Mental Health (Amendment) Bill [H.L.]

HL Deb 01 February 1982 vol 426 cc1124-75

3.5 p.m.

The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Elton)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, that the House do now again resolve itself into Committee.—(Lord Elton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 40 [Practitioners approved for purposes of Sections 38 and 39]:

Lord Elton moved Amendment No. 95: Page 29, line 22, leave out ("Minister for the Civil Service") and insert ("Treasury").

The noble Lord said: Since the Bill was introduced, the functions of the Civil Service Department relating to this Bill have been transferred. Clauses 40 and 41 required the Secretary of State to obtain the approval of the Minister for the Civil Service for payments to be made to two groups of people: the independent doctors who are to give second opinions under the consent to treatment procedures, and the persons who carry out the "watchdog" role in Clause 41—that is, the members of the Mental Health Act Commission. The function of approving payments of this sort is now to be undertaken by the Treasury, and these amendments make the appropriate change. I hope they are acceptable to the Committee. I beg to move.

On Question, amendment agreed to.

Clause 40, as amended, agreed to.

Lord Winstanley moved Amendment No. 96: After Clause 40, insert the following new clause:

("Repeal of s. 141 of principal Act

.—(1) Section 141 of the principal Act is hereby repealed.

(2) No criminal proceedings shall be brought against any person in any court in respect of any act done or purporting to be done in pursuance of the principal Act or this Act without the consent of the Director of Public Prosecutions.").

The noble Lord said: I do not need to say much about this amendment. The Committee will recall that it was discussed with an earlier amendment, No. 72, in the name of the noble Lord, Lord Wallace. That sought merely to repeal Section 141 of the principal Act without dealing with the matters in subsection (2) of this proposed new clause.

In the course of the discussions on that earlier amendment, the noble Lord, Lord Elton, was kind enough to say he might look favourably on this amendment—at least on that part of it which provided that cases would not be brought before the courts without the consent of the Director of Public Prosecutions. Briefly, I seem to recollect that the noble Lord's anxieties about repealing Section 141 of the principal Act were because that would somehow produce an undesirable vacuum. At the same time it was clear from the noble Lord's remarks that there is the feeling that Section 141 will at some stage have to be repealed. We are awaiting decisions from Europe which may affect our policy. It may be necessary to substitute something in place of Section 141 of the principal Act.

The point I argued earlier in Committee was this: merely passing this particular amendment does not of course wipe out Section 141 of the principal Act as from now. It merely sets in train a procedure which I understand the Government will be following inevitably at some later course of this Bill. I am asking why, if it is our intention sooner or later to repeal Section 141, we should not now say so?

With regard to the second part of this amendment, I think that this was dealt with fairly fully by my noble friend Lord Hooson, who unfortunately cannot be in the Committee today owing to illness. I much regret that because I should value his assistance on this matter. I think that he argued clearly the case that this deals with the matter of criminal proceedings brought before the courts regarding staff, and that here none of those proceedings could be brought without the consent of the Director of Public Prosecutions. It leaves out the separate matter of civil actions. That is not a matter upon which I personally feel competent to argue. My recollection is that the noble Lord, Lord Elton, was not unfavourable to this amendment in some form, or certain parts of it. Perhaps if I move it we may hear whether the noble Lord, Lord Elton, has had any second thoughts. I beg to move.

Lord Wallace of Coslany

I rise to support the amendment very briefly. It goes a little further than the amendment which was not acceptable to the Government. It involves staff, and I am fully aware that staff may be concerned about the repeal—in fact there is no doubt about it, many of them are—and that this amendment might be more acceptable as it requires screening for prosecutions. The director has stated that, apart from consideration of public policy, he will not consent to any prosecutions that have less than a 50 per cent. chance of success.

A very important point is that the inclusion of mental health staff among those requiring the director's consent before prosecutions puts them in the same category as doctors generally. Professional men are public figures, and none of them, even if it is consent only, will be prosecuted for a serious offence without the matter being referred to the Director of Public Prosecutions. This amendment is phrased in a form which should be acceptable to the Government. I strongly support it.

Baroness Faithfull

May I ask for specific information of the noble Lord, Lord Winstanley? Does his amendment—I imagine it does—offer safeguards for members of professions other than the medical profession and associations who appear to be concerned? I refer to people such as the physiotherapists, occupational therapists and all others concerned who would like to be reassured that their interests are safeguarded.

Lord Winstanley

It is my understanding that it is our intention that all those people should be so covered. We are not singling out one section of the staff engaged in these difficult duties. We hope that this will apply to all staff who might be involved in treatment and therefore might be in jeopardy or at risk from proceedings of this kind. This is our intention.

Baroness Faithfull

I should be happy if one word were put in: not only the word "treatment" but the words "care and treatment".

Lord Mottistone

I am slightly confused by this latest interchange between my noble friend Lady Faithfull and the noble Lord, Lord Winstanley. It seems to me that the basic purpose of this amendment is to repeal the 1959 Act. The part I am particularly concerned about—I am sure that my noble friend Lord Elton is aware of this—is that it will remove the safeguards that are at present there for various public servants in relation to civil action. I have no very strong argument against the modification to the criminal part which it within this amendment, but I would have thought it is most undesirable to remove the safeguards that are within Section 141 of the 1959 Act with regard to civil action. I hope that my noble friend, when he comes to reply, will reassure me on that point.

Lord Renton

I must apologise to your Lordships for being unable to be here at the beginning of this short discussion. I had to attend a memorial service out of London. I do not wish to repeat what I said when we were discussing an amendment on the same point moved by the noble Lord, Lord Wallace of Coslany, but I should like to make two brief comments.

Clearly, Section 141 of the 1959 Act is not satisfactory. It really ought to engage the attention of the Government with a view to replacing it with something better. On the criminal side of the matter, clearly it is more usual, when safeguards are sought against the bringing of unsuitable criminal proceedings, to get the consent of the Director of Public Prosecutions, as Amendment No. 96 suggests.

On the civil side—this is my second comment—I do not know of any precedent for what Section 141 does; namely, to require the consent of the High Court before proceedings are brought in the High Court. That would place a master in the High Court, hearing the original application, and later the judge, in a very difficult position. The master clearly would have to go into the merits of the matter and see whether there was a prima facie case. Once he had done so, it could be that, not without reason, the judge would be reluctant to come to a different conclusion. After all, this would not be an appeal from the master to the judge; and, while fully bearing in mind what my noble friend Lord Mottistone has said and the disquiet he has expressed, I would remind your Lordships that it would be wrong to place too great an embargo on the taking of civil proceedings.

We have had some very bad cases in recent years of mistreatment of patients in special hospitals—glaring cases. Admittedly, they have led to criminal proceedings after a suitable inquiry, and of course we know that, when the same facts lead to both criminal and civil proceedings, the criminal proceedings have to come first. But people should not lose their right to take civil proceedings if it is appropriate that they should do so, or their right not to have too great an embargo placed upon them in doing so.

Therefore, I appeal to my noble friend Lord Elton to say that, so far as criminal proceedings are concerned, what is proposed in Amendment No. 96 is clearly right. So far as the civil proceedings are concerned, would he take advice of the Law Officers and, if necessary, of the court authorities and see whether we cannot introduce something more suitable than is at present the law?

Lord Elton

In rising to reply to this short debate, I should like to extend my sympathy to the noble Lord, Lord Hooson, whose indisposition I was sorry to hear of. I hope he will he with us again soon. If I can recapitulate—I do not wish to go over stale ground either—the original amendment on this subject was No. 72. That removed the protection against vexatious litigation provided by Section 141 entirely, and substituted nothing else. This amendment also removes the protection provided by Section 141 and substitutes something else, so far as criminal, though not civil, proceedings are concerned.

As regard the civil proceedings, I have not altered the view which I expressed during an earlier debate. Here perhaps I might say to the noble Lord, Lord Winstanley, that when one offers to come back to an issue it is at the next stage of the Bill rather than as an extension of the same stage, so I cannot claim to have gone through the reflective process that I promised when we were talking about Amendment No. 72. As I say, I have not changed my view, and since we debated this last I have been to two more mental handicap hospitals and my admiration for what is done there has increased considerably. I see the difficulties that exist, where there is a great deal of work to be done, if there is a prospect of being picked up and taken to court on issues that may or may not he trivial. Then, there is a great incentive always to see that you are accompanied at least by a reliable witness. That, in itself, has considerable implications for the running of this kind of establishment.

As for the matter of the criminal prosecution, the proposal in the amendment—that is endorsed by my noble friend—is that for the master in the High Court there shall be substituted the sieve (if that is the word), to take out vexatious cases, of the Director of Public Prosecutions. I think we are a little beforehand. There is a case at present with the European Commission for Human Rights which is going to be heard this very Friday, and there is the likelihood of its going to the court thereafter. I think that to anticipate the results of that would be unwise. In what way it may or may not prove necessary to amend Section 141 of the principal Act in the light of that decision, I cannot foretell; nor, I think, can the noble Lord, Lord Winstanley, or my noble friend. I have already said that in the light of that it may be necessary to consider the appropriateness of this sieve. I will certainly bring into that consideration what my noble friend has said, because I think that is new to this debate, as regards the position in which it places the individual member of the High Court when leave to prosecute is sought. However, I would say that to carry this amendment at this stage would be really pre-emptive and unwise, and I hope that noble Lords will accept my assurances of the Government's view of this and agree not to press the amendment.

Lord Winstanley

I am grateful to the noble Lord for his answer, so far as it goes. I am also grateful to him for what I understand to be his sympathetic response, in a sense, to the opinions and feelings lying behind this amendment

I would wish to do little more at this stage save to echo every single word spoken by the noble Lord, Lord Renton, who I think got the thing entirely right. I agree with him wholeheartedly that Section 141 of the principal Act will have to be repealed sooner or later. I entirely agree with him, too, that when that repeal takes place, or following it, some other safeguard will have to be substituted to deal with the whole question of vexatious cases in the civil courts. Also, at that time I think that something like our subsection (2) will have to be put in, in order to take care of the situation with regard to cases before the criminal courts. I think there will be time before this Bill finally comes on to the statute book for these various matters to be considered. It may be that, even before we reach Report stage here, there will have been developments in Europe that will make it utterly clear that changes will have to be made. Therefore, there is time. Having said that, I beg leave to withdraw the amendment for the moment, but we may, of course, return to this subject at later stages of the Bill.

Amendment, by leave, withdrawn.

Clause 41 [General protection of detained patients]:

3.20 p.m.

Baroness Faithfull moved Amendment No. 97:

Page 29, line 42, at end insert— ("and (c) to discharge unlawfully detained patients").

The noble Baroness said: Clause 41 deals with the general protection of detained patients and this is just a simple amendment, covering the ability of the Secretary of State to discharge unlawfully detained patients. I beg to move.

Lord Elton

This amendment would mean that members of the Mental Health Act Commission would be authorised to discharge patients who were unlawfully detained. I do not think that that is something which is consonant with what we are trying to do in this Bill. The Mental Health Act Commission is about the welfare of patients while they are detained. It is the mental health review tribunal which is about discharging patients. Therefore, this amendment seems to me to confuse two issues, because we are talking about two different types of case.

The first type is where commission members look at the papers which authorise a patient's detention, and have reason to think that the proper procedures have not been followed. The appropriate action there will be for the commission to report this to the hospital managers. It is the hospital managers—that is, the health authority—who are responsible for detaining the patient, and for ensuring that the legal procedures for admission and renewal of detention are followed properly in every case. If the managers are told by the commission that there seems to be an irregularity they can investigate exactly what happened and take appropriate action.

If I may simplify, nobody may detain a patient unlawfully, once the unlawfulness is apparent, and hospital managers would automatically release a patient in those circumstances. If they did not, habeas corpus would be one trenchant recourse of the patient and of the patient's friends. I hope that that explanation suffices to deter the noble Baroness from pressing the amendment.

Baroness Faithfull

I thank my noble friend the Minister for that explanation. With that, I beg to leave withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elton moved Amendment No. 98: Page 30, line 18, leave out ("Minister for the Civil Service") and insert ("Treasury")

The noble Lord said: This is a consequential amendment. I beg to move.

On Question, amendment agreed to.

Clause 41, as amended, agreed to.

Clause 42 [Mental Health Act Commission]:

3.23 p.m.

Baroness Faithfull moved Amendment No. 99:

Page 30, line 31, at end insert— ("() the Secretary of State shall direct the Commission to provided an annual report").

The noble Baroness said: This amendment—

Lord Wallace of Coslany

Before the noble Baroness proceeds, may I say that my Amendment No. 101 and Amendment No. 101B of the noble Lord, Lord Winstanley, are virtually the same, but the noble Lord and I differ from the noble Baroness on a very important point of detail. Also, I doubt whether the noble Baroness has put her amendment in the right place.

Lord Elton

I think that the noble Lord opposite is suggesting that the three amendments should be considered together, and giving a warning to my noble friend that he does not agree with her amendment in one respect—

Lord Wallace of Coslany

That is very clever of the Minister; I entirely agree with him.

Baroness Faithfull

I appreciate the comments of the noble Lord, Lord Wallace, in that all of these amendments are on the same subject. But I should first like to ask my noble friend the Minister how he envisages that this commission will work. As I understand it, there will be 70 members on the commission; mental hospitals will be visited twice a year and special hospitals will be visited once a month.

I am very worried about the setting up of this commission, because there is already hospital service visiting, and one wonders what has been happening in the past with the hospital service. Secondly, there is the management committee; and then there are the tribunals. So will this not be a very heavy bureaucratic machine which is being set up?

I have said in my Amendment No. 101A, if I may also speak to that, that the work and role of the commission should be reviewed, reassessed and, if necessary, terminated in five years. I believe that, unless one sets a date for a consideration of the role of such a body as the commission, it will just go on. I feel extraordinarily worried about this commission. I believe that it should start, but it should be terminated in five years' time if it has fulfilled its role. Therefore, I am in some difficulty now. At this stage, I will not say anything more, because other noble Lords will want to speak to their amendments covering the same subject. I beg to move.

Lord Wallace of Coslany

If it is convenient to the Committee, I shall now move my Amendment No. 101 —page 30, line 40, at end insert—

Lord Elton

I am sorry to interrupt the noble Lord again, but he cannot move his amendment now. He can speak to it, but amendments have to be moved one after the other. However, the noble Lord can speak to amendments in a jumbled-up group.

Lord Wallace of Coslany

It may not be necessary to move it. The noble Lord may even accept it—

Lord Elton

Not if the noble Lord does not move it.

