HL Deb 01 February 1982 vol 426 cc1175-84

Preliminary

1. In this Schedule— restricted patient" means a patient who is subject to a restrict on order or restriction direction; the relevant hospital order" and "the relevant transfer direction", in relation to a restricted patient, mean the hospital order or transfer direction by virtue of which he is liable to be detained in a hospital; hospital" includes a mental nursing home.

Right to apply to Mental Health Review Tribunal

2. A restricted patient may apply to a Mental Health Review Tribunal—

  1. (a) in the period between the expiration of six months and the expiration of twelve months beginning with the date of the relevant hospital order or transfer direction; and
  2. (b) in any subsequent period of twelve months.

Reference by Secretary of State

3.—(1) The Secretary of State may at any time refer the case of a restricted patient to a Mental Health Review Tribunal.

(2) The Secretary of State shall refer to a Mental Health Review Tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years.

(3) The Secretary of State may by order vary the length of the period mentioned in sub-paragraph (2) above.

(4) Any reference under sub-paragraph (1) above in respect of a patient who has been conditionally discharged and not recalled to hospital shall be made to the tribunal for the area in which the patient resides.

Discharge of patients

4. Section 123(1) of the principal Act shall not apply in the case of a restricted patient except as provided in paragraphs 5 and 6 below.

5.—(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if satisfied—

  1. (a) as to the matters mentioned in paragraph (a) or (b) of section 123(1) of the principal Act; and
  2. (b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in sub-paragraph (1) above the tribunal are satisfied as to the matters referred to in paragraph (a) of that sub-paragraph but not as to the matter referred to in paragraph (b) of that subparagraph the tribunal shall direct the conditional discharge of the patient.

(3) Where a patient is absolutely discharged under this paragraph he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(4) Where a patient is conditionally discharged under this paragraph—

  1. (a) he may be recalled by the Secretary of State under subsection (3) of section 66 of the principal Act as if he had been conditionally discharged under subsection (2) of that section; and
    2. 1176
  2. (b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.

(5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under sub-paragraph (4) above.

(6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this paragraph the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to he detained by virtue of the relevant hospital order.

(7) A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this paragraph can be given.

(8) This paragraph is without prejudice to section 66 of the principal Act (termination of restriction orders and absolute or conditional discharge by the Secretary of State).

6.—(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction direction, or where the case of such a patient is referred to such a tribunal, the tribunal—

  1. (a) shall notify the Secretary of State, whether, in their opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under paragraph 5 above; and
  2. (b) if they notify him that the patient would he entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this paragraph he should continue to be detained in hospital.

(2) If in the case of a patient not falling within sub-paragraph (4) below—

  1. (a) the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and
  2. (b) within the period of ninety days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged, the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.

(3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in sub-paragraph (2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall, unless the tribunal have made a recommendation under sub-paragraph (1)(b) above, transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

(4) If, in the case of a patient who is subject to a transfer direction under section 73 of the principal Act, the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal have made a recommendation under sub-paragraph (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

(5) Where a patient is transferred or remitted under subparagraph (3) or (4) above the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution.

(6) Sub-paragraphs (3) to (8) of paragraph 5 above shall have effect in relation to this paragraph as they have effect in relation to that paragraph, taking references to the relevant hospital order and the restriction order as references to the transfer direction and the restriction direction.

(7) This paragraph is without prejudice to sections 75 and 76 of the principal Act and section 24 and 25 of this Act (termination of transfer directions and return to prison etc. of transferred prisoners) in their application to patients who are not discharged under this paragraph.

Further consideration of case of conditionally discharged patient

7.—(1) Where a restricted patient has been conditionally discharged under this Schedule or under section 66(2) of the principal Act and is subsequently recalled to hospital—

  1. (a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to a Mental Health Review Tribunal; and
  2. (b) paragraph 2 above shall apply to the patient as if the relevant hospital order or transfer direction had been made on that day.

(2) Where a restricted patient has been conditionally discharged as aforesaid but has not been recalled to hospital he may apply to a Mental Health Review Tribunal—

  1. (a) in the period between the expiration of twelve months and the expiration of two years beginning with the date on which he was conditionally discharged; and
  2. (b) in any subsequent period of two years.

(3) Any application under sub-paragraph (2) above shall be made to the tribunal for the area in which the patient resides.

