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

HL Deb 25 February 1982 vol 427 cc1041-106

5.3 p.m.

Further considered on Report.

Clause 39 [Consent to treatment]:

The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Elton)moved Amendment No. 36: Page 27, line 32, leave out subsection (1).

The noble Lord said: My Lords, with your Lordships' agreement I shall, in moving this Amendment, No. 36, speak to Amendments Nos. 38 and 56 as well. I think there may be a little difficulty over Amendment No. 37, if I have the numbering right, but if there is not then I shall be speaking to that as well.

I have put down a number of amendments to Clause 39. To help your Lordships follow the overall effect of the separate amendments I wrote to the noble Lord, Lord Winstanley, with a copy of Clause 39 as it will look if all the Government amendments are accepted, and sent copies to all those who had spoken in previous debates on this Bill. I hope that most of your Lordships have seen it and have found it helpful. I shall, however, be explaining the purpose of individual amendments as appropriate, as several distinct issues are involved.

The first amendment I have to move is to leave out subsection (1). I do not wish to mislead your Lordships, and those noble Lords who have read the Marshalled List will not be misled, because the substance of subsection (1) is to be reinserted by a later amendment, No. 56. This is not a change in our policy, or in the legal effect of the clause. What we are concerned to do in response to the amendment moved by the noble Lord, Lord Hooson, in Committee is to begin the clause on a positive rather than a negative note. The opening words of a clause have a great impact, especially on lay readers, who find it hard, as do I, to hold a complex mass of legal drafting in their heads all at one time.

Clause 39 begins, in the latest draft of the Bill: Subject to the provisions of this section, the consent of a patient detained under the principal Act or this Act shall not be required for any medical treatment…".

If Amendments Nos. 38 and 40 arc also accepted, the opening words will now be: Subject to subsection (7) below, a patient detained under the principal Act or this Act shall not be given any form of treatment to which this subsection applies unless … he has consented …".

What I have just read is not the whole story. The clause as amended will still give explicit authority for the treatment of patients without their consent in certain circumstances. I believe that it is right that it should do so. The Committee divided on that issue, and the result was clear. I am trying in these amendments to improve the drafting of Clause 39 as well as clarifying the current position about consent to treatment, but I am not moving away from the principles which underly the clause. We all want to start from the basis that treatment should be given with consent wherever this is possible. If a patient can be treated with his consent rather than without it, I am sure that every one of us, and every psychiatrist, would wish that to be so. But if patients are detained for treatment the law should ensure that in certain circumstances and with certain safeguards they should receive the treatment that they need even if they have not consented to it.

The alternative is, after all, to convert our hospitals into prisons filled with a steadily deteriorating population. The re-wording of the clause thus puts emphasis right at the beginning on treatment with consent rather than without it.

The noble Lord, Lord Kilmarnock, has tabled an amendment, No. 37, to subsection (1) which also seems to turn the clause round so that it begins with a positive requirement for the patient's consent. I am afraid that this is not a satisfactory way of proceeding. The noble Lord's amendment would require the patient's consent, subject to certain exceptions for treatments specified in the clause. Let us have no misunderstanding: it would have the same legal effect so far as drugs, electro-convulsive therapy and surgery are concerned as the Bill as printed.

But the amendment would leave a question mark over forms of treatment not mentioned in the clause. General medical and nursing care and occupational therapy are examples of such forms of treatment. Is consent required for these? The clause as amended by the noble Lord, Lord Kilmarnock, would not give a clear answer to that question. We must avoid ambiguity. That is why we found it necessary to draft our amendments in the way we did. I believe it is worthwhile turning the clause around in the way that I propose, so that we put the emphasis of the Bill on treatment with consent wherever possible and without consent only where it is necessary. For that reason, I beg to move.

The Deputy Speaker (Lord Derwent)

My Lords, I must point out to the House that if this amendment is agreed to I shall not be able to call Amendment No. 37.

Lord Winstanley

My Lords, I rise merely to thank the noble Lord, Lord Elton, for what he has done. Of course, he indicated at the earlier stage that he might very well take this course and reverse the wording of the amendment so that the emphasis was essentially on consent rather than lack of it. Having done that, I think it is a major improvement to the Bill. I think it possible that we might hope for certain other improvements; but at the outset, for myself personally and, I am sure, my noble friends who have been concerned in this matter and who were responsible for the drafting of our earlier amendments, which I think perhaps sparked off this move from the Government, it would be right if I said a word of thanks to the noble Lord for having taken this step, which I believe has resulted in a genuine improvement to the Bill and will also make its intention much clearer, I think, to others.

5.10 p.m.

Lord Kilmarnock

My Lords, I would agree with the noble Lord, Lord Winstanley, that what the Government have done has made an improvement to the Bill. They have removed the offending subsection (1) with its chilling statement of principle that consent shall not be required—a dangerous principle to introduce in legislation, despite the qualifying safeguards. But it is worth pointing out that this is largely cosmetic because the same principle is reintroduced at a later stage in the clause. I think it would have been better to restate the positive principle that consent shall be required save in certain emergencies, which my amendment would have done. It was not my intention to exclude normal nursing care and things like that; but that cannot be remedied at this stage, as I am not able to move that amendment.

In effect, the Government have conflated subsection (1) and (2) and have laid down that the patient shall not be given any form of treatment to which this clause applies unless—and then they go on to state the safeguards. The noble Lord's Amendment No. 40 makes my Amendment No. 42 unnecessary. It achieves the same purpose. This is an improvement on the Government's original drafting. But it should not blind the House to the continuing defects of the Government approach to this clause. Despite some rewriting of the old subsection (2)(a) and (2)(b) they will seek to reintroduce (by Amendment No. 43) the possibility of treating a non-consenting patient who has the capacity for consent and who has withheld it. Thus, in certain cases, the wishes of patients competent to consent will be overridden.

Furthermore, the decision on a patient's competence to consent—and, if he is not so competent, the decision to apply treatment without consent—is left in the hands of the medical profession. We object to this principle very strongly and the noble Lord, Lord Winstanley, will later move an amendment introducing a multi-disciplinary second opinion which, 1 hope your Lordships will agree, will deserve strong support. My first amendment has been cut from under my feet, but I think it is important that the House should understand the issues involved.

Lord Renton

My Lords, my noble friend Lord Elton when moving his amendment and those that go with it, I thought, understated the advantages of what he has done. He put it forward to your Lordships as a mere drafting improvement but I think that it goes further. I welcome particularly the omission of subsection (1) of Clause 39 which started the process off on the wrong foot and said that consent shall not be required for treatment as the foundation of what was to follow.

Now, we have the much stronger position (that, in practice, is likely to be the more favourable position from the point of view of the patient) that the patient shall not be given treatment unless he has consented or a medical practitioner appointed in the way proposed has certified in writing that the patient is not capable of understanding the nature and the purpose of the treatment. To my mind that is a substantial alteration and a great improvement. The series of amendments still leaves untouched some of the points raised by the noble Lord, Lord Hooson, in Committee but we must acknowledge that we have the advantage, such as it is, of a second opinion from another psychiatrist; and that the independent doctor, where his opinion is required, will be appointed by the Mental Health Act Commission and answerable to it for the way in which he does what he is required to do. I gladly welcome and support what he has done. It leaves undone one or two points which we shall be considering and on which one would wish to keep a fresh mind.

Baroness Faithfull

My Lords, I agree with the noble Lord, Lord Elton, and with this amendment.

Lord Elton

My Lords, I need do little more than welcome the response that noble Lords have given to this amendment.

On Question, amendment agreed to.

[Amendment No. 37 not moved.]

Lord Elton moved Amendment No. 38: Page 27, line 37, leave out ("as aforesaid") and insert ("under the principal Act or this Act").

The noble Lord said: My Lords, this is a simple consequential amendment to ensure that subsection (2) makes sense now that subsection (1) has been removed to another place. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, I call Amendment No. 39 and point out that if this amendment is agreed to I will not be able to call Amendments Nos. 40 to 44.

Lord Winstanley had given notice of his intention to move Amendment No. 39:

Page 27, line 40, leave out paragraphs (a) and (b) and insert— ("(a) a Mental Health panel, after hearing the responsible medical officer and the patient, has certified in writing that the patient understands the nature, purpose and likely effects of the treatment and consents to it; and (b) the psychiatrist member of the panel has certified in writing that, in his opinion, the treatment should be given in the patient's own best interests.").

The noble Lord said: My Lords, I rise in some embarrassment to make an apology to noble Lords who have been inconvenienced by the fact that this amendment, as on the Marshalled List, is defective. It is not the amendment which left my desk and travelled to the Public Bill Office. What happened to it I do not know. Noble Lords who have had the task of studying the Marshalled List (and the noble Lord, Lord Elton, and others have had that task) will have noticed that the wording of Amendment No. 39 is a reproduction of that of Amendment No. 47. In fact, the two amendments should be totally different one from the other. Thus, there is a defective amendment on the Marshalled List which it would be unwise and foolish to proceed with. With the permission of the House, I propose not to move amendment No. 39.

[Amendment No. 39 not moved.]

Lord Elton moved Amendment No. 40: Page 27, line 40, after ("(a)") insert ("he has consented to that treatment and").

The noble Lord said: I was about to say that there is a biblical quotation which I wish I could recollect more accurately and which went something like, "What an ennobling thing it is to see a good man struggling with adversity". I think the House has been ennobled by the experience of the last few moments. I sympathise with the noble Lord.

This amendment will make it clear that the patient's consent to treatment is required at first hand rather than second hand. Clause 39(2)(a) provides at present for the responsible medical officer, or an independent doctor, to certify that the patient has given a valid consent. That provision is to be retained—with an amendment which I shall be coming to in a moment—but in addition there will be an explicit requirement that the patient himself should consent. The patient's consent is what we are talking about, and this amendment avoids any possibility of misunderstanding. I have it in mind that the regulations to be made under Clause 39(5) will provide for a consent certificate on which there will be a space for the patient's signature or other identifying mark.

I am indebted to Lord Hooson for this improvement to the clause—it formed part of his Amendment No. 79 in Committee, and I said in that debate that I would take it on board. The noble Lord, Lord Kilmarnock, has tabled a later amendment—No. 42—which seems to me to have just the same effect as this Government amendment. Our amendment however has the advantage that the patient's consent is the first requirement to strike the eye. I hope that the noble Lord, Lord Kilmarnock, will be content with that, and I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 41: Page 27, line 43, leave out from ("of") to ("and") in line 44 and insert ("understanding its nature, purpose and likely effects").

The noble Lord said: My Lords, we speak loosely about a patient giving "informed consent" to treatment, or "valid consent". Clearly, it is not enough that a patient has been heard to say "yes"—we need to be sure he knows and understands what it is that he has agreed to. Clause 39(2)(a), as drafted, asks the responsible medical officer to certify that the patient is, capable of consenting to a form of treatment and has consented to it". One of the amendments in the name of the noble Lord, Lord Hooson, and his noble friends and allies—if I may so call them—in Committee used a more helpful phrase, capable of understanding the nature, purpose and likely effects of a form of treatment". I said in debate in Committee that I would adopt the phrase, and this amendment does so. I again extend my thanks to the noble Lord for his suggestion. It will now be much clearer what is meant by "valid consent" or "informed consent". I beg to move.

On Question, amendment agreed to.

[Amendment No. 42 not moved.]

The Deputy Speaker

My Lords, Amendment No. 43. If this amendment is agreed to I shall not be able to call Amendment No. 44.

Lord Elton moved Amendment No. 43: Page 28, line 3, leave out from ("of") to ("be") in line 5 and insert ("understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should").

The noble Lord said: My Lords, the first part of this amendment is very like Amendment No. 41; it makes it clear what is meant by "capable of consenting". The amendment will also clarify what the independent doctor should consider in deciding whether treatment should be given to a non-consenting patient. The noble Lord, Lord Hooson, proposed something similar in Committee, and I promised then that I would consider what I could do to meet his point. The phrase the noble Lord, Lord Hooson, proposed was in the patient's own best interest".

With all deference to the noble Lord, I should like to be more specific than that.

My amendment proposes that the independent doctor should consider whether the treatment is likely to alleviate or prevent a deterioration in the patient's condition. That really is the question. Is the treatment going to do the patient any good? Your Lordships will recognise the phrase in my amendment as the "treatability" test which appears in Clauses 4, 12 and 35 of the Bill as one of the conditions for continued detention. It seems to me to be sensible to use a form of words which already appears in the Bill if it expresses what we want to say—as I believe it does. That will prevent doubts in the future about the reasons your Lordships may have had for choosing different phrases in different places. I beg to move.

Lord Kilmarnock

My Lords, although I shall not be able to move the following amendment, I wish to enter here a note of disagreement with the noble Lord. He certainly has improved the wording in so far as, understanding its nature, purpose and likely effects of that treatment", goes, but he has re-introduced the phrase or has not consented". The paragraph continues: but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given". That I would have thought would seem certainly to some extent to defeat the purpose of paragraph (a) above in which the Government provides that consent from patients who have the capacity to give consent should be required. I have considerable disquiet about this.

On Question, amendment agreed to.

[Amendments Nos. 44 to 46 not moved.]

The Deputy Speaker

My Lords, Amendment No. 47. I must point out to the House that if this amendment is agreed to, I shall not be able to call Amendments Nos. 48, 49 or 50.

5.25 p.m.

Lord Winstanley moved Amendment No. 47:

Page 28, line 12, leave out subsection (4) and insert— ("(4) Subsection (2) above does not apply to any form of treatment which is irreversible or hazardous or is not established or which is specified for the purposes of this subsection by regulations made by the Secretary of State; and no such treatment shall be given to any patient unless—

1. (a) a Mental Health panel, after hearing the responsible medical officer and the patient, has certified in writing that the patient understands the nature, purpose and likely effects of the treatment and consents to it; and
2. (b) the psychiatrist member of the panel has certified in writing that, in his opinion, the treatment should be given in the patient's own best interests.").

The noble Lord said: My Lords, I beg to move this amendment standing in my name and that of the noble Lords, Lord Hooson and Lord Kilmarnock. With this amendment we come to a very crucial and a very controversial part of the Bill, a part about which this House ought to do something before the measure goes much further. This amendment deals with forms of treatment which have been variously described. The Government in one place described them as treatments of special concern. In other places they have sometimes been described as irreversible forms of treatment or experimental and speculative forms of treatment, such as psycho-surgery in the form of pre-frontal leucotomy or amygdalotomy and other procedures of that kind, irreversible procedures sometimes carried out for the benefit of patients suffering from severe mental illness. It also embraces such matters as hormonal implants which could have irreversible effects and sometimes damaging effects.

I might have liked to have included also in the earlier amendment which I did not move the use of aversive stimuli as a means of modifying behaviour. I did not move that amendment advisedly because I wished to retain your Lordships' attention while on the general principle involved rather than on detailed matters. If we become involved in going through a shopping list of which were the particular treatments of special concern we might stray from the real issue which was to decide our attitude towards these special forms of treatment.

There are some noble Lords in this House, and other people elsewhere, who might have suggested that these matters of treatments of special concern ought also to include matters such as electro-convulsive therapy. I do not personally take that view. I think that there was a time when it might have been right to have taken that view. However, nowadays my personal belief is that modified ECT, carried out in the kind of way in which it is now carried out and with the kind of exposure and dosage, I do not believe now falls into this category.

Were we to revert to what was done with ECT in its earlier speculative and experimental days, then matters might have been different. For the moment—and I am glad to see the noble Lord, Lord Richardson, nodding approval—medical opinion would be that we should not now, regard this list of special treatments as irreversible and because they are potentially irreversible and therefore warranting very special consideration. I do not myself think at this stage that it would have been proper to move ECT. I do not think it would have been very useful for noble Lords at the moment to spend time going through the actual list. I would much rather that we concentrate on the principles at issue.

Regarding these forms of treatment, for very good reason the Government have taken the view that these are forms of treatment which should not in any circumstances be given to patients in the absence of consent. That is now the Government's view and it is a correct view. If we look back at what has happened with some of these forms of treatment, there are many cases which show, if we go back over the records, that your Lordships' House is right to be concerned about these matters.

I have suggested that in some of these forms of treatment there is undoubtedly an experimental element. For example, a group of psychiatrists in the early 1970s carried out a comparative trial of certain alternative types of hormonal drugs in varying doses in a volunteer group of sex offenders at Broadmoor. The purpose was to test the efficacy of these drugs in reducing sexual desire and potency, but the use of the particular drugs on this occasion caused several of the patients' breasts to grow, caused patients to complain of dizziness, headaches, and hot flushes. Subsequently several of the patients had to undergo mastectomies to remove enlarged breasts. As a result, three of those patients not only complained but sought to take legal action against the hospital, though that was later abandoned. I mention that to show that some procedures can have fairly major effects—sometimes effects which are virtually irreversible.

We have other cases about which perhaps I might remind your Lordships. Particularly we have to draw attention to the fact that the most important question of all is: who should determine whether a patient can and does consent to these extreme forms of treatment? I have already said the Government acknowledge that these forms of treatment should not be applied without the consent of the patient. I think that is right. But here we come to the crucial matter of who should decide whether or not a patient suffering from a mental illness and whose behaviour may in some ways be irrational has genuinely consented to one of these forms of treatment.

When psychiatrists have decided that issue for themselves, sometimes subsequent doubts have arisen. For example, there is evidence that in 1974 pre-frontal leucotomies were performed on four young women detained in Rampton. Of those four, two subsequently committed suicide and there is considerable doubt as to whether those four patients had the intellectual capacity to give an informed consent to that treatment. If we turn again to the Broadmoor controlled trial of hormonal drugs on sex offenders, some of the patients subsequently cast doubt on whether their continuing consent was free of pressure. In both the Broadmoor and Rampton cases, psychiatrists were left to determine and certify the consent of the patients themselves. Clause 4 at present would leave that question of consent to the second psychiatrist. We believe that past experience justifies our belief that there should be some independent element, quite apart from the consultants and doctors, brought in to decide whether or not consent has been truly and properly given.

On the general question of consent, which is extremely important, I would have preferred that we should have gone straight to the recommendations of the Butler Committee. Your Lordships will recall that the Butler Committee included three very distinguished psychiatrists, and they said this: where a patient's conduct does not prevent him from appreciating what is involved we do not think it justifiable to impose treatment without his consent". We have not gone as far as that, as the noble Lord has said. We may discuss it later, but at least the Government have gone this far in relation to these forms of treatment—treatment which could have irreversible and damaging effects. Indeed, from my own personal experience I would say that in some cases, quite apart from the ones I have previously quoted, there have been occasional damaging effects.

However, having said that, it is right to remind the House that it would be entirely wrong to prohibit altogether these forms of treatment. I have myself had experience of pre-frontal leucotomies having been carried out with immense benefit to the patients in the end. A patient who has been distressed, disturbed and unable to lead any kind of normal life has sometimes, as a result of one of these operations, been turned into a different person—at least into a person who is able to lead a reasonably contented life, sometimes out in the community and occasionally profitably engaged in employment. So I do not want to suggest for a moment that I regard all these forms of treatment as things from which we should turn away altogether. However, I do say, as the Government say, that these forms of treatment should be carried out only with the clear consent of the patient.