Lord Wallace of Coslany

I do not know whether that was a favourable comment or otherwise. Neither the White Paper nor the amendment Bill makes any proposals as to how the Mental Health Act Commission will be monitored in the way it discharges its various responsibilities in relation to individual matters, such as deciding to override a patient's refusal to consent to treatment. The independent doctor appointed by the Mental Health Act Commission is under no obligation to listen to the patient's views or to give reasons for his decisions.

In relation to the general policy of the Mental Health Act Commission, there is no obligation to publish annual reports on its operation. It is a source of concern that the Scottish Mental Welfare Commission, on which the Mental Health Act Commission is modelled, has in its 20-year history published only three reports on its work. This has tended to convey the impression of an aloof, insular and impenetrable body—a view strongly expressed by the Scottish Association of Mental Health. The publication of regular annual reports would, undoubtedly, make the commission more accountable, by enabling regular parliamentary debate on its work.

This is where my amendment comes in, because the difference between Amendments Nos. 99 and 101B and my Amendment No. 101 is that my amendment specifies that the commission's annual report shall be laid before both Houses of Parliament, thus ensuring parliamentary scrutiny and debate. Through this Bill, Parliament will, in the course of time, create the commission and it is essential that Parliament monitors its work. It is a new development so far as England is concerned. Not only that—if I may go a little further and put it in this way—if we debate the report of the commission, the Cinderella of the National Health Service will then tend to get more consideration than it has had hitherto.

One point about the mental health side of the National Health Service—I shall be blunt, since there is no point of disagreement—is that there has been a tendency to disregard it. This amendment safeguards the position and gives an opportunity to Parliament, which will create it, to check the commission. If I may refer to the amendment of the noble Baroness, Lady Faithfull, about termination after five years, if necessary, that is always within the power of Parliament and the Government of the day, provided that the commission presents its report and Parliament approves or disapproves. After the creation of the commission, such reports could reveal assets. They could also produce evidence of liabilities and discrepancies which ought to be remedied. Therefore, I submit that Parliament, which will create this commission, should have the opportunity to scrutinise the work of the commission.

3.31 p.m.

Lord Winstanley

At this stage it might be for the convenience of your Lordships' Committee if I spoke to Amendment No. 101B, which stands in my name and that of my noble friend Lady Robson of Kidding-ton, since this amendment deals with precisely the same point though somewhat differently. It perhaps would be sensible if I said something about this amendment before we discuss all three. In doing so, may I say straight away that I very much share the anxieties already expressed by the noble Baroness, Lady Faithfull, with regard to the establishment of this new layer of bureaucracy—we do not yet know how thick—within the National Health Service, which already has plenty of layers of bureaucracy. To my noble friend and I it seems a little curious that a Government wedded to weeding out Quangos should now appear to be so ready to establish a new Quango in this field. But let us leave that for the moment.

My noble friend and I would have preferred, as I think the noble Lord, Lord Elton, will already understand from what we said on earlier amendments, Amendment No. 38 in particular, a widening of the powers and the composition of the mental health review tribunals, which are multi-disciplinary and to which patients themselves have direct access, rather than this new commission. It seems to us that one of the difficulties about the commission is that it will be there merely to exercise a roving commission overlooking the working of the mental health services without the specific patient having specific access to it. Therefore I do not think that the commission itself will necessarily be a very great safeguard. But the proof of the pudding will be in the eating.

If we are to have the commission, then we must know on a regular and continuing basis precisely what it is doing and what it is achieving. These three amendments seek to achieve precisely that. They seek to make quite certain that there are reports—available for inspection, one would hope—which can be looked at so that we can judge the effectiveness or otherwise of this newly established, if it is established, commission. The noble Lord, Lord Wallace of Coslany, prefers that the commission should publish an annual report which should be laid before both Houses of Parliament. I have no objection whatsoever to that, but for some years in another place I had experience of serving on a Select Committee dealing with the Parliamentary Commissioner for Administration. The Parliamentary Commissioner has the duty of reporting to Parliament, and noble Lords will know that he repeatedly reports to Parliament: but during those four years when I served on that Select Committee in the other place, none of those reports was ever debated. Therefore, merely to state that something is to be laid before Parliament does not necessarily expose these things to the light of day in the way which I would prefer. That is why we would prefer our amendment, which requires that an annual report should be published. If it is published, there will be sufficient people interested in the subject to make absolutely certain that its contents will be adequately ventilated in one way or another, whether inside or outside Parliament.

I support the noble Baroness. I also support the noble Lord, Lord Wallace of Coslany. This is an important point. I would expect the noble Lord the Minister to agree that there should be some kind of regular report on the activities of the newly established commission if that commission is, in fact, ultimately established.

Baroness Faithfull

I agree also with Amendments Nos. 101 and 101B, for the reasons which the noble Lord, Lord Winstanley, gave: that reports are not always taken notice of, even if they are supposed to be discussed in both Houses of Parliament. It is for that reason that I believe that Amendment No. 101A whereby, by law, the work of the commission would have to be reviewed in five years' time, would be a profitable amendment not only from the point of view of the commission but also from the point of view of the other layers of the bureaucracy. Managerially, do we really want all these layers? We may need them now, but will we need them in five years' time if the commission has done its job well? Therefore I support Amendment No. 101 and also Amendment No. 101B; but I also like my amendment: that the work and role of the commission should be reviewed and reassessed and, if necessary, terminated five years after the commencement date.

Baroness Macleod of Borve

I agree with bits of all three amendments, for the reason that this will put the case across to the public. If reports are made annually to both Houses of Parliament, which is what I should like, then the public will know, far more than they do now, what goes on in the mental health hospitals. I have considerable experience of this. The mental health aspect is surely the Cinderella of the whole of the National Health Service. Very often it is, I am afraid, a fact of which people do not want to know. If annual reports were published and, one would hope, discussed by both Houses of Parliament, then the public would have far wider knowledge of what goes on in our mental health hospitals. This is why I support bits, or probably all, of all three amendments.

Baroness Jeger

I am very glad to follow the noble Baroness, because in this area, which is very sensitive so far as public opinion is concerned, the more discussion and the more public examination there can be, the better. I would crave your Lordships' indulgence by giving one or two examples of why I think it is so important that there should be open discussion of these cases. Recently a very distressed lady came to me for help. She had been told that it was the Government's policy to get people out of mental hospitals and that her husband was being sent home the following week. This lady was elderly and disabled. She was already caring for a mentally handicapped daughter at home. Her husband was sent back home, presumably into what we call community care. This lady came to me and said, "Tell them up there"—I am sorry if that is a discourteous description of your Lordships—"that the community does not care. I'm the bloody community". She felt such a sense of inadequacy, isolation and strain that I am sorry to say this lady died, absolutely broken down, just before Christmas.

The husband is now back in the mental hospital which he never wanted to leave because he had been there so long; it was an environment which he understood. He deteriorated terribly at home. This point is relevant to the amendment. I implore your Lordships to keep in contact with what is actually happening to individual people. This Bill is about people. It is very easy for us to pass this legislation but not to realise the impact which it will have on families and individuals. It is not always the best thing to—

Lord Elton

If the noble Baroness would forgive me, this Bill is about detained patients. The noble Baroness's description of what happened to her, sadly, late friend does not sound to me as if it concerned a detained patient. It sounds to me as if he was a voluntary patient. I may be wrong, but I am anxious that we should not extend the area of discussion and draw into this debate considerations which are not germane to it.

Baroness Jeger

I much appreciate the courtesy of the Minister; I was using that case to illustrate the need for reports to Parliament of what is happening, because unless we keep a close eye on the results of this legislation, we shall be failing in our duty. The relevance of my remarks was that the amendments suggest that there should be reports to Parliament and I very much want to see this amendment carried through. Whichever amendment we take, it is absolutely essential that we monitor this Bill and do not let it get into the public's mind that it is Government policy to send people out without ensuring that there is support. In monitoring it, we ought to ensure that the support is adequate, because we know that in these restrained times for local authorities, it is not always possible for them to provide services.

Moreover, I hope that when the Mental Health Act Commission is set up and is considering discharges it will take careful account of the facilities available to patients whom it is discharging. Certainly I am sure that it would not be your Lordships' wish that there should be wholesale discharges on the grounds of economy. We have done a lot of work in Camden; in Camden there is a very good scheme for fostering discharged mental patients and that is the sort of scheme which the commission should take account of in its reports. We have found that the cost of caring for a mentally handicapped adult in hospital is about £147 a week and outside, in a residential home with support, the cost is £157 a week. All these are matters which the Mental Health Commission should report to Parliament. I will not go into other aspects of the case but these are all reasons why, if we are to be responsible and to monitor the progress of the Bill, we should have an annual report before us, covering some of the points which I have suggested.

Lord Auckland

I am not at all happy about Clause 42 as a whole. Certainly I have not had the recent experience of being concerned with mental hospitals that many of my noble friends and other noble Lords on all sides of the Committee have spoken of in the past few moments. However, I wonder whether I might ask my noble friend what consultation there has been with the mental hospitals themselves and with the area health authorities about the setting up of this commission? As my noble friend Lady Faithfull said, there is no reference in the White Paper to this commission. I wonder whether the area health authorities are not the right people to deal with these cases. If we set up this commission, it is going to cost a fairly substantial amount of money. These people, as it states in Clause 42, will have to be paid, and I make no complaint about that, because it seems to me that they are going to carry a very large burden of work.

I must make this point to the Committee. This surely bears out the criticism that was made when all the house committees and other bodies were abolished, when there was much closer contact with both the staff and the patients at these establishments. It is no good crying over spilt milk; all this was done and I suggest to the Committee that we are now, if I may put it a little cynically, paying the penalty for it. I wonder whether my noble friend could say just a few words about the commission generally, why there have been no consultations with the authorities themselves, if in fact there have not been, and a little more about how Clause 42 will work. I have a feeling that many people are worried about this situation.

Lord Winstanley

I listened very carefully to what was said by the noble Lord, Lord Auckland, and since there may well be many other members of the Committee who hold a similar view in regard to the establishment of the commission, would it not be wiser for us to discuss that matter and to extract answers on that subject when we come to discuss whether Clause 42 shall stand part of the Bill, rather than on these particular amendments, which seek to establish that if we are to have a commission at least we should have one whose work is public and is under public scrutiny?

Lord Sandys

This might be the right juncture at which to comment on the three amendments; that is, Amendments Nos. 99, 101 and 101B. The noble Baroness took the opportunity of speaking to Amendment No. 101A as well, but I will not be speaking to that particular amendment now. I agree with much of what has been said in favour of the commission publishing regular reports, but I am not convinced that there should be a statutory requirement written into the Bill to report every year. Annual reports take a good deal of preparation. We want the commission's secretariat to be small and we want its members to use their time as effectively as possible. It might not be the best use of their time to spend a considerable period of each year drafting or redrafting a report. I would rather leave it to the commission themselves to decide what to publish and when. If my noble friend will agree to withdraw Amendment No. 99, I will consider putting down at Report stage an amendment to provide for reports, say, every three years. I hope that noble Lords who have proposed amendments—and, of course, this amendment is linked with Amendments Nos. 101 and 101B—will find this reply satisfactory.

I am really cast at this Dispatch Box in the role of Paris without an apple. It is a situation which makes particular demands because there are a number of questions which my noble friend and noble Lords opposite have asked. The noble Lord, Lord Wallace of Coslany, suggested that there should be a report to Parliament; and the noble Lord, Lord Winstanley, reminded us of what was in his view a parallel situation, that reports to Parliament are not always debated, or should I say that parliamentary time is not always available for debating them. There are a number of other points which I would like to have the opportunity of discussing, especially the matters raised by my noble friend Lord Auckland.

There is a real need for consideration of this point about reports. At this stage we do not feel that an annual report is the right answer, but we will certainly give the matter consideration. The suggestion of my noble friend Lord Auckland that there was lack of consultation is not, I believe, entirely the case. Health authorities have been in a consultative situation, as I understand it. The health authorities could not fulfil the particular role which he suggested. As the Committee will appreciate, the health authorities detain patients and a separate independent body is needed to protect their rights.

We ought to consider a number of other matters here. One of them is contained in the overall position of the clause as a whole. I hope my noble friends have had an opportunity to read the notes on clauses, because the notes on this clause, Clause 42, describe the position generally. There is a note on page 173 in regard to functions, and I think it is reflected in other parts of this quite lengthy description. I quote the words here in regard to special hospitals, something mentioned by my noble friend Lady Faithfull: It would be for the commission to decide, subject to any directions from the Secretary of State, how to carry out its functions under Clause 41". As drafted, the Bill is silent on a number of matters. My noble friends wish to spell it out rather more clearly than at this stage the Government feel either necessary or desirable. We believe that a report may be considered, and I hope with that my noble friend Lady Faithfull may feel able to withdraw the amendment.

Baroness Faithfull

I shall certainly withdraw Amendment No. 99 because I think that Amendments Nos. 101 and 101B are better amendments than the amendment I put down. I understood my noble friend the Minister to say that he may consider a report every other year. What I would say is that, whatever happens, we must have a report because if the work of the commission is not monitored none of us will know where we are. With those comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.48 p.m.

Lord Wallace of Coslany moved Amendment No. 100:

Page 30, line 40, at end insert— ("() In pursuance of subsection (1) above the Mental Health Act Commission shall have regard to the interests of informal patients.").

The noble Lord said: I take it that we shall come on to the other amendments later. At the moment I beg leave to move Amendment No.100, page 30, line 40; insert the words printed. The Mental Health Act Commission will exist to exercise general protective functions for detained patients, ensure that patients are informed of their rights, examine the lawfulness of detention and investigate complaints. Concern has been expressed from a number of sources, including MIND, about remit, membership, and procedures and powers of the Mental Health Act Commission. Although the principle behind the commission is sound, experience in Scotland has shown that the Mental Welfare Commission, the Scottish counterpart, has not established itself as a credible and coherent watchdog for and on behalf of mentally disordered people. Further, the Scottish Mental Welfare Commission has powers more extensive than those proposed for this Mental Health Act Commission, not only for detained patients but also for informal patients and for people deemed to be vulnerable in the community. All patients in hospital are deprived of, for example, the normal social relationships and control over many decisions affecting their lives. In many respects, deprivation is shared equally by all patients, whether detained or not. The informal patients, therefore, have just as great need for an effective watchdog to investigate complaints and to ensure that they are informed of their rights. They will also benefit from the responsibility to visit hospitals proposed for the commission.

The only obvious reason I can imagine for not extending the role of the commission in this way is to save money. I hope that that is not the case. Surely deprivation, so well documented in successive hospital inquiry reports, should justify the additional cost. By making the commission's powers applicable to all patients, a major step could be taken in extending the protective function of the legislation. I would add that the amendment has the full support of the Royal College of Psychiatry. I hope that the Government will also accept and support it. I beg to move.