(4) Paragraphs 5 and 6 above shall not apply to an application under sub-paragraph (2) above but on any such application the tribunal may—

  1. (a) vary any condition to which the patient is subject by virtue of paragraph 6 above or impose any condition which might have been imposed under that paragraph; or
  2. (b) direct that the restriction order or restriction direction to which he is subject shall cease to have effect;

and if the tribunal give a direction under paragraph (b) above the patient shall cease to be liable to be detained by virtue of the relevant hospital order or transfer direction.

Procedure and composition of tribunals

8.—(1) Rules under section 124 of the principal Act may make provision as to the procedure to be adopted in cases concerning restricted patients and, in particular—

  1. (a) for restricting the persons qualified to serve as president of a tribunal for the consideration of any application or reference relating to a restricted patient;
  2. (b) for the transfer of proceedings from one tribunal to another in any case where, after the making of a reference or application in accordance with paragraph 3(3) or 7(3) above, the applicant ceases to reside in the area of the tribunal to which the reference or application was made.

(2) Paragraph 6 of Schedule I to the principal Act shall have effect subject to any rules made by virtue of sub-para— graph (1)(a) above.

Persons treated as restricted patients

9.—(1) Subject to the provisions of this paragraph, the foregoing provisions of this Schedule shall have effect in relation to a person to whom this paragraph applies as they have effect in relation to a restricted patient.

(2) This paragraph applies to any person who—

  1. (a) is subject to a direction which by virtue of section 71(4) of the principal Act has the same effect as a hospital order and a restriction order; or
  2. (b) is treated as subject to a hospital order and a restriction order by virtue of an order under section 5(1) of the Criminal Procedure (Insanity) Act 1964 or section 6 or 14(1) of the Criminal Appeal Act 1968; or
  3. (c) is treated as subject to a hospital order and a restriction order or to a transfer direction and a restriction direction by virtue of section 87(2) of the principal Act, section 33(2) of this Act or section 73(2) of the Mental Health (Scotland) Act 1960.

(3) In the case of a person within paragraph (a) of sub-paragraph (2) above references in this Schedule to the relevant hospital order or restriction order shall be construed as references to the direction referred to in that paragraph.

(4) In the case of a person within paragraph (b) of sub-paragraph (2) above references in this Schedule to the relevant hospital order or restriction order shall be construed as references to the order under the provisions mentioned in that paragraph.

(5) A person who is treated as subject to a hospital order and a restriction order by virtue of an order under section 5(1) of the Criminal Procedure (Insanity) Act 1964 may apply to a Mental Health Review Tribunal in the period of six months beginning with the date of that order; and where such a person does not exercise his right to apply to a tribunal within that period the Secretary of State shall at the expiration of that period refer his case to a tribunal.

(6) For the purposes of sub-paragraph (5) above a person who applies to a tribunal but subsequently withdraws his application shall be treated as not having exercised his right to apply, and where a patient withdraws his application on a date after the expiration of the period there mentioned the Secretary of State shall refer his case as soon as possible after that date.

(7) In the case of a person within paragraph (c) of sub-paragraph (2) above references in this Schedule to the relevant hospital order, the relevant transfer direction, the restriction order or the restriction direction or to a transfer direction under section 73 of the principal Act shall be construed as references to the hospital order, transfer direction, restriction order, restriction direction or transfer direction under that section to which that person is treated as subject by virtue of the provisions mentioned in that paragraph.")."

The noble Lord said: Your Lordships will recall that, when my noble friend Lord Belstead moved Amendment No. 51 on 25th of last month, he spoke at the same time to Amendment No. 114. Amendment No. 51 was a paving amendment which amended Clause 26 so as to provide that the new schedule to the Bill containing fresh provisions for dealing with restricted patients should have effect. This amendment inserts the new schedule itself.

My noble friend gave a quite detailed explanation of the provisions of the schedule when he moved Amendment No. 51, and the new scheme set out in the schedule was generally welcomed. I hope, accordingly, that your Lordships will agree that it is unnecessary for me to repeat what my noble friend said. In spite, therefore, of the length of this amendment, it has been covered, and I beg to move.