I know that consultants involved in these procedures almost invariably try to proceed in that manner. I know very few consultants who would wish to embark on these forms of treatment without the clear and unequivocal consent of the patient. There is overwhelming evidence that that is what they seek, but the difficulty is that, in the case of an irrational patient, who may be mentally disturbed in other ways and have certain delusions in certain aspects of his thought or may even be hallucinated in certain areas, that patient may or may not be capable of giving an informed consent. I am entirely content that the consideration as to whether a certain form of treatment is in fact correct to be applied in a particular case is something which should be left wholly to the consultants concerned. But on the matter of whether or not a patient is in a state of mind in which he is capable of either giving or withholding consent, this is where my noble friends and I believe some independent element should be introduced.

At an earlier stage we endeavoured to introduce such an independent element by giving this responsibility to the mental health review tribunals. We felt those tribunals were, up to a point, multi-disciplinary and that the decision would not be a wholly medical one but that an independent element would be brought in. The noble Lord, Lord Elton, and others during the debate advanced arguments which perhaps showed that the mental health review tribunals were not entirely satisfactory bodies to carry out that particular function. Now we have had another go. I think I should have said earlier in speaking to Amendment No. 47 that I think it will be for the convenience of your Lordships to speak also to Amendment No. 59. That amendment goes further than our proposals in Amendment No. 47.

We seek here to introduce an independent element. The Government's long-stop so far as this very difficult matter is concerned, as to whether a patient has consented or is capable of consenting, is left at the moment to the consultant in charge of the case, plus the opinion of an additional independent consultant. That is the Government's present proposal. I have discussed it with consultants in various parts of the country. Some believe it is not sufficient and that even in their present practice at the moment they go further. One consultant told me he would never perform any of these procedures without getting the opinions of three and sometimes four consultants before going ahead. He felt that two were not enough. I talked to another consultant practising at Winwick Hospital, and he said that not only does he get further opinions before he proceeds with one of these potentially irreversible procedures such as an amygdalotomy or a pre-frontal leucotomy, but he would invariably seek the endorsement of the hospital managers. He would inform them that the patient was in their custody and not in his and that he proposed to carry out this procedure. He believed that the patient was capable of consenting to it and had indeed consented, but he felt he should notify the hospital managers, who are the district health authority.

It is a very difficult position to feel that you must take the great risk of embarking on a procedure which could, in certain circumstances, result in a dramatic improvement in the condition of a deranged patient, but which might also—and this has occasionally happened—turn the patient into a vegetable for all time. That is a very risky matter. The Government rightly say that we should not go ahead with that without the patients' consent. We say that the question whether or not the patients on whom these procedures have previously been carried out have, in fact, consented is equivocal. It is left to the opinion of the doctors to say who is capable of consenting, and has consented, and we do not think that that is quite enough. Here we propose a new body, a small panel set up by the newly established Mental Health Act Commission, which would, in a sense, be multidisciplinary. The panel is described in Amendment No. 59, which is related to this amendment, and which reads: The Mental Health Act Commission shall appoint Mental Health panels for the purpose of carrying out the certification required under subsections (2) and (4) above; the said panels shall consist of three members, of whom at least one, but not more than one, is a psychiatrist by profession, and for the purposes of subsections (2) and (4) above the psychiatrist shall be known as the "psychiatrist member". We have said, quite clearly, that the decision of the psychiatrist should be very important, indeed. But we also believe that there should be some kind of independent element.

It may be argued that there is a resource element here, and that this will be a matter of the newly established Mental Health Act Commission setting up panels which will be sitting constantly to decide these matters. It is my information, and I have been into this matter with some care—I believe that the same information has been given to the noble Lord, Lord Elton—that cases of psycho-surgery carried out on detained patients are very few indeed. The majority of operations of that kind are carried out on voluntary patients, with full consent. We believe that the establishment of a multi-disciplinary panel—and we have been into some detail as to how it should be constructed, and who should he on it—would provide an additional safeguard and, indeed, a very necessary one. But we do not believe that it will be demanding of much in the way of resources, because we think that the number of cases will be very few.

I do not want to go on longer, because I believe that this is a matter about which this House ought to take a decision fairly soon. So I hope that we will take a firm decision. I believe that this is a good Bill. It is a Bill which does a great deal to improve the safeguards for detained patients in our hospitals. It does something to tilt the balance back in the direction of the rights of patients, as the Butler Committee recommended should be done as against the original 1959 Act.

But, if this Bill goes through unamended in so far as these special, irreversible forms of treatment are concerned, then I am as certain as I am that night follows day that, sooner or later, there will be a disaster. There will be a scandal which may bring many admirable people into disrepute. We shall have television programmes and all kinds of publicity about the isolated case of something going tragically wrong, when there is later doubt as to whether the patient had consented to what was done. If there is that kind of an uproar, it will be greatly to the detriment of the standing of our doctors and of the health service itself. I do not want to be in the melancholy position later of being able to say "My Lords, I told you". But, if that happens at the end of the day, then I should like to feel that I myself had not acquiesced in it.

The question of this new panel appointed by the Mental Health Act Commission, which will be multi-disciplinary panel of three members to adjudicate on whether a detained patient is capable of giving consent, and has, in fact, given consent, to the performance of one of these irreversible procedures, is something which we must inevitably press to a Division. If we do not get this mechanism through, then 1 hope that, before we finish with this Bill, the Government will themselves come forward with some alternative. To leave the Bill as it now is, with the only safeguard a second consultant psychiatrist's opinion, will be to weaken what is otherwise a very good Bill, and we shall leave ourselves in the situation where it may ultimately, and quite wrongly, fall into disrepute. My Lords, I beg to move.

Lord Wallace of Coslany

My Lords, we are now in a very controversial field, over which there is considerable public concern. The noble Lord, Lord Winstanley, has gone into great detail, and I do not intend to follow him, because he has covered the scene very ably indeed. But there is one point that I should like to make about the patient's consent. We might consider the nearest relative's consent as well, so that there is a combination of patient and relative. It is vital to assert the principle that it is necessary to obtain the patient's consent to all treatments—and I emphasise" all treatments "—if a patient is considered to be competent. There is no reason why a competent patient should have treatment imposed upon him. Let us also be clear that there is no reason to assume that the assessment of competence should be the exclusive preserve of the medical profession. That is why we support the view that a panel should be involved in investigating the competence of patients. There is no doubt that this amendment is of the greatest importance, and if there is a Division we will give the movers our support.

Lord Richardson

My Lords, I should like to begin by saying how fascinated I was, as a brother professional of the noble Lord, Lord Winstanley, by the account he gave to your Lordships, particularly about the problems of leucotomy, the changes that occur in the treatment situation and the dangers that attach to treatment. He stressed to your Lordships what was the situation 20 or 30 years ago, when patients were subjected to electro-convulsive therapy. The whole situation is now quite different, as he made very clear to your Lordships. I feel that in our considerations we must allow enough room for manoeuvre, in case a treatment, such as a hormone treatment, becomes manifestly less dangerous, or even not at all dangerous, so that we are not too rigid in our definition of special concern. I feel sure that the noble Lord, Lord Winstanley, would agree with that.

I felt great concern during our debate on this subject at Committee stage, and your Lordships took the view which the noble Lord the Minister put forward, which was also mine, that it was essential that the second opinion should be that of the person who is best able to form a highly technical and difficult opinion; namely, the doctor. Your Lordships will remember that you accepted this. We are now in a different position, where the opinion given will have a wider implication than a solely medical one. But certainly the nuances—the hallucinations, the delusions—to which the noble Lord, Lord Winstanley, referred, can be very difficult and they require most expert attention. This the amendment would allow for by having a psychiatrist, presumably of the highest quality.

There is, however, a professional point of view which I feel I must put to your Lordships. I am not, I confess, out of sympathy with the amendment. However, my profession, as I am sure all noble Lords will agree, is one which has a high ethos towards its patients and a certain detachment in the giving of its opinion. Certainly my profession has a very prolonged and on occasions perhaps even an oppressive training which goes towards the achievement of consultant status. Although I agree with the noble Lord, Lord Winstanley, that many psychiatrists would like to have the back-up of wise men of different disciplines, nevertheless the leaders in the profession, as well as the rank and file of those who make up the body of psychiatric consultants, could feel—and I think will feel—much disturbed if this particular judgment, which they feel they are far the best qualified to make, is in a sense not withdrawn but has its full force taken away from them.

Having said that, I feel that there is an enormous difference between the proposal contained in this amendment and the one which was before us previously: namely, that a committee should be concerned with a purely medical decision. This to me is not an entirely medical decision. I do hope, however, that your Lordships will take with some seriousness what I have said about the professional point of view. This is the life of these men. They are profoundly dedicated. Their professional considerations should be seen to be regarded. Nevertheless, I shall support the amendment.

Lord Hooson

My Lords, before I say what I want to say about the amendment, may I thank the noble Lord, Lord Elton, for the very constructive approach he has shown (which underlines, I think, the approach of the House to this problem) in accepting certain wording of mine which I put forward as amendments at the Committee stage. I am grateful to the noble Lord for doing so. It also illustrates the point that we are very anxious to get the Bill right. Having said that, the noble Lord is as aware as I am that he did not begin to accept the basic proposition on this clause which I put forward at Second Reading and which I put forward again at the Committee stage; namely, that the question of who is to decide whether a patient is capable of consenting and whether thereafter treatment should follow should not be left simply to a second medical opinion, because the implications are too great. I agree entirely with the noble Lord, Lord Richardson, that this amendment is certainly markedly different from the amendment which we discussed last time. We did not come to this, and appreciate the point which the noble Lord has made.

When my noble friend Lord Winstanley, and I discussed the matter, I told him that I had said everything I could say on Second Reading and at the Committee stage and that I had failed to persuade your Lordships' House that we should not go down this road. I suggested to him that he might move the amendment on this occasion, being a medical man rather than a lawyer, and that therefore he might have more effect. I believe that my noble friend has had that effect.

This amendment heightens, or puts in its most heightened form, the danger to which I adverted at Second Reading and at the Committee stage of the Bill. This amendment deals with the provision of proper safeguards against the use of such controversial treatments as irreversible psycho-surgery which the Government have described as treatments of special concern. The task of the panel, as proposed in the amendment, would be to ensure that the patient is really capable of consenting, and free from pressure in so doing, and that the treatment is in the patient's best interest.

Relatively speaking—and I am speaking as a non-medical man—psychiatry is still in its infancy. Moreover, the practice of psychiatry seems to me to be prey to certain treatment fashions which promote as panaceas methods which are later discredited and condemned by psychiatrists themselves. The history of psycho-surgery in this country since the war furnishes clear examples. I can only refer your Lordships to my source of information, which is the Journal of Medical Ethics, 1980, volume 6, pages 149 to 154, where one reads that various methods have been carried out which subsequently psychiatrists themselves have condemned.

There is so often, as my noble friend Lord Winstanley said, an experimental clement to the extreme kinds of psychiatric treatment which the whole House would like to be more fully regulated. Some of the treatments have, I think, questionable therapeutic credentials. Some psychiatrists would not regard them as treatment—for example, amygdalomites for the chemical castration of the sex offender. They may indeed be viewed as applications of medical technology for the control of human behaviour. It is argued that, however benevolent the underlying intent, it is not right to regard the administering of such treatments as merely a matter for a psychiatrist's clinical judgment. It is further argued that some involvement of a wider range of professionals—for example, psychologists, non-psychiatric doctors, social workers and perhaps even lawyers—in taking the decision to allow such treatments is therefore highly desirable.

We have not argued that matter in this amendment to the Bill because the most important decision of all, to which we are directing your Lordships' attention, is who should determine whether a patient really can and does consent to such extreme treatments. When psychiatrists have decided this for themselves, doubts have often arisen subsequently. My noble friend Lord Winstanley referred to the cases at both Rampton and Broadmoor. It is our view, I am bound to say, in contrast to the Government, that past experience justifies our insistence that the question of consent should be decided by a three-member panel.

We believe that our proposal to substitute a three- member panel for a second psychiatrist is entirely practicable. It has been criticised before on grounds of both practicability and cost in relation to Section 2 treatments, but these objections do not hold good when it comes to the very infrequent, but extreme, treatments covered by Section 4. There are very few psycho-surgeries performed on detained patients. The same is true of courses of hormonal implant therapy. It is not too much to ask that these few cases should be reviewed by an independent multidisciplinary body to ensure that the community as a whole sets some standards in this highly controversial area.

We regard it as essential that multidisciplinary reviews should take the specific form of reviewing individual cases. Therefore we propose that the three-member panel should consider and vote on the question of whether a patient can consent to treatment, and does so. If the majority agree that he can and does then the psychiatric member should consult his colleagues and try to reach a unanimous decision on the desirability of the treatment. Our proposal respects the clinical judgment of the psychiatric profession while providing certain checks and limitation on its exercise in this highly sensitive and controversial field. I have not tried to repeat the arguments which I advanced on this very important matter at Second Reading and Committee stage. I pointed out to your Lordships then that this is an invasion of privacy and personal rights which have been guaranteed by the law since time immemorial. It is a very important step which your Lordships are taking, if you pass this particular subsection of the Government's Clause 39 in its present form. It would be much wiser, for the reasons advanced by my noble friend Lord Winstanley, to accept this amendment.

Baroness Macleod of Borve

My Lords, what worries me is the composition of this panel. It seems to me that anyone who faces the possibility of undergoing this sort of treatment will, if he is not able to consent himself, be the subject of consent by the panel. The constitution of the panel is therefore vitally important. Obviously a different panel must be constituted for each patient, and it seems to me that a member of the family should be a member of this panel. However, in many cases no member of the family will be available. It seems that we have to consider how many years the patient has been in hospital. If, for instance, he has been in hospital for seven years or more, then he will probably have lost contact with his family and no member of the family will be available. In reaching these decisions, it is important that we should have on the panel people who know the patient best. If a member of the family is not available, then I suggest the nursing staff, about whom we have heard nothing in this debate but who are the people who really know the patient even better, I suggest, than the psychiatrist. But I would have thought that a top medical panel comprising top psychiatrists were the best people to advise on this very difficult subject.

Lord Renton

My Lords, this is a most difficult matter; one of the most difficult to arise on this Bill. As I said earlier, and as others have said, we should be grateful to my noble friend Lord Elton for the improvements he has made with the Government amendments. I must confess that, having thought a great deal about this matter since Committee stage, I was prepared to let it rest, with the Government amendments as they have been made, until I heard the noble Lord, Lord Winstanley, who, speaking from his great medical experience, seemed to lift the veil on things about which most people can know very little indeed; about the drastic treatment in these extremely difficult cases of mental illness. The noble Lord pointed out how easily these things can go wrong.

The Government accept that these things can go wrong in some cases, and the Government's case is that an independent medical practitioner should be brought in by the new Mental Health Act Commission, acting on behalf of the Secretary of State. It seems to me from what has been said that one independent medical practitioner may not be quite enough. But I find myself facing a technical dilemma because we have been told by the noble Lord the Deputy Speaker that if Amendment No. 47 is accepted, Amendments Nos. 48, 49 and 50, which appear to be essential Government amendments, would fall. I do not want to see those amendments fall. Speaking for myself, I would have thought that the best way out of this dilemma is for us to support the Government amendments as they are and to give my noble friend Lord Elton the opportunity of considering this very difficult matter still further in the light of what has been said by the noble Lord, Lord Winstanley, and others who have spoken in this debate.

Lord Hooson

My Lords, surely the noble Lord, Lord Renton, appreciates that the Government Amendments Nos. 48 and 49 simply amend the Government's subsection as it is. The reason why they would not be called is that Amendment No. 47 substitutes the wording of the amendment for the whole subsection. So further amendment would not be required. Surely it is right that the House should pronounce its view on this matter, bearing in mind that the Government can then consider the whole matter before the Bill is discussed in another place.

Lord Renton

My Lords, I am most grateful to the noble Lord and I do not dispute that he may be right, that one's understanding of the technical position that arises is not as clear as it should be. I would have thought it unfortunate for us to reach a decision at this moment; I really do feel that. We could all profit if the Government were given the opportunity of further consultation in the light of what has been said in this debate. Whether these amendments would fall or not, my instinct would be to let the Government's amendments be made but let us invite my noble friend Lord Elton to consider the matter further in the light of what has been said by noble Lords.

Baroness Faithfull

My Lords, like my noble friend Lord Renton, I am very troubled in my mind. The noble Lord, Lord Winstanley, has been so eloquent and put the case so very well that I almost hesitate to disagree—but I ask myself two questions. First, if there is an independent person alongside the doctors to take a decision, will they perhaps feel that it is so irreversible that they would rather decide in the negative than in the affirmative? If they decide in the negative, how many cases do we know would suffer as a result of the patient not having the operation or the treatment? In all his examples, the noble Lord, Lord Winstanley, spoke of cases where treatment has been given which was irreversible and which was a failure. What he has not been able to speak about was where treatment has not been given and should have been given, and would have been a success. This is my terrible dilemma.

I have been very privileged to work alongside psychiatrists and doctors and I have never found them unwilling to listen to other points of view when terrible decisions had to be taken. Therefore, I am also very troubled by the reverse of this amendment. I know that there are other points of view because in the area of child care law, for instance, one has magistrates who are lay people taking opinions from professionals but themselves making the final decision. What worries me is that, however good people may be, they will tend (a) to follow what the psychiatrists say, and (b) to say, "No", if the treatment is irreversible because they dare not say, "Yes". I face a great dilemma because the noble Lord, Lord Winstanley, put a very powerful case, but I take the point made by my noble friend Lord Renton and I, too, hope there is a possibility that this matter can be deferred.

Lord Kilmarnock

My Lords, I personally—I do not know whether I can speak for all my noble friends—am in favour of Lord Hooson's amendment. It seems to me that if the Government later feel that something has been lost on the way which should not have been lost they have an opportunity to bring it back again. We should have the opportunity of deciding on this very important issue in principle this evening.

I was very struck by the speech of the noble Lord, Lord Richardson, who spoke in very convincing terms of the ethos of his profession. I thought it particularly remarkable that after some qualifications he finally came down on the side of the professionals sharing this very difficult decision with what I think he referred to as a committee of wise men; I think that indeed shows the path of wisdom, that even the most highly qualified professional in the world is not always necessarily 100 per cent. in possession of the truth, but would welcome the support of the wise men proposed in Lord Winstanley's panel.

My final point is that this is better than the solution advanced at Committee stage, for the second opinion to go to the tribunal, which could then have found itself both judge and advocate, in some cases, in the same cause. The mechanism proposed by the noble Lord, Lord Winstanley, has the advantage of using the watchdog the Government have set up, the Mental Health Act Commission, and giving it some teeth. I very much hope your Lordships will support the amendment.

6.12 p.m.