Lord Winstanley

I should like to add a brief word of support for this amendment. I do understand that the noble Lord, Lord Elton, will perhaps be reluctant to widen the activities of the commission to cover informal patients as well as detained patients. He has already explained that in other debates in the course of this Committee stage. But I think that there are reasons which should be borne in mind. It has been my personal practical experience in going from time to time to mental hospitals to talk to patients as a general practitioner, not as one of the doctors in the mental hospital, that the patients have not a clue as to how they actually got there. The patients do not sit in a group discriminating as between detained and voluntary patients—"I am voluntary and you are detained". They are just a group of patients. When patients—not necessarily the patients I have gone to see—have recognised me and known who I was and come to seek my advice, and I have asked, "Are you here under Section 25 or Section 26?", they have not a clue whether they are there under any section at all or how they got there.

I am not saying that it should be necessary all the time to go to patients and explain these matters utterly clearly, but I am saying that there is a certain danger in this ready acceptance of the fact that detained patients are in a category totally separate from the others and should be treated totally differently. It is my experience that the uncertainties, fears and anxieties of informal patients are often just as great, and they are in just as much need of reassurance and perhaps protection as the detained patients. Therefore, I have much sympathy with the noble Lord, Lord Wallace, in regard to this amendment.

Lord Elton

The Bill proposes that the Mental Health Act Commission shall be concerned only with detained patients. I am well aware of the phenomenon to which the noble Lord, Lord Winstanley, referred, whereby people in mental hospitals are not very clear about their legal status. Our concern in this Bill relates to the Mental Health Act 1959, and that is why the commission is called the Mental Health Act Commission, and we propose specific functions for it. Its main functions will be to deal, first, with consent to treatment—which is a matter which has exercised your Lordships greatly. I think the debate suggested that there should be a watchdog, and that is the function of the commission. Then there is the preparation of a code of practice covering treatment for detained patients, and again the same applies—your Lordships wanted it closely considered and were concerned to introduce a multidisciplinary element into the second opinion. That is a function which is allocated to this body because it is a multidisciplinary panel. There is also the monitoring of the use of powers of detention and generally acting as a watchdog for detained patients. Detained patients need this extra safeguard because they are in a special position; they are not free to leave the hospital when they wish, as other patients are. It is that special factor, deprivation of liberty, which justifies establishing a new body which will have particular experience and expertise in the problems which arise from detention.

Informal patients in psychiatric hospitals and elsewhere—that is to say, voluntary patients—already benefit from the work of a large number of bodies and individuals, such as the Health Service Commissioner, the Health Advisory Service, the Development Team for the Mentally Handicapped, the Court of Protection and community health councils. Detained patients are also served by these bodies, it is true, but none of them has a particular expertise in the problems which arise from detention itself. That is the gap which the Mental Health Act Commission is designed to fill.

Other problems which hospital patients have, individually or collectively, are the responsibility of one or other of the existing bodies to which I have referred, and I am satisfied that the existing provisions are appropriate to them. I am not saying that there are no problems about standards of care and provision in mental hospitals or that patients never have individual difficulties which need outside help. What I am saying is that there are already bodies whose job it is to raise standards and help patients. The way forward in this field is to support those bodies and not to add responsibility for informal patients to a body which is designed for different purposes.

The commission will in any case already have its hands full. We have estimated—and my noble friend Lady Faithfull showed an interest in this earlier which I did not satisfy—that members of the commission will be able to make a fairly brief visit twice a year to each hospital where patients are detained, that is, if 70 members each spend about a day and a half a week on commission work. If the commission has to take time enough to "have regard to" all mentally ill and mentally handicapped patients then I point out that there are 20 times as many as those who are detained, and that by mathematical analogy requires a panel of no fewer than 1,400 members; and I cast that before the feet of noble Lords who were protesting earlier about the creation of numerous Quangos. It would be a multitudinous body, very expensive to run, with its expertise diffuse, and I do not think it is what your Lordships have in mind at all.

There is, of course, a resource aspect to this matter, but I do not want to make too much of that. What I am most concerned with is that by giving the commission too much to do and responsibility for too many patients, its effectiveness inevitably will be reduced. Detained patients have special problems and the commission is to be set up and staffed to meet those special problems. That is not to say that informal patients will not be able to benefit from the work of the commission in providing a forum for discussing methods of treatment and raising standards of practice. But I think that what the noble Lord, Lord Wallace, is now proposing will, in fact, not extend the powers and the effect of the commission, but will dilute it, and I ask your Lordships to resist the amendment.

Lord Winstanley

I should like to ask the noble Lord, Lord Elton, whether he can answer one specific question in the light of what he has just said to your Lordships' Committee. If the Bill is to be left as it now is without this particular amendment so that we do not have a provision that requires the commission to have regard to the interests of informal patients, and if the commission continues to work in the way in which the noble Lord, Lord Elton, has described, then I should like to ask the following. If in the course of their review of the practices in a certain hospital, or of certain cases or of certain situations, matters to do with the interests of informal patients arise which cause them concern, would it be within the powers of the commission to report those matters to the area health authority or to the Minister or to whoever could perhaps take action, or would that be regarded as ultra vires?

Lord Elton

I do not think I can answer that question off-the-cuff. My instinctive response is that if they saw malpractices they would not remain quiet about them. But usually in legislation there are other considerations which are not immediately apparent. I would not want to commit the Government to a line, but I shall try to write to the noble Lord before the next stage of the Bill.

Lord Wallace of Coslany

I am very disappointed with the noble Lord because, after all, let us face it, the amendment is only asking—I know that I went into a great amount of detail—for the commission to have regard to the interests of informal patients. As has already been indicated, it is quite possible that in the course of their duties that will happen, if only accidentally. I see no harm in the Government accepting this amendment, because it does not commit the commission in any shape or form so far as detail is concerned: they should have some regard to the interests of informal patients—that is all.

Lord Elton

I think that the noble Lord is perhaps not quite getting the message that I am trying to give him. Plainly it will not be the purpose of the commission to ignore the interests of anybody, but their responsibility is going to be to detained patients. That responsibility has to be closely delineated, otherwise they will either become swamped with work, or so numerous as to be almost uncountable. Neither of those alternatives is acceptable. If the noble Lord is merely saying that he would like to table an amendment which says that the commission should not disregard the interests of informal patients, I should have thought that that was almost superfluous because I would not think that anyone would expect them to do so. If the noble Lord wishes me to assure him in that respect I would be happy to do so.

I cannot be specific about the assurance which the noble Lord, Lord Winstanley, wanted, because he wanted me to say that there would be a specific reaction in specific cases where the people involved were informal patients and not formal patients. On that matter I would have to take advice. But we are not trying to carve out a separate empire for detained patients who, as the noble Lord, Lord Winstanley, has said, are already freely intermingled with the others.

Lord Wallace of Coslany

The noble Lord has given me a bright idea. He has made a suggestion to me and I certainly would not ignore any suggestion that the noble Lord makes. I am quite willing, in view of what he has said, to put down an amendment that the Mental Health Commission shall not disregard the interests of informal patients.

Lord Elton

I may be able to make even that superfluous, because I have taken advice more quickly than I thought it was possible to do. It would be entirely proper and expected that the commission would bring cases of improper practice affecting informal patients to the hospital managers. I think that that is probably what both noble Lords want, in which case perhaps we do not need either amendment.

Lord Wallace of Coslany

Will the noble Lord put in an amendment to cover that, because it is not laid down? I am playing safe on this. It is not laid down. Naturally I accept the noble Lord's word, but it does not say so in the Bill.

Lord Elton

There is a limit to the amount of detail that you can go to. We could legislate that they should all be well-disposed to the mentally ill generally. I think that there is not a difficulty here. If I find between now and Report stage that there is a difficulty, I shall both get in touch with the noble Lord and suggest what we should do about it. But I think we can assume that where the processes allow it, and where the instituting authority—who are the Government—expect it, the members of this commission will do it.

Lord Wallace of Coslany

After that, I am speechless. Under the circumstances, and in view of the somewhat guarded indication that I might get an amendment from the Government at the Report stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.8 p.m.

Lord Wallace of Coslany moved Amendment No. 101:

Page 30, line 40, at end insert— ("() The Mental Health Act Commission shall publish an Annual Report which the Secretary of State shall lay before both Houses of Parliament.").

The noble Lord said: I am not at all happy about the way in which this matter was dealt with. The noble Lord, Lord Winstanley, rather poured cold water on my suggestion that the annual reports be laid before Parliament. The noble Lord, Lord Winstanley, must remember that Parliament has altered since his day. They have now set up in another place—I do not want to praise it too much but they deserve a little praise occasionally—special Select Committees which go into matters in great detail. Of course, we have our committees but they deal mainly with EEC affairs. After all, when a report is tabled before Parliament nobody is incapable of raising a debate. We have ample opportunity, for instance, in this House by means of short debates, Unstarred Questions, and so on. Also there are the usual channels, who sometimes operate to the benefit of Back-Benchers in getting debates that BackBenchers want. So it is absolutely ridiculous to write off laying something before Parliament simply because somebody thinks that there will not be any chance of a debate. There is every chance of a debate.

However, I must admit that the noble Lord has a point. I am asking for an annual report but obviously nobody, including myself, would expect the commission to put down a report after its first year's work. After all, that first year will be spent mainly organising and sorting matters out before they really get down to the job. So the second year would possibly be the best year. There is point in having a report submitted after or during the third year and then subsequently. However, if that is the Government's idea, I would accept it, but I must insist that the words, the reports be laid before Parliament". should be inserted. If that is acceptable to the noble Lord, I would willingly table a differently phrased amendment on Report to cover the point. But I am very seriously concerned that Parliament should have an opportunity to debate and to study the operation of this commission because, as has been stated in many quarters in this House and outside, the Cinderella of the Health Service—the mental health service—should have better treatment than it has received in our considerations. So I leave the matter with the noble Lord. If he will meet me on this point, I shall withdraw the amendment.

Lord Winstanley

As I have already made clear at an earlier stage, I support the noble Lord, Lord Wallace, on this amendment just as I support my own amendment, the later one, Amendment No. 101B. We have had an answer, albeit a somewhat qualified answer, from the noble Lord, Lord Sandys. The answer we had from the noble Lord, Lord Sandys, did not wholly satisfy me, but at least it made it clear that the Government will move some way in the direction which has been indicated by the noble Lord, Lord Wallace, by myself and by the noble Baroness, Lady Faithfull.

I do not think that any useful purpose would be served by us pressing these matters to Divisions at the moment. Therefore, as I shall not be able to speak to my amendment if I do not move it, and as I have no intention of moving it, may I merely say to the noble Lord, Lord Wallace, that I am certainly with him in making sure that we get some kind of satisfactory provision in this Bill before it finally leaves our House. However, for the moment I am prepared to leave matters with the answer which we had earlier, and will then have a good look at what is brought forward on Report and perhaps at that time we might try to improve that.

Lord Harmar-Nicholls

Although the Mental Health Act Commission is very important, the operation of Parliament and its work is perhaps even more important. If there can be found a formula which does not interfere with the point I make, all well and good; but to put an obligation in such a mandatory form as this, that it must be a report—whether annually or biennially—may well mean that we shall be overloading the parliamentary machine in a way which really will be dangerous. There are innumerable ways in which Parliament can service any of these matters; for instance, Adjournment Debates, Question Time, the Consolidated Fund. If there is a real weakness or something that Parliament ought to supervise and deal with, there are innumerable ways in which it can be done. But if we write into a Bill that there must be an annual or biennial report, that must be fulfilled, and that will mean extra staff, extra time and extra concentration upon theory instead of the time being devoted to the practical problems that arise.

If some formula that is acceptable to both sides can be arrived at which will not bring the danger to which I refer, all well and good; but I would examine it very carefully, because I believe that Parliament is being overburdened with detail in such a way that it is not carrying out its duty on fundamental issues because of time being taken up by what, at the end of the day, in relative terms, are rather more minor matters.

Lord Sandys

I am very much obliged to my noble friend for what he has just said because he has spelt out in greater detail what is at the back of the Government's mind: that there are factors in the production of an annual report which go beyond what perhaps the noble Lord, Lord Wallace, in his amendment has previously imagined. We shall have a look at this and consider it. I hope that noble Lords will table amendments, and that my noble friend Lady Faithfull will consider with us this particular aspect.

Lord Wallace of Coslany

We are reaching a very reasonable negotiating position, if I may put it that way. Quite honestly, I would agree with the noble Lord, Lord Winstanley. Throughout this Bill we have had only one Division, which was rather unfortunate as some Members could not be present. But, as far as possible, I am not anxious to have Divisions on this measure because in general principle it is an acceptable measure all the way round. If we can negotiate on points of detail, I am quite willing to do so. In view of what has been said—and I hope that as a result I shall be looked at in a kind light—I shall withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Faithfull moved Amendment No. 101A:

Page 30, line 40, at end insert— ("() The work and role of the Commission is to be reviewed and reassessed and if necessary terminated five years after the commencement date.").

The noble Baroness said: As a result of listening to the debate so far, I think that all the more should I move this amendment. I think it was the noble Lord, Lord Kilmarnock, who said that we have not had legislation in the mental health field for 23 years and that it might well be another 23 years before we have legislation again. That is one point. Secondly, we have been going backwards and forwards on whether there should be an annual, a biennial or a triennial report, or whether there should be a report at all. My noble friend Lord Harmar-Nicholls has spoken about the great work and the amount of work there is for Parliament to do. It seems to me that to have a certain specific point of review—whether it be five, six or seven years—at least concentrates the mind and would ensure that however busy Parliament is, either in the other place or in this House, there will have to be a review. Therefore, I beg to move:

Page 30, line 40, at end insert— ("() The work and role of the Commission is to be reviewed and reassessed and if necessary terminated five years after the commencement date.").

Baroness Macleod of Borve

I wonder whether the noble Baroness, Lady Faithfull, can help us. It does not seem to me that we can review something upon which we do not have a report. We must have reports. I do not think that my noble friend Lord Harmar-Nicholls was in the Chamber when we had a long discussion on this, and I think we all came to the conclusion that a report must be forthcoming.

It is vitally important. All Members of this Committee have been members of organisations which have been set up by Parliament, and certainly in anything with which I have been concerned we have had to report annually. It was not a very great deal of trouble and I cannot envisage that this will be more difficult than anything else. Even if it is, we are discussing people who are detained—human beings. We are not discussing energy or anything else with which I have had to deal. In this context, I think that we must have annual reports, and then I would support my noble friend's idea of a review in five years or any other term. But, first, we must certainly decide to have reports, and I would prefer them to be annual reports.