Lord Renton

I was one of those who greatly welcomed this new Schedule when my noble friend Lord Belstead moved it earlier in the proceedings. The Government are to be congratulated on the important new development contained in this new schedule. I have just one point on it which puzzles me very much. It arises on page 10 of the Marshalled List for today, and it concerns paragraph 9(5) of the schedule. A person who is treated as subject to a hospital order and a restriction order"— under the Criminal Procedure (Insanity) Act 1964— may apply to a Mental Health Review Tribunal in the period of six months beginning with the date of that order". But it is rather strange to read on: where such a person does not exercise his right to apply to a tribunal within that period the Secretary of State", cannot, it seems, until, the expiration of that period refer his case to a tribunal". I should have thought that, if it seems as though a patient ought to apply to a tribunal and is obviously not going to, the Secretary of State should not have to wait six months before the tribunal's responsibility is engaged. I do not ask for an answer at this moment. I simply suggest that that is a point worth considering between now and Report stage.

As your Lordships will be relieved to know that I do not propose to speak further in your Lordships' Committee, may I say, as one who has troubled my noble friend Lord Elton to reply to some quite knotty problems which have arisen, how much I appreciate and admire the way that he has handled these proceedings?

Lord Elton

I am most grateful to my noble friend for that kind and complimentary remark. In return, may I assure him that the Secretary of State can refer a case to a tribunal at any time: the provision for that is in paragraph 3(1).

Lord Kilmarnock

I do not want to detain the Committee, but I also should like to thank the noble Lord for the way he has handled this rather complicated Committee stage, and also for the notes he has provided us with. The arrangements which the Government are proposing in order to implement the ruling of the European Court of Human Rights are a package of which the schedule is the last and possibly the biggest part. It is connected with the previous Amendments Nos. 51 and 44, which have already been carried in the Committee, and I have absolutely no objection to it. I just want to put down a marker at this stage to say that, looking at the package in its totality, I am still slightly unhappy about the way the rights of the unrestricted patients have been adversely affected in order to give the necessary ground for the new right for restricted patients, but I should like to come back to that at Report stage.

On Question, amendment agreed to.

Schedule 1 [Consequential Amendments]:

6.40 p.m.

Lord Elton moved Amendments Nos. 115 to 117:

Page 35, line 12, leave out ("handicapped") and insert ("impaired").

Page 35, line 13, leave out ("handicap") and insert ("impairment").

Page 35, line 16, leave out ("handicap") and insert ("impairment").

The noble Lord said: These amendments follow on Amendment No. 2. Your Lordships agreed that I might move these en bloc, which I beg leave so to do.

On Question, amendments agreed to.

Lord Elton moved Amendment No. 118:

Page 35, line 20, at end insert— ("() at the end of subsection (3)(a) there shall be inserted the words "or Schedule (Discharge of restricted patients) to the Mental Health (Amendment) Act 1982;").

The noble Lord said: This follows from and arises out of the insertion in the Bill of the new schedule relating to restricted patients.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 119: Page 36, line 4, leave out sub-paragraphs (f) and (g).

The noble Lord said: This is, in the same sense, a consequence, and I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 119A:

Page 36, line 14, at end insert— ("(b) after subsection (3) there shall be inserted— (3A) The Crown Court shall have the like power to make orders under sections 27, 28 and 29 of the Mental Health (Amendment) Act 1982 in the case of a person committed to the court under this section as the Crown Court has under those sections in the case of an accused person within the meaning of section 27 or 28 or of a person convicted before that court as mentioned in section 29.".").

The noble Lord said: This amendment is a consequence of the introduction of the new powers of the courts in Clauses 27 to 29 of the Bill. It ensures that where an offender is committed by a magistrates' court to the Crown court under Section 67 of the principal Act with a view to the making of a hospital order with restrictions, the Crown court will have all the new powers under Clauses 27 to 29. It is arguable that this is already partly provided for by Section 67(3)(b), but the amendment puts the matter beyond doubt.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 120 to 125:

Page 36, line 23, leave out ("handicap") and insert ("impairment").

Page 36, line 24, leave out ("handicap") and insert ("impairment").

Page 36, line 26, leave out ("handicap") and insert ("impairment").

Page 37, line 5, leave out ("handicap") and insert ("impairment").

Page 37, line 47, leave out first ("handicap") and insert ("impairment").

Page 37, line 47, leave out second ("handicap") and insert ("impairment").

The noble Lord said: These follow Amendment No. 2. I beg to move.

On Question, amendments agreed to.

Lord Elton moved Amendment No. 126: Page 38, line 1, leave out from ("patient") to end of line 3.