Lord Elton

My Lords, there are a number of reasons why we are not happy with this amendment, and I think that by way of introduction I ought to explain what they are. We addressed ourselves earlier to the question of consultation by committee, and the noble Lord, Lord Winstanley, in a very eloquent and obviously moving speech, suggested to your Lordships that this was a different approach, but again we have three people combining to give a second opinion to a psychiatrist, which is perhaps a striking departure from accepted convention and something which would require in itself a bureaucratic machine to administer it, which would itself impose delay upon treatment, and uncertainty. I will return to that.

I should like to emphasise that we share the concern of noble Lords opposite that a patient shall, wherever it is possible, give his consent, and that it shall be known that he has given his consent. The point at issue between us, as I understand it, upon which noble Lords opposite have concentrated, has been the competence of a person to decide the competence of the opinion of the patient. The noble Lord, Lord Winstanley, has further focused your Lordships' attention on the need for a particular degree of certainty about the competence of the patient's opinion where it relates to particular types of treatment.

There are a number of grounds on which I think the way that the noble Lord, Lord Winstanley, intends to brings this about, with the support of others of your Lordships, is defective. I do not want to spend long reciting them, but I think I should say that they are not negligible, that the terminology used will often leave professional people in doubt at critical moments, and that there are other considerations as well.

For instance, the terms "hazardous", "irreversible" and "not established" have a long and honoured history, beginning in the report of my noble friend Lord Butler on Mentally Abnormal Offenders. We decided when we tried to put these ideas into the Bill that it was better to take a rather wider view and talk about treatments which "give rise to special concern." That is the phrase used in Clause 40 in connection with the code of practice. I am sure the Mental Health Act Commission would include as treatments which give rise to special concern most or indeed all of the treatments which the movers of this amendment would count as hazardous, irreversible or not established. Certainly they would include all the cases which Lord Winstanley has so movingly cited in moving the amendment. It is important that those who use this Act are in no doubt as to which treatments are in the special category where the patient's consent is needed. So these will be listed in regulations if they can be given precise legal definition, or in the code if they cannot.

I do not see advantage in putting the terms in question into the Bill as well as providing regulations and the code of practice. That can only lead to confusion. The noble Lord has referred to occasions when psychiatrists have sought not only second but third and fourth and possibly fifth opinions. There is nothing in the statute we propose to prevent that happening in the future.

The noble Lord has questioned whether psychiatrists would be competent to judge the competence of the patient. It is a highly technical matter. Those of your Lordships who have encountered mentally disordered people, as I have done more frequently recently than earlier in my life, will realise that sometimes it is a matter of very great difficulty to detect the degree of competence and judgment. In one case, it took me two years to discover that a person was living in an entirely fantastic world, which for a time I lived in with him from my own inability to diagnose his condition. His doctors, of course, were aware of this.

I do not think that to increase the number involved in the second opinion from one to three does more than perhaps to spread the responsibility if there is a case that goes wrong. The noble Lord said that he did not wish to be a Cassandra and did not wish to have to say, "I told you so" in a tragic case. There will always be tragic cases, I regret to tell your Lordships, until the science and the art are perfected. The question is only who is going to share the responsibility.

I think I spoke at Committee about the difficulty of the definition of an established treatment in this Bill. Medical practice is constantly changing and definitions will change. New treatments are introduced and from time to time research sheds doubt on old established ones. Both the noble Lord, Lord Winstanley, and the noble Lord, Lord Richardson, have referred to this. The Mental Health Act Commission, in preparing the code of practice, will be able to reflect the current state of professional knowledge in saying which treatments give rise to such doubt about their safety or efficacy that they should be given only with the patient's consent and the agreement of an independent doctor. The code will be revised from time to time. There is no clear legal way of measuring when a treatment has enough support to be established, except by providing for some authoritative body to give a ruling. We have done exactly that by requiring the Mental Health Act Commission to list in the code of practice treatments which give rise to special concern.

I would like, as it were, in conclusion of what I say, to return to what I said at the beginning. There are attitudes, and there are aspects of this question which are of particular interest to your Lordships which can be separated out from those areas of the noble Lord's amendment which I find defective. I do not propose to recommend your Lordships to accept the noble Lord's amendment. I am going to propose that your Lordships should accept what I have proposed for the clause. But I can say this to noble Lords who feel that the noble Lord, Lord Winstanley, is part way right. I will try to ascertain between now and Third Reading which are the bits on which he is part way right. I believe they will narrow down the issue, not to whether the treatment should be given but to the competence to decide whether consent has been given. That is important and I will say it again: the question of whether the patient is competent to decide whether he should accept the treatment. Secondly, I think we must be very clear on what are the treatments to which such criteria should apply.

I cannot tell your Lordships what I would be able to bring back at Third Reading. I think that we should decide this issue now, but if it is decided in my favour and that of the Government, then I point out that my mind is not shut on this matter and that I shall address it urgently. In order to preserve fair play I shall discuss the matter with the noble Lord so that he, if he is not content with what I propose, can make a proposal of his own. I am not saving that we should not try the main issue now. But I am saying that, if the issue goes my way, I do not think that my friends, at least, will feel that they have lost anything by supporting me rather than the noble Lord opposite.

Lord Winstanley

My Lords, I really am most grateful to the noble Lord, Lord Elton, for the manner in which he has replied to this amendment and, indeed, for the mood which I think he has injected into this very important debate. I recognise what he has said and I fully understand that the noble Lord, Lord Elton, and his colleagues are determined that we should make this part of the Bill as good as it could possibly be. I understand the offer which he has made to consult with me, and perhaps with others, about another course of action at Third Reading, and so on.

However, I am bound to say the following. We are at a comparatively early stage so far as this Bill is concerned globally. The Bill has to go through a lot of courses before it finally comes on to the Statute Book. Yet in your Lordships' House we are at a pretty late stage. I do not think that it is very helpful to put down amendments at Third Reading, just in case the Government amendment does not happen to be right, or to clutter up the Order Paper in one way or another at Third Reading. We really are here and now at the last stage at which your Lordships' House can express a view on this particular part of the Bill. I think that if we express a view which does not wholly meet with the approval of the noble Lord, and if we express a view in words and in terms which the noble Lord and his advisers do not regard as wholly satisfactory, then the noble Lord is entirely in a position to put things right himself. However, I think that before he embarks upon that exercise of putting things right himself, he should have the advantage of the considered opinion of this House as measured through the Lobbies.

Let me make one other comment. The noble Baroness, Lady Faithful], made an extremely important point. She asked about the possibility of important treatment being withheld from people because of doubts as to whether they could consent or not. It is acknowledged that in this field we are talking about a kind of treatment which is speculative, uncertain, undoubtedly risky and which should not be given without consent.

When we are dealing with people about whom it is very difficult indeed to decide whether or not they are capable of consenting, we have a real problem. The noble Baroness said that she had a dilemma. I sympathise. I am bound to say that in certain circumstances I believe that, if certain forms of treatment were withheld from patients—treatment which was subsequently shown to have been necessary for them—because of doubt as to their ability to consent, then possibly the withholding of that treatment might, at a subsequent stage, be regarded as negligent. In other words, it is extremely important that consideration of the ability to consent in this particular area is broadened as far as possible and that there is an independent element in it. I accept the noble Baroness's view that the doctors can give an opinion and I believe that the doctors' opinion will very often be right. But I think that it will be immensely helpful to the doctors and to the public and to the prestige of the whole business if we do something to introduce an independent element.

I do not say for a moment that we are entirely right in the solution that we have put forward. But the solution that we have put forward indicates that we believe that there should be some further independent element here in deciding on the ability to consent or to withhold consent so far as these forms of treatment are concerned. I think that your Lordships' House should now say that that is something which should be done. If we have done it in a wrong way, then the noble Lord has every possible opportunity to put things right and he knows that he will have every possible assistance from the noble Lords who have been associated with this amendment. I really must press the amendment, and I hope that we shall take it to a vote.

6.24 p.m.

On Question, Whether the said Amendment (No. 47) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 78.

DIVISION NO. 1
CONTENTS
Amherst, E.	Llewelyn-Davies of Hastoe, B.
Ardwick, L.	Lovell-Davis, L.
Aylestone, L.	Masham of Ilton, B.
Banks, L.	Milner of Leeds, L.
Barrington, V.	Noel-Baker, L.
Beaumont of Whitley, L.	Ogmore, L.
Beswick, L.	Oram, L.
Bishopston, L.	Peart, L.
Broadbridge, L.	Phillips, B.
Bruce of Donington, L.	Pitt of Hampstead, L.
Burton of Coventry, B.	Ponsonby of Shulbrede, L.
Byers, L.	Richardson, L.
Chandos, V.	Roberthall, L.
Cledwyn of Penrhos, L.	Robson of Kiddington, B.
Colwyn, L.	Rochester, L.
Colyton, L.	Ross of Marnock, L.
David, B.	Seear, B.
Diamond, L.	Sefton of Garston, L.
Donaldson of Kingsbridge, L.	Shannon, E.
Elwyn-Jones, L.	Stedman, B.
Ewart-Biggs, B.	Stewart of Alvechurch, B.
Foot, L.	Stewart of Fulham, L.
Haig, E.	Stone, L.
Hanworth, V.	Thurlow, L.
Hooson, L.	Tordoff, L.
Hylton-Foster, B.	Underhill, L.
Jacques, L.	Vernon, L.
Jeger, B.	Wallace of Coslany, L.
Jenkins of Putney, L.	White, B.
John-Mackie, L.	Wigoder, L.[Teller.]
Kennet, L.	Winstanley, L.
Kilbracken, L.	Winterbottom, L.
Kilmarnock, L. [Teller.]	Wootton of Abinger, B.
Lawrence, L.	Young of Dartington, L.
Listowel, E.

NOT-CONTENTS
Airey of Abingdon, B.	Faithfull, B.
Alexander of Tunis, E.	Ferrers, E.
Auckland, L.	Fortescue, E.
Avon, E.	Fraser of Kilmorack, L.
Bagot, L.	Gainford, L.
Belhaven and Stenton, L.	Glanusk, L.
Bellwin, L.	Glasgow, E.
Belstead, L.	Glenarthur, L.
Birdwood, L.	Gormanston, V.
Cathcart, E.	Greenway, L.
Cobham, V.	Gridley, L.
Craigavon, V.	Hailsham of Saint Marylebone, L.
Crathorne, L.
Cullen of Ashbourne, L.	Hastings, L.
Daventry, V.	Henley, L.
De La Warr, E.	Holderness, L.
Denham, L. [Teller.]	Killearn, L.
Dundee, E.	Kinnaird, L.
Elliot of Harwood, B.	Kinnoull, E.
Elton, L.	Kitchener, E.

Lane-Fox, B.	Plummer of St.Marylebone, L
Lindsey and Abingdon, E.
Long, V.	Rankeillour, L.
Lyell, L.	Renton, L.
Mackay of Clashfern, L.	Romney, E.
Macleod of Borve, B.	St. Just, L.
Margadale, L.	Salisbury, M.
Marley, L.	Sandford, L.
Massereene and Ferrard, V.	Sandys, L. [Teller.]
Mersey, V.	Spens, L.
Monk Bretton, L.	Stanley of Alderley, L.
Morris, L.	Stradbroke, E.
Mottistone, L.	Strathspey, L.
Mowbray and Stourton, L.	Swinton, E.
Murton of Lindisfarne, L.	Terrington, L.
Northchurch, B.	Ullswater, V.
Nugent of Guildford, L.	Vaux of Harrowden, L.
Nunburnholme, L.	Vivian, L.
Orkney, E.	Ward of Witley, V.
Pender, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.32 p.m.

Lord Elton moved Amendment No. 48: Page 28, line 16, after ("unless") insert ("he has consented to it and").

The noble Lord said: my Lords, this amendment is like Amendment No. 40. It makes it clear that the legal requirement is that the patient has consented rather than that his consent is reported at second hand. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 49: Page 28, line 20, leave out from ("of") to first ("and") in line 21 and insert ("understanding the nature, purpose and likely effects of the treatment in question").

The noble Lord said: My Lords, this amendment is like Amendments Nos. 41 and 43—it changes the phrase "capable of consenting" to the fuller expression: capable of understanding the nature, purpose and likely effects ". In the light of what has recently been said, I think that your Lordships will welcome this. Indeed, again, I am indebted to the noble Lord, Lord Hooson, who suggested the change in Committee. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 50: Page 28, line 22, after ("that") insert (", having regard to the likelihood of its alleviating or preventing a deterioration of his condition,").

The noble Lord said: My Lords, like Amendment No. 43, this amendment puts a gloss on the requirement for a second opinion. It requires the independent doctor who gives the second opinion to have regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition. The context this time is treatments specified in regulations which give rise to such concern that they may be given only with the patient's consent and a concurring second opinion from a Mental Health Act Commission doctor.

The amendment adopts the spirit of one tabled in Committee, but not moved, by the noble Lords, Lord Hooson, Lord Winstanley and Lord Kilmarnock. I am spending a great deal of time this evening giving credit where I believe credit to be due. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 51 and 52 not moved.]

Lord Kilmarnock moved Amendment No. 53: Page 29, line 1, leave out (" subsection ") and insert (" subsections (4) and ").

The noble Lord said: My Lords, I beg to move Amendment No. 53 standing in the name of myself and my noble allies. This amendment simply extends the provisions of subsection (8) to subsection (4) as well as to subsection (7), which seems to me to be necessary in so far as both those subsections refer to treatments of special concern. I beg to move.

Lord Elton

My Lords, I was under the impression that this amendment stood with Amendment No. 47, and that the noble Lord would not be moving it. I think that your Lordships might be a little confused if we proceeded on another basis. If I am wrong, the noble Lord will correct me.

Lord Kilmarnock

My Lords, I shall be guided by the noble Lord in this instance, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kilmarnock moved Amendment No. 54: Page 29, line 2, leave out ("unfavourable").

The noble Lord said: My Lords, Amendment No. 54 seeks to remove from subsection (8) the word "unfavourable". At the moment the wording runs: For the purposes of subsection (7) above treatment is irreversible if it has unfavourable irreversible physical or psychological consequences". We think that the term "unfavourable" requires too much of a value judgment. It is entirely a subjective matter to decide whether or not treatment is unfavourable. We think that for the purpose of this subsection it is completely sufficient if "unfavourable" is dropped and the subsection reads: if it has irreversible physical or psychological consequences". The importance of the issue is the question of irreversibility, and we should like the emphasis to lie there. I beg to move.

Lord Elton

My Lords, as I see it, the principal defect in this amendment can perhaps be expressed more briefly than if I read out the whole of my brief. It is simply that it deletes not only irreversible and unfortunate results, but also irreversible and beneficial results. It would mean that no irreversible treatments —the treatments whose results were irreversible—could be embarked upon even if they were entirely beneficial. I do not think that that is what the noble Lord, Lord Kilmarnock, intended. I sympathise with his desire to remove areas of doubt resulting from subjectivity, but I think that this is a necessary area of subjectivity.

I honestly think that clinical psychiatrists know what is good for a patient, what is an improvement and what is a deterioration. To the extent that that decision is subjective, I would be content to leave it as it is. On that understanding, I hope that the noble Lord would not press his amendment.

Lord Kilmarnock

My Lords, personally, I should have thought that the word "irreversible" left in its purely neutral form would be better, but I shall certainly study what the noble Lord has said and possibly return to the matter. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kilmarnock moved Amendment No. 55: Page 29, line 3, leave out ("immediate").

The noble Lord said: My Lords, perhaps I shall have a little more luck this time. This amendment concentrates on the word "immediate". At the moment, the subsection says: if it entails immediate significant physical hazard". It does not take a great stretch of the imagination to think of physical hazards which could be initiated but might not fully declare themselves until a considerably later date. Therefore, "immediate" would seem to be over-restrictive there. For that reason, we would seek to remove it. I beg to move.

Lord Elton

My Lords, I think possibly Damocles could suggest the sort of illustration that the noble Lord was looking for. I entirely agree with the noble Lord. I am happy to accept this.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 56:

Page 29, line 4, at end insert— (" ( ) The consent of a patient detained under the principal Act or this Act shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within subsection (2) or (4) above, if the treatment is given by or under the direction of the responsible medical officer.").

The noble Lord said: My Lords, the first amendment I moved to this clause deleted subsection (I). This amendment reinserts it after subsection (8). I was at pains to tell your Lordships that this is what I proposed to do when I asked you to remove it from the beginning of the clause. That is because it is not our intention to change the legal effect of the clause. The amendment will make sure that there is legal authority for the responsible medical officer to give to a detained patient, with or without his consent, forms of medical treatment for his mental disorder which are not covered elsewhere in the clause.

Earlier in the clause provision was made that drugs, surgery, invasive diagnostic procedures and electro-convulsive therapy should be given only with the patient's consent or after obtaining the agreement of a Mental Health Act Commission doctor. Other treatments might be listed in regulations under subsection (4) and so be given only with the patient's consent and a second opinion, and we have discussed them at length in an earlier debate.

The definition of medical treatment in the Act and the Bill is a wide one, and so there are other forms of medical treatment which are not explicitly covered in the earlier subsections. It is essential that we have a clear, unambigous legal provision that those forms of treatment may be given. Much of our debate on this clause in Committee was about interpretation of the 1959 Act—whether it already authorises treatment without consent. This is the opportunity to put the legal position beyond doubt, to reassure those noble Lords who are in any doubt about it. For the sake of the psychiatrists, nurses and other staff who care for these very troubled patients, we must make sure that they know what the law permits.

The best way to explain which forms of treatment we are talking about is to consider the definition of "medical treatment" in the Act and the Bill. It is found in Section 147(1) of the 1959 Act, amended by Clause 45(2) of the Bill. It says: medical treatment includes nursing, and also includes care, habilitation and rehabilitation under medical supervision". That covers general medical and nursing care—all that goes into looking after a patient in hospital. I do not think it would be sensible to provide that a patient's consent was required for every caring act by any member of hospital staff, from making the bed upwards. That would be the quickest way to paralyse our hospitals and frustrate the best intentions of the invaluable people who work there.

The definition of medical treatment also covers such treatments as occupational therapy. Frankly, it would be very difficult to give such a treatment without a patient's consent anyway, and I doubt if anyone would try to do so. Again, it is not sensible to provide for second opinions and certificates to ensure that a patient is not forced to undertake such a course of therapy against his will. We can trust to the good sense of the staff concerned. The code of practice which the Mental Health Act Commission are to prepare may say more about some forms of treatment in this category, such as behaviour modification therapy. The commission could advise psychiatrists that some treatments should be given only with the patient's consent and a second opinion from a commission doctor. Subject to the code of practice, it is essential that doctors should have clear legal authority to give medical treatment not covered elsewhere in the clause. I beg to move.

On Question, amendment agreed to.

6.45 p.m.

Lord Winstanley had given notice of his intention to move amendment No. 57:

Page 29, line 4, at end insert— ("( ) A treatment is to be deemed established for the purposes of subsections (4) and (7) above if reasonable standards of safety and efficacy have been confirmed for that treatment by clinical research.").