Lord Renton

When we come to the debate on clause stand part I shall make a fundamental criticism of subsection (2) of this clause. But if the Secretary of State is to be allowed to pass the buck to this new Quango to the extent that subsection (2) envisages, then I think it is extraordinary that the Quango should be allowed to get away without ever having to report to Parliament.

Lord Elton

Perhaps I can clear one difficulty out of the way at the start. My noble friend Lady Faith-full said that we had been arguing backwards and forwards as to whether there should be a report every two, three or five years, or whether there should be a report at all. I can assure her that we are taking away a clear indication that the Committee wants there to be a report. We are discussing how that report should be presented, to whom and how often, and that is something which I think we shall review more effectively in the light of what my noble friend Lord Renton will say, if I anticipate him correctly, on clause stand part.

Therefore, let us not confuse that issue with the issue as to whether this body—to which my noble friend Lord Renton rather pejoratively referred as a Quango, although it is only a Quango of 70 and not of 1,400 (as some noble Lords opposite thought it ought to be a moment or two ago)—should go on at all. There is a very good maxim, which my noble friend will know where to find as well as I do, that when you set your hand to the plough, you should not look behind you. I do not think that we should be appointing the commission and saying, "Well you do your best, and we will see whether we will reappoint you after three years, five years or seven years".

Neither do I think that we should let them believe that their functions will not be reviewed. Indeed, the department will be reviewing them, and I can assure my noble friends and others that it will not be waiting five years before it does so, because there may well be lessons to be learned—I should be very surprised if there were not—in the first year or two. As the noble Lord, Lord Wallace, said, the first year is a sort of bedding-down period, and one should perhaps not expect 100 per cent. efficiency then, but thereafter there will be a lot to be learned and I hope we shall profit from it.

I do not know that there is much more that I can say. The basis of my argument is that I do not agree with my noble friend that the thing should be wound up after perhaps five years. I think that the functions of the commission are necessary. We would not have invented it otherwise. I think that they are not the sort of functions which can be completed, as the amendment suggests, and then put for ever on the shelf, nicely wrapped and dusted occasionally. The people who performed these functions cannot be disbanded because they are supervising, are they not, a continuing process?

There will, I regret to tell your Lordships, be a constant flow of these tragic cases into the hospitals, and we should like to think that there will also be a flow of these cases out of the hospitals. As noble Lords have already said, this is something of such importance to the individual citizen—since it concerns his own liberty—that there ought to be a watchdog. It is not, with the greatest of respect to my noble friend Lord Renton, something which my right honourable friend can do single-handed. He has to delegate this responsibility to somebody. I think we have chosen the right people, and we ought to let them get on with the job in the security of the knowledge that we expect them to go on doing it and go on doing it better year by year.

Baroness Faithfull

I thank my noble friend the Minister for that explanation, while being somewhat disappointed with it. I would just make two points. First, I think that my noble friend said that the Ministry, the Department of Health and Social Security, would be constantly reviewing the work of the commission. I am tempted to ask my noble friend what has been happening all these years? The hospital service and the Department of Health and Social Security have been constantly reviewing over all these years. And what are we discussing? We are discussing bad incidents in various hospitals over the years. We have had the other place and your Lordships' House, and still we have had difficulties in our hospitals. Just to say that we shall be keeping matters under review, I am not sure really answers the point.

The second point I should make is that I have used the words: The work and role of the Commission is to be reviewed and reassessed". Perhaps I have worded it badly. It is not only the role of the commission that should be reviewed and reassessed. It should be looked at in terms of the managerial structure of all the other reviewing bodies—the management, the hospital service, the tribunals, et cetera. It is a question of having a reappraisal of the whole management structure. It is for that reason that I felt that we needed to have a specific term when we looked at the work of the commission and the various other bodies within the health service. I shall not press this amendment. I shall withdraw the amendment at this point in time and consider it again at Report stage.

Amendment, by leave, withdrawn.

[Amendment No. 101B not moved.]

On Question, Whether Clause 42 shall stand part of the Bill?

4.24 p.m.

Baroness Robson of Kiddington

I think that this is the appropriate moment to return to the reservations that a great number of your Lordships' Committee have about the necessity for setting up the commission. If anybody from outside had listened to the debate that has just taken place on the various amendments proposed by different members of the Committee, they would come to the conclusion that there are great dangers in creating more bodies than are necessary to perform these functions. I think we all agree with the functions that the proposed commission is supposed to perform, but you need only to have listened to the debate to find that it is a fine balance between who has the authority to do this, and who has the authority to do that. Even the Minister had to think for more than a minute, and take advice, on whether the commission had power to deal with problems it discovered relating to informal patients.

On Second Reading, together with many other Members of the House, I suggested that the functions at present envisaged for the commission could between them be performed by the Health Advisory Service and the mental health review tribunals. This helpful Paper that the Government let us have says about the proposed functions of the commission that the function is visiting patients, monitoring the use of powers of detention and the consent of treatment procedures. The HAS has a function, which is to examine the services of a hospital that are the subject of serious allegations or an unusual volume of complaints, and to advise on deficiencies.

I know that the HAS deals mainly in the mental health field with informal patients. I do not see why its powers should not be extended and the terms of reference altered so that it can take on the extra responsibility of the formal and detained patient. When the Hospital Advisory Service started in 1970 it started working with permanent teams to visit the hospitals. Once it changed its name in 1976 and became a health advisory service, on the whole it set up ad hoc teams to visit the hospitals, and, on the whole, teams have not visited more than three.

I think that was a pity. I believe that the permanent team was a better solution. But what I welcomed in the change in 1976 was that it became mandatory for the Social Services Department to be included, and this adds to the multidisciplinary strength of the HAS. I am also aware that it is at present run, by a director with professional advisers; but there is no reason why, instead of setting up an extra body, the constitution of the top of the HAS. should not be turned into a governing committee, or a special health authority, in order to give it statutory powers. I believe that that would be a better way of dealing with the problem.

I also believe that an organisation which has been working and working very well, for a great number of years—over 12 years now—must have within it a rich fund of experience, and that should be at the disposal of such a body as is envisaged. They are therefore probably the best qualified people to assist the Secretary of State in laying down a code of practice.

The other matter which is interesting has been mentioned by the noble Baroness, Lady Macleod, and that is the question of issuing annual reports. The noble Baroness said that there are hardly any organisa tions which do not issue annual reports. Well, the HAS does, so it already performs that function. It is open to the public to study the HAS reports. I am a great believer, with my noble friends, that the reports of the body, whatever it is—whether it is the HAS or the proposed commission—that is looking after the interests of detained patients, should be made public. It is even more important than with the present HAS reports. Therefore, we already have within the HAS this duty to produce an annual report.

We have the experience among the people who have worked within the HAS to give the kind of service we are looking for. We would not have to multiply the bodies who, basically, are interested in the same subject. It would be better to extend the powers of the HAS, to reorganise its consitution. We would have something which would be more valuable, and have a smaller risk of dissension and disagreement between the various bodies which might have an interest in the same patient. I hope the Minister will be able to give us some hope that those functions could be performed by one body, and, in the light of what he says, we on these Benches will consider how we deal with the subject on Report.

Lord Donaldson of Kingsbridge

Would the noble Baroness explain what HAS means?

Baroness Robson of Kiddington

It is the Health Advisory Service. It started out as the Hospital Advisory Service.

4.31 p.m.

Lord Renton

I wish to approach this matter from a slightly different angle from that which was deployed by the noble Baroness, Lady Robson. As I indicated earlier, I find great difficulty about parts of subsection (2) of the clause. It says: Without prejudice to the generality of his powers under that section"— meaning Section 11 of the Mental Health Service Act 1977— the Secretary of State shall"— he has no option in the matter— direct the Commission to perform on his behalf"— and then we are told exactly what he has to make them perform on his behalf: (a) the function of appointing medical practitioners for the purposes of sections 38 and 39 above". I wish to make it clear that I do not object to that function being compulsorily delegated, but I believe a serious constitutional difficulty arises over paragraph (b) of subsection (2), because he must direct the commission to perform his functions "under section 41 above", and let us briefly examine what those functions are. Under subsection (1) there is perhaps the most important function placed upon the Secretary of State under this Bill, namely, that it is his duty to, keep under review the exercise of the powers conferred by the principal Act and this Act with respect to the detention of patients". Parliament will be continuously interested in that. The liberty of people is at stake. These are people detained often against their will, and to me it is unthinkable that the Secretary of State should be required by Parliament to delegate that function to a new Quango, or whatever else we are to call the new Mental Health Act Commission. It is a good idea for some limited purposes, but that the Secretary of State should be required to delegate that function to that body seems to be constitutionally dubious, to put it mildly.

What is to happen when the Secretary of State is questioned in another place, or his spokesman in this place, about the exercise of the functions described in Clause 41(1)? Is he to say, "I am statutorily required to delegate this function to a commission and I have done so, and I have nothing to add"? Is that to be the constitutional position? If so, I would find it regrettable as well as strange. However, I will not detain your Lordships more on subsection (1) because it is a serious enough proposition, nor will I detain the Committee on Clause 41(2). But when we come to subsection (3) we find: The matters in respect of which regulations may be made"— and they may be made by the Secretary of State, as I understand it— under section 6 of the Nursing Homes Act 1975 shall include the keeping of records relating to the detention and treatment of persons detained under the principal Act or this Act in a mental nursing home". Again, that is something Parliament would expect the Secretary of State to know about and to answer questions about. After all, it is a power to make regulations which is being extended; it is an existing power but it is being extended by this subsection. Is it right that he should delegate that power to this new Quango, and be obliged to do so?

Let us look at his functions under Clause 41(4). There we find that he, may make such provision as he may with the approval of the"— Treasury, because the Treasury comes into this, to, determine for the payment of remuneration, allowances, pensions or gratuities to or in respect of persons exercising functions under arrangements made under this section". Here, public money is at stake, and the Secretary of State should be directly answerable to Parliament for the payment of that public money. Again I say I do not think it is right that that should be delegated to the new commission. For those reasons I hope that between now and report my noble friend will find a better way of doing this. In fact, I hope he will abandon the idea of passing the buck to this new Quango.

I have only one other point to make on Clause 42 standing part, and that is in relation to subsection (4), which is a piece of legislation by reference which might have been avoided or expressed more clearly.

Lord Elton

To ensure that I answer the point my noble friend is making, may I ask him to repeat that part of the subsection to which he is referring?

Lord Renton

I have not quite understood my noble friend. Is he asking me to repeat which part of subsection (4) of Clause 42 I am referring to?

Lord Elton

I was taking another point on board as my noble friend began his last remarks and I am asking for the reference to the point he is now making.

Lord Renton

My last point on Clause 42 is that subsection (4) is a piece of legislation by reference, so it-is a drafting point. Sometimes it is helpful and shortens a Bill to have some legislation by reference, but when that happens, and if there is a point of substance involved, it helps the legislators very much if an explanation is given in the Explanatory Memorandum to the Bill, but there is no such explanation here. I hope I am not making heavy weather of this, but for those who have to work it—it might be helpful—especially when the Bill becomes an Act if Clause 42(4) could either be enacted without legislation by reference or if a little more of an explanation were given.

Lord Kilmarnock

The Committee will see that I have a later amendment down to Clause 47 No. 109B, which refers directly back to Clause 42, which we are now discussing. I am not sure whether it would be for the convenience of the Committee, and in particular to the noble Lord, Lord Elton, if I spoke to that now, or perhaps he would prefer first to answer the points that have been put to him by the noble Lord, Lord Renton. I await the Minister's guidance.

Lord Elton

We are debating the clause stand part, and it might be more convenient to the Committee to discuss at the same time amendments that strike later in the Bill. I am quite prepared to be persuaded of that if the noble Lord thinks there is advantage in so doing.

Lord Kilmarnock

Very well; I shall be guided by the noble Lord.

4.40 p.m.

Lord Harmar-Nicholls

I do not think that my noble friend Lord Renton was making heavy weather of this matter; there is a point that ought to be born in mind, particularly at this stage. As I tried to make clear in my last intervention, I am interested purely in the machinery of Parliament, not in the actual merits of the Bill relating to the Mental Health Act itself. I do not like Clause 42 for this reason: If left as it is, it will interfere with Parliament doing its work properly. As I said previously when there was a suggestion of an annual report, there is no need for an annual report because it would take up time. I should like to say to my noble friend Lady Macleod of Borve, that annual reports sometimes cover up information rather than give new information which could be helpful. It is very easy in a report to cover over a point which, if otherwise presented, could be latched upon by Parliament, so gaining much more satisfaction in regard to something that was wrong.

I have not read the legislation in detail in the way that experts on mental health will have done, but I wonder whether it contains any provision to enable the Secretary of State to override the commission. As things stand, he, shall direct the Commission to perform on his behalf", certain important functions, such as have been described by my noble friend. I believe that it would be wrong and dangerous if the Secretary of State did not have power to override the commission. I see the noble Lord, Lord Donaldson of Kingsbridge, an ex-Minister for the Arts in the Chamber, and I am re— minded of many experiences where, because power had been delegated to the Arts Council to do various things relating to spending money on the arts, Ministers came to the Box—I am not saying that the noble Lord, Lord Donaldson, did on any great number of occasions —and virtually excused a misdemeanour or something that had gone wrong on the basis that power had been given to the Arts Council. It was said that it was the Arts Council which had spent the money. Because that was used as an excuse it was not possible in either House to probe Ministers in detail in a way that I think is healthy and good.

I have vivid memories of the early 'fifties, when I was a Member of another place, when questions could not be asked of Ministers about certain nationalised industries, because all the power had been transferred to those industries. So I am saying that it is a dangerous trend to remove the power from Parliament in this way by giving the extra power to the new commission, however well-intentioned it might be to begin with.

I would say to my noble friend at this stage—and there is plenty of time for him to take into account the points that have been made—that if he can find in the legislation a provision for power to be retained by the Minister and Parliament, so that the Minister can be questioned in Parliament in order that any weaknesses may be overcome, I should feel reasonably relaxed about the situation. But if the Minister does not have power to take back from the commission specific matters which he and Parliament might think are being wrongly handled, that would be dangerous and wrong. So if power is reserved to override the commission where circumstances justify it, I should be more relaxed; but if the power does not exist, heed should be taken of the point made by my noble friend and the noble Baroness opposite regarding the clause.

Lord Donaldson of Kingsbridge

This is an interesting and rather intricate point. I think that there should be a difference between delegating function and delegating power. In the case of the Arts Council it was the Government's intention, expressed in an Act, that funds should be handed in bulk to the Arts Council and the distribution of them broken down by the council, keeping the Minister at arm's length from artistic judgment. That is a perfectly sensible arrangement, with which I think most of us would agree.

