§ 3.8 p.m.
§ Lord Elton
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Elton.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 [Replacement of "subnormality" by "mental handicap"]:
§ Lord Wallace of Coslany moved Amendment No. 1:
Page 1, line 7, at beginning insert—
("() For subsection (1) of section 4 of the principal Act there shall be substituted—
In this Act mental disorder means mental illness, mental handicap, severe mental handicap and psychopathic disorder; and "mentally disordered" shall be construed accordingly.".").
§ The noble Lord said: I beg to move Amendment No. 1 standing in my name and the names of my noble friends. Before I proceed to enlarge on the point regarding the amendment I should like to say how gratified and almost amazed we were to learn from the noble Lord the Minister that as regards the Committee stage of this Bill the Government have an open mind. That, of course, gives us great encouragement and hope on the lines expressed by the noble Lord. I trust that our hopes will receive greater realisation.
§ The other matter is that the Minister and the noble Lord, Lord Cullen of Ashbourne, backed as they are by a very efficient staff of civil servants, will appreciate the problems that some of us have had in coping with getting amendments to this Bill fixed and discussed. What with the weather, the strike and many other problems it has been a very difficult task. I am not pleading for sympathetic reward from the Minister, but at least I hope that he will understand.
So far as this amendment is concerned, the Committee will remember that I raised the general issue during the Second Reading of the Bill. Its intention is to limit the unacceptably wide scope of the principal Act by excluding the phrase:
any other disorder or disability of mind".
As mental illness remains undefined by this Bill, the scope of its compulsory powers must be made quite clear.
any other disorder or disability of mind",
could encompass almost any abnormality, perception of ethnic difference, religious belief, individual eccentricity—and quite a number of noble Lords might even fall into that category—or variation in levels of intelligence and understanding.
§ It is wholly unacceptable that by implication people could be rendered eligible for compulsory detention on such ill-defined grounds. Indeed, it might be argued that long-term hospital admission must clearly fall into one of the four major categories covered by the principal Act. However, this still leaves open the possibility of detention for up to 28 days. Compulsory powers should not be applied except where the individual is suffering from one of the major and identifiable forms of mental disorder, and the scope of this Bill should be defined accordingly.
I shall not beat about the bush. I regard this
amendment as vitally important. This vague phrase:
any other disorder or disability",
should be removed in order that the situation shall be fully clarified and that a number of people who might come under it by accident should have removed the likelihood of at least 28 days' detention. This is a vitally important amendment. I beg to move.
§ Lord Maybray-King
I wish to support this amendment from perhaps a different point of view. There was in Chicago a great lover of children who wrote a book on normal and subnormal children and who said that there are no subnormal children: every child is a normal child except in the very thing in which he or she is abnormal or subnormal. Others who work for mentally handicapped children know that despite their handicap those children can be able in so many other ways. If we limit the term to "handicap", I think that it would be more wholesome than to leave it as it is here.
§ Lord Hunter of Newington
I should like to say why I believe that psychiatrists are unhappy about the noble Lord's amendment. It is because this phrase has been a valuable one which has allowed certain unusual conditions, and some not so unusual, such as disordered brain damage, to be compulsorily admitted to hospital if necessary. A young man who has brain damage as a result of a motor accident and shows behaviour disorders would otherwise have to be described as psychopathic. This is inaccurate and undesirable, and it would indeed be regrettable if it became necessary.
I would submit that Section 4 has not been abused in the past. Very few people have been compulsorily admitted to hospital using this phrase. It could be argued that it would open the flood gates to any kind of patient being admitted, but, in fact, practice does not bear this out. It has not happened since 1959. I believe that it is an unjustifiable fear.
§ Baroness Stewart of Alvechurch
I should like to suggest that one word should be added to this amendment in the first line, so that it reads:In this Act mental disorder may mean",and then it should continue.
§ Lord Elton
In replying to this first of many amendments, may I say that I understand and sympathise with the difficulties that noble Lords and noble Baronesses have had in tabling amendments in good time, and those who have managed to do so are very much the object of the gratitude of myself and the department.
The noble Lord, Lord Wallace of Coslany, in moving the amendment, welcomed the open mind of the Government, which he said he heard declared with something of astonishment. I hope that the astonishment left him and that he became accustomed to it when he saw the amendment which immediately follows his own on the Marshalled List, which I think is an earnest of our good intentions.