The noble Lord said: My Lords, thinking on my feet, I suspect that this is an amendment which related to the subsection (4) had we amended it by my amendment, which in fact was withdrawn. I think it would be appropriate for it to be not moved.

[Amendment No. 57 not moved.]

[Amendments Nos. 58 and 59 not moved.]

Lord Winstanley moved Amendment No. 60:

Page 29, line 16, at end insert— (" (11) Subject to subsection (7) above, nothing in this section shall be construed as authorising the imposition of treatment upon a patient who is capable of understanding the nature, purpose and likely effects of the treatment but does not consent to the treatment in question.").

The noble Lord said: My Lords, this is a matter which should be ventilated yet again. I fully accept that Amendment No. 60 deals with a matter dealt with at great length at an earlier stage in the Bill, and it is possible that noble Lords will not wish to go through the whole argument again. We have had an important and interesting debate in which the House has expressed quite a serious view in relation to special treatments and treatments of special concern, and procedures which might be regarded as potentially irreversible. This amendment relates to the general principle, once again, of treatment with, or without, consent.

Whether we shall want to push this very far at this stage I am not sure, it having been ventilated so fully earlier, but I think it is appropriate since it is on the Marshalled List that we should say a few words about it. I tend to take the view that we ought to support the recommendations of the Butler Committee which said loudly and clearly that if a patient was capable of consenting or of withholding consent, then treatment should not be forced upon that patient against his will. After all, we have taken the view as a matter of public policy in this country that a hunger striker should be allowed to hunger strike and should not be forcibly fed, even if that perhaps ultimately leads to his death. We also take the view that members of the Exclusive Brethren will refuse blood transfusions on conscientious grounds. In a matter of general policy we take the view that if they refuse, they refuse, and they are entitled to.

The Lord Bishop of Norwich

My Lords, would the noble Lord, Lord Winstanley, give way for a moment? It is well known that the Jehovah's Witnesses refuse blood transfusions. There are one or two different groups of the Exclusive Brethren, and I would just say that I am not sure that the noble Lord is on solid ground in using that word widely.

Lord Winstanley

My Lords, I am certain that the right reverend Prelate is on much more solid ground than I am on these particular matters, and that he knows a great deal more about these different religious sects than I do. May I qualify my words and merely say that we take the view that those who refuse blood transfusions on the grounds of religious objection should not be forced to have them. That being the case, one wonders whether it is right to impose treatment on mentally disturbed patients against their will when those patients are in fact capable of consenting or withholding consent.

We have ventilated this question earlier in Committee, and we had a very powerful speech on this subject made by my noble friend Lord Hooson. I do not want to go over those points again, but I think that we ought to pause and say a little more about this matter before we finally leave it. One of the answers which was given by the noble Lord, Lord Elton, was that if one allows the detained patient to refuse treatment one is, in a sense, running the risk of turning the hospital in which he is detained into a prison instead of a hospital.

I accept that point, but it is a fact that the Mental Health Act 1959 was entirely uncertain and equivocal on this point. I acknowledge at once that the Act provides that under Section 26 persons can be detained in hospital for up to 12 months for treatment. That would appear to presuppose that having been so detained then they must accept and be given that treatment. It would appear to suggest that. But it is a point which has never been tested in the courts. I think it was the noble Lord, Lord Elton, who informed us that Sir Keith Joseph had expressed it as a matter of opinion that consent was not required in those circumstances, and that he had in fact had legal advice to that effect. But it is a fact, as noble Lords know, that legal opinion has differed on this matter, and the advice given to different bodies has been entirely different. Some counsel have said, No, that there is no entitlement to treat without consent, while others have said, Yes, that there is; but it has never finally been tested and here we are at this stage of this Bill with the matter still not finally resolved.

I am grateful to have had this opportunity to comment on this subject because I am not happy about treatment without consent. I take the view—I think it is a view which the noble Lord, Lord Richardson, if he were still in his place, would confirm—that doctors go to great lengths to make sure they have a fully consenting patient. There is a clear understanding that treatment is much more likely to be effective if it is with the consent, co-operation and approval of the patient. On the other hand, if it is forced on an unwilling patient, when the patient clearly does not want it, one cannot expect the treatment always to be very effective.

At least, the Bill has a second safeguard, but we must remember that with patients who are detained under one or other provision, there is some uncertainty about their ability to consent. The Government's safeguard is the opinion of a second consultant psychiatrist, but is that enough? I would only say in that context that while a patient has been detained—if you like, under Section 26 of the Act—for up to 12 months for treatment, he may have developed a fear (it may be an unreasonable fear or a fear without any proper basis) of ECT, and I feel that if that patient genuinely has that fear and he has the intellectual ability to refuse, then on the whole doctors would not particularly like to go ahead; they go to the greatest lengths they can to get consent.

It is appropriate, as there was such an interesting discussion of this matter earlier, that we should go into it again so that other noble Lords may have an opportunity to comment on it. After the earlier debate, which was much more important, I do not think we should push this much further. But I still retain certain reservations about the rightness or otherwise of forcing treatment on unwilling patients who are detained. To be detained is a deprivation of liberty which is important. Many people are detained who are not mentally ill. Often a patient who is physically ill is free to go out of hospital, but cannot do so because, say, he cannot walk and is very ill. Depriving a person of his liberty by detaining him in hospital is a serious invasion of rights. But depriving a person who believes he has the capability of deciding what he does and does not want—depriving that person of the right to take a decision about what will happen to him, particularly if it be a form of treatment about which he is very afraid—is a much greater intrusion into, or derogation of, that person's rights and we should be very cautious about it.

In regard to the answer that was given earlier—that since we have the right to detain people for treatment, they must accept whatever treatment is prescribed for them and that otherwise we are turning a hospital into a prison—I do not think that is altogether adequate. I suggest, rather, that perhaps we are turning it into an asylum, and let us remember the meaning of the word "asylum"; a place of safety or sanctuary, and I am not sure that is wholly wrong. If patients have to be detained for necessary public reasons, then in certain circumstances we must be prepared to keep such people in hospital and occasionally allow them to behave in the way others behave; we must allow mentally ill people occasionally to be unreasonable. Patients who are not mentally ill frequently refuse treatment which doctors believe is good for them, and they are entitled to do so. Therefore, I feel we should have second thoughts about whether we should take that right—the right to be unreasonable—away altogether from the detained patient.

Lord Wallace of Coslany

My Lords, I support this simply expressed but very important amendment. It is an expression of principle and, in that connection, I would ask the Minister a simple question: Who can possibly believe that a patient who, it is agreed, is perfectly competent should have treatment imposed on him? Surely nobody on the Benches opposite would make such an extraordinary statement. The Minister, who has been most accommodating throughout the passage of the Bill, has already expressed the view contained in the amendment in some amendments he has moved this evening. This is a neat little amendment which expresses a principle to which I cannot see any objection.

Lord Auckland

My Lords, the noble Lord, Lord Winstanley, with his extensive medical knowledge, always commands the greatest respect from those of us who are laymen but who nevertheless have had experience of sitting on committees of hospitals and particularly mental hospitals. I wonder, however, whether the amendment is not rather sweeping. As I understand it, it would give the patient the sole right of decision as to whether he should have treatment. Those of us who are laymen are obviously under a difficulty here in deciding how competent a detained patient is when it comes to a decision of that kind. While accepting the principle behind the amendment—that as much freedom as possible should be given to the patient—I wonder whether this is perhaps not going a little too far.

Lord Winstanley

My Lords, I am sure the noble Lord has noted that the amendment says, "Subject to subsection (7) above", and that subsection describes a whole number of circumstances under which a patient must accept treatment—in order to protect his life and for various other reasons—and therefore this is not a blanket prohibition; it excludes the matters referred to in subsection (7).

Lord Auckland

I am grateful for that advice, but nevertheless I wonder whether it might not be better, if the amendment were agreed to, for a voluntary worker or some other such worker who knows the patient to have an interview or discussion with the patient first, before any final decision is taken on what is a very important point.

Lord Kilmarnock

This is an important amendment. The Government have seen their way in this part of the Bill to define more closely and acceptably what the word "competence" means. While we welcome that, they have not gone far enough; they have not followed on logically by conceding that the wishes of the patient to refuse treatment, if he is competent, should always be upheld. That would have been the effect of the batch of four amendments which I would have moved if the Government's rewording of this part of the Bill had not made it impossible for them to be called. It was intended to work together with Amendments Nos. 37, 42 and 44. Amendments Nos. 37 and 44 were not called, and in fact Amendment No. 42 was met by the Government. So that leaves Amendment No. 60.

I still think that Amendment No. 60 alone stands on its merit as a final longstop against the compulsory treatment of a consenting patient who is competent to consent. That really is the essence of the matter. As the noble Lord, Lord Winstanley, pointed out very importantly, this is not a blanket prohibition on the unconsenting treatment of patients in all circumstances, because subsection (7) contains a very ample emergency power which would over-ride what is provided for in this amendment in cases of extreme or immediate need and great urgency. Therefore I believe that the amendment merits very serious consideration by the Government, and I look forward to hearing what the noble Lord has to say about it.

Lord Hooson

My Lords, I feel incumbent to say a few words on this matter because I devoted the whole of my Second Reading speech to the principle that it involves and indeed I moved amendments in Committee. I am totally opposed to the Government's view as set out in Clause 39. It seems to me that as a matter of principle we should never pass into our law a provision which, if misused in a different political climate, would enable all kinds of things to be done. Let us not forget that we are saying that, on the view of a second psychiatrist, a person capable of giving, or withholding, consent should be forced to have treatment. I should have thought that that principle was all right for some totalitarian countries—where we would criticise it very much indeed—in a completely different political climate. I believe that the price of liberty is eternal vigilance, and we should never in this House allow to pass into our law a provision such as is contained in the clause—a provision which I do not think is necessary, and which is potentially dangerous.

Baroness Masham of Ilton

My Lords, only today I heard of a very tragic case of a man who had been forced to have treatment and whose wife had signed the consent form. He is now out of hospital, but the relationship between husband and wife has totally broken down. He has no confidence in her, and he feels a broken, inadequate man.

7.2 p.m.

Lord Elton

My Lords, everybody else has justified their contribution to the debate by preceding it by saying that they spoke to the matter in Committee. I shall not advance that justification. The reason why I intend to look at this question fairly closely, though briefly, is that I think there are a number of misconceptions floating around the Chamber. First, I should like to recapitulate what the principal relevant subsections of the clause actually provide. I should like to do so in very brief and colloquial terms, in a simplified shorthand, as it were. I would not want to be held to the letter of what I say, as if every word were a legal term. The safeguards that are put forward are numerous. The safeguards in subsection (2) are that it provides for treatment only if the patient is certified, able to consent and does consent; or, if he refuses his consent, or is certified unable to give it, it can be given only if the second opinion agrees that the treatment will benefit him.

The safeguards in subsection (4) are stronger. They are applied to treatments listed by the Secretary of State. Subsection (2) safeguards are insufficient for these purposes. The treatments can be given only if the patient is certified by the second opinion to be able to give his consent, and has given it.

The safeguard in subsection (6) is a fail-safe. A patient who has given his consent under either of the other two subsections can change his mind. If he does so, the safeguards that were disarmed by his consent are immediately reimposed. However, there are circumstances in which those same safeguards (those in subsections (2) and (4)) are set aside. These circumstances are set out in subsection (7), to which the noble Lord, Lord Winstanley, alluded. They are: first, where a patient's life is immediately at risk, any treatment may be used to avert death—and I do not think that any of your Lordships would resist that proposition; secondly, where he would otherwise get much worse, but still he cannot be given irreversible treatment for that purpose unless he consents to it; thirdly, where he is behaving violently, or is a danger to himself or others, and then only the necessary minimum is permitted.

Subsection (7) also sets aside the fail-safe provision of subsection (6)—that, your Lorships will remember, is the one that lets a patient change his mind after he has given his consent for treatment—but it sets it aside only for the minimum time; that is to say, until the safeguarding procedures of subsections (2) and (4) have operated, and it does so only if the patient's doctor considers that the patient would suffer seriously if he stopped the treatment. Those are the provisions of the four subsections which I wanted to summarise.

Therefore it is not a question, as was claimed by the noble Lord—perhaps speaking equally loosely, I know not—in his opening speech; namely, that we should not keep people in hospital, and insist that we keep them there and that they undergo whatever treatments are prescribed for them. Something very far from that is the case. Detention—and we are speaking only of detained patients—is a serious step. It is tested at short and regular intervals—shorter intervals than before we started debating this piece of legislation. It is tested by a body which the Bill, through amendments, brings finally into line with the European Convention in a way requisite for a judicial body. It relates to people who do have to be detained.

The noble Lord (if I may address him) is very much taken—and are not we all?—with the philosophical importance of the freedom and liberty of the individual. That philosopical perception, which I entirely applaud and share, is tinged with a creditable degree of humanity, and I hope that I share that also. But the fact is that in our society there are people, whom I would call difficult-to-place patients, who are detained because of the civil procedure or because they have been through the courts and the courts have decided that they should be detained for treatment. It is their treatability which distinguishes them from anybody else who ought to be detained.

If you throw a brick through a window through malice, you are detained in prison—and a jolly good thing, too, extenuating circumstances always excepted. If you throw a brick through a window because of your mental disorder and you are likely to go on doing it, you must be detained. But what distinguishes you from the prisoner so far as society is concerned is the fact that you are a patient. Your condition is treatable; the court has said so, the medical opinion has said so. The mental health review tribunal frequently says so.

The noble Lord is asking us to set up a system where that treatment may be refused. I am not talking about the serious, the irreversible, the hazardous. I am not talking about the things set aside in a special list by the Secretary of State. I am not talking about things listed in subsection (4). I am talking about reasonable treatment which would not alarm anybody. I am not even talking about the borderline things which the Mental Health Act Commission is to put in its code of practice. I am talking about things which a person in hospital for treatment ought to undergo for his own good and for the good of the running of the hospital and the good of the other patients.

If the noble Lord denies us that, there is nothing we can do with a violent patient other than lock him up; and whether he is locked up in a prison or in a hospital will not, after the first six months or a year make much difference to him or to the staff. But the staff are not gaolers, they are medical people; they are following a vocation. They are curative people. Their skills are wasted in this. With his amendment the noble Lord is facing me with a prospect of an increasing number of people in the system for which the department is responsible who ought not to be there, people who are distinguishable from prisoners only by the fact that they refuse to accept their treatment.

We are not talking about frontal labotamy. We are not talking about experimental castration by biological means, which was referred to earlier. We are not talking about experimental anything. We are talking about perfectly routine, sensible treatment, and I think your Lordships ought to be seized of that. It is not a great philosophical imperative that we are talking about. We are talking about running a proper system, with hospitals that work and prisons that work, and with a means of determining which institution certain people ought to be in. If the noble Lord wants to propose a new set of institutions, with "pospitals" or "hisons" which are hybrid institutions, that is another matter; but we have a system, we have to run it and it will not run with this amendment. I beg to oppose it.

Viscount Barrington

My Lords, may I ask the noble Lord one question? If this amendment were put to the vote and carried, would it do any harm? Is there anything in it, or is it merely unnecessary? It seems to me as a layman that there is the question, in the case of somebody who is capable—and the wording is, "who is capable", and not, "who believes himself to be capable", as I might believe myself to be God Almighty or Leader of the House of Lords, because then I should very rightly be restrained—whether he ought, in a hospital, to be submitted to treatment which he does not want, even if he is wrong in not wanting it. That is the question.

Lord Elton

My Lords, if your Lordships will forgive me—because this is Report stage, and I ought not to reply to questions—I think I should say to the noble Viscount, who I think has not attended all our discussions on this matter, that it would cause harm both to the system and to individual patients, and also to the people looking after them: and that we have been into great detail about which are the treatments which ought to be accepted without the consent of the patient and which are not. Yes, my Lords; I think it would do harm. That is the answer to the noble Viscount's question.

Lord Winstanley

My Lords, the noble Lord has given us once again a most thoughtful and sympathetic reply, and a reply which shows not only his very deep understanding of the Bill but his pretty deep understanding also of our fears about certain aspects of the Bill. I acknowledge that straight away, and I have no doubt he understands that; and, in itself, I think that is cause for gratification, bearing in mind that he will have some responsibility for the Bill after it leaves this place.

The noble Lord was kind enough to refer to me as having certain humanitarian qualities, and for that I am grateful, but I think I ought to say also that in addition I regard myself as a realist. I feel fairly strongly about this matter, but I am aware, too, of the fact that, in the case of a very much more important matter—indeed, one which I regard as crucial—we were unable to succeed with it through the Lobbies. Being a realist, my Lords, I do not necessarily think that trooping through the Lobby without actually achieving a result is perhaps the best possible use of our time when we have other important matters to discuss. Therefore, provided it is understood by the noble Lord that, if I seek to withdraw this amendment shortly, that does not necessarily mean that I accept hook, line and sinker every word he has just said to me, I will beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 [Code of practice]:

Lord Cullen of Ashbourne moved Amendment No. 61:

Page 29, line 18, leave out from (" practice ") to end of line 21 and insert— (" (a) for the guidance of medical practitioners, managers and staff of hospitals and mental nursing homes and mental welfare officers in relation to the admission of patients to hospitals and mental nursing homes under the principal Act or this Act; and (b) for the guidance of medical practitioners and members of other professions in relation to the medical treatment of patients detained under the principal Act or this Act.").

The noble Lord said: My Lords, this amendment meets an undertaking which my noble friend Lord Elton gave in response to an amendment moved by the noble Lord, Lord Winstanley, in Committee. The noble Lord proposed that as well as advising on the medical treatment of detained patients the new Mental Health Act Commission should deal with the wider issue of the admission of patients under the Mental Health Act. If I could attract the attention of the noble Lord, Lord Winstanley, I would say that this was a very helpful suggestion and I am pleased to be able to accept it.

I should like to say a few words here about Amendment No. 77. This is in fact consequential upon the amendment which I an now speaking to, and simply provides for the reference to mental welfare officers to be taken as a reference to approved social workers at the appropriate time. My Lords, I beg to move.

Lord Winstanley

My Lords, I rise to apologise to the noble Lord, Lord Cullen of Ashbourne, for appearing not to be attending to what he was saying. I assure him that I was listening most carefully. I was also at the same time endeavouring to consult with my noble friend in the hope of reaching certain agreements which might perhaps speed the further progress of this Bill at a later stage; but I assure the noble Lord that I was listening very carefully to every word. I had in fact noted at an earlier stage what had been done, and I formally express my personal gratitude to the noble Lord the Minister for what has been done in this matter. I think it has in fact improved the Bill, and I am most grateful.

On Question, amendment agreed to.

Clause 41 [Practitioners approved for purposes of ss. 39 and 40]:

7.14 p.m.