The noble Lord said: I believe we took this with Amendments Nos. 118 and 119. If your Lordships are content, I will leave it at that.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 127:

Page 38, line 21, at end insert— ("(c) at the end of the entry in the second column relating to section 43 there shall be added the words " and in subsection (5A) for the words "the application for admission for treatment or, as the case may be, in the guardianship application, that application" there shall be substituted the words "the relevant order or direction under Part V of this Act, that order or direction".").

The noble Lord said: This is a technical amendment to repair an omission in the drafting of the Bill. It will ensure that the new Section 43(5A), which is inserted in the 1959 Act by Clause 12(7), applies appropriately to patients who are detained under Part V of that Act—that is, offender patients. References in the new Section 43(5A) to "an application for admission for treatment" and "a guardianship application" have to be changed in their application to Part V patients, to "an order or direction under Part V of the Act"—that is, a hospital order, a guardianship order or a transfer direction. This modification is made by an amendment in Schedule 1 to the Bill to Schedule 3 to the 1959 Act, and I hope your Lordships can follow that rather complicated process and agree to the amendment.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 128: Page 38, line 32, leave out from ("and") to ("to") in line 33 and insert ("the reference").

The noble Lord said: This also is a technical amendment to correct a drafting error, for which I apologise. Paragraph 25(d) of Schedule I provides both that certain words within a paragraph and that the whole of that paragraph should be omitted. What we want to do is omit the whole paragraph, and this amendment takes out the reference to words within it. Paragraph 25(d) is consequential to Clause 13, which amends Section 47 of the 1959 Act. Paragraph 25(d) amends Schedule 3 to the 1959 Act to ensure that the revised Section 47 applies appropriately to patients detained under Part V of that Act. I realise that it must be impossible to follow that, even at what I hope is a reduced speed of delivery compared with my normal speed. I hope noble Lords will be content to reassure themselves via Hansard and accept the amendment.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 129: Page 38, line 44, leave out ("handicap") and insert ("impairment").

The noble Lord said: This is consequential on Amendment No. 2.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 129A:

Page 39, line 30, at end insert—

("The Criminal Justice Act 1967

In section 72—

  1. (a) in subsection (1)(b) after the words "the Mental Health Act 1959" there shall be inserted the words "or section 29(8) of the Mental Health (Amendment) Act 1982";
  2. (b) in subsection (4) after the words "the Mental Health Act 1959" there shall be inserted the words ", section 29 of the Mental Health (Amendment) Act 1982".").

The noble Lord said: Section 72 of the Criminal Justice Act 1967 enables the return to be effected from the Republic of Ireland to England and Wales of escaped prisoners and "convicted mental patients". A "convicted mental patient" includes a person, liable after being convicted of an offence to be detained under Part V of the Mental Health Act 1959".

This amendment extends the application of Section 72 of the 1967 Act to enable the return of a person who absconds while subject to an interim hospital order under the Bill. It is a very narrow extension, and I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 129B:

Page 39, line 31, at end insert— (" . In section 8 after subsection (3) there shall be inserted—"(3A) If the person ordered to be retried was, immediately before the determination of his appeal, liable to be detained in pursuance of a remand under section 28 of the Mental Health (Amendment) Act 1982 or an interim hospital order under section 29 of that Act, the Court of Appeal may, if they think fit, order that he shall continue to be detained in a hospital, and in that event Part V of the Mental Health Act 1959 shall apply as if he had been ordered under this section to be kept in custody pending his retrial and were detained in pursuance of a transfer direction together with a restriction direction.".").

The noble Lord said: The effect of this amendment is simply to enable the continued detention in hospital of a person subject to remand to hospital under Clause 28 of the Bill, or an interim hospital order under Clause 29, who has been ordered to be retired by the Court of Appeal under Section 7 of the Criminal Appeal Act 1968. The Court of Appeal is to be able to order that the person should remain under detention in hospital pending retrial on the same basis as that of other patients transferred to hospital under Section 73 of the principal Act while awaiting trial.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 129C: Page 40, line 2, leave out paragraph (a).

The noble Lord said: With the leave of the Committee I will speak to Amendment No. 144A with this amendment. Amendment 129C is technical. It is a consequence of Clause 21(3) of the Bill, which has the effect that the wording of Section 73(2) of the Act will in future cover the circumstances which at present require specific provision in paragraph 1 of Schedule 3 to the Criminal Appeal Act 1968. That paragraph will therefore become unnecessary and the effect of the amendment is to repeal it. Amendment No. 129C is consequential, if I may put it that way round, on Amendment No. 144A.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 129D: Page 40, line 22, at end insert—

("The Criminal Procedure (Scotland) Act 1975

In section 13—

  1. (a) in subsection (1)(b) after the words "the Mental Health Act 1959" there shall be inserted the words ", section 29(8) of the Mental Health (Amendment) Act 1982";
  2. (b) in subsection (4) after the words "the Mental Health Act 1959" there shall be inserted the words ", section 29 of the Mental Health (Amendment) Act 1982".

