mental health was the ignorance not only on the part of the public as to all the safeguards that were there—what could be done, the rights of the patients and the relatives, the rights and ability of the Mental Welfare Commission—but the ignorance seemed to lie also in social work departments. So that with these new safeguards and new appeal provisions in relation to treatment, detention and the like, I am very glad that we are now going to have a code of practice. It was introduced into the English Bill and I am glad that it has to come before this House so that we shall then have the opportunity to see whether or not the new spirit that we want to see in relation to mental health—be it the attitude of the Welfare Commission, or of the social workers of the local authorities and the hospitals themselves—is carried through.

It is an important Bill. It could have been a much more important Bill by introducing much more radical changes. Let us not be frightened of that. The changes we made in 1960 were very important and worthwhile. It may well be that now, if only we had the resources or if the Government would unlock the Treasury to the spread of those resources, we could have back-up services worthy of the kind of mental hospital services that we now have, but I am afraid it is going to take some time. In the meantime, I think there is a need for a closer working together of the medical services within the hospital and outside it, the general practitioner service and the social work services. The will to improve our services will require a very considerable push from us on the Government to see that they make the effort.

4.33 p.m.

The Earl of Mansfield

My Lords, I should like to thank all noble Lords who have spoken in this debate.If I may say so, I think there has generally been a welcome for the Bill. I was particularly struck—

Lord Harris of Greenwich

My Lords, I do apologise for interrupting the noble Earl so early, and this is not in fact addressed to him: I am really addressing his noble friend through him. A number of us are waiting to hear the important Statement to be made by the noble Earl, Lord Gowrie. We have already had to cancel a number of appointments this afternoon. It would be helpful if at the end of this debate we had a clear indication as to when we are going to have the Statement.

The Earl of Mansfield

My Lords, I am grateful to the noble Lord at least for interrupting me before I had really got started and I shall cause inquiries to be made. I anticipate that with Smithfield just along the road and with Christmas shopping in progress it may be that my noble friend is finding it not altogether easy to attend the House.

As I was saying, there is a general welcome for this Bill. I was particularly interested at the attempt of the noble Lord, Lord Ross, to peer into the mind of the Government and the timing that has elapsed since we issued our consultation paper and what he thought was in the Government's mind which caused the Bill to be, dare I say? drafted really before anyone had time to reply to the consultation paper. In fact he is quite wrong about that. The instructions went to the draftsmen only in September of this year and the noble Lord really must understand that since his days at the Scottish Office things have improved. Under the more enlightened rule of my right honourable friend, this Administration does conduct its business with a good deal more expedition than heretofore. Secondly, may I say that I think it is a tribute to our institutions and the continuance of all that we hold dear in this country that son can follow father to pull the noble Lord, Lord Ross's leg, which I think is something the House will give thanks for.

Lord Ross of Marnock

My Lords, may I tell the noble Lord that I followed his father and I did not pull his leg?

The Earl of Mansfield

My Lords, turning to the noble Lord, Lord Mackie, I think he had one particular query (if that is the word) in relation to Clause 29; that is to say, the possible consultation before consent is given to treatment. The noble Lord is quite right. There is no express provision for relatives to be consulted, but I can assure the noble Lord that in practice it would be customary for the doctors treating a patient to consult his or her relatives where they are known to the doctor and where they are obviously concerned for the care and welfare of their relative. Of course, it does not always happen.

My noble friend Lord Campbell of Croy gave a very welcome pat on the back to the Government, if I may use the phrase, in welcoming this Bill. I am particularly happy that he agrees with the provisions of Clause 13 because I know doubts have been expressed, particularly by those concerned with civil rights. The noble Lord, Lord Taylor of Gryfe, really produced what could be described as the most opposition to this Bill. It was not really sustained opposition but it was a series of doubts expressed about it. His first complaint was that here was an opportunity for pioneering new legislation which had been lost, not least because there was not an adequate space for consultation and cogitation following the publication of the consultation paper in April of this year.

Your Lordships should realise there was indeed full consultation on the proposals to change the existing law and any body, individual or indeed representative organisation, who wanted to suggest changes, was given ample opportunity to make such suggestions. Indeed, the Bill takes full account of the views which were expressed. In fact, as the noble Lord, Lord Ross, himself said, the 1960 Act is widely regarded as an excellent piece of legislation. It has stood the test of time and it does not require to be completely replaced. The great leap forward—if I may use the Chinese terminology—which the English have made in their Act, really did not require to be made so far as Scotland was concerned.

Then, I think the noble Lord was asking: why not make another great leap forward, using this Bill so to do? As the consultation paper and indeed the memorandum which was issued last month made plain, the 1960 Act is primarily concerned with the conditions under which mentally disordered people may be deprived of their liberty and with the protection of the rights and interests of such people. I know that that is a view which has not met with universal favour; and I think the noble Lord was saying that parents' rights ought, for instance, to include the right to specific services according to need.

It is true that one could have considered this and similar provisions to do with the development of services. But, as the noble Lord, Lord Ross, himself said, the fact of the matter is that that would have required a totally different and a very large Bill indeed, which would have needed considerable parliamentary time. It would have required the devotion of a great deal of resources and, moreover, it would have impinged directly onto the rights and statutory duties of, for instance, the local authorities and the health authorities. That was not a matter which the Government considered essential at this particular moment of time.

On a rather more detailed matter, the noble Lord then asked about the membership of the Mental Welfare Commission. The Mental Welfare Commission already have among their number representatives who come from a number of different interests and backgrounds; but I say at once that we are willing to consider any suggestions that may be put forward as to how their base might be broadened. My noble friend Lady Elliot, in her helpful intervention, suggested that the Mental Welfare Commission should make a report on an annual basis, rather than on the present ad hoc basis. I regard that as a very helpful suggestion, and I am sure that the Mental Welfare Commission will take note of it. Whether it is, in fact, necessary to include it in this Bill is, perhaps, a matter of doubt.

I come now to the noble Lord, Lord Ross. I hope that I have answered his point as to the composition of the various provisions of the Bill. He made the point as to the staff of the Mental Welfare Commission and, as he himself will know very well, at the moment the staff are, in effect, loaned to the commission by the Scottish Office. But under Clause 5 the commission will be enabled to recruit their own staff according to their assessment of their requirements, and if the commission are given additional tasks, as the noble Lord suggests, then there will be staffing implications which must be recognised.

Finally, the noble Lord, Lord Ross, asked me about Clause 29. I am afraid that, at this moment, I have no suggestions as to who this somewhat mysterious person could be, but I shall find out and let the noble Lord have some suggestions before the next stage. I see the familiar face of my noble friend Lord Gowrie on my left, so with that I commend this Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.