On the other hand, in this case it seems to me that the Secretary of State is being instructed to delegate a function, and it is an entirely new idea to me that by delegating a function one should be absolved of responsibility for how it is carried out. If the people to whom one delegates a function do not perform it properly, one should have them up and ask, "What's going on? Have you visited these people? The function is that you should".

My view is that the noble Lord, Lord Renton, is placing too much emphasis on this matter, though it is a subtle point and I shall be very interested to hear the Minister's reply. It seems to me that all Ministers delegate functions in this way to their own secretaries and civil servants. I do not think that there should be any difference here, but I shall be interested to hear what is said.

Lord Renton

I hope that the noble Lord will allow me to make the comment that functions include powers in our statute law.

4.46 p.m.

Lord Elton

Well, this has been, and I hope will continue to be, a very interesting debate. Perhaps I should start by saying that we see the commission as being a very important part of the Bill. As many of your Lordships have said, we in this Chamber debate major changes in the law about compulsory detention of mentally disordered people only every 20 years or so. So we are very much aware that, when the opportunity arises, difficult issues are involved, and I am grateful for the sustained and concerned interest that your Lordships have shown in the Bill. I hope that I shall be able to reassure various noble Lords around the Chamber about what actually is within the Bill and what its results will be.

My noble friend Lord Auckland earlier asked what discussion, if any, there had been. I think that he must have looked at the 1978 White Paper and seen that the conclusion it reached was that no such body was needed. Indeed, the decision that such a body was needed was the direct result of consultation. It was the majority opinion of those who commented that such a body was needed, and therefore the Government took that point on board.

The noble Baroness, Lady Robson of Kiddington, suggested that the appropriate body to discharge the functions now intended for the Mental Health Act Commission would be the Health Advisory Service, but that service is concerned only with mental illness hospitals, not with mental handicap hospitals. Representatives of the service visit each hospital only once every five years or so. The development team certainly is concerned with mental handicap hospitals; it has visited most, but not all, of the hospitals so far. But both bodies are concerned with facilities and services, and what we are concerned with here is a different, related but discrete, field of very great importance, as noble Lords have shown by what they have said.

Perhaps I should next turn to what the noble Lord, Lord Renton, has said, and to a disquiet that has been echoed in various parts of the Chamber, and say that I think that the term "delegation" as such does not occur in the Bill, but that in any case the process by which the Secretary of State must give to this body certain of his functions does not relieve him of the responsibility for them. The noble Lord looks surprised, but that is my firm advice. It is certainly not our intention that the Secretary of State should be able to give the kind of answers that Ministers find themselves called to give in reply to questions on the Post Office or any other at-arms-length body, whether or not one calls it a Quango. I hesitate to use the term. This is a health authority under the Act; it is not a Quango. There is no close season for Quangos, but health authorities are still allowed to breed. Therefore, I can reassure the noble Lord on that point.

One of the things he will delegate, I do not doubt, will be, by regulation, the inspection of records. I think the noble Lord was interested in how that would be dealt with. But the duties and powers remain those of the Secretary of State, and therefore, in answer to the noble Lord, Lord Donaldson, I think it was, since they are his own he can override what is proposed or done by the commission; and, indeed, I would expect him to be in consultation with them. It will not only be a question of the department carrying out a review—that is the bureaucratic machinery—but I do not doubt he will actually meet and discuss things with them.

I do not want to detain your Lordships for too long. On the other hand, I wonder whether I have said enough about the commission itself. I am perhaps repeating myself from an earlier stage if I say that we intend it to have about 70 members—lawyers, psychiatrists, nurses, social workers, psychologists and laymen. Some of their work will be as a national body of those most knowledgeable about the law, ethics and professional good practice of treating detained patients. They will publish the code of practice required by Clause 39 and revise it from time to time. I hope they will publish other reports—and I am not now referring to the sort of grand report that your Lordships are on all sides counselling the Government to see that they make of all their functions, but reports on particular aspects of their responsibilities and particular areas where improvements are available; and I hope that they will stimulate discussion about detained patients within different professions as well as more widely than that.

Medical treatments and social attitudes change fairly quickly in this field, and that is why I think noble Lords return again and again to the lapse of two decades or a quarter of a century, which appears to be the interval between legislation on the subject, and question whether we should not review things more often. There is a great need, therefore, for a standing body to keep abreast of developments. I think that if your Lordships come to debate this as an Act we shall draw very much on the experience and views of the commission itself.

It will be a forum for continuing debate, but it will also be a working body. Its members, in small regional teams, will visit hospitals to talk to detained patients, to look at records of their detention and treatment, and ensure that good practice is being followed. The experience of their visits will be fed into the code of practice so that guidance can be given on particular problem areas. In the same way the commission's involvement in giving second opinions under Clause 38, which we have already agreed to, will ensure that the code of practice reflects up to date and relevant experience, and will ensure, too, that it is being followed. All the clauses we have been debating about consent to treatment, the code of practice and the general protection of patients are part of the same watchdog function which will be of very great value to staff and will be vital to the safeguarding of patients' interests. I think this body is essential. I hope I have allayed the fears and suspicions of your Lordships on a number of critical points which I recognise as being central to the functions of the commission, and I hope that your Lordships will now allow this clause to stand part of the Bill.

Lord Renton

I am very sorry to detain your Lordships for just a few seconds longer but I think I must try to clear up one point arising from what my noble friend Lord Elton said when he said that the Secretary of State will always be answerable in Parliament for everything the Mental Health Commission does. I understand that that is what he is saying. It is described in Clause 42(1) as "a special health authority" under the 1977 Act. Its status constitutionally therefore appears to be the same as that of a regional health authority; and, if my recollection is accurate, Ministers have not always been prepared to answer questions about everything that regional health authorities do. They will answer some general questions, but they will say in relation to other questions, "This is a matter for the regional health authority". Therefore, I must ask the noble Lord, with the aid of the draftsman, to look at this again so as to make quite sure, and so that he can assure your Lordships when this comes back at Report stage, that there is no question of the Minister being able to pass the buck to anybody else.

Lord Elton

I have said what I believe the position to be, and the position I believe to be is the position I wish to be in. If the noble Lord has discovered a defect which means that in fact we are in a different position, I will certainly look at it to see whether his fears are well grounded, and if they are well grounded then of course I will have to consider the matter again. But I hope I have given to the Committee the necessary assurance as to what is the intention of the legislation.

If I could detain your Lordships for one moment more, my noble friend also raised the question about legislation by reference. I will not repeat what is said in the notes on clauses, which the noble Lord has already seen, but I will certainly look at that matter to see whether some form of clarification would be suitable.

Clause 42 agreed to.

Clause 43 [Replacement of mental welfare officers by approved social workers]:

4.56 p.m.

Lord Wallace of Coslany moved Amendment No. 102: Page 31, line 2, after ("as") insert ("qualified").

The noble Lord said: If it is for the convenience of the Committee, with this amendment I should like to deal with Amendments Nos. 103, 104, 105, 106, 108 and 130 to 142, which are consequential amendments. I am sure that has put your Lordships in a good humour; at least, I hope it has. This series of amendments, I must frankly admit, was originally the brainchild of the noble Baroness, Lady Macleod, who was very concerned about the issue.

The Bill's proposals for the approved social worker are welcome, and I have seen the draft guidelines sent out for consultation. These amendments in fact line up with the draft consultation document. Of course, it is not finally approved; but the main point is that there must be a degree of qualification involved. As I said, the Bill's proposals for the proposed social worker are welcome although they are less far-reaching than those in the 1978 White Paper. The vital importance of competent social work care, advice and support for mentally ill people is underlined by the extra responsibilities this legislation will place on social workers, particularly in relation to the work of the Mental Health Act Commission—amended powers of guardianship, greater access by patients to mental health review tribunals, et cetera

Groups including the British Association of Social Workers and MIND have often cited evidence of social workers ill-equipped by mental health training, experience or specialist skill being warranted as mental welfare officers to discharge powers including compulsory admission under the 1959 Mental Health Act. The extent to which social workers have generally fulfilled their intended functions as independent advocates under this Act is highly questionable. One of the problems for social workers operating responsibilities under the 1959 Act has been that the extent of their powers and responsibilities are ill-defined, and therefore open to varying interpretation. The social worker's task in working with a mentally ill person and their family is invariably demanding, and requires a complex range of skills.

The British Association of Social Workers summarises the task as follows: (a) to investigate the patient's social situation and to identify in consultation with others involved the extent to which social and environmental pressures have contributed to his observed behaviour; (b) to use his professional skills to help resolve any social relationship or environmental difficulties which have contributed to the crisis and to mobilise community resources appropriately; (c) to be familiar with the legal requirements and to ensure that they are complied with; (d) to form his or her own opinion following an interview with the patient, with those closest to him and with others involved, as to whether compulsory admission is necessary and, having regard to any alternative methods of resolving the crisis, of securing the necessary care and treatment; and finally, to ensure that the care and treatment is offered in the least restrictive conditions possible.

It is obvious that these difficulties place considerable responsibilities on the individual worker to exercise expertise and judgment. This, in turn, demands preparation, comprehensive education and training. It is therefore hoped that the advice given to the Secretary of State on the preparation and training of approved social workers will reflect this. The insertion of the further amendment that the approved social worker should also be a qualified social worker is intended as a further safeguard on the level of training, competence and experience of approved social workers.

It is inconceivable that nurses or doctors without the appropriate professional qualification should be engaged in the treatment of mentally ill people. So, too, if the social work function is to assume that of professional equality, it should be unthinkable that functions under the amended Act should be discharged by untrained staff. At present social workers who operate the Mental Health Act are often not sufficiently conscious of the extraordinary powers it gives them, powers which have no parallel in law and which potentially can deprive the mentally ill person of virtually all safeguards available to those who are not disordered. IT he or she is to be effective, it is vital that he or she possesses the necessary level of training and skill. Without this, the social workers will assert their independent, professional assessment in the face of possibly conflicting views from doctors and nurses involved in the patient's care.

When I saw the Bill I was very concerned about the use of the word "approved", as were many other people. I feel that in view of the responsibilities that will be placed on the workers involved there should be adequate training—which, I admit, is outlined to some extent in the draft guidelines which the Minister had the courtesy to send me and with which I do not necessarily disagree. But by putting "qualified" into the Bill we are making certain that there will be some pressure brought to bear to make sure that people are completely and absolutely qualified to do the job. I know that one local authority association has nearly "hit the ceiling" because apparently it wants more money. That is the County Councils Association. I would not regard the County Councils Association as a very progressive body—and there may be arguments about that—but other authorities are only too pleased, as I understand are the AMA, fully to support this amendment.

I know that I have spoken for quite a while on this amendment, which to many people would appear to be quite a small one; but it is not; it is a very important amendment. I hope that the Committee will support it and that the Government will accept it. It does not involve anything very serious as far as alteration of the Bill is concerned. It concerns the insertion of one word, "qualified", which is important; and which, incidentally, raises the status of those people who will be qualified in due course under the Bill. I beg to move.

5.5 p.m.

Lord Wells-Pestell

I think that those of us who are concerned about the value of the contribution which professional social workers make in our society today —and particularly in the setting that we are discussing this afternoon—will realise that it is of supreme importance that lay people who are asked to undertake the responsibilities in this particular field of dealing with mental health must themselves be competent and qualified. On reflection, I think that perhaps the amendments standing in the names of my noble friends and myself do not go far enough. I think that I prefer the amendments of the noble Baroness, Lady Faithfull, except that I think that I would want them spelled out a little more carefully and with greater determination.

Clause 43, as it stands, is not, in itself, adequate to meet the situation as many of us see it. It is the replacement of mental welfare workers by approved social workers. The word "approved" means little or nothing. Every social worker is approved by his or her local authority; otherwise he or she would not be there as a social worker. Many of us perhaps think that it implies qualified or trained. But it means nothing more than "approved" and it means that the local authority can give approval to any social worker within its employ.

I raised these matters at Second Reading and I asked the noble Lord, Lord Elton, a number of questions. I want to take this opportunity of saying that on 17th December I put down a Question for Written Answer and that, within a matter of five days, I got a very long, detailed and very helpful reply from him. I think perhaps it was the most informative Written Answer that I have ever received. I thank him for it because he went a long way towards getting me to see what was behind the Bill.

Having said that, I want to point out that in the Bill the functions of the social worker are two-fold. One is to seek hospital treatment for a person that needs it; the other is to interview that person. Nowhere in Clause 43 does the word "training" appear. In the noble Lord's letter to me, he said (referring to the two specific responsibilities of the present mental health worker and the person who will become in two years' time the approved social worker) that there is no legal requirement at all when it comes to their particular function involving training. If we look at subsection (3) of Clause 43 we find it says: In approving a person for appointment as an approved social worker a local social services authority shall have regard to such matters as the Secretary of State may direct". As far as I know, the Secretary of State has not said that he will direct that training shall be provided for these people. I have seen the draft guidelines for approval of social workers under the proposed Mental Health (Amendment) Act and the working party draft for consultation which was produced apparently last December. Under paragraph 17 it says: The Mental Health (Amendment) Bill, Clause 43, provides that for a period of two years, following the passing of the Act, mental welfare officers may continue to carry out their functions under the Mental Health Act 1959. During these two years, social services authorities must make arrangements for the training and formal approval of a sufficient number of social workers". That does not appear at all in the Act as I see it. It says that the local authorities shall have regard to anything that the Secretary of State says with regard to training but it is not going to be obligatory on them.

May I repeat that in case the noble Lord did not hear me. They shall have regard; but, as I understand it, having had regard for it, it is not obligatory on them to do it. What we must have is an assurance that the Secretary of State is coming forward with a scheme of training which has been approved by people who are in a position to advise him. The onus, according to the guidelines, is going to be on the local authority social services department to provide training—as I see it and understand it—within their own local authority.

We cannot have a large number of local authorities going off on frolics of their own, arranging training courses which they think arc going to meet the situation. This has to be done by some central body equipped to do this kind of work. I want to ask the noble Lord the Minister whether he will give an assurance that it is the intention of the Home Secretary after careful consideration and consultation with people who are in a position to advise him to produce an approved scheme, and that that approved scheme will be binding on all local authorities.

It is not sufficient to say they shall have regard to this. It means nothing at all. Having done so, they need not accept the advice that has been given. I have not had an opportunity of discussing this with my noble friends on the Opposition Front Bench but it may be that this whole question of training ought to go in a separate clause after Clause 43. I am very much taken with the suggested clause which is going to be moved by the noble Baroness, Lady Faithful!. Perhaps we can get what we want into that so that it is all-embracing and comprehensive. The assurance I want is that there will be a training course and that that training course will be binding upon the local authority.