But having an open mind does not mean that we necessarily agree with everything that is put before us by way of amendment. In this case, I must say that 529 the noble Lord, Lord Hunter of Newington, has voiced a good deal of the anxiety which I myself feel on this matter. I think that the sentiments of the noble Lord, Lord Maybray-King, are more appropriate to the amendment which follows this on the Marshalled List, and I am sure the Committee will remember them.
But, in this case, it really is necessary to retain the term:any other disorder or disability of mind",the function of which is to ensure that in certain cases a mentally disordered patient may be admitted whose mental condition has not been fully diagnosed. This situation may arise where a mentally disordered patient needs to be admitted for assessment before he can be diagnosed, or where he needs to be admitted in an emergency. The 1959 Act therefore provides that the criteria for admission for assessment or observation under Section 25 and for admission in an emergency for 72 hours under Section 29 encompass patients who are suffering from a mental disorder or disability of mind whose specific nature has not been diagnosed, and who therefore cannot be said to be suffering from one of the four named conditions. The Act also provides that such patients who are already in hospital voluntarily may be detained under Section 30, as this power is also likely to be used at times of emergency when there is no time for full diagnosis.
There may also be cases where it is appropriate to detain under an assessment or emergency power a patient who may not be suffering from one of the four named conditions, but who is nevertheless mentally disturbed and needs care for a short time. Examples of this situation are cases of abnormal mental state associated with drug abuse or alcohol abuse, where there is a danger to health and safety of the patient or others and where there is concern as to the presence of an underlying mental illness which has not yet been diagnosed.
The effect of removing the term:any other disorder or disability of mind",would therefore be to make it difficult, or indeed impossible, to detain some patients in cases of genuine need. The removal of the term might also force those responsible for diagnosis to make hasty judgments about a patient's condition, if it was thought that the patient did need to be detained.
I am satisfied that under the existing provisions a person who is mentally disordered but not suffering from any of the named conditions can only be detained when it is reasonable to do so. Moreover, such a patient may not be detained under any of the long-term powers in the Act. I can easily allay the noble Lord's concern, if it is in this area, because the patient can only be detained, as I have said, under short-term powers where, for the reasons already referred to, it is not possible or appropriate to diagnose the patient before admission as suffering from one of the named conditions. I hope that your Lordships will not accept this amendment.
§ Lord Renton
I think that the noble Lord, Lord Wallace of Coslany, has performed a helpful service in moving his amendment. It is agreed among all who think about this matter that Section 4 of the 1959 Act is not satisfactory as it stands, and that it needs 530 amendment. On behalf of the mentally handicapped, having had to apply my mind to this problem, I must say that it did not seem that an amendment of the kind which he proposes to subsection (1) of Section 4 of the 1959 Act would really do the trick, if I may put it that way.
It is subsections (2) and (3) which have caused the difficulty in the administration of the Act, in spite of what the noble Lord, Lord Hunter, whom we respect, has said. Your Lordships will have noticed that my noble friend Lord Elton has proposed substantial amendments to the Bill which would have the effect of improving subsections (2) and (3) of Section 4 of the 1959 Act. Speaking for myself, I feel that that is a more satisfactory way of dealing with what is undoubtedly a problem.
May I say how pleased I was personally to hear the noble Lord, Lord Maybray-King, speak on this matter, because when he was the Speaker in another place he was unable to speak about the mentally handicapped, but he did so much to help them even to the extent of giving a Christmas party for about 100 mentally handicapped children in the Speaker's House every Christmas. That was enormously appreciated, and I have had no other good opportunity of saying so until now. Bearing in mind what has been said by noble Lords who have spoken, I would respectfully suggest to the noble Lord, Lord Wallace, that it would be best not to press this amendment but to concentrate our attention upon the amendments which follow in the name of my noble friend Lord Elton.
§ Lord Wells-Pestell
My name is associated with this amendment, and like my noble friend I feel strongly about its value. But I think many of us on this side would be very much influenced by what the noble Lord, Lord Renton, has had to say, and what he has to say so far as the whole of this Bill is concerned. I would have been happier if the noble Lord the Minister could have come to the Committee—and this is not a criticism—and given some indication of the number of persons admitted who do not immediately on admission come under any of the four categories.