In section 322—

  1. (a) in subsection (1)(b) after the words "the Mental Health Act 1959" there shall be inserted the words ", section 29(8) of the Mental Health (Amendment) Act 1982";
  2. (b) in subsection (4) after the words "the Mental Health Act 1959" there shall be inserted the words ", section 29 of the Mental Health (Amendment) Act 1982".

The Adoption Act 1976

In section 32(3)(c) after the words "the said Act of 1959" there shall be inserted the words "or the Mental Health (Amendment) Act 1982".").

The noble Lord said: This is a consequence of the introduction of the new powers of the courts under Clauses 27 to 29.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 129E: Page 40, line 25, at end insert—

("The Foster Children Act 1980

In section 2(5) after the words "the Mental Health Act 1959" there shall he inserted the words "or the Mental Health (Amendment) Act 1982".

The Limitation Act 1880

In section 38(4)(a) after the words "the Mental Health Act 1959" there shall be inserted the words "or section 28 or 29 of the Mental Health (Amendment) Act 1982".

The Contempt of Court Act 1981

In section 14(4)—

  1. (a) after "1959" there shall be inserted the words "or an interim hospital order under section 29 of the Mental Health (Amendment) Act 1982";
  2. (b) for the words "severe subnormality" there shall be substituted the words "severe mental impairment".

After section 14(4) there shall be inserted— (4A) Each of the superior courts shall have the like power to make an order under section 27 of the said Act of 1982 (remand for report on accused's mental condition) where there is reason to suspect that a person who could be committed to prison for contempt of court is suffering from mental illness or severe mental impairment as the Crown Court has under that section in the case of an accused person within the meaning of that section.".").

The noble Lord said: This is one of a series of amendments which take account of the new powers of the courts introduced by Clauses 27 to 29.

On Question, amendment agreed to.

[Amendments Nos. 130 to 142 not moved.]

Schedule 1, as amended, agreed to.

Schedule 2 [Repeals]:

Lord Elton moved Amendment No. 143: Page 42, line 35, column 3, leave out ("(a) the words") and insert ("the words "admitted to a hospital in pursuance of a hospital order, or" and").

The noble Lord said: This amendment and the following one are consequential upon the insertion into the Bill of the new clause after Clause 18 and of the new schedule relating to restricted patients, which we have already discussed. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 144: Page 42, line 39, column 3, at end insert ("Section 66(6) to (8).").

On Question, amendment agreed to.

Lord Elton moved Amendment No. 144A:

Page 43, line 3, at end insert—

("1968 c. 19. The Criminal Appeal Act 1968. In Schedule 3, paragraph 2.").

The noble Lord said: This is the amendment to which I spoke with Amendment No. 129C, and one is consequential upon the other. I beg to move.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Transitional provisions and savings]:

Lord Elton moved Amendment No. 145:

Page 45, line 9, at end insert— ("(3) Schedule (Discharge of restricted patients) to this Act has effect in relation to a restriction order or restriction direction made or given before the coming into force of that Schedule as well as in relation to one made or given later but—

  1. (a) for the purposes of section 122(2) of the principal Act in its application to paragraphs 2 and 7(2) of that Schedule any reference to a tribunal under section 66(6) of the principal Act in respect of a patient shall be treated as an application made by him; and
  2. (b) paragraphs 7(1)(a) and 9(5) of that Schedule do not apply where the period in question has expired before the coming into force of that Schedule.").

The noble Lord said: If the notes that I have been given can be believed to tally with the Marshalled List, we would appear to be ending our course. Noble Lords have been kind enough to say very agreeable, though I think not altogether deservedly agreeable, things about the way that I have conducted proceedings and I should like on this occasion to thank noble Lords for the very great patience and equanimity that they have shown when dealing with my own shortcomings.

This amendment makes provision for the transitional period in which the present arrangements whereby restricted patients have no direct access to a tribunal will give way to the new arrangements in the new schedule. I hope that your Lordships will be content with it, and I beg to move.

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

House resumed: Bill reported with the amendments.