Baroness Macleod of Borve

I am grateful to the noble Lord. It was when I read Lord Wallace's Second Reading speech that I thought that this was absolutely vital, although I had given it some thought myself. The word "approved" is the one that sticks I am afraid, because although one can have, "approved by somebody" or "approved for something", we are not told that it is necessarily approved for this particular purpose. Indeed, as I understand it, the social services, as constituted now, do not have special departments which are staffed by people approved, qualified or trained for any particular part of the social services. This might well work but personally I do not think it works for this particularly very difficult area in psychiatric medicine.

I am in a dilemma this evening because, having read very carefully Amendment No. 109A, I feel this will meet all our difficulties if that is accepted by the Government. I should like to know whether paragraph (h) of the amendment, which says, to be trained at an approved mental health training centre would give a certificate of training. Perhaps that answers the question which has been recently put. It seems to me that, unless one has a certificate of training, that would make the trainee work as an approved person and that would cover all the ground that some of us are worried about, as certainly I am. For the ordinary, new, 21-year-old people who are in the social services, without the guidance of anybody more senior, there could be terrible difficulties. As I see it, this Bill is putting far more on the social services than has been the case before. It is vitally important that those people who have this responsibility should be trained and qualified.

Baroness Faithfull

I wonder whether it will be helpful to the Committee if I speak on Amendment No. 109A. It is bound up so much with the amendment moved by the noble Lord, Lord Wallace, and the statements made by the noble Lord, Lord Wells-Pestell, and my noble friend Lady Macleod of Borve.

In speaking to Amendment No. 109A, may I ask the Minister four questions for clarification? Regarding "qualified", a qualified social worker means a certificate from the Central Council for the Education and Training of Social Workers. That is a certificate covering two years of general social work. It is not in particular social work training for mental health. My first question therefore is: are there enough qualified social workers in the country in the local authorities' social services departments to be hived off from the social services departments to train particularly as approved social workers under the Mental Health Act? There are some local authorities which would say that they do not have enough qualified social workers—that is with two years of training—to train further as approved social workers under the Mental Health Act. That is very much tied up with the amendments of the noble Lord, Lord Wallace.

My second question refers to age. Surely in the draft guidelines for the approval of social workers which has been issued by the Minister's department there is nothing about age. I believe that not only should approved social workers under the Mental Health Act be qualified social workers; they should also be of a certain age. I have been called out on many occasions on section cases and in my own department it always worried me when young people were called out at night to section cases. It is not fair on the social worker; it is not fair on the patient, and I dare to suggest that it is not fair on the doctor. Therefore, I ask my noble friend whether his department have given consideration to what age the approved social workers should be.

My third point is on the question of training. The guidelines—and we are grateful to my noble friend the Minister for letting us have them—have outlined the possible guidelines for training. As I understand it, this is in-service training—that is, people train within the departments in which they work. I do not agree with this for two reasons. First, I had to see me last week two psychiatrists whom I greatly admire and respect. What they said to me was, "I never use a social worker unless I absolutely must". I am sure those two psychiatrists should be people who would be lecturing to and training social workers, but if there are various psychiatrists throughout the country who do not want to use social workers, how are they, with integrity and honesty, to train social workers? I think that this is a point to be borne in mind.

I must say that I have some sympathy with the psychiatrists because if they have been working with untrained social workers perhaps they have lost confidence in the profession. That is a pity, because—I have a vested interest in this and I am a social worker—the social work profession has a lot to offer. Therefore, I would ask the Minister whether he is happy that this should be an in-service training course. Surely it would be wise, I think in phase 3, to suggest that the social workers attend a course at an approved mental health training centre. I think I am right in saying—the noble Lord, Lord Hunt, will be able to help me on this—that there are five of them in the country. There is one at the Maudsley, and then there are the Universities of Birmingham, Manchester and Leeds. I think there is one at Bristol University, although I am not sure, and I am not sure either about Cardiff.

However, if the approved social workers, on top of their general social work training, are to be well trained and have confidence in themselves—confidence to work in partnership with the doctors—they should go on an approved course for at any rate part of the two years, to give them an overall look at the mental health services throughout the country. If they have an in-service training in only one area—the area where they work—they are not going to get a broad view. I should also say that, geographically speaking, in-service training in a very widespread county is not easy when the mental hospital is a long way away. Therefore, I would ask the Minister whether he would not consider sending for part of the time qualified social workers to mental health training centres.

However, I then fall into a terrible difficulty because my next question concerns cost. If there is only to be in-service training, are the local authorities to bear the full cost? If so, how are they going to afford to pay for it when they are in great difficulties at the moment from the point of view of local authority expenditure? If, on the other hand, they are going to go to centres who also will pay the cost—and this is a very vital factor and one which must be considered—will the cost be borne jointly by the health service and the social services? If so, the health services, I suspect the noble Baroness, Lady Robson, will say, will not like that either. So where is the money to come from?

I fully support the noble Lord, Lord Wells-Pestell, in that it is of absolutely vital importance that the social workers doing this work are generally qualified social workers with in addition the extra two-year training; but I am still worried about how this is to be done and the methods by which it is to be done. I will not read out the amendment because the noble Lord, Lord Wallace, and I both had the same duties of social workers except, of course, that in paragraph (h) I did say: to be trained at approved mental health training centres". I would just say that I wrote to the Central Council for the Education and Training of Social Workers for literature on social work training, which they have sent and which is now in the Printed Paper Office. I cannot at this point move Amendment No. 109A but I have spoken to it, and I should be very grateful to have the answers to the questions I have asked of my noble friend the Minister.

Lord Mottistone

I am in something of a difficulty and I should very much like some advice. As I saw it, my amendment No. 107 was a separate issue—certainly regarding the points I wanted to make—from the issues dealt with by the noble Lord, Lord Wallace of Coslany, in his great series of amendments. I understand fully why my noble friend Lady Faithfull, in what I thought was a remarkably well-informed contribution, naturally moved from Lord Wallace's subject right across into mine. What I should like to know from my noble friend the Minister is whether, in the interests of the Committee, he would advise me now to say what I have to say or whether he would like me to hold back until he has dealt with the series of amendments moved by the noble Lord, Lord Wallace.

Lord Elton

I can give only tenuous guidance. It seems to me the issue is a different one but of course it is possible to bring any issue into any speech in this Chamber, and the issues are contiguous. I do not know what the noble Lord has in plan, but probably it would be more helpful if he could take his amendment separately and, if he feels it has not gone in the way he expected when I have replied, perhaps he would then leap to his feet—because there is nothing in our Standing Orders which prevents him from doing that.

Lord Mottistone

I thank my noble friend and I will wait until my turn comes to move my amendment.

Lord Wells-Pestell

Before the noble Lord replies, I wonder whether I might add one more thing. This is not my own thinking but it happens to come from the thinking of the noble Baroness, Lady Faithfull. I am reminded of a conversation which she and I had a week or so ago. Going back to this whole question of training, if it is going to be done within the framework of the local authority, then many local authorities will not be within 100 miles of a mental hospital. I cannot see how training can be done unless the trainees have some insight into what goes on at the hospital. When the noble Baroness mentioned it to me, it seemed to me to be of supreme importance, in the sense that it makes local training virtually impossible in some areas.

Baroness Macleod of Borve

Is it not a fact that all our vast psychiatric hospitals have catchment areas, which usually include about seven boroughs, certainly within the London groupings? Surely that would make it possible for the seven boroughs to send any representatives to the big hospitals within the catchment area?

Lord Wells-Pestell

I do not think that would apply to places like the Isle of Wight. I do not think there is a mental hospital on the Isle of Wight.

Lord Mottistone

Yes, indeed there is.

Lord Elton

I will do my best to bring the disparate parts of this very interesting discussion to some sort of conclusion. There is actually a greater degree of common ground between us than perhaps some noble Lords may realise. We are all agreed that the functions of the social workers to whom we refer are of very great importance to the community and especially to those people who may be detained as a result of their work. I think we are also at one in wishing social workers to be held in the highest esteem and to be enabled to earn the highest esteem that is possible. So let us, first, try to do a little definition. I apologise if I do not take these points in the order in which they arose. I am taking them either in the order which logic seems to determine, or as chance has ordered my papers. I attempt to follow the former criterion, but I feel it is often the latter which supervenes.

I was asked what we mean by the term "approved". It bears exactly the meaning given to it in the Bill. The point is that an "approved social worker" is described in Clause 43. Subsection (2) reads: A local social services authority shall appoint a sufficient number of approved social workers for the purpose and so on. Subsection (3) reads: In approving a person for appointment as an approved social worker a local social services authority shall have regard to such matters as the Secretary of State may direct". Your Lordships will realise from that that the Secretary of State will make directions and will expect them to be followed. They will not be cast iron and some noble Lords have suggested that they should be. In our view, there should be a reasonable degree of flexibility and, where an authority departs from what the Secretary of State has directed, it will then have to fustify that departure to the Secretary of State. Otherwise, it will not be seen to be having a proper regard to what he directs.

I am glad that noble Lords have had an opportunity to consider the draft guidelines, in which I have taken a fairly close personal interest, and a good deal of this debate has hinged on their contents. The question of qualification is central to most of the debates that we have had so far this afternoon, as to whether a social worker who is to be approved and who, because of the operation of the Bill, must have gone through the process of training, about which we wrote the guidelines, should, first, as a preliminary requirement to embarking on the course, have to be qualified; and my noble friend Lady Faithfull has explained that the qualification is a CCETSW qualification, following a two-year generic training.

I think we are not very far apart because, first, in answer to my noble friend, 70 per cent. of social workers are now qualified and, therefore, I think there is a sufficient reserve. But, secondly, the intention of not requiring a social worker to be qualified before he embarks on this course is not to widen the net because there is a shortage of people, and because we need to have substandard or unsuitable people in order to fill the establishment.

The reason is quite the reverse. If we required this qualification, we should almost certainly be excluding a small number of the most valuable people, by whom I mean those people who have worked for many years in this field, who have a wealth of relevant experience and who have not taken the two-year qualification. We must consider in each case whether or not such a person ought to take the course, but there will be people whose enormously valuable experience and prestige would be lost to the service, if we said in black and white in the Bill that qualification was a necessary preliminary to taking the course.

The next point that comes to my mind arises from the critique of the guidelines themselves, which were issued in December. I hope that I managed to send copies to all those of your Lordships who had then shown an interest in this issue. If there are others who have not received them, I apologise and I shall be happy to supply them. I should say that what we propose is a fairly comprehensive system of training which falls into six separate phases; I think that in a training college it would be called a modular programme. The authority itself will determine which modules or which phases the experience or previous training—because a trained social worker can, and will, take this course—renders superfluous.

The first is a month's placement in a residential or day-care setting, catering for mentally ill people exclusively. The second, in the same phase, is another month in an adult training centre, hospital or hostel for mentally handicapped people. The second phase is one of supervised practical work placement of at least three months in a multi-disciplinary setting, such as a psychiatric hospital or a mental health centre where there is an established social work department and, also, a formally organised teaching programme. That covers only the first two phases. I shall not go into further details unless any noble Lord wants to press me, because I do not want to waste your Lordships' time if you do not want the details.

However, I am absolutely seized of the importance of some kind of cohesion in this programme, and of not having completely separate bodies of practice established in isolated areas of the country. In considering the comments on the guidelines, we shall be very much aware of the points that noble Lords have made about centres of excellence—and I could mention others than those which have been mentioned today—and of ways in which it is beneficial for trainees, however senior, to come together and to exchange experience, as well as to share training.

My noble friend Lady Faithfull raised the question of age. I am always a little suspicious of the inflexible. What we are really concerned with is maturity of judgment. But if, on reflection, it appears that some age bar might be appropriate, I would not throw that out of the window at this stage. I do not want to give a commitment, but it is something that I should like to reflect upon. As to the amount of this training which should be in-service, what I have said has indicated that there may be occasions when trainees should go to somewhere which is further from home than taking courses in the evening would make possible. Indeed, there are already local authorities who send their social workers away for residential training now, and it would be particularly valuable for training in the theory of their work.

As to cost, about which I spoke on Second Reading, we regard it as being the case that specialised training for fewer people—the degree of specialism—will, to some extent, counter-balance the number of people who have to be trained where the work is less specialised. For those local authorities who already provide the kind of training which we envisage—and there are some who are already quite close to it—there will, of course, be no resource implications. But I am aware of the unease and I am grateful to my noble friend for again drawing it to my attention.

The point which I really want to make is that we all want to get the best service that we can. Therefore, we all want social workers to be highly trained. I want to see that the regulations, or the guidelines or the Bill do not exclude from that list of people some of the most distinguished, which I fear would be the accidental effect of the amendment which the noble Lord has put down. I believe that in the light of the comments which we receive on the guidelines, and which are being fairly well received at the moment, we shall see our way to setting up a system where the benefits of shared experience in centres of excellence—universities, teaching hospitals and so on—will be incorporated in a genuinely flexible and, therefore, vigorous and innovative service. I hope that the noble Lord will not press an amendment which would accidentally have the effect of inhibiting at least some of that result.

Lord Wells-Pestell

I do not know whether it is convenient for the noble Lord to look at the guidelines, but Section 21, Phase B, on page 9 begins by saying that social workers should undertake a three-month full-time equivalent period of supervised practice and a formally organised teaching practice. It then goes on to say that there will be two components, one of which will be theory and the other practice in a multidisciplinary setting such as a psychiatric hospital or a mental health hospital. That is fine, but does "social worker" there mean anybody who is a social worker—somebody who may not even be, shall I say, a certificated social worker or a qualified social worker? The noble Lord himself said that there are upwards of 30 per cent. of social workers who have no formal qualifications. Can he identify the use of the term "social worker"?

Lord Elton

I can make absolutely clear our intention. If the noble Lord is questioning the effect either of the guidelines or of the Bill, that is another matter. Our intention is not to draw into this very important field unqualified teenagers. It is to draw into this field qualified people with experience and unqualified people with great experience. This is not a loophole, as I tried to say before, to dilute the service. It is not the water from the bottom of the bottle that we are after. It is the cream at the top that we are after.

There may be other ways of doing it. I sense your Lordships' unease with what is proposed. But I hope I have made it clear that the reason we have not got the word "qualified" in is not because we wish not to exclude those whom your Lordships are referring to, very politely and in other terms, as substandard, or unsuitable to the work, or too young, but—exactly the other end of the spectrum—because we want to be able to include that small number of people who, in the light of their long experience and the high regard in which they are held by the authority (which will be running the scheme, after all), the authority wants to admit.