Listening to what has been said, it would seem that an enormous number of men and women are admitted where they are not instantly recognised as coming under any one of the four main categories. If this is so then there is a strong case perhaps for my noble friend and I to look at this amendment again. But there is the danger that if we do not use this opportunity to define as carefully as possible what we mean by "mental disorder" and "mental handicap" we may not get another for many years.
It is quite wrong for a society to have on the statute book an Act of any kind which is so wide that people can be put in a position of having to undergo certain things when in point of fact it is not clearly defined that there is a right to have them and to take them in. I do not know whether the noble Lord the Minister can help us so far as that is concerned. We are not going to be difficult about this. We are always impressed by the vast knowledge that the noble Lord, Lord Renton, has on these matters, but if the noble Lord the Minister could help us a bit more on this I think that perhaps many of us would be amenable to suggestion.
§ Lord Hylton
I have spent a certain amount of time both in England and France with mentally handicapped people of various ages. I therefore think that the wording of this particular amendment is just a little unfortunate. I say that because it says:severe mental handicap and psychopathic disorderin immediate conjunction. We all know that most mentally handicapped people, even the severely mentally handicapped, are not also psychopathic. You may get a very few cases where they are both, but this is a tiny minority. The fact that the amendment is worded in this way is likely to increase the misapprehensions which are unfortunately still all too current among the general public. That is why I ask the noble Lord, Lord Wallace, not to press the amendment in this present form.
§ Lord Elton
I hope it may be of help to the noble Lord, Lord Wells-Pestell, and his noble friends if I say that I am advised that fewer than 100 detained patients at any time fall outside the four defined categories. This may put the problem into a perspective which it may not have had when we began discussing it. That aside, I still maintain that the provision in the Act is necessary and that the terminology in the Bill is correct if we are to deal with people whose condition cannot be diagnosed at the time when their admission is sought. I therefore resist this amendment.
Lord Wallace of Coslany
I should like to thank all noble Lords who have taken part in this debate, and particularly the noble Lord, Lord Renton. I am not too happy about the Minister's reply. There is a point of substance here. It may be that some form of rewording might meet the case. Even if only 100 patients are involved, the risk is there. I shall take account of what has been said today, and study Hansard and take a bit of advice. The Minister might even give me some. I am prepared to withdraw the amendment now, and I shall possibly come back at Report stage with something more acceptable to the House. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 3.27 p.m.
Lord Elton moved Amendment No. 2:
Page 1, line 9, leave out ("handicap or severe mental handicap") and insert ("impairment or severe mental impairment").
§ The noble Lord said: Amendments Nos. 2 and 4 together comprise a new definition of certain people affected by the Bill. If I may, I shall speak to them together. There are five consequential amendments in Clause 1 which I shall move at the same time, and many others throughout the Bill. When I come to the numerous consequential amendments I hope again that, to save time, the Committee will give me leave to move them en bloc.
§ When your Lordships discussed this Bill at Second Reading there was very nearly universal concern at the way mentally handicapped people were included in its operation. It was felt that the incorporation of the term "mental handicap" led to a misunderstanding of that condition by the authorities and even, it was said by some noble Lords, by the courts. It was felt that a very clear distinction should be made between mentally 532 handicapped people and people who were mentally ill. Some of your Lordships felt that mentally handicapped people should be subject to completely different legislation and that they should not, in any case, be subject to the operation either of this Bill or of the 1959 Act which it seeks to amend. Perhaps the most trenchant advocate of those views was my noble friend Lord Renton.
§ In the course of that debate I gave voice to my own anxieties about what would flow from adopting the position of my noble friend and his supporters. I could not escape then, and I cannot escape now, from the conclusion that there is a very small proportion of mentally handicapped people who do need to be detained and for whom, if they were excluded from this Bill, there would be no place outside a prison. I believed, as I still do, that a prison was not the right place for people who need hospital treatment and it would be very wrong indeed to consign them to it. To provide parliamentary time for totally separate and partly parallel legislation, on the other hand, was impracticable. The course proposed would, therefore, inevitably have that effect.
§ However, I did undertake, when I presented this Bill for your Lordship's discussion at Second Reading, that the Government would listen very carefully to your Lordships and would not seek simply to drive this Bill through Parliament in the form which had already been decided upon—much to the astonishment of the noble Lord, Lord Wallace of Coslany. In view of the concern which had been expressed on all sides of the House, therefore, I took the Bill away to consider whether we could not do something to meet it.