Lord Kilmarnock moved Amendment No. 62:

Page 30, line 3, at end insert— (" (3) A medical practitioner shall not be eligible to be appointed under subsections (1) and (2) above unless the Secretary of State is satisfied that he does not work in the district containing the hospital where the patient in question may be treated, and that he further does not work in any of the districts where the responsible medical officer works.").

The noble Lord said: My Lords, this amendment is designed to ensure the greatest degree of independence of the second psychiatric opinion. I consider it to be of particular importance now that, at any rate for the time being, we have not got our multidisciplinary panel in the form which the noble Lord, Lord Winstanley, sought in his Amendment No. 47, though we have had some indications from the Government that they will think about at any rate part of his suggestions. But in the meantime we are left with the Bill as it stands, and we are simply left with the second opinion being given by or confided to a second psychiatrist appointed by the Secretary of State.

This amendment has been drafted after some discussion with a practising psychiatrist, and it takes into account the very real difficulties of ensuring independence between two medical opinions if there are working loyalties and obligations existing between the two doctors concerned, which is of course very often the case. Frequently, consultants work in several hospitals and build up important collaborative relationships with colleagues in each of those hospitals. Without in any way wishing to influence their judgment in the case of a certified treatment under Clause 39, there is the likelihood that they would be so influenced. So the purpose of the amendment is to ensure, in as practicable a way as possible, that when powers so grave as those in Clause 39 are going to be used the fullest possible attention is paid to ensuring that the two doctors are able to give absolutely separate and distinct opinions.

There is nothing difficult, I think, in practical terms about implementing this amendment. Indeed, it was purposely drafted to ensure that it could be put into effect without problems. I think it is an important point, and the Government have stressed the fact that they are relying on an opinion which is independent of that of the medical officer in charge of the case. One can think of quite a number of likely situations in which that opinion, not necessarily through any malice or collusion, might not really be fully independent, simply owing to the fact that the two doctors would be working together and be aware of each other's opinion. This amendment strives to ensure that the second medical practitioner, shall not be eligible to be appointed under subsections (1) and (2) above unless the Secretary of State is satisfied that he does not work in the district containing the hospital where the patient in question may be treated, and that he further does not work in any of the districts where the responsible medical officer works". I venture to suggest that this is a way of ensuring true independence of the second opinion. I beg to move.

Lord Sandys

My Lords, the noble Lord, Lor Kilmarnock, advised the House that he had drafte this amendment after discussion with consultan psychiatrists. I support the underlying intention of this amendment. Your Lordships will have noticed that my noble friend Lord Elton usually talks about "the independent doctor "rather than the full legal phrase" the medical practitioner appointed for the purposes of this section by the Secretary of State". When I say "the independent doctor "I certainly mean that he should not be another psychiatrist from the same hospital, or someone who has close working or personal links with the responsible medical officer. The Mental Health Act Commission will wish to ensure that he is truly independent of the responsible medical officer, and I hope that may go some way towards reassuring the noble Lord, Lord Kilmarnock.

There will be, in effect, two stages of "appointment". The commission will make appointments to a panel of psychiatrists, including psychiatrists who are members of the commission, who are available to give second opinions. There will then be specific decisions that Dr. X should go to Y hospital to give a second opinion in respect of a patient Mr. Z.

I think it is important to stress here how the machinery is going to work. One of the early tasks for the commission will be to draw up clear guidelines for their administrative staff about arrangements for getting the doctor to the patient when there is a request for a second opinion. I am sure that the guidelines will take full account of this need for independence—which is something upon which we hold strong views on this side of the House. They may wish to provide for circumstances other than those in Lord Kilmarnock's amendment in which there was doubt about the doctors' independence. It is difficult to be comprehensive about this in statutes. I will draw the commission's attention to this debate once they are appointed so that they may know what the House had in mind. With that, I hope the noble Lord may feel able to withdraw his amendment.

Lord Kilmarnock

My Lords, I am grateful to the noble Lord, Lord Sandys, and glad to hear him state in stirring tones the Government's adherence to the principle of independence for the second opinion. That is what we hoped for. The amendment also has managed to elicit, for the first time, I think, a glimmering of how the Government envisage the appointments being made. The noble Lord, Lord Sandys, has lifted a corner of the veil which until now has shrouded the machinery of the Mental Health Act Commission. I shall want to read the specifics in Hansard. Furthermore, I think that as we proceed this evening we probably shall hear more from the Government about how they envisage the operation of the Mental Health Act Commission. Therefore, I do not intend to press this amendment and beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Hooson moved Amendment No. 63: After Clause 41, 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: My Lords, I beg to move the amendment standing in my name and that of my noble friend. I am glad to see the noble Lord, Lord Renton, in his place because in regard to the first subsection of the New Clause; which reads: Section 141 of the principal Act is hereby repealed I should like to echo the words that Lord Renton used at the Committee stage when he described that section as a monstrosity and an anachronism. It appears to me that these provisions under Section 141 are not necessary to provide what I think we would all agree is a necessary protection against frivolous litigation from detained patients. Some form of protection is required and I think that the noble Lord, Lord Renton, is probably right in saying that the present procedures of the High Court are sufficient for protection, particularly in view of the fact that only about four or five applications a year are made under the provisions of Section 141. The Government perhaps could tell us whether they have considered this matter further and whether they consider that a protection other than that provided at the moment by Section 141 of the principal Act is required. I know that I can leave it to the noble Lord, Lord Renton, to develop that point.

I would like to move to the second subsection in the amendment with regard to criminal proceedings. Again, I would accept the view expressed by the noble Lord, Lord Elton, at the Committee stage, that some form of protection is required by the staff from the instigation of criminal proceedings based on frivolous allegations particularly by detained patients who might have a feeling of resentment against staff. But surely, the right provision is that such proceedings can be brought only with the consent of the Director of Public Prosecutions. This is a form of protection which is applied in a number of situations in this country. We have had this form of protection and I cannot sec why this is not the correct form of protection for frivolous allegations of criminality by detained patients.

I do not intend to press this amendment, but I am exploring further the Government's mind on this. It would seem to me to be a pity for this Bill to go through Parliament—and probably we shall not have time to consider the matter again for another 20 years—without our doing something about Section 141 of the principal Act which is, surely, in need of amendment.

Lord Wallace of Coslany

My Lords, we discussed this matter on Tuesday last when I moved an amendment not only incorporating the words of this amendment but also bringing in the question of civil action, which aroused the noble Lord, Lord Mottistone, to rise in anger and to make all sorts of declarations which I could not understand at the time, and still do not. The main fact is that there will not be an enormous number of people going to litigation. I wish that the amendment had included the civil side; for here is a field where the patients would need help. But I will leave it there. There are cases being dealt with at Strasbourg which may force the Government to amend anyway.

Lord Renton

My Lords, I should like to support what the noble Lord, Lord Hooson, has said on this amendment. I do not think, as has been said, that we need repeat the arguments which were deployed fully at Committee stage and which have been further clarified by the noble Lord. I should like to add one or two points about Section 141 as it stands, and before doing that I must come clean and tell your Lordships that I was largely responsible in 1959 for Section 141. It fell within the Home Office part of the Bill for which I was responsible.

Looking at it now, I find it a clumsy piece of legislative machinery. Looking at subsection (3) of Section 141 we find that there is a reference to the need for the consent of the Director of Public Prosecutions before criminal proceedings can be brought—but only those relating to an offence under the Act. That I find strange. In subsection (1) of that section we find that any other criminal proceedings require the consent of the High Court. This is a very strange distinction to remain on the statute book. As the noble Lord, Lord Hooson, has said, with regard to civil proceedings two factors arise. The first is that some safeguard is needed. He conceded that, and so do I. I am sure that my noble friend Lord Mottistone will be relieved to know that we both conceded that; but to say that every civil proceeding shall require the consent of the High Court in the circumstances of subsection (1) is really going a little far; because proceedings cannot be brought at all unless there is bad faith or lack of reasonable care. I am relieved in a way that the noble Lord, Lord Hooson, has said that he will not press this to a Division. At least it eases me because I shall not have to vote against the Government of which I am, I hope, a loyal supporter. But I do think that, for the second time of asking, we really must request the Government —and I speak in the broadest terms—to consider whether, after 23 years, Section 141 of the 1959 Act should not be considered completely afresh in the light of the experience which has been gained since, in the light of modern conditions and bearing in mind especially the strange and rather defective way in which it is drafted.

7.30 p.m.

Lord Mottistone

My Lords, I am sorry that the noble Lord, Lord Wallace, felt that my contribution to his Amendment No. 33 was unduly critical and hard to understand. In fact, his amendment, to my mind, was a very much better one than this one. I have always understood it to be the custom—if not the rule of the House—that one did not put down an amendment at the next stage of the Bill identical to the one put down earlier unless there was some over-riding reason. The noble Lord, Lord Wallace—as he clearly put to us when he moved Amendment No. 33—explained how he had done his best to reach a compromise on the situation as it had come out of Committee. It does not seem that the noble Lord. Lord Hooson, and his colleagues have taken that point at all. In that sense this amendment is not particularly in accordance with the custom of the House.

There is not much to be said because it was all said earlier. I think it is a pity that the two amendments were not taken together, as the noble Lord, Lord Wallace, and the noble Lord the Minister wanted. The only important point that I should like to leave with the house is let us not get carried away in this keen-ness to see Amendment No. 141 brought up to date with not providing an essential safeguard for all those who have to deal with mental patients—whether it be in mental hospitals or outside—that under unreasonable conditions they can be subjected to a civil case.

I was delighted to hear what my noble friend Lord Renton had to say on this point. He immediately qualified it so as to make me suspect that Section 141 has to be guarded rather carefully to make sure that these essential safeguards are not swept away in an over-enthusiastic moment. I trust that my noble friends on the Front Bench will give us just a little bit of reassurance to make sure that that will not happen.

Lord Elton

My Lords, we did indeed discuss this matter very generally at Committee stage and also with some thoroughness as lately as last Tuesday (as the noble Lord, Lord, Wallace, has said) at which juncture I said that I had sought advice and that I was not moved from my original position that now was not the time to make any change that might be revealed as necessary by decisions in Europe. One cannot but admire the persistence of the noble Lord, Lord Hooson, or the courage and honesty of my noble friend Lord Renton, who is the self-revealed architect of all that he deplores.

We were talking about philosophy and religion earlier. He is an exemplar of so many principles in this that I would hesitate to start to list them. However, he reminds me most of the late and honoured Professor Porson who interjected an undergraduate who was trying to hold his own with him and based his knowledge on careful reading of a very abstruse subject. Professor Porson said: "Young man, I perceive that you are basing yourself upon the relevant article in Encyclopaedia Brittanica. I would have you know that I wrote that article and I have since changed my views."

The noble Lord occasionally surprises one by the way in which he can spring a mine. I shall draw these passages in Hansard—it is almost superfluous to do so—and the relevant ones earlier to the attention of my noble and learned friend the Lord Chancellor so that he shall at least be aware of the opinions that there are. However, I cannot give an undertaking of any kind other than that in the light of the state of things in Europe.

Lord Hooson

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 [Mental Health Act Commission.]:

Lord Cullen of Ashbourne moved Amendment No. 64: Page 30, line 39, leave out ("that section") and insert ("section 13 of that Act").

The noble Lord said: My Lords, this is a simple amendment to correct an error. Clause 43(2) concerns the Secretary of State's powers to direct a special health authority to perform functions on his behalf. Those powers are in Section 13, rather than Section 11, of the National Health Service Act 1977. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 65: Page 30, line 44, after ("42") insert ("(1) and (2)").

The noble Lord said: My noble friend Lord Renton spoke very eloquently in Committee about the construction of Clause 43. He understood it to require the Secretary of State to direct the Mental Health Act Commission to make regulations on his behalf and to determine on his behalf the amount of payments from the public purse. That was certainly not our intention. This amendment ensures that Clause 43(2)(b) does not have that effect. I am grateful to my noble friend for raising the point and hope he is satisfied with the outcome.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 66:

Page 31, line 3, at end insert— ("( ) The Commission shall in the third year after its establishment and subsequently in every third year publish a report on its activities; and copies of every such report shall be sent by the Commission to the Secretary of State who shall lay a copy before each House of Parliament.").

The noble Lord said: My Lords, I am sure that your Lordships will wish to consider the amendments on this subject together—and there are three. The second one has converted itself into an amendment to the amendment which stands on the Marshalled List in my name. I shall address myself, holus-bolus, to the whole subject. I was very conscious in Committee of the concern on all sides that the Mental Health Act Commission should be seen to be accountable. As I promised then, I have put down an amendment to require the Commission to report on its activities every three years. The noble Lord, Lord Wallace of Coslany, and his noble friends want a report every two years, and the noble Lord Lord Winstanley, and his noble friends—not wishing to be outdone—ask for a report every year.

All of us want the report to be published and most of us want the report to be laid before Parliament. We are very close together on this. I have had to resist noble Lords on a number of occasions when their intentions have been entirely honourable but perhaps a little misguided. I am a reasonable man, my Lords, as I hope are they. I believe in honourable compromise. I like to settle for the middle term, and I should therefore be happy to support the noble Lord, Lord Wallace of Coslany, in his amendment to mine. I beg to move.

Lord Wallace of Coslany moved as an amendment to the Amendment, Amendment No. 66A: Line 2, leave out ("third") and insert ("second").

The noble Lord said: My Lords, I move my amendment very readily and with great pleasure. I sincerely thank the Minister and the Government for bringing this amendment forward. They met the spirit of what was required to put forward to the House and, as with another number of amendments that they have introduced, they have shown a spirit of co-operation. I am very grateful and I thank them. I beg to move.

On Question, amendment to the amendment agreed to.

On Question, amendment agreed to.

7.40 p.m.

Lord Kilmarnock moved Amendment No. 67:

Page 31, line 3, at end insert— ("( ) The Commission shall receive prompt reports from the medical practitioners appointed under subsection (2)(a) above on each patient who has received treatment certified under sections 39 and 40 of this Act, indicating the reasons for their decisions and assessing the outcome of the treatment.").

The noble Lord said: My Lords, in the preface to this amendment and the one that follows I want to make clear my continuing disquiet about the Mental Health Act Commission. Although it is meant to be the "watchdog of the patient", in the Government's words, we are told precious little about it in the Bill. Clause 43 is skeletal in the extreme and Clause 42 tells us about the powers of the Secretary of State to be vested in the commission, but it says almost nothing about the commission's duties. The powers of the commission would be very wide-ranging: there would be a second opinion under Clause 39 and it would appoint medical practitioners for the purpose of preparing a code of practice under Section 40 for treatment of special concern. It will determine which treatments will or will not fall into this category and it is most especially to be noted that it may appoint medical practitioners from among its own members for these purposes, which certainly casts some doubt on the Government's claim that such doctors will be independent.

At Committee stage I drew attention to the curious way in which the Government justified their reticence concerning the commission by claiming that it would be subject to the relevant provisions of the National Health Service Act 1977, in particular of Part III of Schedule 5. It is upon these grounds that the Government based their decision not to seek separate powers in this Bill to make provision for membership of the commission. It is just another health authority, they say. I have said it before and make no apology for saying it again: this new health authority is going to be of an altogether different nature from those provided for in the National Health Act. The great difference is that it deals with men's minds and not merely with their bodies, and it will be overseeing the use of powers which directly affect the liberty of the subject in a way that no regional health authority does or is ever likely to do. Is it to be wondered that we should want to make a little more explicit exactly what the commission is or is not to do?

This amendment does not go very far, but it goes some way in the right direction. Since it has not yet been accepted that a panel of three members should be set up to determine capacity to consent to treatments of special concern, it seems to me more than ever necessary that the requirement on the doctors that they make prompt reports to the commission should be accepted. The multidisciplinary element we have constantly sought to introduce into the Bill and which the Government have with equal but less praiseworthy consistency sought to avoid, does at least potentially reside within the commission and I hold that it should be activated as soon as possible in all cases of treatment without consent or of special concern. If the commission is not to be involved in the actual process of determining the patient's capacity to consent, as was proposed by the noble Lord, Lord Winstanley, in Amendment No. 47, it should at least be activated as soon as possible thereafter so that it may, at the very minimum, scrutinise the decisions of doctors and keep them under review.

If the noble Lord answers that the commission would do that anyway because that is what it has been set up, to do, my retort would be to repeat that the Bill tells us precious little about the commission or how it would operate. We are supposed to take it all on trust. I accept that over-legislation is undesirable but I submit that we are perilously near to under-legislation in this case. I have no doubt the Government want the commission to be, as they have repeatedly stated, the watchdog of the patients, but we should equally ensure that it should never become subject at some future time the Secretary of State's poodle. The modest proposal in this amendment would have the merit of enabling lay members and members of other professions to monitor the use of powers conferred on psychiatrists and to build up a corpus of experience in the application of the most sensitive and controversial types of treatment. I beg to move.

Lord Elton

My Lords, I agree with part of the amendment, that the independent doctors should report back to the Mental Health Act Commission about the second opinions that they give. That is what we intend, but I do not think there is any need to say so in the Bill, because it is to be the Mental Health Act Commission which appoints the psychiatrists to give second opinions and the commisssion will make it clear to the people it appoints that they are to report back to the commission, which will monitor the decision-making process.

I do not agree, and do not find feasible, the proposal that the reports should assess the outcome of treatment. That seems to misunderstand the purpose of the second opinion. The independent doctor is asked whether it is reasonable, in the light of the patient's present condition and his medical history and all other relevant factors, to give a particular treatment. But he will not be at the responsible medical officer's elbow to watch the treatment being administered and assess its outcome over a period. That would be quite contrary to professional practice and clinical responsibility. I am also not sure what an assessment of the outcome would prove or indeed at what stage it would be reasonable to to assess the outcome, nor on what criterior the outcome should be assessed.

Since we are concerned with legislation, one cannot be imprecise, but I can assure the noble Lord, Lord Kilmarnock—and I suspect that this is what he really wants, rather than changing the letter of the law—that the commission will ask for reports about second opinions, although they may not be in quite the form he suggests. The commission will want to assess he effects of what it does; so indeed will the department and the Secretary of State. Their interest will be at least as great as that of the noble Lord, Lord Kilmarnock, and they will not require any sort of statutory prod to get them to express it. Therefore, I hope that the noble Lord will feel that what he wishes to achieve will be achieved without changing the Bill.

Lord Kilmarnock

My Lords, I am grateful to the noble Lord for that reply. Many of the difficulties would have been avoided if the Government had set out in a schedule in some clearly defined form the way in which they envisage the operation of the Mental Health Act Commission. This amendment really arises from the fact that the Government have been very coy about the commission, and the reason given for this coyness is that it is a health authority appointed under the National Health Act 1977. I think that has led to this area almost of mystery which has shrouded the commission in the pages of this Bill; so in fact what is happening now is that we are gradually drawing from the Government in piecemeal fashion a statement of their intentions as to the operation of the Mental Health Act Commission. That in itself is a worthwhile operation. I beg leave to withdraw the amendment.

Amendment, by leave ,withdrawn.

Lord Kilmarnock moved Amendment No. 68:

Page 31, line 3, at end insert— ("( ) The Commission shall, within two months of the end of each year, publish reports on the use of powers under—

1. (i) section 26(2)(a) of the principal Act for patients suffering from psychopathic disorder, indicating the effectiveness of treatment given under section 26(2)(b) of that Act; and to make recommendations;
2. (ii) sections 26(2)(c) and 43(3A)(c)of the principal Act indicating the circumstances that have been cited for the grounds of" protection of other persons"; and
1082
3. (iii) section 30(2) of the principal Act, indicating the frequency of and reasons for their use.").

The noble Lord said: My Lords, my introductory remarks to the last amendment will serve equally well for this amendment. We seek to put some specific obligations on the commission. I do not want to be tiresome about this and the noble Lord has now told us a little more about how the commission will work, though information about it is not very clear from the Bill. I should like to see the commission publish annually the reports of the operation of the Act in three controversial areas. Sub-paragraph (i) requires the commission to review the use made of Section 26 of the principal Act in relation to psychopaths and most especially to monitor the effect of treatment given under Section 26(2)(b) Although my amendments to remove the word "psychopath" from the Bill were not accepted, I do not think that anyone will deny that the treatability of psychopaths is extremely dubious in the large majority of adult cases and that this is a field in which the operation of the Act should be subject to special scrutiny.

Sub-paragraph (ii) deals with people detained because they are expected to cause harm to others and requires the commission to report on the use of these powers. It may be remembered that at Committee stage I sought to safeguard against their excessive or irresponsible use by inserting the words "from serious harm" after the words "protection of other persons". One or two of your Lordships, and in particular the noble Baroness, Lady Phillips, objected to this on the grounds that life could be made intolerable for relatives or neighbours in ways that could not properly be described as causing "serious harm", at any rate in the bodily sense. I accept that and seek here simply to ensure vigilance over the use, and possibly the occasional abuse, of Section 26(2)(c) and Section 43(3A)(c) I hope that will be accepted as a reasonable compromise.

Sub-paragraph (iii) is designed to deal with the three-day emergency holding power given to doctors and the six-hour holding power of nurses, the latter of which I sought to have reduced in an earlier amendment. Noble Lords were not happy about that, but I hope it will be acceptable that there should at least be a review mechanism, particularly of the use of those powers by junior and inexperienced nursing staff. This amendment sets out to put some flesh on a body that the Government have described, as I mentioned earlier, as the "watchdog of the patient". The functions that I seek to give it here would give it a far better claim to that description. My Lords, I beg to move.

Lord Elton

My Lords, we have—have we not?—already discussed what the commission is to publish. We have—have we not?—laid down, with the consent of your Lordships, that the commission shall publish regular reports and that it shall also give guidance on good practice in the admission and medical treatment of detained patients. It is likely, therefore—is it not?—that the commission will want, and indeed will need, to look at the kind of matters which are raised in this amendment. It will no doubt wish, for example, to check current practice to make sure that its guidance is being followed. We shall undertake to draw to the attention of the commission's members the record of the present discussion, so that they are seized of what this House considered to be particularly important. But it would seem unwise to go too far in laying down in detail what the commission shall publish. The particular issues raised in the amendment are all, I entirely agree, very important. But the commission may discover other issues which it considers equally, or more, important; and the importance of issues changes from year to year.

If we lay a specific duty on the commission always to look at particular things in perpetuity, it will limit the scope of the Secretary of State's power to request reports on other matters which may at the time be more important. It will also give the commission itself less time to consider issues that become important as its work develops. I should also point out that my right honourable friend the Secretary of State has power to require the commission to undertake particular tasks and to write particular reports. I should add that your Lordships, yourselves, may also take the opportunity, when the commission's regular report is laid before Parliament, as your Lordships' amendment requires, to debate it and, yourselves, to suggest particular areas of concern. In the circumstances, I think that this amendment is entirely superfluous.

Lord Kilmarnock

My Lords, I am grateful to the noble Lord. I quarrel slightly with his use of the word "superfluous", because I am, in point of fact, rather pleased by the answers which the amendment has elicited. So for my purpose it has not been superfluous. The delineations of the commission are becoming clearer before my eyes, and I do not think that I should have had this clarity of vision if I had not tabled these amendments. So I am grateful to the noble Lord for what he has vouchsafed to tell us about his view of the commission's operations and activities. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.52 p.m.

Baroness Masham of Ilton moved Amendment No. 70:

Page 31, line 3, at end insert— ("( ) The Secretary of State in appointing members of the Commission shall ensure that at least two members are members of voluntary organisations who represent mental patients' welfare.").

The noble Baroness said: My Lords, this amendment provides for two members of the Mental Health Act Commission to be people who are members of voluntary organisations who represent mental patients' welfare. Having been a member of a Community Health Council, I found that the members of that council who represented specialist voluntary organisations put a great deal into their work, and were very keen and committed members. No doubt they would do likewise should they be members of the Mental Health Act Commission. Another reason for the amendment is that it would surely be of benefit to the commission to have these organisations working with them, rather than against them.

I think everyone would agree that in this Bill we are dealing with the most difficult group of people in society. The year 1981 was the International Year of Disabled People, and it has shown that disabled people themselves want to speak out about their needs. These compulsorily detained patients cannot do this, but they have organisations interested in their welfare needs. I hope that the Minister will, at least, agree in principle with this amendment. My Lords, I beg to move.

The Lord Bishop of Norwich

My Lords, I should like to support the noble Baroness's amendment, because we have a long history of voluntary organisations in our country. It is not every country that has such a proud history of voluntary organisations and this amendment, modest and simple though it is, would do three things. It would bring the expertise of the voluntary societies—and their case histories mean that they know a great deal about individual cases—to the wider principles which the commission will want to look at. Secondly, it will be an educative opportunity for the voluntary societies, because by being involved within the commission they will also learn about the general on-going and wider principles which will be informing the commission as it develops. Thirdly, it will, in a small way, give Her Majesty's Government an opportunity of showing their appreciation of all that the voluntary organisations do. Furthermore, by bringing them into activity in this way, the patients themselves will be helped which, when all is said and done, is the final purpose of the Bill. So I should like to support the noble Baroness.

Lord Wallace of Coslany

My Lords, I should like to support the noble Baroness in her amendment. She is slightly modest and I think that more than two members would be better. Those of us who have had to bear the heat and burden of preparing amendments to this Bill, know how indebted we are to many voluntary organisations which are working in this field. This is an excellent amendment. I have a feeling that it is already in the Government's mind, and I should be very surprised if it is not.

Lord Auckland

My Lords, I should like to support this amendment very strongly, particularly because, since the reorganisation of the Health Service, Community Health Councils—which do a very good job—have replaced the Hospital Management Committees. Those committees were much smaller bodies and it was then easier for voluntary organisations to play a large part. So this amendment is now more essential than ever, particularly, in the case of the long-stay patients who may not have living relatives or anybody else close to them to care for their needs. Whichever the voluntary bodies may be—whether it is the League of Friends or other organisations—they can play an enormous part in the welfare, and probably the therapeutic welfare, of these patients. This is a most important amendment and it should be accepted by the Government.

Lord Hooson

My Lords, it seems to me that this amendment encompasses a very sensible suggestion and we on these Benches would certainly support it.

Lord Sandys

My Lords, it is quite clear that the noble Baroness has drawn to herself a body of opinion throughout the House which welcomes the terms in which the amendment has been drafted. In this respect, the Government are not standing aside, because, as will emerge from my remarks, nothing divides us on this point. I was most grateful for what my noble friend Lord Auckland said about the role which voluntary organisations have to play. I was also most grateful to the right reverend Prelate the Bishop of Norwich for what he said in regard to this whole field. Perhaps it would be invidious to identify particular voluntary organisations, but in this respect it is most important to remember the noble Baroness's introductory sentence, in which she referred to the role of the Community Health Councils.

Clause 43 establishes the Mental Health Act Commission, which is a completely new body, and it is emerging out of what the noble Lord, Lord Kilmarnock, termed a shroud of mystery. We envisaged that members of voluntary bodies, concerned with the welfare of mentally disordered patients, will be among those with the right background and experience needed to work for the commission. The intention, however, is not to appoint representatives of particular bodies, whether voluntary, professional or statutory, but to appoint individuals who can make a valuable contribution to the commission in their own right. Moreover, the appointments made are dependent upon the willingness of men and women to serve. I expect that members of voluntary bodies will apply. We cannot force anyone to do so, but we might be in the position of having to do so if a provision of this kind were written into the Bill.

Finally, I am sure that the noble Baroness will appreciate that if we provide for one group in the Bill, representations will be made on behalf of other groups also to have their membership assured in the same way. All flexibility to determine membership according to the needs of the time will be removed. I hope the noble Baroness will accept that we support her intention but that there is no need to legislate specifically on this point. Therefore, I hope that she may be content to withdraw the amendment.

Baroness Masham of Ilton

My Lords, I am very grateful to all noble Lords who have paid tribute to the voluntary bodies. We in Great Britain are very fortunate in having such splendid voluntary bodies and so many people who give their time so liberally. I am grateful for what the noble Lord, Lord Sandys, has said, in particular for his tribute to the community health councils. When people put forward their names, it is always difficult to make a selection. The people representing voluntary bodies throughout the country generally have the most representation on the CHCs, so it is a difficult task. I am glad that there is to be flexibility, for it may well be that there are two or more splendid people in a particular organisation whom the commission think it would be good to have as advisers. Having said that, I am pleased to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 71 not moved.]

8.2 p.m.

Lord Elton moved Amendment No. 72: After Clause 43, insert the following new clause:

(" Duty of managers of hospitals to give information to detained patients.

.—(1) The managers of a hospital or mental nursing home in which a patient is detained under the principal Act or this Act shall take such steps as are practicable to ensure that the patient understands—

1. (a) under which of the provisions of those Acts he is for the time being detained and the effect of that provision; and
2. (b) what rights of applying to a Mental Health Review Tribunal are available to him in respect of his detention under that provision;

and those steps shall be taken as soon as practicable after the commencement of the patient's detention under the provision in question.

(2) The managers of a hospital or mental nursing home in which a patient is detained as aforesaid shall also take such steps as are practicable to ensure that the patient understands the effect, so far as relevant in his case, of—

1. (a) sections 47 and 48 of the principal Act (discharge by responsible medical officer, managers, nearest relative etc.); and
2. (b) sections 38 to 40 and 42 above;

and those steps shall be taken as soon as practicable after the commencement of the patient's detention in the hospital or nursing home.

(3) The steps to be taken under this section shall include giving the requisite information both orally and in writing.").

The noble Lord said: My Lords, I was able to speak to this amendment during the debate on Amendment No. 6 when noble Lords were kind enough to indicate their support for it. It might, therefore, be for the convenience of the House if I left it at that in moving the amendment. I beg to move.

Lord Mottistone: My Lords, I am sorry for detaining the House, ever so briefly, but yesterday I received a letter from the National Schizophrenia Fellowship who wrote to me very late about this matter. I advised my noble friend Lord Elton that I was going to speak to this amendment and told him roughly what I was going to say. It is only fair that I should lay before your Lordships the concern of the NSF. Their point is really directed at Clause 3(4)(b) which had already been passed by the time I received their letter. However, their concern also relates to the words which appear after subsection (1)(b) of the amendment which is under consideration and also to subsection (3). They feel that no sooner has a schizophrenic patient been admitted under compulsory powers (which in their experience is very difficult to achieve, however ill a person may be) efforts have then to be made to suggest that the patient might consider an appeal to have his compulsory admission reversed. This is particularly so under Clause 3(4)(b) but it would be applicable also in terms of subsection (3) of the amendment now under consideration. They say that in the case of that kind of patient it is only confusing to them. No sooner have they, perhaps reluctantly, been compulsorily admitted (everybody will agree that there are these kinds of patients) than somebody comes along and says, "You must try to get out". This is even more confusing to them. Psychiatrists have told the NSF that it may have very adverse effects on patients. Therefore, it presents a real problem.

I did not think it was right to put this down as a manuscript amendment because your Lordships would not have had time to hoist it in. However, may I ask my noble friend to consider putting at the end of his Amendment No. 72 a new subsection (4) which reads: Action in pursuance of this section shall not be taken if, in the opinion of the responsible medical officer, to do so would adversely affect the cure of the patient".

I am not asking your Lordships to make a decision about this matter now, because it has come straight out of the air. However, I am asking my noble friend, who will see this when it is written down, to give consideration to putting something like it into the Bill at Third Reading, or to consider advising me to put down an amendment at Third Reading to the same effect. I am grateful to noble Lords for giving me a little time to air the point of the NSF.

Lord Elton

My Lords, I am grateful to my noble friend for the notice, albeit short, which he gave me of this intention of his and for drawing my attention to the difficulties foreseen by the NSF, with which I entirely sympathise. However, I am afraid that the problem is not soluble by the means which the noble Lord proposes. What we have here is in some sense a small bill of rights for detained patients—rather an important one. Noble Lords on all sides of the House will agree that a right which is concealed from its rightful recipient ceases to be of any value. What the noble Lord's verbal amendment proposes—what he foreshadows in his speech—is that the consultants in charge of the case should decide whether or not the patient should have his rights drawn to his attention as soon as may be after his introduction to the institution in which he is to be detained.

I shall not detain your Lordships longer than to say that I am afraid that whenever one bestows large benefits there are small disbenefits, if that is the word. There is almost nothing one can do in this life that is entirely good which does not have something about it which is bad. I accept that it will make some cases more difficult.

On the other hand, may I reassure the noble Lord and, through him, the fellowship that the duty to give this information to the patient will be laid upon the hospital authority and that they will act through doctors. They will find that the doctors in charge of cases will perform this duty and introduce this information to the patient in the most tactful and sensitive manner possible. Having spent all this time deciding to what extent patients should be supervised and to what extent they should have liberties and then to conceal those liberties from the patient on the judgment of the people in charge of the case would rather spoil the look of the Bill. I am afraid that I cannot encourage the noble Lord to do that at a later stage. I have used up my speaking time. I move that we should accept this amendment.

On Question, amendment agreed to.

Clause 44 [Replacement of mental welfare officers by approved social workers]:

Lord Wallace of Coslany moved Amendment No. 73:

Page 31, line 23, at end insert— ("( ) In issuing directions the Secretary of State shall among other matters ensure that persons appointed as approved social workers and not previously designated as mental welfare officers under the principal Act shall hold the certificate of Qualification in Social Work.").

The noble Lord said: My Lords, If beg to move the amendment standing in my name and those of my noble friends. The House will remember that there was a full and wide-ranging debate during the Committee stage on the desirability and practicability of insisting that those social workers appointed as approved social workers should be required to hold a professional qualification, the certificate of qualification in social work. The problems which it was felt the amendment would create were fully aired. Indeed, in conclusion the noble Lord, Lord Elton, stated that there is a great deal more common ground between us than perhaps some noble Lords may realise. The major problem identified in the debate at that time was our insistence on qualification, which would exclude those older mental welfare officers who, although highly qualified by experience, have never undertaken the two-year formal qualification in social work.

The effect of this amendment is to recognise the contribution made by these experienced practitioners and to ensure that they are not inadvertently excluded from the possibility of becoming approved social workers. What this amendment does ensure is that all new entrants to local authority social services shall be required to hold a qualification—the certificate in social work—before being considered for training under the approved social workers scheme.

As we stated in the Committee stage debate, if social workers involved in the care and treatment of mentally ill people are to take their place as professional equals with psychiatric nurses and psychiatrists, then, as far as it is possible, their level of professional competence must be assured. As we know, 70 per cent. of practising social workers are now professionally qualified. The unequal regional distribution of that 70 per cent. will certainly create some short-term problems, as identified by the noble Baroness, Lady Faithfull.

However, we must not forget that this legislation is intended to serve the interests of mentally ill people for a generation. It must be far-sighted and be based on the assumption of high standards of care by social workers and other professionals, characterised by a high degree of professional competence. We have done our best to meet some of the comments made at Committee stage, and I hope that the amendment will receive favourable consideration. I beg to move.

8.12 p.m.

Baroness Faithfull

My Lords, I agree with the noble Lord, Lord Wallace of Coslany, that social workers who have not been experienced previously in the mental health field should be qualified with the certificate of training in social work. However, there is a proportion of older people who have been doing mental welfare work for many years, and I agree with the noble Lord that they should be exempt.

Lord Wallace of Coslany

My Lords, that is exactly the point of the amendment.

Lord Elton

My Lords, I aim to reassure your Lordships that the Government are at one with the movers about the principle behind this amendment. The approved social worker will have a central role in considering applications for a patient to be detained in hospital or received into guardianship, and if necessary in making the arrangements. It is therefore obvious that the social worker concerned must he very well-equipped to carry out these duties. This is why we are introducing the special scheme of approval. Moreover, the approval training scheme has been designed—and it is important to note this—as a post-qualification scheme. Thus, our intention that the generality of approved social workers should be qualified is clear. This intention will also be made clear in the directions to which the amendment refers, and to which local authorities will be required to have regard. The directions will indicate that, except for suitable existing mental welfare officers whose case for protection we all accept, all approved social workers should be qualified. Local authorities will be required to have regard to these directions, and the Secretary of State will expect them to be followed.

I appreciate the concern that, unless we impose a requirement about qualification in the legislation, we cannot ensure that all local authorities will follow the specifications set out in the directions of my right honourable frined the Secretary of State. I do not believe, however, that given the rapid progress being made in the overall proportion of social workers who are qualified, a local authority would wish to appoint anyone as an approved social worker who was not either qualified or very experienced as a mental welfare officer, or both. If any problems become apparent here, it would be for my right honourable friend the Secretary of State to call on the local authority to explain why it had decided to appoint a person who was neither qualified nor experienced as a mental welfare officer, or both.

It is just possible that there would be circumstances in which this would be justified and with which your Lordships would agree if the case was known. I myself cannot imagine such a case at the moment but it is possible, and the Government are merely anxious not to shackle local authorities with a rigid statutory prohibition which allowed no discretion. I am quite clear, however, that this discretion must be used in the spirit of the Bill and that local authorities must appoint as approved social workers people who are either qualified formally or, in relation to existing mental health welfare officers, qualified by long experience.

This is really the nub of my argument; that we have to allow an element of discretion. Otherwise there will be times when a local authority will feel that it is being wrongly directed to do something which only the authority itself is in a position to know is not the best thing to do in a particular instance; and it is not given an opportunity to go to the Secretary of State and ask, "May we do this thing"? because that would be debarred by the Act as it would be then amended.

I sensed in Committee that some of the concern about approved social workers and qualification arose from doubt about the meaning of "approval" and about whether there would be any cohesion or uniformity in the arrangements for approval. I explained then what "approval" meant, and your Lordships will by now have had a chance to study the guidelines in more detail. Perhaps it will be of added reassurance if I stress that the arrangements for training are by no means finalised. Their final shape will depend upon the results of the present consultation on the draft guidelines. In the light of all the comments received we will consider how best to achieve a cohesive training programme which will provide a satisfactory level of expertise in all authorities, whatever the local circumstances.

We will not be satisfied with a system which produces a satisfactory standard of excellence either in only some areas or even only in most areas. Nor do we want areas to develop in isolation from others. It might also reassure your Lordships if I draw your attention to the fact that this sort of good practice is developing. Much is already going on in the way of local authorities combining to concentrate expertise and to share experience at training level. The noble Lord might be interested to know of a course run by MIND and sponsored by Cleveland, Cumbria, Durham, North-umberland, Gateshead, Newcastle-on-Tyne, North Tyneside, South Tyneside and Sunderland. These nine authorities all contribute to the one course and send their social workers on it.

I hope that I have convinced your Lordships that there is progress here and that we are committed to making more progress. Our proposal in the Bill for the new approval scheme is evidence of that. No social worker will be able, from two years after the Act is passed, to work within the Act unless he or she has received special training and experience (moving on from the position which I have just described, and which itself is very encouraging) and which has been formally approved for this purpose by the local authority for the area. I hope, too, that I have made clear what the Government expect of local authorities in this matter. It will he a great step forward. I hope that the noble Lord will feel that he can accompany us and not that we are dragging our feet.

Baroness Macleod of Borve

My Lords, may I say how grateful I personally am. I was very worried about the word "approved" and I mentioned that fact at Committee stage. The noble Lord, Lord Elton, has adequately explained that things are moving afoot, and I am grateful for what he has said.

Lord Wallace of Coslany

My Lords, the noble Lord, Lord Elton, has been quite reasonable and given quite detailed assurances on many angles of this particular problem. He stressed that local authorities in some areas are doing quite a good job, and that local authorities will be expected to do a good job. I have to introduce just a little vinegar by saying that I hope the Government will ensure that local authorities are assured of sufficient finance to do such a job. I accept what the noble Lord said and the spirit in which he made his comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Faithfull: moved Amendment No. 74:

Page 31, line 29, at end insert— ("(5) Resources shall be made available for that part of the training of approved social workers which should be carried out both at Post Qualifying Centres in Social Work and at post-graduate medical centres of health authorities.").

The noble Baroness said: My Lords, I must ask for the indulgence of my noble friend the Minister, and indeed of the Members of your Lordships' House, for putting down an amendment which I have no intention of pressing, but with the purpose of making four important but brief points. Obviously I realise that this is not an amendment to a provision in the Bill; it refers to the draft guidelines; but I can see no other way of making four points which I think are of vital importance.

First of all, with regard to the guidelines, I think it is not stated specifically that everyone who is going to be an approved social worker should at some point in time have lived in and worked in a mental hospital. Secondly, I believe that there must be block training, because I think local authorities differ in different parts of the country and we shall have an uneven service.

Thirdly, on the question of block training, may I make a plea to my noble friend the Minister that sometimes we should look at things across the board? Social workers train as social workers, doctors train as doctors and nurses train as nurses, and never do the three meet in the area of training. I would make a plea that at some point during training the approved social workers, the doctors and the nurses should for perhaps two months train together, so that they see one another's point and learn of one another's difficulties and also qualities. In the field of social work there are post-qualifying courses to which, I imagine, doctors, nurses and social workers could go. By the same token there are post-graduate medical centres at which perhaps social workers could join nurses and doctors. I believe there would be much more understanding if for part of the training the three professions could come together and train for a while together.

Perhaps the main purpose of this amendment, which I propose to withdraw, is the question of resources. The noble Lord, Lord Wallace of Coslany, has already referred to this. I think the social work world is very worried over the question of resources. While people are training, somebody has to be employed to do their work. This is costly, and, with the cutbacks in local government, it is going to be very difficult for a number of authorities to meet their commitments in other fields—the field of the elderly, the field of the children, the field of the disabled—if there is not going to be help. Therefore, I want to support the noble Lord, Lord Wallace of Coslany, on the question of resources. Without some Government resources I do not see how local authorities are going to meet these commitments. I would suggest that the way the commitments should be met would be in the block training area. I beg to move.

Lord Elton

My Lords, I am most grateful, as your Lordships will be, to my noble friend for giving her informed comments on a subject with which she is most familiar, even if she always does it from a position which gives me a terrible crick in the neck. My noble friend did, I think, raise three points. The first was that those who were trained under the new system should have close experience of a mental hospital or institution. I am sure she looked at the guidelines. She may not recall that in phase A the very first thing is a month's placement in a residential, or, admittedly, a day-care setting, catering for mentally ill people exclusively. If she feels that that is not sufficiently precise I will very much welcome her comments, because this is a consultation document.

Several noble Lords: We cannot hear.

Lord Elton

I am so sorry, my Lords. We have this geographical difficulty. My noble friend can hear, but those sitting opposite cannot. To recapitulate very briefly, the guidelines contain provisions very similar to what my noble friend wants in respect of becoming familiar with a mental residential or day-care setting. In any case, I look forward to hearing her comments on the subject at greater length on paper. It is always dangerous to encourage the noble Baroness to write to one at length because she is apt to do it without encouragement, and what I shall get as a result of this I do not know.

Secondly, on the matter of block training and mixed disciplines, I listened to her comments with great interest and I take note of them. On the matter of resources, I do think your Lordships are getting a little too anxious too soon. I have already just indicated one group of nine authorities which are already co-operating in a scheme which is beginning to move in the direction we want. I could also refer to Norfolk already using the University of Surrey as a base for its courses. There is a lot of good practice going on. It will not require a vast amount of reorganisation or more resources to embrace what is wanted. What I am also convinced of is that it is quite wrong to quantify the resources that may be needed until we have had the response to the consultation document and seen what the precise requirements of the scheme are going to be, and can then quantify the expense. I am most grateful to the noble Baroness for drawing our attention to this matter with the breadth of her experience. I expect to hear from her further, and I am relieved that she does not propose to press the amendment.

Baroness Faithfull

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hooson moved Amendment No. 74A: After Clause 45, insert the following new clause:

("Management of property and affairs of patients: medical evidence

.—(1) The medical evidence referred to in section 101 of the principal Act shall consist of medical reports provided by two medical practitioners who have each personally examined the patient on separate occasions at an interval of not more than seven days and their reports shall be signed on or before the date of any order of court made under this section.

(2) One of the practitioners referred to in subsection (1) of this section shall be approved for the purposes of this section by a District Health Authority as having special experience in the diagnosis and treatment of mental disorder, and unless that practitioner has previous acquaintance with the patient, the other such medical report shall, if practicable, be given by a medical practitioner who has such previous acquaintance.

(3) A medical recommendation for the purpose of this section shall not be given by any of the following—

1. (a) any person making an application under this part of the Act save where the applicant is the patient's medical practitioner;
1093
2. (b) a partner of any applicant as aforesaid or of any practitioner by whom another medical recommendation is given for the purposes of the same application;
3. (c) a person employed as an assistant by the person making any application, or by any such practitioner as aforesaid;
4. (d) a person who receives or has an interest in the receipt of any payments made on account of the maintenance of the patient;
5. (e) the husband, wife, father, father-in-law, mother, mother-in-law, brother, brother-in-law, sister or sister-in-law of the patient or of any such person making any application as aforesaid, or a practitioner by whom another medical recommendation is given for the purpose of the same application.

(4) The examination of the patient by the two medical practitioners referred to in subsection (1) of this section must both take place within 28 days of the making by the court of any order under this section which refers to the said patient.

(5) Where the medical evidence referred to in section 101 of the principal Act is tendered in evidence in support of an application for an order under the aforesaid section then—

1. (a) if the patient is represented by counsel or solicitor a copy of the report shall be given to his counsel or solicitor at least five days before the hearing at which any order under the aforesaid section is made;
2. (b) if the patient is not so represented, the substance of the reports shall be disclosed to the patient or, where he is a child or young person, to his parent or guardian at least 5 days before the hearing at which any order under the aforesaid section is made;
3. (c) in any case, the patient may require that both or either of the practitioners who provided the medical evidence in accordance with subsection (1) above shall be called to give oral evidence, and evidence to refute the evidence contained in the report may be called by or on behalf of the patient.").

The noble Lord said: My Lords, I beg to move the amendment in my name and that of my noble friends. This amendment is brand new. It refers to one part of the Mental Health Act 1959.

Lord Sandys

My Lords, I think the noble Lord may be under a misapprehension. This amendment does not appear in the Marshalled List.

Lord Hooson

My Lords, with great respect, it appears on the second Marshalled List of amendments.

Lord Elton

My Lords, the noble Lord is perfectly free to proceed. We will perhaps discuss later the late putting down of the amendment. It does not appear on the Marshalled List I was looking at.

Lord Hooson

I am amazed that the noble Lord's office has not seen to it that he has the second Marshalled List. Anyhow, this amendment refers to one part of the Mental Health Act 1959 which remains untouched by this Bill; namely, the Court of Protection I apologise for putting this amendment down late. It is largely my fault. My noble friend Lord Mayhew expressed his intention of putting down an amendment to achieve these ends. He gave it to me about three weeks ago to draft and I omitted to draft it; and in the event my noble friend is not here himself and I put down somebody else's draft, which of course I adopt.

The Court of Protection is almost completely unknown to the general public and little known to lawyers. But despite its unobtrusive existence this court has virtually complete control over the financial affairs and property of an estimated 23,000 people and it handles about £200 million. To be placed under the control of the Court of Protection not only affords help to those incapable of managing their financial affairs but also severely curtails the liberty of the patient to deal with his or her assets. It is itself part of the High Court, though it is not assigned to any Division.

I will come immediately to the point of the amendment. The jurisdiction of the Court of Protection can be invoked on the basis of one medical recommendation, often by a general practitioner without special experience of mental disorder. The court's examination normally does not go beyond the base of a single medical report.

The underlying assumption of the court is that the patient will play no part in the proceedings; most applications are dealt with by post and the medical evidence is often not deeply scrutinised. I am informed that the staff of this court—165 in all—are deeply committed to the care of the 23,000 people in their charge. The court is very well geared to deal with the public and I am not criticising the staff. What I say that in certain circumstances it should be right to have an additional protection.

This modest amendment attempts, at least partly, to remedy the situation by tightening up the recommendations for medical evidence. I think it would be helpful to say that I understand that the Royal College of Psychiatrists are almost certainly going to support this amendment, and that two doctors be required to provide medical evidence before the Court of Protection jurisdiction can be invoked. That is the purpose of the amendment.

In view of the fact that the amendment was put down very late, I do not expect a detailed reply from the noble Lord. But I thought it right to put it down and very briefly to introduce it this evening for the following reason. I am informed that it is very likely to be put down and pursued with vigour in another place. I thought it right that the noble Lord's office should be informed of that fact and be able to have, as it were, an early opportunity of considering the matter. I beg to move.

Lord Renton

My Lords, I fear that on this occasion I do not find myself in agreement with the noble Lord, Lord Hooson. One appreciates the trouble that he has taken to get this amendment drafted and to put the case before your Lordships. Before I go any further, perhaps I should mention that our youngest daughter is within the jurisdiction of the Court of Protection and we have been very well satisfied with the way in which they handle her affairs. It is done smoothly, efficiently and without any fuss.

Admittedly, the amendment does not attempt to change the general administration of the Court of Protection and that does not surprise me because I do not think that it requires improvement in a general way. It deals merely with the medical evidence required before a person is placed within the jurisdiction of the Court of Protection. But we do not need elaborate arrangements for such medical evidence. We want to encourage people to be brought within the jurisdiction of the Court of Protection if they themselves cannot manage their own affairs and if it seems, especially to their parents—as in our case—that it would be helpful in the long run for their affairs to be managed by the Court of Protection.

I should have thought that, as is provided at the moment in the Mental Health Act 1959, Section 101, we merely need a modicum of medical evidence. Section 101 says: The functions of the judge under this Part of this Act shall be exercisable where, after considering medical evidence, he is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs", and so on. That is all that is needed. Although one appreciates all zealous attempts to get any kind of improvement in our legislation, I do not think, if I may say so, that it is necessary for us to have this amendment.

Lord Elton

My Lords, by way of preface I should like to say that I regret inspiring my noble friend Lord Sandys to intervene on the question of the Marshalled List. I was working from my own originally amended Marshalled List. I think that my misunderstanding will be understood if I say that I was not aware of the amendment until very late today and that a great deal of my time thereafter has been spent in manufacturing the sort of detailed answer that I gather the noble Lord does not now expect of me, to the detriment, I may say, of perhaps my ability to speak on other amendments. As this is the second and not the first day of the Report stage, and as this amendment refers to Part VIII of the 1959 Act, which is a self-contained part dealing with the Court of Protection, and it was expressly not covered by the 1978 review of the Mental Health Act, I think that we are on very delicate ground and have arrived on it rather late. Section 101 of the Mental Health Act 1959 in effect empowers the Court of Protection to intervene in the administration of a person's affairs where the judge or one of the court's judicial officers is satisfied that that person is incapable of managing and administering his property and affairs. By the following sections of the Act the court is given a whole range of specific powers to take decisions on the patient's behalf, of which the most fundamental is the general one of appointing a receiver to manage the patient's affairs. None of this would be affected by the amendment.

I am sure that no one would dispute that a person's affairs should not be "taken over" in this way unless they really were incapable of managing them for themselves, and I fully understand the concern of the movers of this new clause to ensure that it is not done without adequate evidence. On the other hand, persons suffering from mental disability are clearly vulnerable in various ways and not least, if they have any significant assets, from persons with dishonest intentions.

The new clause would lay down many of the same requirements as to medical evidence as are contained in Section 28 for admission and treatment under Sections 25 and 26 of the 1959 Act, and it also repeats some of the detailed requirements as to medical evidence which are set out in Section 62 of the 1959 Act.

I think that I shall paraphrase the rest of this. The court requires of receivers who carry out the functions, which I understand the noble Lord regards with some suspicion, an annual account of their stewardship. If the account is not satisfactory it is investigated. If the investigation is not satisfactory the receiver is discharged and usually replaced by the Official Solicitor and that actually happens at least a dozen times a year. So this is not any idle undertaking. There is a close oversight of the work of the court. I am obliged to my noble friend for pointing out the need to encourage people to come to the court where there is need and for his endorsement, from the best possible standpoint, of the admirable work that it does. I need scarcely say more other than that I do not think your Lordships should accept this somewhat untimely amendment.

Lord Hooson

My Lords, the noble Lord, Lord Renton, confirmed the information that I had—and I do not pretend to be an expert on the Court of Protection—of the fact that the court exerts a very benign influence and is extremely helpful. That is my information. I do not doubt that, in the vast majority of cases, the evidence of one medical practitioner is almost certainly enough. But there are a few cases where, if a person is put under the protection of the court, it could be regarded as a deprivation of personal liberty—for example, somebody on the borderline where it is doubted whether he should he subjected to the jurisdiction of the Court of Protection which, after all, takes over complete charge of his property and so on. That is the exception at which this amendment is aimed.

I simply say, as I did in my previous remarks, that I thought it right to put down the amendment even at this late stage because I understand that the matter will be strongly pressed in another place. I am sure that the remarks of the noble Lord, Lord Renton, will be carefully considered when the amendment is considered elsewhere. In the meantime I apologise to the noble Lord, Lord Elton, for the extra work I imposed upon him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 [Orders and regulations):

Lord Kilmarnockmoved Amendment No. 75: Page 32, line 28, after ("36(4)") insert ("or 43").

The noble Lord said: My Lords, I beg to move Amendment No. 75. At the Committee stage I set down an amendment with the same burden as this amendment, with the intention of obliging the Secretary of State to bring orders relating to the Mental Health Act Commission before Parliament.

In the debate on the Committee stage on 1st February, at column 1172, the noble Lord, Lord Elton, distinguished between Clause 36(4), which is covered by the positive procedure, which takes away the rights of a patient, and Clause 43, which I also wanted to include, which defends or increases them. But the Mental Health Act Commission, in fact, exercises some of the Secretary of State's powers under Clause 39 as regards overriding a patient's right to withhold consent to treatment. Therefore, it seems to me that the Mental Health Act Commission's exercise of the Secretary of State's powers under Clause 39 to appoint the doctor who can certify treatment against a patient's wishes is at least as great a power as that contained in Clause 36(4).

However, in general terms, it seems to me that the requirement that regulations should be subject to positive approval rather than negative annulment is the proper course chosen when Parliament believes that the issues involved are too important to be left to the negative procedure. It therefore wishes to impose on Ministers a positive duty to put the issues before Parliament.

In the case of the Mental Health Act Commission, I and some of my friends still feel considerable concern at a certain obscurity concerning the powers and duties of, as well as the membership and operational methods surrounding, the commission. These fears could easily have been allayed, as I suggested before, if the Government had introduced a new schedule setting out the details of the Mental Health Act Commission so that they could be debated by Parliament during the passage of this Bill. But the Government have not done this; perhaps they may yet do so. But, until they do, I feel that at the very least the regulations that they are to make concerning the Mental Health Act Commission should be required to be approved positively by debate in both Houses of Parliament.

The noble Lord made a suggestion to me in Committee that I could pray against an order, but I think that that is not good enough on a matter of such importance, where Parliament as a whole should have an automatic right to vet the Government's regulations concerning the Mental Health Act Commission. This should not be left to a mere individual's vigilance. It is on those grounds that I venture to move the amendment. I beg to move.

Lord Sandys

My Lords, if I may, I should like to open my argument on this by referring the noble Lord, Lord Kilmarnock, to proceedings in Committee on Monday, 1st February at column 1172, where my noble friend Lord Elton said this: 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". The situation really is this. I think that the noble Lord may be under some misapprehension, and I can well understand the difficulties of interpretation, so I hope that he will find the explanation given in this speech to be satisfactory.

We have already covered this ground once. However, I am very happy to expand upon what my noble friend Lord Elton said at the Committee stage. But I must make it clear that this amendment is defective. Clause 43 imposes a duty on the Secretary of State to establish the Mental Health Act Commission as a special health authority under the National Health Service Act 1977.

However, the power to establish a special health authority is derived from Section 11 of the 1977 Act, and not from Clause 43 of the Bill. The 1977 Act provides for the Secretary of State's powers to make orders or regulations to be subject to the negative procedure by which an instrument can be annulled following a resolution of either House. In short, the procedure to set up a special health authority already exists independently of any provisions in the Bill. Most of the powers to make orders or regulations under this Bill will be subject to the negative procedure—as your Lordships know, that is the normal course.

I should like to take this opportunity to explain again why we feel it necessary to make special arrangements with regard to orders made under Clause 36(4), and why we do not consider it appropriate to extend those arrangements to orders concerning the Mental Health Act Commission. Clause 36(4) concerns the length of the period between automatic reviews of a patient's case by the Mental Health Review Tribunal. The length of this period is set out specifically in Clause 36(2) of the Bill and will, along with the rest of the Bill, become law only if it is approved here and in another place. It is therefore proper that, if at any stage in the future it is thought right to change the frequency of automatic reviews, Parliament should be asked to affirm the decision, bearing as it does on the rights of patients.

However, the case of the Mental Health Act Commission is different. First, there is no question of the commission taking away patients' rights; it is quite the contrary. I appreciate the concern to make sure that the commission is given an appropriate role and functions. Indeed, I am very much at one with the noble Lord, Lord Kilmarnock, in this. I have tried to make clear the great importance we attach to the commission. It is the one body which will have a specific duty to keep a watch on the exercise of the powers conferred by the 1959 Act, as amended by this Bill. It is, therefore, in a sense the focal point of all that we have been discussing. This is why we have set out quite clearly in the Bill what the principal functions of the corn-mission will be.

We have had a further opportunity to discuss those today. Your Lordships have also agreed earlier today that one of the duties of the commission as an accountable body, will be to produce a report regularly. Your Lordships will, therefore, be kept informed of the commission's activities. I think it has been quite important to consider in depth, as we have done, the role we see for the commission. I hope that in the light of my explanation of why we do not consider this amendment to be appropriate, the noble Lord will feel able to withdraw it.

Lord Kilmarnock

My Lords, I am grateful to the noble Lord, Lord Sandys, for that exposition. If my amendment is defective on the grounds that he suggests, that in fact simply highlights what I was saying before, that it was not appropriate to introduce this Mental Health Act Commission under the umbrella of the National Health Act 1977 because the commission is to have powers or certainly influence, over the liberty of the subject in a way that no regional area health authority would ever have. Therefore, it simply highlights the fact that the Government have brought the Mental Health Act Commission to birth by the back door and through a procedure of which I, personally, disapprove.

The noble Lord, Lord Sandys, went on to say that the principal functions of the commission are set out clearly in the Bill; but I spent some time on an earlier amendment pointing out that the Bill is really extremely sketchy on the principal functions of the commission, though it is a little more explicit on its powers. What we have got out of this afternoon's Report stage is an agreement for the commission to produce a report once every two years, which is certainly an improvement on the triennial proposal of the Government, and I think that we can be grateful for that.

I wonder whether I may tempt the noble Lord into suggesting that the Government might, at Third Reading, introduce a schedule which would settle some of the fears that have been expressed during this afternoon's debates concerning the powers, functions and methods of operation of the Mental Health Act Commission. I, for one, would be very happy if he would give that undertaking.

Of course, I do not intend to press this amendment, but I think it has revealed a certain area of concern which the Government have not properly answered. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 [Interpretation and supplementary provisions]:

[Amendment No. 76 not moved.]

Clause 51 [Commencement and transitional provisions]:

Lord Elton moved Amendment No. 77: Page 33, line 33, at end insert ("; and at the expiration of that period, the reference to mental welfare officers in section 40(1)(a) above shall he construed as a reference to approved social workers appointed under section 44.").

The noble Lord said: My Lords, my noble friend Lord Cullen spoke to this amendment when moving Amendment No. 61. This is consequential upon the earlier one, and I beg to move.

On Question, amendment agreed to.

8.51 p.m.

Lord Kilmarnock moved Amendment No. 78:

Page 33, line 36, at end insert— ("(5) Sections 19 and 27 above and the provisions of Schedule l to this Act shall come into force on the day on which this Act is passed.").

The noble Lord said: My Lords, this amendment concerns those parts of the Bill—two sections and one schedule—which might be described as "the European provisions"in the Bill. We had an ample debate on them at the beginning of this Report stage when I moved Amendment No. 1 to introduce a compensation board to take care of the claims of victims which would certainly be coming forward.

As I understand it, the provisions of this Bill, when it becomes an Act, are not due to come into force fully until September 1983, with the result that we shall remain in breach of the European Convention on Human Rights, and in particular of the judgment in respect of X v United Kingdom, for something like another 19 months. At the beginning of this Report stage, I suggested that the setting up of a compensation board would be needed to take care of any claims that might already be pending and might also come forward as a result of this further 19 months of non-compliance with the ruling of the European Court of Human Rights.

That suggestion was debated, and I think was fairly discussed. It was not accepted and I withdrew it, but we are still left with this awkward gap to bridge of the remaining period of time that we are going to be in breach of the convention under Clause 5(4), I think it was, speaking from memory, which was the relevant clause in the case of X v United Kingdom. We were also likely to be in breach of Clause 5(5), which entitles victims to financial compensation.

If the Government felt able to accept this amendment, we should at least get rid of the 19 months of further non-compliance which we are in danger of running into at the moment. To that extent, the compensation board, which I moved earlier, would become somewhat less necessary, though not, in my belief, wholly unnecessary, in order to comply with our obligations under the convention.

My suggestion is that we should at least take this step and bring the European provisions into play as soon as we possibly can. Of course if the noble Lord is going to argue that this is going to be administratively impossible or difficult, I do not think that that really is quite the case. I cannot believe that it is beyond the wit of the tribunal to take this little extra hit of European obligation on board, and I venture to suggest that they will be perfectly capable of doing so. I beg to move.

Lord Belstead

My Lords, the noble Lord, Lord Kilmarnock, expresses his desire, with which the Government certainly have sympathy, that our law should be changed as quickly as possibly so that we are not, for any longer than is absolutely necessary, in a situation in which we fail to satisfy the requirements of the European Convention. The noble Lord said that the Government might argue that this was administratively very difficult. That is precisely the argument I am going to put forward; both that and that it is also legislatively extremely difficult.

I do so on these grounds: new tribunal rules under this Bill, if and when it becomes an Act, are going to have to be prepared and discussed with those affected by them before they are made. New tribunal chairmen are going to have to be found and allowed to become familiar with new responsibilities for tribunal work. We are making, as the noble Lord who has taken such a fundamental part in the proceedings on the Bill knows better than I, fundamental changes in this Bill and not only tribunal chairmen and members but also patients and their advisers will need to know precisely what are their responsibilities and rights.

The Mental Health Act 1959 will very soon be studded with amendments. It would be virtually impossible for anyone to have a clear understanding of their new rights and responsibilities until a consolidation measure has been passed and there has been at least a short period for digestion of that. Then we also have the situation where the law for Scotland and the law for Northern Ireland are presumably going to need attention. It is for these reasons that I believe that it is not possible to go down the road which the noble Lord is urging upon the Government. It is on those grounds that I resist the amendment.

Lord Kilmarnock

My Lords, I am grateful to the noble Lord for explaining his position in terms which I must say I expected. In general terms, it all points very much in the direction which was taken by the noble Lord, Lord Wade, in his speech on the desirability of incorporating the European Convention on Human Rights into our domestic law, which would automatically get rid of all these problems. There is no doubt that there are problems of this sort pending at the moment, and more are on the horizon. I must confess I sympathise with the noble Lord in his argument that they are administrative difficulties. I should have thought that we might have made a bit of an effort to speed the process up to get the new provisions into play within, let us say, six months or a year, or something of that nature, but, if the Government do not feet able to do this, it increases the need for some arrangements for compensation such as those that I suggested at Clause 1 of this Report stage. Therefore, that is a matter to which I may feel I should come back at the final stage of the Bill in this House. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Discharge of restricted patients]:

Lord Elton moved Amendment No. 79: Page 35, line 41, leave out (" (a) or (b)") and insert (" (b)(i) or (ii) ").

The noble Lord said: My Lords, this amendment is consequential on an earlier amendment, and it is technical. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendments Nos. 80, 81 and 82: Page 39, line 27, leave out ("A") and insert ("Where a") Page 39, line 29, leave out from ("1964") to ("does") in line 31. Page 39, line 32, leave out (" tribunal within that period") and insert ("Mental Health Review Tribunal in the period of six months beginning with the date of that order ").

The noble Lord said: My Lords, I beg to move Amendments Nos. 80, 81 and 82. These three amendments are consequential upon Amendment No. 15. I beg to move.

On Question, amendments agreed to.

Schedule 2 [Consequential amendments]:

Lord Elton moved Amendment No. 83:

Page 45, leave out lines 7 and 8 and insert— ("27. In section 116(7)—

1. (a) for the words "detention in a hospital under observation (with or without other medical treatment)" there shall be substituted the words "detention in a hospital for assessment (or for assessment followed by medical treatment)";
2. (b) for the words "admission for observation" there shall be substituted the words "admission for assessment".").

The noble Lord said: My Lords, this amendment is consequential on Amendment No. 4, as are Amendments Nos. 84, 85, 88 and 90. Perhaps I may speak to them en bloc or move the consecutive ones together? I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 84:

Page 45, leave out lines 10 and 11 and insert— (" 28. In section 116(7)—

1. (a) for the words "detention in a hospital under observation (with or without other medical treatment) "there shall be substituted the words" detention in a hospital for assessment (or for assessment followed by medical treatment)";
1102
2. (b) for the words "admission for observation "there shall be substituted the words "admission for assessment".").

The noble Lord said: My Lords, I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 85:

Page 45, leave out lines 16 and 17 and insert— ("30. In section 71(6)—

1. (a) for the words "detention in a hospital under observation (with or without other medical treatment)" there shall be substituted the words "detention in a hospital for assessment (or for assessment followed by medical treatment)";
2. (b) for the words "admission for observation" there shall be substituted the words "admission for assessment".").

The noble Lord said: My Lords, I beg to move.

On Question, amendment agreed to.

9 p.m.

Lord Belstead moved Amendment No. 86:

Page 45, line 30, at end insert—

(" The Administration of Justice Act 1960.

In section 5— (a) after subsection (4) there shall be inserted— (4A) Where an order is made under the said subsection (1) in the case of a defendant who, but for the decision of the court below, would be liable to be detained in pursuance of an interim hospital order under section 30 of the Mental Health (Amendment) Act 1982, the order may, if the court thinks fit, be one authorising his continued detention in a hospital or mental nursing home and in that event—

1. (a) subsection (3) of this section shall not apply to the order;
2. (b) Part V of the said Act of 1959 shall apply as if he had been ordered under this section to be detained in custody so long as any appeal under section 1 of this Act is pending and were detained in pursuance of a transfer direction together with a restriction direction; and
3. (c) if the defendant is detained by virtue of this subsection and the appeal by the prosecutor succeeds, subsection (2) of the said section 30 (power of court to make hospital order in the absence of an offender who is subject to an interim hospital order) shall apply as if the defendant were still subject to an interim hospital order.";

(b) in subsection (5) for the words "subsection (3) or subsection (4)" there shall be substituted the words "subsection (3), (4) or (4A)".").

The noble Lord said: My Lords, this amendment is necessary because of the new powers to make interim hospital orders which have been introduced into the Bill.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 87: Page 46, line 8, after (" hospital ") insert (" or mental nursing home ").

The noble Lord said: My Lords, this amendment corrects an omission in paragraph 35 of Schedule 2. The effect of subsection (5) of Section 80 of the 1959 Act, as applied by subsection (2) of Clause 50 of the Bill, is that a person may be detained under the new powers conferred by Clauses 28 and 30 in a mental nursing home as well as a hospital. It is therefore necessary that these consequential amendments should refer to this possibility.

On Question, amendment agreed to.

Lord Elton move Amendment No. 88:

Page 46, leave out lines 13 to 16 and insert— (" 36. In section 14(2)—

1. (a) for the words "detention in a hospital under observation (with or without other medical treatment)" there shall be substituted the words detention in a hospital for assessment (or for assessment followed by medical treatment)";
2. (b) for the words "admitted for observation there shall be substituted the words admitted for assessment".").

The noble Lord said: This amendment is consequential on Amendment No. 4, my Lords. I beg to move.

On Question. amendment agreed to.

Lord Belstead moved Amendment No. 89:

Page 46, line 16, at end insert— ("In section 37— (a) after subsection (4) there shall be inserted— (4A) Where an order is made under this section in the case of a defendant who, but for the decision of the Court of Appeal, would be liable to be detained in pursuance of a remand under section 29 of the Mental Health (Amendment) Act 1982 or an interim hospital order under section 30 of that Act, the order may, if the Court of Appeal thinks fit, be one authorising his continued detention in a hospital or mental nursing home and in that event—

1. (a) subsection (3) of this section shall not apply to the order;
2. (b) Part V of the said Act of 1959 shall apply to him as if he had been ordered under this section to be detained in custody so long as an appeal to the House of Lords is pending and were detained in pursuance of a transfer direction together with a restriction direction; and
3. (c) if the defendant, having been subject to an interim hospital order, is detained by virtue of this subsection and the appeal by the prosecutor succeeds, subsection (2) of the said section 30 (power of court to make hospital order in the absence of an offender who is subject to an interim hospital order) shall apply as if the defendent were still subject to an interim hospital order.";

(b) in subsection (5) for the words "subsection (3)or(4)" there shall be substituted the words "subsection (3), (4) or (4A)".").

The noble Lord said: My Lords, this is very similar to Amendment No. 86, being another amendment needed as a consequence of the new powers in the Bill to make interim hospital orders and to remand persons to hospital. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 90:

Page 46, leave out lines 30 to 34 and insert— ("40. In section 23—

1. (a) in subsection (2)(a) for the words" detention in a hospital under observation (with or without other medical treatment)" shall be substituted the words "detention in a hospital for assessment (or for assessment followed by medical treatment)";
2. (b) in subsection (3) for the words" admission for observation" there shall be substituted the words "admission for assessment".").

The noble Lord said: My Lords, this is the last of the amendments consequential on Amendment No. 4. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 91:

Page 47, leave out lines 28 to 30 and insert— (" 49. In section 38(4)—

1. (a) in paragraph (a) after the words "the Mental Health Act 1959 "there shall be inserted the words or section 29 or 30 of the Mental Health (Amendment) Act 1982";
2. (b) in paragraph (b) for the words from "within" to "guardianship under that Act there shall be subsituted the words" within the meaning of the said Act of 1959 without being liable to be detained as aforesaid, being treatment which follows without any interval a period during which he was liable to be detained or subject to guardianship as aforesaid".").

The noble Lord said: My Lords, although this looks complex, I assure your Lordships that it is merely a drafting amendment. I beg to move.

On Question, amendment agreed to.

Schedule 3[Repeals]:

Lord Elton moved Amendment No. 92: Page 50, column 3, leave out lines 48 to 50.

The noble Lord said: My Lords, this is consequential on Amendment No. 24. I beg to move.

On Question, amendment agreed to.

Schedule 4 [Transitional provisions and savings]:

Lord Belstead moved Amendment No. 93: Page 52, line 42, at end insert —

("Applications by persons subject to hospital orders.

. Section 19(2) of this Act and the corresponding repeal in Schedule 3 to this Act do not apply to a patient who is liable to be detained immediately before those provisions come into force.").

The noble Lord said: My Lords, this is a matter which I have mentioned in correspondence with the noble Lord, Lord Kilmarnock, my noble friend Lord Renton and the noble Baroness, Lady Robson. Although the Government are not persuaded that we should abandon our intention of restructuring the system of entitlement to mental health review tribunals, with the effect that non-restricted offender patients will not in future be able to make such an application in the first six months of their detention (a matter we discussed on Amendment No. 14), we are concerned to ensure that no individual patient will be adversely affected by this decision when the Bill comes into effect.

This amendment therefore proposes to preserve the rights of existing patients detained under Part V of the 1959 Act who have not completed the first six months of their detention on 30th September 1983. They will be able to apply to a tribunal at any time until the expiration of that six months, and thereafter they will of course be eligible to make a second application in accordance with Clause 12 of the Bill. Therefore, this is really a transitional provision. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 94: Page 52, line 45, leave out (,"Sections 23(2) and 24") and insert ("Subject to sub-paragraph (1A) below, sections 23").

The noble Lord said: With the permission of the House, my Lords, I will speak at the same time to Amendment No. 95. These amendments are one result of the Government's consideration of points raised in Committee, in particular by the noble Lord, Lord Avebury, about persons who are transferred from prison to hospital. The amendments relate to the provision in Clause 23(3) whereby restrictions on patients transferred to hospital shall in future expire at what would have been their earliest date of release instead of their latest date. It was always the Government's intention that this change should benefit those already in hospital at the corning into force of the legislation, as well as those transferred subsequently, and the purpose of these amendments is to make it absolutely clear that this is so. They also have the effect that restrictions on those who are between their earliest and latest date of release on the day the Bill comes into force will expire on that day.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 95:

Page 52, line 47, at end insert— ("(IA) Where, apart from this sub-paragraph, a transfer direction given before the date on which subsection (3) of section 23 comes into force would by virtue of that subsection have ceased to have effect before that date it shall cease to have effect on that date.").

On Question, amendment agreed to.

Lord Elton moved Amendment No. 96:

Page 53, line 35, at end insert—

(" Consent to treatment.

.—(l) Subsection (2) of section 39 of this Act shall not apply to any treatment given to a patient in the period of six months beginning with the day on which that section comes into force if—

1. (a) the detention of the patient began before the beginning of that period; and
2. (b) that subsection has not been complied with in respect of any treatment previously given to him in that period.

(2) The Secretary of State may by order reduce the length of the period mentioned in sub-paragraph (1) above.

Duty of managers to give information to detained patients.

In the case of a patient who is detained at the time when section (Duty of managers of hospitals to give information to detained patients) of this Act comes into force the steps required by that section shall be taken as soon as practicable after that time.").

The noble Lord said: My Lords, I must apologise for bringing this quite important amendment before the House rather late in the proceedings on the Bill, though not as late as some other proposals have been brought. In considering the bringing in of this legislation, we have realised that there could be a difficulty at the time when it is brought into force if everybody who has the power to refuse treatment and to get a second opinion by way of the Mental Health Act Commission were to do so from the very start. That could well frustrate the intention of your Lordships because either all treatment for detained patients would have to cease as they were gradually brought before the commission's second opinions for decision, or else the second opinions would have to be very cursory indeed, and neither of those is your Lordships' intention. We have therefore provided for the powers to come in only when the original backlog has been cleared, but that power, of deferral, will extend for only six months.

I would emphasise, first, that this phasing will apply only to patients who were detained before 30th September 1983; patients detained on or after that date will automatically be subject to the new provisions.

Secondly, the amendment excludes from the transitional provisions any treatment to be covered by regulations made under Clause 39(4) by the Secretary of State. As your Lordships will see, only the forms of treatment covered by Clause 39(2), and listed in Clause 39(3), will be subject to the transitional provisions. A further safeguard is incorporated in subparagraph (1)(b) of the amendment, and that is that if during the six months after 30th September 1983 a patient has had the new provisions applied to him, there can be no reversion to the previous system.

Finally, if the Secretary of State finds that the new arrangements are working so well that six months is not necessary, subparagraph (2) of the amendment will allow him to shorten the period. As your Lordships will know, the Secretary of State will be in a good position to know what progress is being made because of his close contact with both the special hospitals and the Mental Health Act Commission. I hope that your Lordships will agree that this small amount of leeway is needed to help get the new arrangements off to a good start.

As for the remainder of the amendment, headed, " Duty of managers to give information to detained patients", it is simply consequential on Amendment No. 72. It provides that patients detained at the time when the relevant section comes into force must be given the information as soon as practicable. I beg to move.

On Question, amendment agreed to.