It is difficult to see how I can be more specific than this, and it is a little difficult to see how one could be as specific as that in legislation. If I am advised that there is a way in which one could be more specific I should be happy to take it. But what I am not happy to do is just to plonk the word "qualified" down wherever it occurs, or to legislate for specific courses of instruction. Perhaps I have been less than courteous to my noble friend in thanking her for the care which she has given to thinking through the implications of her own philosophy and setting out the programme which she feels ought to be in the Bill. I think that legislation is a little like concrete. I do not like to get into detail in legislation because, as noble Lords constantly remind me—and I am now reminding them—the opportunity to legislate does not come very often. What may appear to be very relevant in response to a situation in 1982 may appear to be less than relevant or appropriate for 1987 or 1990. I think that we are in an area—much as we are in in teaching, in which I spent much of my life training teachers— where we want to combine flexibility with common agreement on the level of excellence to be obtained. I do not propose that we should admit people who are junior, unqualified and inexperienced. I do propose that we should admit people who are senior and experienced but unqualified.

Lord Wallace of Coslany

I thank all noble Lords who have taken part in the debate and I thank the Minister, too, for his explanation of his aims and objectives—at least, the department's aims and objectives. On this point concerning the small number of experienced people, I think he spoke about people with 20 years' experience. Or was it the noble Baroness, Lady Faithfull? There are people who are qualified by experience, if I can put it that way. That is acceptable and I see not the slightest reason why these people should not be taken care of. They can be taken as qualified by experience, and that would be the end of that. It is the other people whom I have in mind.

I must refer to the proposed new clause of the noble Baroness. I still feel quite worried that the Government want approved workers, not qualified workers. I want this point to be emphasised, because of the importance of the work that these people will be doing. I do not see why, after consideration, some of the things which are worrying me should not be lined up with the new clause which the noble Baroness has in mind, unless the Government accept it, though in view of what the Minister has said it would surprise me if they did. We could line up a possible amendment at Report which would be quite acceptable, at least to us if not to the Minister.

The noble Baroness referred to workers of a certain age. That made my mind boggle. I thought of mature, middle-aged ladies with the grandmotherly approach. I would not cut out young people. Last night I listened to "Down your Way". Two young people, a girl and a fellow, are curators at Greenwich Naval Museum. And when I was in Lisbon about 12 months ago I met the curator of the Gulbenkian Museum. I thought she was just a little office worker, but this was a completely qualified young girl. So do not rule out young people. I think that "ladies of a certain age" should be deleted. It is a somewhat embarrassing phrase. I make this suggestion, quite a proper one, to the noble Baroness and ask her to think about it. I am still very worried about the Government's proposals concerning approved workers, but I shall not press the amendment in the hope that the noble Baroness, Lady Faithfull, will come a little way towards me and that we can provide a happy union so far as the amendment is concerned. I beg leave to withdraw it at this stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 103 to 106 not moved.]

5.48 p.m.

Lord Mottistone moved Amendment No. 107: Page 31, line 11, leave out from ("to") to end of line and insert— ("the training, qualification and experience needed for the discharge of the functions conferred by the principal Act upon such a person.").

The noble Lord said: My amendment is not relevant to the qualification point which my noble friend the Minister knows about. This is a probing amendment and relates to the point which my noble friend Lady Faithfull raised about the cost of these proposals to local authorities. We are not objecting in principle to Clause 43, but we are wondering whether the Government have taken fully into account the costs that will be involved. To me it is significant that in the explanatory and financial memorandum to the Bill there is no mention on page vi of the costs of Clause 43. Under the heading "Financial effects of the Bill", clause 43 must be a cost to the local authority. It was sort of suggested that perhaps the health authority might shoulder some of the load. I would not expect that to happen. But one of the reasons why cost is a problem is because of the tight time-scale. I can well see the reason for the tight time-scale which is written into subsection (1) of two years from the day that the Act is passed. There is no question of it being two years after the Minister says so; it is two years after the Act is passed. So there may be situations in which local authorities will have to rush their training—nobody debates that there will need to be training—in order to meet the requirements of this Act quickly, when, in practical terms, experience has shown this to be rather more than is really necessary. One has to get these things into balance. I should have thought that, if there is no give on Clause 43(1), then we want to have rather more reassurance from my noble friend that the possible cost to local authorities of this requirement have been properly gone into and properly discussed with the department concerned, the Department of the Environment, and the Ministers. At this stage I should like my noble friend to comment on those points and I will then return to another detail that I wish to raise.

Lord Sandys

I appreciate the concern behind the amendment proposed by my noble friend Lord Mottistone to make sure that local authorities retain the freedom to make their own judgments about what arrangements need to be made. From the discussion on earlier amendments, it will be clear to the Committee that we attach great importance to the development of additional training for social workers who carry out duties under the Act. That is why we have made it a requirement that local authorities should have regard to such matters as my right honourable friend the Secretary of State may direct on this subject. We have in mind here the draft guidance about approval and training for approval, on which, as I have said, we are currently consulting the local authorities and relevant professional bodies. I feel sure that the local authorities will welcome the guidelines, because their use will ensure that all social workers undertaking duties under the Act have received adequate specialised training and are experienced in dealing with mental disorder.

I should here stress to my noble friend that we are talking about guidelines, not about rules. They are intended as an outline only, within which individual authorities will be able to work out the local details of their training programmes. But we cannot leave this entirely to local discretion. The duties of mental welfare officers—to be replaced by approved social workers—are too important for Government to be able to stand aside altogether. I know that mental welfare officers presently carry out their duties most carefully and conscientiously, but there is concern that in some cases they lack the training necessary for this specialised work, as the debate has shown. It is to meet this difficulty that we have introduced the concept of the approved social worker. It will have real meaning only if all local authorities up and down the country apply similar standards in approving their social workers.

My noble friend Lord Mottistone raised specifically the resource implications. My noble friend Lord Elton explained the matter of resources at some length in a written reply of 22nd December to a Parliamentary Question from the noble Lord, Lord Wells-Pestell, to which he has kindly referred earlier in terms of gratification. My noble friend Lord Mottistone may find it helpful to refer to that point, if I may so suggest it. It was stressed there that a main feature of the introduction of approval would be to concentrate specialized training among the small number of social workers who are needed to undertake duties under the Act, and so make it possible to reduce the number receiving this training. This will mean that the cost of providing better training on the lines suggested in the proposed guidance will be offset by a reduction in the numbers to be trained. I must make it clear that the majority of local authorities already provide some form of training scheme, and the better schemes are very similar to the proposed guidance. Thus I think we can say that most authorities are not being asked to embark on a new venture that is not budgeted for.

My noble friend Lord Mottistone referred to discussions with the DOE. I know that my noble friend is concerned whether the Department of the Environment has been consulted about proposals for approved social workers. The department has certainly been informed and I can confirm that to him. However, as I have already said, the resource implications of approval are not expected to be significant. On the other hand, the advantages of being assured that all social workers undertaking duties under the Act have been thoroughly trained are considerable. I feel sure that the Committee would agree that this assurance is not something we should forsake. We have had a useful discussion on the amendment and I hope that the explanation I have given may help my noble friend Lord Mottistone to withdraw the amendment.

Lord Mottistone

I am deeply grateful to my noble friend for his very full answer. I thought for one awful moment that he was not going to answer the question that I particularly asked him, but he did. He also answered the question that I was going to ask him next. I am reassured, in particular, that he emphasised the point that the background to this training programme will be in the form of guidelines rather than rigid instruction. Of course any training programme must have a degree of similarity as between one part of the country and another, but the greater the degree to which local authorities do not feel they are being told by central Government precisely how to do things, the better. With that reassurance, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 108 not moved.]

5.57 p.m.

Lord Wallace of Coslany moved Amendment No. 109:

Page 31, line 17, at end insert— ("(5) No application for the admission of a patient to a hospital may be made by a mental welfare officer whose principal place of employment is at that hospital.").

The noble Lord said: I admit that this is a very contentious amendment. Compulsory admission under the Mental Health Act 1959 is founded on a system of safeguards and assessment by professionals who must be independent and unbiased. Thus, two medical recommendations should be independent of each other, and the application of the social worker or nearest relative must in fact be independent of the medical practitioners. The clear rationale behind the Act for involving several different professions is to ensure that each professional forms a judgment without influence or persuasion by others. This is a funda mental principle necessary to safeguard the rights and liberties of prospective patients. There is no question but that Parliament took this view in 1959.

Section 28(3) of the Act specifies that both medical reports cannot emanate from the same receiving hospital. When the 1959 Act was written, hospital-based social workers were appointed by hospitals and were separate from the local authority, which was empowered to appoint mental welfare officers—MWOs —and it was the local authority social worker who was independent of the receiving hospital which was authorised to make an application for compulsory admission. Questions about the independence of social workers therefore did not arise and there was no need to incorporate a provision in the Act to maintain the independence of the MWO. However, some postSeebohm local authority social workers are in a different position. They are at one and the same time local authority social workers and attached to a hospital. If such hospital social workers were authorised to sign applications for compulsory admission, they would be expected to divorce themselves from the therapeutic team at the hospital and become independent protectors of patients' rights. This presents a clear conflict of interest for the social worker and violates every concept of independence and natural justice.

It is important to bear in mind that a hospital based social worker is a member of the clinical team at the hospital, which is led by a consultant; this consultant would be a patient's responsible medical officer and would already have provided some of the recommendations for his compulsory admission. In these circumstances, it would be difficult for some social workers to resist the opinion of the team leader, although, let us face it, no doubt some would do so in proper circumstances. Further, it must be observed that the social worker is sometimes a relatively junior member of the clinical team, which further undermines his or her independence. That, basically, is why this amendment has been put down. We have already discussed the responsibilities of the new approved social workers, and we feel that, when opinions and decisions have to be taken, if they are not part of the hospital team they are in a better position to assert their rights and responsibilities as such. I beg to move.

Baroness Faithfull

In view of the fact that the noble Lord, Lord Wallace of Coslany, was so generous to me over Amendment No. 109A, I am sorry not to be generous to him over this amendment. I believe, if I may say so, that we have all read exactly what he said in a pamphlet which I think he has received from a certain organisation. Those of us who have dealt with cases like this know that very often you can give a better service, first, if you know the hospital, secondly, if you know the staff, and, thirdly, if you know the patient. If you have a relationship with the patient you can very often do things with that patient that, according to this pamphlet, he would not like.

I must tell your Lordships that I was called out at about three in the morning to sanction a boy who absolutely refused to go into mental hospital, and there was a great deal of difficulty. I had known that boy for 10 years. It could be said that I should have tried to prevent him going into a mental hospital. The only reason why he would not go into mental hospital was that he wanted to know who was going to look after his dog, which was called Buster. Because I knew that he had a dog called Buster, and because I knew that it was the only thing in the world he loved, I said to him, "I will look after Buster"—which was a great sacrifice, I might say—"if you will go into mental hospital". He said, "I will go into mental hospital". If that had been somebody who did not know the boy and the background and this extraordinary dog called Buster, that would have prevented him from going into mental hospital.

If one is a good social worker and a wise social worker, and if one has a sense of the rightness of the case, I would suggest that one is not going to be swayed one way or the other whether one knows the case or does not. But I would suggest that it is good casework to have established a relationship and to know the background of a case. Therefore, with the utmost regret, I would not support this amendment.

Lord Elton

I feel it is hardly necessary for me to speak after that splendidly apposite and well-informed intervention by my noble friend. Of course we do recognise that there is great concern that the mental welfare officer should exercise his judgment independently in making applications for admission under the Act, and, what is more, should be seen to do so. There may be cases where social workers based in a hospital and undertaking mental welfare officer duties find it difficult to act independently in making application to that hospital, and that may well arise most often where the doctor with whom the social worker is working has made one of the medical recommendations. But it is our view that this sort of case should be a matter for good practice rather than legislation, largely for the reasons which my noble friend has just given. I should like to add another dimension, which is that some social workers—indeed, I think an increasing number now—do divide their work between area teams and the hospital, and they may well be for that reason more familiar with the case than they otherwise would be and more familiar than anybody else is.

Following the transfer of social workers employed by health service bodies to local authority social service departments in 1974, guidance was issued on the matter to directors of social services. It stated that it should be made clear to each hospital social worker who is appointed as a mental welfare officer that if in any case he feels that he cannot act or be seen to act independently he should get advice from his superior officer as to whether another person should act in his stead. We are not aware that any problems have arisen. Indeed, some social workers based in hospitals may be particularly suited to do this work by virtue of their background and knowledge and experience, provided the safeguards I have referred to are observed. Guidance is currently being prepared for the use of health and local authorities in the form of a code of practice on admission procedures, and it is intended that this guidance shall draw attention to this important matter. I do think that guidance is the appropriate place for this concern, and not legislation.

Lord Wallace of Coslany

When the noble Baroness dealt with me in the earlier stages I felt like a naughty little boy put in the corner by the headmistress for misbehaving. However, I do thank her for what she has said because it obviously came from her great experience. I am glad she looked after Buster, the little dog. I would thank the Minister for what he has said, and will think about this. I agree it is very contentious.

Lord Elton

Before the noble Lord withdraws the amendment, I think I should say what a magnificent example that was that my noble friend gave, and it does show that social workers are thoroughly human, thoroughly wise, thoroughly sensible, and also prepared to take on a great deal more than statute or guidelines or anything else demands. Who would take on Buster as a result of a statute? I congratulate my noble friend.

Lord Wallace of Coslany

I agree. It hit me for six right in the heart. I do not think I need prolong this any further. I will beg leave to withdraw the amendment, and will, of course, consider it further.

Amendment, by leave, withdrawn.

Clause 43 agreed to.

Baroness Faithfull moved Amendment No. 109A: After Clause 43, insert the following new clause:

("Role of approved social worker.

The role of the approved social worker of a social services department is—

1. (a) to make application for admission or guardianship where required;
2. (b) to investigate the patient's social situation and to identify in consultations with others involved, the extent to which social and environmental pressures have contributed to his observed behaviour, and to interview the patient;
3. (c) to use his professional skills to help resolve any social, relationship or environmental difficulties which have contributed to the crisis, and to mobilise community resources appropriately;
4. (d) to he familiar with legal requirements and to ensure that they are complied with;
5. (e) to form his own opinions, following an interview with the patient, with those closest to him, and with others involved, as to whether compulsory admission is necessary having regard to any alternative methods of resolving the crisis, and of securing necessary care or treatment;
6. (f) to ensure that care and treatment is offered in the least restrictive conditions possible;
7. (g) to work in partnership with the medical profession; and
8. (h) to be trained at an approved Mental Health Training Centre.").

The noble Baroness said: I am in some difficulty over this amendment. I am very grateful to the noble Lord, Lord Wallace of Coslany, for what he said about this amendment. Looking at it, I think we have in fact discussed it in every clause, but nevertheless I wonder whether I may move the amendment in order to ask my noble friend the Minister whether there is anything he would wish to say on this amendment that he has not already said. I beg to move.