§ I ought, perhaps, to add that the pressure to which I was subjected during the Second Reading debate did not die away in the Recess. In particular my noble friend Lord Renton was at great pains, in his capacity of chairman of Royal Mencap, to see that a change was brought about, and I should like to acknowledge his very constructive contribution to the search for a way forward.
§ The amendments which I now bring forward are designed to remove the terms "mental handicap" and "severe mental handicap" wherever they appear in the Bill, which will now have the effect of removing also the terms "subnormality" and "severe subnormality" in the 1959 Act. In place of both, we shall have the terms "mental impairment" and "severe mental impairment". This does not, however, remove from the operation either of the Act or the Bill those people for whom a period of detention in hospital is essential. To secure that result, we had to find new terms to describe their condition. These terms are, as I have said, "mental impairment" and "severe mental impairment". The term impairment is already in very appropriate usage, as it is used by the World Health Organisation to describe any loss or abnormality of psychological, physiological or anatomical structure or function. It occurs in the International Classification of Impairments, Disabilities and Handicaps published by the World Health Organisation in Geneva in 1980.
Having provided the substitute term, we had next to ensure that it was not going to be used to describe any people other than the small group to whom we wished it to apply. We therefore attached to it the requirement that, where the Act is to have effect upon a mentally
impaired or severely mentally impaired person, that impairment must be,
associated with abnormally aggressive or seriously irresponsible conduct".
We have tried in this phrase not only to establish the requirement that the behaviour of the person to whom the Bill applies shall be aggressive or irresponsible, but that it shall be aggressive or irresponsible to a marked degree. We did so by using the adjectives "abnormally" and "seriously". We did so after a long dictionary search and a good deal of discussion, in which my noble friend—to whose assiduity on behalf of the mentally handicapped I should again like to pay tribute—took his fair share. I do not think we can get any closer to expressing our intention, which is to limit the effect of the Bill and the Act on mentally handicapped people to those very few people for whom detention in hospital is essential so that treatment can be provided and for whom detention in prison should he avoided. That is the interpretation we intend to he put on these words. The revised definitions, and the interpretation I have just outlined, extend also of course to powers to receive people into guardianship.
§ We have also proposed to replace the word "patient" in the definitions of "mental impairment" and "severe mental impairment" with the words "person concerned". As my noble friend rightly pointed out to us, in normal usage a person is not called a "patient" until he has been placed under medical care. The alternative term he suggested for use in the definitions is therefore a sensible improvement. We intend to make the same change in the definition of "psychopathic disorder" to bring it into line. This amendment is a genuine attempt to meet the wishes that your Lordships expressed on Second Reading. I believe it will bring real benefit to those whom it affects and I hope it will be welcomed by the Committee. I beg to move.
§ Lord Renton
In supporting this series of amendments, I wish to thank my noble friend Lord Elton for the vast amount of trouble and care he has taken since Second Reading, even to the extent of interrupting his short holiday during our winter Recess. He has taken trouble to meet the strong case which I put forward on Second Reading on behalf of the mentally handicapped and which was supported by noble Lords in all parts of the House, and I wish to thank them, too, for what they said. I hope I am not speaking indiscriminately when I say I wish especially to acknowledge my gratitude to the noble Lord, Lord Wells-Pestell, whose experience and advocacy were very helpful indeed in supporting the case I put forward, a case which Mencap have been advocating for at least five years; namely, that the confusion between mental illness and mental handicap which arises from Section 4 and other Parts of the 1959 Act should somehow be overcome.
We were, I confess, disappointed when first we saw the Bill, but, thanks to my noble friend, we now feel that honour is satisfied. Also, I am able to relieve the Committee by confessing that it saves me the trouble of tabling and moving about 20 amendments myself. Noble Lords will recollect that injustices have occurred through the mentally handicapped 534 being confused with the mentally ill, even in the highest possible circles, and not only in the courts. Remarkable though it may seem, there was even confusion recently in the mind of the authorities of your Lordships' House, who, when on 9th December my noble friend Lord Belstead gave a Written Answer to my Question asking how many crimes of homicide and causing grevious bodily harm had been committed by mentally handicapped people, printed it in Hansard under the heading, "Mentally-ill persons: violent crimes", and I hope a correction will be made in the hound volume.
Mainly as a result of such confusion of thought, many mentally handicapped people have wrongly been made the subject of compulsory hospital orders and guardianship orders under Parts IV and V of the 1959 Act. But it does not end there, because this confusion has, as I say, led the courts to use their ordinary powers to impose custodial sentences of one kind and another on mentally handicapped people in circumstances which were most inappropriate. As my noble friend Lord Elton indicated, prison, detention centres and borstal are not the sort of places where the mentally handicapped can be coped with. But, as he rightly pointed out, and as we have acknowledged all along, there is a hard core of difficult cases in which mentally handicapped people have behaved in a seriously anti-social way. They have behaved in a way more like what is expected of psychopaths, although they cannot be classified as psychopaths; they are simply mentally handicapped. In that limited number, fortunately a small number of such cases, it is necessary for them to be placed in secure care for the protection both of themselves and of the public.
This series of Government amendments in our opinion achieves what is necessary for such cases. They make it clear, by a rather subtle use of a new term—new in our statute law, as I understand it—"impairment", that the mentally handicapped will not be subject to the compulsory provisions of Parts IV and V of the 1959 Act unless their state of mind is associated with "abnormally aggressive or seriously irresponsible conduct". If I may presume to amplify what my noble friend said on one narrow point, I think we should acknowledge that, although the use of "impairment" is new, the use of the expression "abnormally aggressive or seriously irresponsible conduct" is not new; it is borrowed from the definition of "psychopathic disorder" in the 1959 Act. I must confess that I have no objection to that, and indeed it seems accurately to describe that small number of difficult cases which we all have in mind.
The fact that, so far as I know, that phrase has given rise to no difficulty of interpretation under the 1959 Act should encourage us to use it in the circumstances which my noble friend Lord Elton has described and which I, too, have attempted to describe. Therefore it seems that a proper result which should give satisfaction all round has been achieved by my noble friend, and so it is with real gratitude that I support his amendments.
§ Baroness Masham of Ilton
My Lords, I should like to ask the noble Lord a few questions. One of them is in order to clarify the situation, because I am rather muddled. Do we now have the mentally ill, the mentally handicapped, and the mentally impaired?— 535 because I looked up in the dictionary the term, "to impair", and it stated, "to make worse". So are these people to be written off as a rather hopeless small group?
§ Lord Elton
The intention of the amendment is in no way to attach a pejorative label; it is merely to secure that these most unfortunate people do not have to go to prison and to do that by a means which also secures that the other people to whom the noble Baroness refers as mentally handicapped are not willy-nilly exposed to being detained in hospital for treatment when in fact their condition does not warrant such treatment. I shall not go into an elaboration of the definition; I merely commend to the noble Baroness the publication that I mentioned, which extends for pages.
Lord Wallace of Coslany
I thank the noble Lord, Lord Elton, for his amendments, which certainly go a long way to meet the requirements of a number of us in your Lordships' Committee. While I am prepared to support the amendments, I am not too happy about the use of the phrase "impairment or severe mental impairment". I fully appreciate the effort made to resolve a problem, but the words used still appear to me to be somewhat vague. Indeed, the noble Lord, Lord Renton, referered to the subtle use of words, and I think that he is quite accurate there. However, whether that be so or otherwise, what is proposed here removes an injustice from the Bill, and that is the main thing. We can be worried about whether the words are subtle or otherwise, but generally speaking we are prepared to support the amendments.
§ Lord Elton
I should like to add that I am very grateful for the noble Lord's support. The short definition relating to the general term "impairment" to which I have referred is in the context of health experience, and impairment is,any loss or abnormality of psychological, physiological, or anatomical structure or function".It goes on, but I think that that defines it clearly enough.
§ On Question, amendment agreed to.
§ Lord Elton moved Amendments Nos. 3 to 7:
§ Page 1, line 14, leave out ("handicap") and insert ("impairment").
§ Page 1, line 17, at end insert ("and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.").
§ Page 1, line 18, leave out ("handicap") and insert ("impairment").
§ Page 1, line 20, leave out ("handicap") and insert ("impairment").
§ Page 1, line 21, at end insert ("and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned".").
§ The noble Lord said: Amendments Nos. 3 to 7 all relate to Clause 1 and follow from what I have just said. With your Lordships leave, I shall move them en bloc. I beg to move.
§ On Question, amendments agreed to.536
§ Lord Sandys
I think that it would be for the convenience of your Lordships if we now take the Statement, and with that in mind I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.