Lord Cullen of Ashbourne

Rather to the surprise of your Lordships, I, and not my noble friend, will be speaking on this amendment. I am afraid we do not agree with the noble Baroness's approach to this subject, and, although we do appreciate how important it is that the role of the approved social worker should be made clear, we do not think it undesirable that it should be done in the way suggested.

The main functions of mental welfare officers or approved social workers, as the Bill proposes they will be called, are set out in Section 54 of the 1959 Act, as amended by Clause 16 of the Bill. Some of the functions listed in the amendment are thus already covered—for example, the duty to make applications where this is considered necessary, and the duty to interview the patient before making an application for hospital admission. Clause 16 also makes it clear that, as part of these functions, the approved social worker must do anything necessary to make sure that detention in hospital is the most appropriate course and this encompasses functions (e) and (f) on the list.

The remaining matters refer to good professional practice and I feel sure that my noble friend would agree with me that it is not appropriate for this to be the subject of legislation. As to points (d) and (h), these are covered in the draft guidelines on approval to which I have already referred and which I know the noble Baroness has received. As I am sure your Lordships will know, the main disadvantage of including a list like this in legislation is that, however carefully drafted, it is never comprehensive and this leads to uncertainty when the omissions are discovered.

However, I am grateful to my noble friend for having given us the benefit of her views on the arrangement of training. Draft guidance about this has been issued for consultation with local authorities and other relevant bodies, as your noble Lordships know. We shall be taking into account at the same time as these consultations, what my noble friend has said with all her knowledge on the subject.

Lord Renton

Although I am sure that all of your Lordships will agree with my noble friend on what should be the role of the approved social worker, the question is: what should be the role of legislation! I think that we have to be rather careful not gratuitously to go into too much detail, because let me remind your Lordships—I hope that I do not appear to pontificate—that the main function of legislation is to create rights and to create remedies. If we are merely going to use it as a descriptive vehicle for the various roles of various occupations—even those in the public service—then legislation may be exceeding its proper function.

Baroness Faithfull

I am most grateful to the noble Lord, Lord Renton. I think that perhaps I ought to come clean to your Lordship's Committee and say that I set this down as a probing amendment in order to be able to talk about the training of social workers. That was forestalled, of course, by the amendments of the noble Lord, Lord Wallace of Coslany, and we discussed the matter then. I take the point that it is a descriptive role. At the same time I take the point of the noble Lord, Lord Wallace, that we should discuss this matter further. Therefore, at this stage I beg leave to withdraw the amendment, but I shall reintroduce it at the Report stage.

Amendment, by leave, withdrawn.

Clauses 44 to 46 agreed to.

Clause 47 [Orders and regulations.]:

6.13 p.m.

Lord Kilmarnock moved Amendment No. 109B: Page 32, line 18, after ("35(4)") insert ("or 42").

The noble Lord said: The object of this amendment to Clause 47 will be immediately apparent to all Members of your Lordships' Committee who have followed at all closely the progress of the Bill. It is to oblige the Secretary of State to bring any orders concerning the composition or powers or duties of the Mental Health Act Commission under Clause 42 before Parliament for scrutiny and approval by both Houses of Parliament. At present Clause 47(3) provides that the Secretary of State shall not make an order under Clause 35(4) unless a draft of it has been approved by resolution of each House of Parliament. Clause 35(4) does, indeed, cover an important matter. It empowers the Secretary of State, by order, to vary the length of the periods mentioned in subsection (2) of that clause which concern the automatic referrals to a tribunal after three years and, in the case of patients under the age of 16, after one year. That is an important matter and the Secretary of State is required, if he wants to change that, to bring a draft before Parliament. I submit that my amendment to oblige him to follow the same procedure for orders under Clause 42 is even more important.

Perhaps I should apologise for reverting to Clause 42 on which we have already had a fairly lengthy debate. But I am afraid that I was not entirely happy with all that I heard and so I want to go back to Clause 42. I listened with great care to the arguments which were put forward in support of Amendments Nos. 99, 101, 101A and 101B which were really concerned with something slightly different namely, the accountability of the commission, which is certainly a very important matter, and various noble Lords seemed to think that a report, whether an annual report or triennial report would be appropriate. However, I think that that does not go quite far enough.

At the very outset of the passage of this Bill through this House—that is to say its Second Reading—expressions of concern were voiced about the vagueness of the commission's powers, duties, composition and methods of work. There have been further expressions of concern this afternoon in your Lordships' Committee. The Bill is positively laconic about the Mental Health Act Commission—which, after all, is almost the keystone of the architecture of the Bill; I think that the noble Lord, Lord Sandys, used the word "silent".

Some of us—the general public obviously not—have had the benefit of the notes which the noble Lord, Lord Elton, very kindly sent to some of us. and which I have read with great care, particularly on Clause 42. But even the explanation given there of the Government's intentions do not extirely allay my fears; indeed, to some extent they increase them. The commission will have some very wide-ranging powers and responsibilities. It will provide the second opinion under Clause 38 allowing the giving of treatment to detained patients if they do not, or are unable to, consent. It will appoint medical practitioners for the purpose of preparing a code of practice under Clause 39—that is to say, covering treatments of special concern—and it will decide which treatments should be covered by that code of practice. It is also to be noted that it may appoint medical practitioners from among its own members for all these purposes, which casts some doubts upon the Government's claim that such doctors will be independent.

On the question of the composition of the Mental Health Act Commission, the Bill is totally silent and there is not even a schedule covering this matter. However, the notes suggest that there should be a total of 70 members split up into five regional panels and it would appear that the Government envisage regional panels consisting of two lawyers; two nurses; two psychologists; two social workers; two laymen; and four psychiatrists. That makes 14 in all for each regional panel with a very heavy professional preponderance. That is all set out in the notes, but the Bill itself says nothing about it.

We also learnt from the notes on Clause 42(1) that the commission will be governed by the relevant provisions of the National Health Service Act 1977 and in particular by Part III of Schedule 5 to that Act. This, the notes say, avoids the necessity of taking separate powers in the Bill to make provision about membership. But I would respectfully suggest that this particular health authority is not quite the same, and is in not quite the same league or category, as those provided for in the National Health Service Act. There is surely one great difference; it deals with men's minds rather than their bodies and its powers directly affect the liberty of the subject in a way that no regional health authority's do. In fact, I think that the noble Lord, Lord Elton, himself referred to the deprivation of liberty—I think that was his phrase.

I am not for a moment suggesting that the commission's members, when appointed, will not be conscientious, indeed, dedicated and devoted people; I rather think that they will have to be. But we must always bear in mind that when we put something on the statute book it may remain there for a very long time and that in due course other people may succeed us who have rather different ideas on freedom.

Lord Mottistone

Is the noble Lord not taking advantage of our procedures to have the debate on Clause 42 stand part all over again, all by himself? Is it entirely in accordance with the sort of feeling of how things should be taken in a Committee stage of this House and does the Committee agree with this? —because we have already been over the ground completely.

Lord Kilmarnock

In fact, while we were talking about Clause 42 I asked the noble Lord, Lord Elton, whether I should make my remarks at that time, and I think he gave me guidance to the effect that it would be better if I reserved them until later.

Lord Elton

My guidance to the noble Lord was that any remarks he had about this amendment would be appropriate to the debate about this amendment. This amendment is not about the composition of the Mental Health Act Commission, and I thought that he was going to talk about that when we were discussing it. He is talking about two alternative parliamentary procedures for overseeing subordinate legislation, which brings those provisions into effect. Had I known that he was going to talk about how the commission was to be composed—and many noble Lords who have strong views on this and have expressed them and might have wished to return to the charge, have now left the Chamber with no means of knowing that we were going to return to this ground—I would have given him different advice, but he did not tell me.

Lord Kilmarnock

I am sorry about that. With due respect to the noble Lord, Lord Mottistone, my remarks arise from my concern about the very considerable powers of the commission and also the point—which, with due respect, I do not think was made when we were talking about Clause 42—that this particular health authority will be rather a different sort of health authority from those which are specified in the National Health Service Act 1977. As I said a minute or so ago, the authority will have control over men's minds rather than over their bodies. I consider that to be a matter of very great concern.

It is principally on that ground and also because of the lack of detail that we have in the Bill concerning the commission, that I wish to insert—and still wish to insert—in Clause 47 a requirement on the Secretary of State to bring orders under Clause 42—that is why I am talking about Clause 42; after all, my amendment refers back to Clause 42 as well—before Parliament in the same way as he is required to do so for certain actions under Clause 35(4). I consider that, in fact, this is a more important matter which requires greater scrutiny by Parliament than that matter which he is required at the present moment to bring before Parliament.

I am sorry to have detained your Lordships and I apologise to the noble Lord for perhaps our slight misunderstanding earlier, but that is the background to this amendment. I hope that I have demonstrated to your Lordships the desirability of specifying in the Bill that the Secretary of State should—nay, must—bring before Parliament his proposals in relation to this potentially very powerful body. I beg to move.

Lord Elton

Perhaps I may reply to that rather briefly because I have already delineated the grounds of my reply. I should like to say, first, that the reason the clause which the noble Lord wants to bring into the embrace of this procedure is omitted while Clause 35(4) is included is that under Clause 35(4) the Secretary of State has the power to take a right away from a patient or to reduce it; whereas under Clause 42 the intention is that he shall take steps to defend the rights of a patient or increase them.

It seems to me that that is perfectly proper. If the noble Lord has strong feelings—he may not be alone in this—that this sort of matter should be debated when it arises, it is perfectly within his power to pray against the order. The Bill simply says that Clause 35(4) shall be under the affirmative procedure; it does not mention the clause which the noble Lord has at heart—that therefore goes on the negative procedure. But there is no earthly reason why the noble Lord should not precipitate a debate, and I am sure that he is sufficiently interested that on the one occasion when this comes before Parliament he will be there to wave a red flag.

Lord Kilmarnock

I am grateful to the noble Lord I fully understand that the intention behind the commission is that it should be the watchdog of the detained patient. I believe that that is the phrase that is used in the Government's notes. My concern is whether at some future time Secretaries of State—perhaps yet unborn—and certainly commissioners as yet unappointed may choose to view their duties in a slightly different light. That is why I wish to make it incumbent upon the Secretary of State to bring orders under Clause 42 before Parliament. However, I certainly do not intend to press this amendment at this stage. I wanted to get some idea of the Government's feelings on the matter. I shall consider with great care what the noble Lord has said and I may well return to the matter at the Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elton moved Amendment No. 110: Page 32, line 18, after ("above") insert ("paragraph 3(3) of Schedule (Discharge of restricted patients) to this Act.").

The noble Lord said: This amendment is consequential to the changes in regard to restricted patients which we discussed under Clause 26. Its effect is to provide that an order varying the period since the last tribunal, after which the Secretary of State will be required to refer the case of a restricted patient to a further tribunal, shall be subject to affirmative Resolution by both Houses of Parliament. It is somewhat familiar in the light of what we have just been discussing. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 47, as amended, shall stand part of the Bill?

Lord Renton

I should like to raise a very short point. I should like to refer to the fact that under subsection (I) it says: Any power of the Secretary of State to make orders or regulations under this Act shall be exercisable by statutory instrument". If we turn back to Clause 42(2)(b) we find: the functions of the Secretary of State under section 41 above shall be performed by the commission under a direction from the Secretary of State, and included among those functions is, under Clause 41(3) a power to make regulations.

Therefore, this is a regulation-making power of the Secretary of State which he will be obliged to get the commission to perform on his behalf. Will such regulations be subject to the provisions of, first, subsection (1) and, secondly, subsection (2) of Clause 47? I think that we ought to know this. I would merely add that the fact that the point arises at all increases one's sense of confusion about Clause 42(2)(b).

Lord Elton

What I say in reply to this question will be tinged with speculation because it is a highly technical question. As I read Clause 47(2), it says: Any statutory instrument containing reulations made under this Act shall be subject to annulment in pursuance of a regolution of either House of Parliament". I do not see that any particular statutory instrument is excluded from the action of that subsection. I do not think that I can elaborate on that. If there is a point of substance, I shall come to the noble Lord before the Report stage. It sounds as though there will be an opportunity to talk about Clause 42 at least at the next stage, and perhaps I shall be able to cast rather more light on that then than I can now.

Clause 47, as amended, agreed to.

Clause 48 agreed to.

Clause 49 [Interpretation and supplementary provisions]:

Lord Elton moved Amendment No. 111:

Page 32, line 41, at end insert— ("(b) section 122 (allocations to tribunals);").

The noble Lord said: This is a further amendment consequential upon the new scheme for restricted patients which we discussed under Clause 26. Its effect is purely technical, providing that application to a mental health review tribunal may not be made otherwise than as provided for in this Act. I beg to move.

On Question, amendment agreed to.

Clause 49, as amended, agreed to.

Clause 50 [Commencement and transitional provisions]:

6.31 p.m.

Lord Elton moved Amendment No. 112: Page 33, line 13, after ("day") insert ("(not being earlier than the said 30th September)").

The noble Lord said: As I indicated on Second Reading, Clauses 27 to 29 of the Bill will have to be brought into effect after the other provisions of the Bill. The present intention is that this should happen, if necessary by stages, over the two or three years after the Bill has been passed. There is certainly no prospect, I fear, of bringing them into effect sooner than the rest of the Bill. Accordingly, the Bill is, in its present form, unnecessarily complicated, in so far as it provides for the possibility of their being brought into effect prior to the other provisions of the Bill. This amendment simplifies the Bill by excluding reference to the possibility of prior implementation. I beg to move.

On Question, amendment agreed to.

Lord Elton: moved Amendment No. 113: Page 33, line 17, leave out subsection (3).

The noble Lord said: I think that these two amendments stand together. I apologise to the Committee, but I have got slightly confused.

The two amendments together have the effect that I have just described. I apologise for the hesitation in committing myself to that, but I was not certain that it was the case.

On Question, amendment agreed to.

On Question, Whether Clause 50, as amended, shall stand part of the Bill?

Lord Mottistone

There is just one small point about Clause 50. Clause 50(1) reads: Subject to the provisions of this section, this Act shall come into force on 30th September 1983". May I ask my noble friend whether that is therefore the deadline date for the two years mentioned in Clause 43(1), or whether that is two years from the date when the Act is passed? Is there a difference? It would be nice to know just what that is. If my noble friend cannot answer me now, perhaps he will let me know.

Lord Elton

The answer is, no. It is two years from the date when the Bill is passed.

Clause 50, as amended, agreed to.

Clause 51 agreed to.

Lord Elton moved Amendment No. 114: Before Schedule 1, insert the following new Schedule: