Lords Sitting of 25 January 1982

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR Oil the Woolsack.
Prayers—Read by the Lord Bishop of Liverpool.

Gibraltar: HM Dockyard
Baroness Vickers: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will state what consultations have taken place with the Government of Gibraltar in regard to the future of HM Royal Dockyard there.
The Earl of Avon: My Lords, immediately following the announcement on 23rd November 1981 of Her Majesty's Government's decision to close Her Majesty's Dockyard Gibraltar, United Kingdom officials visited the Rock for discussions with the Gibraltar authorities. On 14th December 1981 the Chief Minister of Gibraltar, Sir Joshua Hassan, called on the Foreign and Commonwealth Secretary in London, and held detailed discussions with the Lord Privy Seal and the Minister of State for the Armed Forces.
Baroness Vickers: My Lords, I thank the noble Earl for that reply. I should like to ask the noble Earl the exact date upon which it is anticipated that the dockyard will be closed; how many Moroccans and Gibraltarians are likely to lose their jobs; and have any applications been made by firms to set up further industries to provide employment for the future?
The Earl of Avon: My Lords, we are expecting the closure to take place some time in 1983. It is a little early at the moment to give any concrete figure about how many people will be put out of work, but it is thought to be somewhere just under 1,000. As regards the final part of my noble friend's supplementary question, I point out that we very much hope that there will be approaches for a commercial use of the dockyard.

The National Health Service
2.38 p.m.
Lord Molloy: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied with the functioning of the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Elton): Not entirely, my Lords. But we do have a service which is of immense benefit to the nation, and we are continually seeking ways to improve it.
Lord Molloy: My Lords, I thank the noble Lord for that kind and generous reply. Would the Government be prepared to look very carefully at the working conditions and remuneration of Britain's nurses, who make such a massive contribution to the National Health Service, and may they be treated as generously and as properly as other sectors of industry that are now approaching the time for making claims to the various Whitley Councils?
Lord Elton: My Lords, I cannot, of course, anticipate any exchanges which may take place in negotiations of this nature. The noble Lord may be interested to know that the total of all nursing and midwifery staff in England, including unqualified staff and agency nurses, increased from 358,447, in whole-time equivalents, in September 1979 to 370,000 in September 1980—an increase over the year of about 11,500.
Viscount St. Davids: My Lords, in backing up the noble Lord, Lord Molloy, I should like to ask that the nurses be treated more generously than other people in industry because of their very noble habit of not going on strike.
Lord Elton: My Lords, the Government are well aware of the very valuable work done by the nurses and the way in which they do it, but I am not prepared to anticipate any future negotiations.
Baroness Jeger: My Lords, although the noble Lord has quite rightly said that the Government are seeking to improve the National Health Service, can he tell the House how the health service is being improved by the expenditure of £100,000 a year on keeping St. George's Hospital empty and on proposing to sell this very valuable site for peanuts—for £23,700? Surely that does not help the National Health Service.
Lord Elton: My Lords, I should like to explain the background to that question. Roughly half the site is vested freehold in the Secretary of State; the other half, of which a proportion is occupied by the medical school, is also held freehold, but the freehold is subject to special provisions in the conveyance and those provisions restrict the site to use as a hospital and a medical school. If that use ceases, an offer back, a preemption right, must first be made to the Grosvenor Estates, from whom the site was originally acquired in 1767, before it can otherwise be disposed of. As my right honourable friend is satisfied that there is no further health service requirement for the site, he has concluded that the best course of action is to dispose of it for the best commercial price which can be obtained within the restrictions imposed by the covenant. Our part of the site is a key to the whole development. We expect to realise several million pounds from it and the transaction to be very lucrative for the National Health Service.
Lord Molloy: My Lords, is the noble Lord aware that much of the increase in the number of nurses that he has mentioned goes back to three years ago? Last year those nurses finished their three years' training and became fully qualified nurses. Is there not a danger that that has now dropped off and that we shall not be in that happy situation because of the current lack of attraction to the service? Will the noble Lord please again bear in mind the point which has already been made, that because these young men and women do not threaten any militant action or anything of that character it would be extremely wrong if they were in any way victimised because of their faithfulness and loyalty to their great profession?
Lord Elton: My Lords, I do not think that I can embark upon a discursus upon the whole of our policy towards nurses, particularly in view of the lack of precision of the noble Lord's Question when he tabled it. It was difficult to anticipate what he had in mind. I shall take on board what the noble Lord has said and whether I agree with him or disagree—and I expect it will be the latter—shall write to him.
Lord Segal: My Lords, have the Government any views as to how the site of St. George's Hospital should be utilised?
Lord Elton: My Lords, as I have said, my right honourable friend is convinced that there is no further National Health Service requirement for the site. No other National Health Service function in London is suitable for relocation here, which could only be done in any case at heavy capital cost. Therefore, we intend to dispose of it for the best commercial price we can obtain. It is of course subject to planning conditions and that will be the forum in which to discuss this focal point in London.
Baroness Robson of Kiddington: My Lords, may I ask the noble Lord the Minister whether he is prepared at this moment to state that as a result of the sale of St. George's the several millions that are to accrue to the National Health Service rightly belong to the South-West Thames Regional Health Authority?
Lord Elton: My Lords, no; the noble Baroness may not ask me that.
Lord Wallace of Coslany: My Lords, although I fully understand his inability to make full comment on negotiations which are proceeding, does the noble Lord not agree that it is time that lip-service about the value of the nursing service should be implemented by making nurses a special case? Furthermore, is he aware that all consultants depend absolutely and completely on adequate nursing care and skill in order to make sure that their treatment is in fact successful? So nurses are a special case. Will he and his Government bear that in mind?
Lord Elton: My Lords, the staff side of the Nurses' and Midwives' Whitley Council has not yet submitted a pay claim to take effect from 1st April next, although it is imminent. It will then be for the two sides of the Whitley Council to negotiate on this. As regards the
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improved longer-term arrangements for handling nurses pay, a tripartite meeting between the Secretary of State for Social Services and both sides of the Whitley Council is planned for early next month. I very much hope that these discussions will result in useful progress being made towards improved arrangements. The Government are committed to the principle that a better system is needed.

Education Expenditure
2.45 p.m.
Lord Molloy: My Lords, 1 beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will reconsider implementing cuts in the nation's education service.
Lord Elton: My Lords, in answering the noble Lord's marginally narrower Question, I can say that the Government have already reconsidered their expenditure plans for the next financial year and have done so very recently. On 21st December 1981 my right honourable friend the Secretary of State for Education and Science announced in another place that planned total expenditure on education for 1982–83 is £11·7 billion, an increase in cash terms of 3½ per cent. on the estimated outturn this year.
Lord Molloy: But when the noble Lord quotes that figure, my Lords, does it take cognisance of the rate of inflation? Although the increase might sound grand in this place, in actual fact when it comes to financing Britain's education it is a decrease. Do not the Government take serious cognisance of the bitterness which is being felt throughout the nation, which we can read about in the media every day? Throughout the length and breadth of Britain's education service—from infants schools, junior schools, secondary moderns, comprehensives, right through to universities—there is a grave feeling that these cuts are eating the seedcorn and damaging the future of our nation.
Lord Elton: My Lords, in settling the plans for 1982–83, the Government have taken into account the extent—some 2 per cent.—to which spending by local authorities on education in the current year is expected to exceed the plans, the additional resources (some £50 million for England), announced by the Prime Minister last July to enable more young people to stay on in full-time education in school or college and for additional costs in higher education. The new plans provide for an increase of 5 per cent. in the cash available for education compared with the previous plans. The new target is realistic, but it still requires constraint.
Lord Glenamara: My Lords, is the noble Lord aware that the latest constraints to be announced in the public sector of higher education involve severe cuts in real terms, and that these will mean that the polytechnics will have to cut down on the number of

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students? Is not this ludicrous, coming at the very moment when the number of 18-year olds is reaching its peak and when this country needs all the highly educated manpower it can get to develop the new technologies? Is not this a ludicrous state of affairs?
Lord Elton: My Lords, nevertheless we have to economise and we intend to do so in a pragmatic way related to the output of the institutions concerned. The distribution of the quantum of advanced further education expenditure within the predetermined pool, determined by the Secretary of State for Education and Science, following consultations with the local authority associations, at £539 million, assumes that the major part of securing the necessary economies should fall on those polytechnics and other institutions with the higher unit costs.
Baroness David: My Lords, how do the Government propose to supply enough training in the technical colleges for their new Youth Training Scheme, announced in December, which I know does not start until this year? If the technical colleges are to sustain the cuts—which they undoubtedly are—it would seem to me that they would be quite unable to take on the training which will be necessary. Will the Government reconsider the cuts in that area?
Lord Elton: My Lords, I take the point made by the noble Baroness, but if she will study Hansard she will see that I have already referred to the provision made for this contingency.
Baroness Gaitskell: My Lords, is it not ludicrous that we are now advocating cutting not only education generally but particularly higher education? Is this not the most absurd and shortsighted act to take just now when we need higher education? Every day in the press we read stories about this, and one Minister after another—particularly Sir Keith Joseph—does nothing but go round and say that we cannot afford higher education. If we cannot afford higher education, for sure we cannot afford Sir Keith Joseph.
Lord Elton: My Lords, the remarks of the noble Baroness about my right honourable friend's daily programme are a travesty of the truth. He is a most energetic Minister and he is very cognisant of the problems to which the noble Baroness has alluded. I would add that over and above the universities' recurrent grant for the next academic year of £1,137 million, the Government are allocating £50 million in the financial year 1982–83 to be used by the University Grants Committee specifically for restructuring, including the cost of redundancies. My right honourable friend is announcing today that, subject to two modifications, guidelines formulated by the Committee of Vice-Chancellors and Principals for the compensation of university academic staff who are made redundant are acceptable. The modifications concern staff over 50 for whom the existing premature retirement arrangements will apply. Details of the scheme have been placed in your Lordships' Library.
Lord Beloff: My Lords, in addition to considering unit costs when reductions are made in the amount allotted to polytechnics, would nay noble friend suggest to the Secretary of State that important attention is paid to whether they are fulfilling their proper role of increasing our technological potential, or whether they are continuing to expand in the teaching of subjects in which they are inferior to universities and likely to remain so?
Lord Elton: My Lords, my right honourable friend is a more pragmatic man than he has been given credit for in earlier questions, and I will certainly bring that to his attention.
Lord Wynne-Jones: My Lords, will the noble Lord pay attention to the letter which was sent out last week to the directors of polytechnics in which they were informed that there was to be a new formula by which a polytechnic was to be allowed to charge only half of what it was charging last year for its undergraduates? Will he in particular absolutely disown the nonsensical remarks just made about the polytechnics?
Lord Elton: My Lords, I will certainly direct my attention to the circular. As to disowning, I shall leave the difference of opinion where it lies.
Lord Glenamara: My Lords, is the noble Lord aware that his answer to my supplementary may have misled the House? Whether he intended to say it or not, he seemed to imply that cuts had only been made related to unit costs. Is he aware that all polytechnics are having cuts in real terms? Even the lowest cut of all, in the case of the Oxford Polytechnic, is being made. Will the noble Lord correct the impression, the wrong impression, he has just made? Cuts in real terms, savage cuts, are being made in all polytechnics and they will all have to reduce their student numbers in the coming year.
Lord Elton: My Lords, I certainly did not intend to mislead the House, nor, I think, did I do so. What I attempted to say was that the necessary reduction in funds would he done in such a way as to temper the wind, if I may so put it, to the shorn lamb. That is perhaps not the best analogy, but to put the money where it is most needed and take it from where it is least needed.
Baroness Gaitskell: My Lords, is the Minister aware—
The Chancellor of the Duchy of Lancaster (Baroness Young): My Lords, we have now had nearly seven minutes on this Question. It was a very wide Question and I think there is a danger that it is developing into a debate, which your Lordships will recall is one of the things which the Procedure Committee felt should not happen, and I would suggest that we ought to move on to the next Question.
Lord Molloy: My Lords, may I put a supplementary?
Several noble Lords: No!

Coach Services
2.54 p.m.
Lord Gainford: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many new long-distance coach services have been started in the last 12 months.
The Earl of Avon: My Lords, I am pleased to report that the new express coach services continue to be introduced by both private and publicly owned companies. We estimate that since the 1980 Act came into operation about 90 new daily services and a further 70 on a less than daily basis have started. In addition, a large number of new seasonal services operated during the summer.
Lord Gainford: My Lords I thank my noble friend the Minister for that reply. Can he give any information as to the possibilities of connections to isolated areas of Britain?
The Earl of Avon: My Lords, so far as my noble friend's question refers to the Transport Act 1980, which has encouraged competitive coach services, I believe it should have increased the chances for services such as he mentions rather than the opposite.
Lord Boyd-Carpenter: My Lords, do not the figures whch my noble friend gave to the House constitute a grave warning to those who earn their living on the railways and are engaged at the moment in disrupting their services?
The Earl of Avon: My Lords, I am grateful to my noble friend for those remarks. I would not wish to be drawn into the present disputes, but of course this has stimulated some reductions on British Rail costs.
Lord Underhill: My Lords, could the noble Earl give the figures for the number of new services run by the National Bus Company out of the figures he has given? If they are a substantial number, would he not agree that the revenues from those express services in no way make up for the losses being sustained by many sections of the National Bus Company, and are putting in peril some of their difficult rural routes?
The Earl of Avon: My Lords, my understanding is that the National Bus Company has itself reduced a lot of its own fares. I am not sure, out of the figures I gave, how many new services the NBC has brought out. I understand that they have just reduced some of their costs on some of their services at the moment. They have entered into the express service market which has been, I gather, very successful.

Salmon Fisheries (Protection) (Scotland) Bill [H.L.]
Lord Strathcona and Mount Royal: My Lords, I beg to introduce a Bill to amend the law in regard to
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protection of salmon in Scotland and in the River Tweed, and for purposes connected therewith. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Strathcona and Mount Royal.)
On Question, Bill read a first time, and to be printed.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that dinner will be available today at the usual time. The Committee stage of the Mental Health (Amendment) Bill will be adjourned at approximately seven o'clock for a short period. During the adjournment the Second Reading of the Shipbuilding Bill will be taken.
Cumbria Bill [H.L.]
Read a third time, and passed, and sent to the Commons.
Greater London Council (General Powers) Bill
Read a third time, with the amendments, and passed, and referred to the Commons.

Mental Health (Amendment)Bill [H.L.]
2.58 p.m.
Lord Elton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Elton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 23 [Persons committed for trial etc.]:
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead)The Parliamentary Under-Secretary of State, Home Office (Lord Belstead) moved Amendment No. 47:
Page 13, line 35, leave out paragraph (a) and insert—
(" (a) for the words "the Secretary of State is notified by the responsible medical officer at any time before that person is brought before the court "there shall be substituted the words " the Secretary of State is notified by the responsible medical officer, any other medical practitioner or a Mental Health Review Tribunal at any time before that person's case is disposed of by the court "; ").
The noble Lord said: I beg to move Amendment No. 47. This amendment is associated to some degree with others which I have already mentioned to your Lordships in connection with the judgment of the European Court of Human Rights. Briefly, the effect of this amendment is that when the Secretary of

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State receives notification from a mental health review tribunal that a patient who, for example, had been committed in custody for trial before his transfer to hospital no longer needs treatment for mental disorder, the Secretary of State may remit the patient to prison.
The Secretary of State may of course already do this on notification by the responsible medical officer; but the effect of this amendment is to enable the Secretary of State to take action in response also to notification by any other medical practitioner or a mental health review tribunal. This amendment will be consistent, I suggest, with the change which Clause 22 of the Bill makes to Section 75 of the principal Act. It is also a necessary component of the scheme of control contained in the new schedule, which we have not yet come to, in Amendment No. 114, which contains among other things provisions for the return to prison of a patient who, if he were not being treated as a restricted patient, would be entitled to discharge by a tribunal. I beg to move.
On Question, amendment agreed to.
Clause 23, as amended, agreed to.
Clause 24 [Persons remanded by magistrates' courts]:
Lord Belstead Lord Belstead moved Amendment No. 48:
Page 15, line 19, leave out from (" him ") to end of line 21 and insert (" and commit him for trial in accordance with section 6 of the Magistrates' Courts Act 1980 if—

(a) the court is satisfied, on the written or oral evidence of the responsible medical officer, that the accused is unfit to take part in the proceedings; and

(b) where the court proceeds under subsection (1) of that section, the accused is represented by counsel or a solicitor.").

The noble Lord said: The Government's intention in proposing to empower magistrates' courts to conduct committal proceedings in the absence of the accused, where he is unfit to take part, has always been that the accused would have the safeguard of legal representation. However—and I am grateful to my noble friend Lady Macleod for pointing this out to the Government—we are of the view that Clause 24(7) was probably not sufficient to achieve that.
The purpose of the amendment is to respond to my noble friend by putting the matter beyond doubt. The amendment also makes it absolutely clear that the magistrates' court may not only receive evidence in the absence of the accused but may also commit the accused for trial in his absence. That too was not altogether clear from the original wording and we are taking this opportunity to make the draft of the Bill more conclusive.
Baroness Macleod of Borve: I wish warmly to thank my noble friend for taking this suggestion on board. I am certain that no magistrates' court would hear a case without such legal representation, but as we are trying to make this as good a Bill as possible, I am grateful to the Minister for making this amendment.
On Question, amendment agreed to.
Clause 24, as amended, agreed to.
Clause 25 [Civil prisoners and persons detained under the Immigration Act 1971]:
3.2 p.m.
Lord Belstead Lord Belstead moved Amendment No. 49:
Page 15, line 29, leave out (" has ") and insert (" and a restriction direction have ").
The noble Lord said: I will, with permission, speak also to Amendment No. 50. Clause 25 relates to civil prisoners and Immigration Act detainees who are transferred to hospital under Section 73 of the 1959 Act. Section 74 provides that in such cases the Secretary of State may impose a direction restricting the patient's discharge. Whether or not such a direction is imposed, the patient's liability to detention ceases on the expiry of the period during which he would otherwise have been kept in prison. If, on the other hand, the hospital is ready to return the patient before then, his position should depend on whether a restriction direction has been made. If it has, he may be returned to prison, but that would not be appropriate if it had not been thought necessary to subject him to a restriction direction. These amendments accordingly have the effect of confining the application of Clause 25(2) to cases on which a restriction direction has been given and not to other cases.
On Question, amendment agreed to.
3.4 p.m.
Lord Belstead Lord Belstead moved Amendment No. 49A:
Page 15, line 31, at end insert (", any other medical practitioner or a Mental Health Review Tribunal ").
The noble Lord said: This is similar to Amendment No. 47. Clause 25 provides that the Secretary of State may remit to prison a civil prisoner or an Immigration Act detainee if he is notified of the patient's suitability for that by his responsible medical officer. Under Section 75 of the Act, as amended by Clause 22 of this Bill, the Secretary of State may also act on a notification in respect of a sentenced prisoner from any other medical practitioner or a mental health review tribunal, and the effect of the amendment is to make similar provision in relation to civil prisoners and Immigration Act detainees.
Lord Renton: Perhaps my noble friend can remove, from my mind at any rate, a little uncertainty, and I hope I am asking this in the right place; I did not ask it on Amendment No. 47, where the same point arose, because I felt it better to wait until we had both amendments before us. I am rather puzzled as to the occasions when respectively the responsible medical officer,
"any other medical practioner or a mental health review tribunal",
will be expected to perform the duty which is imposed on them here. There must be a good answer to this, otherwise we should not be having these amendments before us. It would help to know, if there is any demarcation line, where it comes, and for what reason. Of course, the matter may be relevant when we come to certain later and more important amendments.
Lord Belstead: Under Section 76 of the principal Act the Secretary of State may remit to prison a person who has been transferred to hospital under

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Section 73; for example, a person who has been committed for trial. As Section 76 now stands, the Secretary of State may act only on a notification by the responsible medical officer that the patient no longer requires treatment for a mental disorder. Amendment No. 47 will allow the Secretary of State also to act on the notification of any other medical practitioner or a mental health review tribunal; and the amendment now before the Committee does the same for Clause 25.
Lord Renton: Are we to take it, then, that the Government's view, as expressed in the statute, is that they do not mind which of these various people or bodies performs this task, or when?
Lord Belstead: I apologise to my noble friend because I had not taken the point about which he was asking. As I understand it, it puts what will now be the three sources of information on a similar basis regarding their power to make the recommendation. I am advised that it is simply that prisoners in the category referred to may he seen by doctors in any of these categories—the regional medical officer, another doctor or a mental health review tribunal—and that there is nothing to choose between them; it is what is most convenient and most appropriate to the case.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 50:
Page 15, line 41, after ("direction") insert ("and the restriction direction").
The noble Lord said: I spoke to this when moving Amendment No. 49.
On Question, amendment agreed to.
Clause 25, as amended, agreed to.
Clause 26 [Restriction orders and restriction directions]:
3.9 p.m.
Lord Belstead Lord Belstead moved Amendment No. 51:
Page 16, line 20, at end insert—
("(4) Schedule (Discharge of restricted patients) to this Act shall have effect for enabling persons who are subject to restriction orders or restriction directions to be discharged by Mental Health Review Tribunals; and section 66(6) to (8) of the principal Act (under which such a tribunal has only advisory powers in respect of such persons) shall cease to have effect.").
The noble Lord said: I will, with the permission of the Committee, speak at the same time to Amendment No. 114, which is a new schedule to the Bill and which is the means by which it is intended to bring the law on restricted patients in England and Wales into conformity with the European Convention on Human Rights. The European Court case X v. the United Kingdom, to which my noble friend Lord Elton referred on Second Reading and to which I have referred in Committee, concerned a conditionally discharged patient from Broadmoor who was recalled to hospital following reports of a deterioration in his mental condition.
Having failed to secure his release from hospital by an application for habeas corpus, he instituted
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proceedings at Strasbourg. In the event, the European Court concluded that his recall to hospital as a person of unsound mind was lawful under the relevant provisions of the European Convention, but the court upheld his claim that he was entitled to a judicial review of the substantive grounds of his detention under Article 5(4) of the Convention. That article provides that:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall he decided speedily by a court and his release ordered if the detention is not lawful".
The European Court found that English law did not provide the opportunity for the applicant to take such proceedings. In the court's view the continued "lawfulness" of the detention of anyone held on the ground of mental disorder must depend upon the continuation of a degree of mental disorder justifying that detention; and since the extent of mental disorder may change over time, there must be provision, so the court found, for a periodic judicial review of the issue of detainability by a court capable of ordering discharge if that disorder no longer persists. Habeas corpus proceedings are generally addressed to the strict legality of detention rather than to the substantive considerations that lie behind it. The European Court of Human Rights' view, therefore, was that the availability of habeas corpus proceedings was insufficient to meet the requirements of Article 5(4) in this context. Equally, since a mental health review tribunal had only advisory functions in relation to restricted patients, the court held that access to such a tribunal did not meet the terms of the convention.
As a state which has ratified the European Convention on Human Rights, the United Kingdom is bound to bring its law into conformity with the requirements of the convention as now interpreted by the court, and this is now provided for in both Amendments Nos. 51 and 114. In fact, Amendment No. 51 is a paving amendment. What Amendment No. 51 does, in addition to paving, is to repeal subsections (6) to (8) of Section 66 of the 1959 Act which, as indicated in the amendment, deal with the present advisory role of mental health review tribunals in respect of restricted patients. The amendment leaves unaffected the rest of Section 66. Therefore, the Home Secretary will keep his present powers to discharge a restricted patient, or to remove the restrictions, or to recall to hospital, if such action is necessary. However—and this is the new provision necessary for compliance with the judgment of the European Court—it also gives discharge powers and the power to remove restrictions to mental health review tribunals. What this means is that in future tribunals will he able to direct the discharge from hospital of restricted patients, just as they are able to do at present with all other categories of detained patients.
Although I do not expect this to be contentious, I think I should explain why it is the Government's view that mental health review tribunals are the most appropriate body to entrust with this important responsibility in respect of restricted patients. The court's judgment did not go into any detail about exactly what it meant by a court in this respect. In practice, however, the choice was between providing a right of access to the Crown court, or using the

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existing tribunals, or setting up some special body as a means by which restricted patients could obtain a judicial review of their case. The last of those did not appear to the Government to have anything to commend it, given that a specialist body already exists in the shape of the tribunals.
A number of considerations have led us to conclude that the tribunals are very suitable for the purpose, more so perhaps than the Crown court. In the first place there are obvious resource considerations, given the inevitably more formal procedures of the Crown court, and indeed the pressures upon Crown court time. But more importantly the flexibility and the informality of proceedings before tribunals, and the fact that tribunals regularly meet in hospitals, makes them particularly suited to reviewing the cases of mentally disordered people who might be disturbed, or even intimidated, by a formal court hearing. Tribunals have, in addition, developed substantial expertise in this area and they are well used to considering arguments for the discharge of detained patients.
The Government recognise that the power to release restricted patients who may have been convicted of very serious offences carries with it a formidable responsibility. We regard it as essential that the exercise of this responsibility, which until now has been solely with the Secretary of State—the very thing which the European Court said was wrong—should command the confidence not only of the public but also of members of the judiciary who, in the Crown court, must decide in an individual case whether a restriction order ought to be made. Those considerations led us to conclude that when the tribunal exercises this enhanced jurisdiction it should have in the chair as its president a lawyer with substantial judicial experience in the criminal courts. My noble and learned friend the Lord Chancellor will therefore be appointing to the legal panels of the tribunals a number of circuit judges. In the three regions where the special hospitals are found this might necessitate two or three additional appointments to the circuit bench. My noble and learned friend envisages that those judges who will be on the panel will spend up to half their time presiding in these tribunals, and for the rest of the time they will continue with their normal judicial work. So as to maintain some flexibility in the arrangements for tribunals considering the cases of restricted patients, the Government do not intend that there should be an exclusive requirement that circuit judges should preside in restricted patients' cases. It will therefore be possible for other lawyers, who appear to the Lord Chancellor to have the necessary experience and standing, to be designated for the same purpose. Such appointments would normally be of recorders who are Queen's counsel, but it is not intended that there should be any statutory limitations in this respect.
I apologise for the length of time that I am taking in moving the amendment, but I think that I must continue with the explanation. Under the proposed new arrangements for restricted patients the president of the tribunal panel will always be a legally qualified person, usually a circuit judge designated by the Lord Chancellor. He will be assisted, as the panels now are, by medical and lay members. However, there will
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continue to be no restriction on the number of members who may sit on a tribunal panel, and the Government hope that this fact will allow the tribunals, which in the future will have the power to discharge a restricted patient, to have available to them the experience and the expertise not only of medical and lay members but also of members of the existing legal panels. Those will of course include the regional chairmen, all of whom must now be legally qualified. It appears to the Government to be absolutely vital that tribunals carrying out such an important new role should have available to them the wisdom and knowledge of those who are already experienced in tribunal work.
If your Lordships can bear with me, I should now like to turn as swiftly as I can to the drafting of Amendment 114. The first substantive change is contained in paragraph 2 of the schedule, which permits restricted patients to apply directly to a tribunal and increases the frequency with which the tribunal can consider their cases. This is the absolute kernel of the amendment. Although I promised my noble friend Lord Renton and the noble Baroness Lady Robson of Kiddington, to look again at the point, the Government amendment following Clause 18 at the moment provides for the entitlement to apply in the second six months and not the first six months of detention. Like other detained patients, restricted patients will be eligible for a further review once in every further period of 12 months.
Paragraph 3 contains an additional safeguard. It preserves the Secretary of State's own power to refer cases to a tribunal, and in the case of a patient detained in hospital, it requires him to do so if more than three years have elapsed since the patient's case was last considered by a tribunal. Incidentally, this is the equivalent of the similar obligation placed on hospital managers in respect of non-restricted patients in Clause 35(2) of the Bill.
Paragraphs 4 and 5 set out the criteria to be applied by the new tribunals in considering the case of a restricted patient. The criteria are actually set out in paragraph 5. The requirement is expressed in part by reference to the Section 123 criteria, but as these will be amended by Clause 34 of the Bill, perhaps I should spell out the duties of the tribunal as they will be when the Bill becomes law, if Parliament agrees to the amendment.
The tribunal considering the case of a restricted patient will be required to grant an absolute discharge if it is satisfied, first, that the patient is not suffering from one of the four forms of mental disorder with which this Bill is concerned, or that the form of mental disorder from which he is suffering is not of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment; secondly, that it is not necessary for the health and safety of the patient or for the protection of the public that he should receive such treatment; and, thirdly, that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. If, however, the tribunal can be satisfied as to the first or the second ground but not as to the third ground—that is, if the tribunal believes that a continuing liability to recall might be appropriate—then, of course, it must be a conditional discharge.
This scheme affects, of course, not only patients who are made subject to a hospital order with restrictions by the courts but those who are transferred to hospital from prison and are treated as restricted patients by virtue of a restriction direction by the Home Secretary. Because of the fact that such people retain a continuing liability to serve out their prison sentences, it would not be appropriate to permit tribunals automatically to release them simply on the grounds that Mental Health Act criteria for discharge were met. It would clearly be unjust, for example, that a prisoner who had developed a mental disorder during the course of a substantial sentence and whose disorder responded quickly to hospital treatment should be able to avoid further imprisonment of any kind simply because he no longer needed to be in hospital. In such a case it would seem right that the prisoner should at least complete his or her sentence. Paragraph 6 therefore sets out the procedure for dealing with prisoners who have been transferred to hospital and whose cases have been considered by mental health review tribunals. In the pursuit of brevity I am not going to spell out exactly what paragraph 6 says, but will try to answer questions should your Lordships wish to cross-question me on it.
Paragraph 7 contains further safeguards for restricted patients. Under the present law patients who are recalled to hospital by the Secretary of State can have their case considered by a tribunal between six months and a year after their return to hospital. Under this paragraph, the Secretary of State will be required to refer the case of a recalled patient automatically within a month of review, so that there will in future always be an early judicial review of the recall decision by a body capable of ordering the patient to be discharged again if it concludes that recall was not appropriate. Indeed, recalled patients will also enjoy further tribunal rights as though they had been made subject to a fresh hospital order on the date of recall. Conditionally discharged patients still in the community also benefit, receiving for the first time a right to periodic tribunal review. As a matter of fact, I do not think that these rights are going to be very often called into question by those affected, but the Government think it right that they should be put into the statute.
Finally. I have already looked forward to the provisions of paragraph 8 in my earlier reference to circuit judges sitting as tribunal presidents. Paragraph 9 is largely technical in its effect, though it also contains an important provision in regard to those who become restricted patients after being dealt with under the Criminal Procedure (Insanity) Act 1964; that is to say, those who are found unfit to plead or not guilty by reason of insanity. In neither case does the law require the Crown court to address its mind specifically to the question whether the accused is suffering from a mental disorder which is of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment. With this point in mind we decided to provide in paragraph 9 that such a patient should have an early right of access to a tribunal, and that if he does not make use of this right there should be an automatic reference not later than six months from the making of the order.
I apologise for the length of my remarks in moving
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this particular group of amendments. I hope it is enough to give a general idea of the new arrangements which the Government are proposing to establish in order to meet the European Court judgment. The Government hope that Parliament w ill see these proposals as representing a genuine attempt to meet the spirit of the court's ruling. I beg to move.
Lord Wallace of Coslany: First of all, I think your Lordships' Committee would like to thank the noble Lord, Lord Belstead, for the detailed way in which he has put over the Government's case for this amendment. It is a very involved and detailed matter, particularly the new schedule; and while at this stage we welcome the Government's initiative, which follows the European Court's decision, of course it is a matter which will still need further consideration, and conceivably—I do not necessary say that it will be the case—we might have to bring forward some possible amendment at Report stage. In the meantime, taking the whole thing generally, I would first of all express our thanks to the noble Lord, Lord Belstead, and, secondly, at this stage we certainly welcome the Government amendment.
Baroness Masham of Ilton: Could I just ask the noble Lord, Lord Belstead, whether he would explain how much help a legal panel can give an individual patient? Do the patients have to pay, or is the help voluntary? And can they always be represented legally if they wish to be?
Lord Belstead: I am not aware that there is any payment at all, and I am not aware that there is any problem at all about legal representation. But I should like to take advice on that and reply to the noble Baroness, if I may, a little later.
Lord Wallace of Coslany: I would draw attention to the fact there is an amendment down in my name, No. 67—I think a Liberal amendment, too—which will probably deal with this particular point. The noble Baroness will doubtless support it.
Lord Renton: I do not think there was any need for my noble friend Lord Belstead to apologise to your Lordships' Committee for the length of his statement because these amendments are important, lengthy, complicated and far-reaching. Speaking for myself, although I listened very carefully to what he said, I think I shall feel more confident that I understood the matter when I have read it all in tomorrow's Hansard. But on a reading of the amendments, and listening as one did to my noble friend, they seem to be a very great improvement on present procedures. I think we all appreciate the trouble that has been taken to try to get this difficult matter right. I have little doubt but that it is right, but, naturally, those outside your Lordships' Committee will also wish to study what my noble friend has said and perhaps advise some of us upon it.
I hope I do not speak too gleefully as a lawyer when I say that I think it is a good thing that there is to be a legally-qualified chairman of each mental health review tribunal. I am sure that that is right, especially in view of the increased responsibilities which these tribunals are going to be given as a result of this Bill.

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There is one matter which is not clear on the amendments and which I could not glean from my noble friend's full description, and that is this. What is going to be the geographical distribution of these tribunals? There must be more than one for each regional health authority, I would have thought. Is there going to be one particularly attached to each large hospital dealing with such cases? That would not surprise one. It would be very helpful indeed if we could have some broad idea what the Government have in mind as to the geographical distribution of such tribunals.
Lord Kilmarnock: I understand that this is primarily a paving amendment for the schedule, for which I will reserve my detailed remarks. Perhaps I may say why I did not intervene when the noble Lord moved Amendment No. 44 last Tuesday. I thank him for his courtesy in sending me his notes on that clause, on this amendment and the other related amendments and the schedule in the package designed to give effect to the judgment of the European Court of Human Rights. I had not read the material that the noble Lord sent me and so I thought it unwise to intervene. The fault was mine. I assumed that we were not going to reach the new clause on Tuesday of last week. I have been trying to remedy that dilatoriness, however, and I have one or two queries to put to the noble Lord.
Just as the new clause which we passed on Tuesday, the clause on the right of unrestricted patients to make application to the tribunal within six months, was removed, we are now being asked to sanction the removal of the right under Section 66(7) of the original Act whereby restricted patients could make an application; although the tribunal's role is purely an advisory one to the Home Secretary. We are asked to do this on the grounds that this is necessary to pave the way for the new power of the tribunals, contained in the schedule, to order a discharge. This is a point which I think was referred to last time by the noble Baroness, Lady Robson, and the noble Lord, Lord Renton. I do not understand the logic of this. Was it necessary to remove the existing rights of unrestricted patients? Can some way not be found to preserve their rights? The noble Lord in the ample notes circulated to some of us said that the Government had drawn one particular inference from the European Court judgment. I do not see why the requirement that there must be a periodic review by a judicial body of one particular sort of patient's right should carry with it the requirement that this period must be identical with the period applying to other categories of patient. Tidiness and consistency may be admirable qualities but there is no substantial reason why they should override the existing rights of unrestricted patients. Perhaps the noble Lord could enlighten me.
As I understand it, this Bill, if it becomes law, will not come into effect until September 30th, 1983. I should like to ask whether the Government contemplate any interim arrangements to apply the European Court rulings at an earlier date than that. If not, are we not in danger of being in breach of the European Court's ruling for the considerable time of approximately 18 months?
Lord Belstead: Perhaps I may reply to the noble
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Baroness, Lady Masham, who asked about legal aid and cost in these cases. A patient is not at present entitled to legal aid before a tribunal but can obtain "green form" assistance. But there is a later amendment down about this. Incidentally, I think that is common form so far as tribunals are concerned. My noble friend Lord Renton asked about the geographical distribution of tribunals. Each regional health authority has a tribunal and from each tribunal panels will be selected. Every member will be eligible for these proposals which are being put forward at the present time.
I am sorry but I think that the noble Lord, Lord Kilmarnock, left me slightly behind with his argument. Noble Lords have said many times today that they are going to look at what the Government are saying when explanations are long. I can understand that. On this occasion I should like to have a look at what the noble Lord, Lord Kilmarnock, has said. I am not aware that we are removing any powers from the mental health tribunals. Amendment No. 114 adds the power which is absolutely necessary as a result of the European Court decision—namely, that some forum should have the right of deciding on the discharge of patients and that it should not be left entirely to the Secretary of State. So far as this first amendment is concerned, Amendment No. 51, I gave an explanation of that in the remarks that I addressed to the Committee. I did not equate them with the question that the noble Lord, Lord Kilmarnock, asked.
Lord Kilmarnock: It still seems to me after having read the noble Lord's remarks last time on Amendment No. 44, that the right of unrestricted patients to make application for a tribunal within the first six months was being sacrificed to the new right of restricted patients to make an application between the sixth month and the twelfth month. That is my understanding. I wondered why this was necessary.
Lord Belstead: On hearing it again, I think that the noble Lord may be right about this. This is something that I should like to take away with me to make a reply to the noble Lord and perhaps to write to him. I think the noble Lord has got his facts right and I was not right in my previous reply. I will look at it and write to the noble Lord.
Lord Kilmarnock: I am grateful to the noble Lord.
On Question, amendment agreed to.
Clause 26, as amended, agreed to.
Clause 27 [Remand to hospital for report on accused's mental condition]:
3.35 p.m.
Lord Hunter of Newington Lord Hunter of Newington moved Amendment No. 51A:
Page 16, line 29, leave out (" (other than an offence the sentence for which is fixed by law)").
The noble Lord said: It is sometimes desirable for a Crown court or magistrates' court to remand a defendant for a medical report. At the present time, a report can be prepared on an out-patient basis, but where this is inappropriate a medical report can only

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be obtained by granting the defendant bail with a condition of hospital residence or by remand to a prison, when he can receive an assessment and a report from a prison medical officer while detained in a hospital wing. The facilities in prisons are often limited, a decreasing number of prison medical officers have psychiatric qualifications and the facilities of the new secure units and some special units in ordinary psychiatric hospitals allow for a much more efficient investigation of the defendant's mental and physical condition.
Psychiatrists have always supported the original recommendation of the Butler Committee (now in Clause 27) to allow a court to remand to hospital instead of in custody. Such a remand allows assessment and report, including a consideration of all relevant medical factors in the case, such as diagnosis, treatability and disposal. This includes the various alternatives, such as probation with psychiatric treatment as well as a hospital order. The period of assessment also allows a proper evaluation of the medical issues relevant to the question of criminal responsibility.
Clause 27 in the Bill allows such a remand for any defendant charged with an offence which would be punishable by imprisonment, but excludes those charged with an offence the penalty for which is fixed by law. This, in effect, excludes those charged with murder. The majority of murder cases (over 75 per cent.) are domestic in this country, and many murders are associated with mental disorders such as severe depressive illness and schizophrenia. Many accused present no further danger to any other person. They are often deeply disturbed while in custody awaiting trial. The medical report is crucial. It is suggested that they should not be excluded from the possibility of being remanded for a report unless the judge or magistrate considers there are substantial objections.
It is suggested that in these cases the remand to hospital might in some way weaken the prosecution's case, but, whether in prison, hospital or "other hospital", medical reports are always required and they should be prepared in the most appropriate environment; I submit, in a hospital setting, where possible. Finally, this new power should be available for use appropriately when the Act is passed, without a three-year delay as the department proposes. An increasing number of secure facilities are now becoming available and should be able to take remand cases when they feel ready to do so. I beg to move.
Lord Belstead: The Government are genuinely grateful to the noble Lord for raising a difficult and important point. It recurs again in the noble Lord's other amendment to Clause 28, which is Amendment No. 57A and is worded in much the same way. Perhaps the noble Lord will allow me to refer to that in my reply.
The purpose of Clauses 27 and 28 is to ensure that the court has enough information to enable it to decide whether a hospital order should be made and it was not, therefore, thought appropriate to extend the provision to persons charged with an offence in respect of which a hospital order cannot be made. A further reason why
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the Government have so far thought it necessary to limit the Crown court's power to remand a person to hospital for a report on his medical condition under Clause 27 to offences other than murder is that it is a prerequisite for the exercise of the power that the court shall have reason to suspect that he is suffering from mental disorder. This may seem paradoxical: What better case, it may be asked, could there be for a remand in hospital than one in which a proper diagnosis may be directly relevant to the finding of the court?
We have, however, felt that such a suspicion on the part of the court would be seen as being irreconcilable with its duty to consider impartially the evidence that the accused person had committed the crime of murder (which carries a mandatory life sentence) rather than some lesser form of homicide. The case for retaining the limitation is certainly decisive in the case of remands to hospital for treatment under Clause 28 where the court must be satisfied that the accused person,
"is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment".
For the judge so to decide would undoubtedly prejudice the jury's impartial consideration of the case of a person accused of murder who is running the defence of diminished responsibility.
I realise that it is a difficult matter and is a question of judgment but the Government felt that it was better that it should continue to be the invariable practice that every person accused of murder should be examined and reported on by a prison medical officer with a view to establishing from a completely neutral starting-point, whether there is any indication that a verdict of guilty of murder would not be the appropriate one. The point here is that if every person accused of murder is examined in this way, it cannot raise the possibility of prejudice on the part of the court. For the reasons I have explained, I think that it may not be possible simply to delete the words excluding persons accused of murder.
Having said that, and having tried to explain the reasons why we have worded Clauses 27 and 28 in the way that we have which has drawn the fire of the noble Lord's two amendments, I appreciate the force of the arguments advanced by the noble Lord in support of his first amendment. If the noble Lord thinks it a sensible way to proceed, I should like to consider, without commitment at this stage, the noble Lord's speech and suggestion in regard to Clause 27 and see whether it is possible to overcome the difficulties that I have mentioned and whether it is possible to return to the House at Report stage with a suitable amendment which will achieve the effect that the noble Lord has in mind while preserving the impartiality of the court. I cannot give an absolute undertaking to the noble Lord that we will succeed in doing this. If the noble Lord will allow us to proceed in this way, that is what we shall try to do.
Lord Hunter of Newington: On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.44 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 52:
Page 16, line 43, leave out ("a medical practitioner") and insert ("two medical practitioners").
The noble Lord said: Under the 1959 Act there are three sections covering committal to hospital from the court or the community. Under Section 29 one medical recommendation is sufficient in the first instance, but it is only valid for three days unless backed up by the second medical recommendation required under Section 25. Section 25 is a remand for 28 days, and Section 26 is for a longer term; both require two doctors. Therefore, under the principal Act there is at present no existing committal power for 28 days or longer on the recommendation of only one doctor. I and my noble friends found it rather hard to see why this principle should be varied in Section 27 and why only one recommendation should be required for remand for assessment under that section. That is the basis of the thinking behind the amendment that we have put down. I beg to move.
Baroness Robson of Kiddington: I support the noble Lord in this amendment. Unless the Government are prepared to look at this aspect and give some assurances about it, we are running a risk of doing for a second time something which is lessening the rights of the people whom this Bill affects. Although the Bill has many good points, we should guard very carefully against reducing the rights that already exist. That is why I support the amendment.
Lord Belstead: I would respectfully suggest that there are two essential considerations to be borne in mind when considering the criteria which should be fulfilled before a person may be remanded to hospital for a medical report under the new power provided in Clause 27. The first is that this power is intended to be used only for diagnostic purposes, and I would suggest that it is therefore reasonable to require only a prima facie indication that such diagnosis may be of assistance to the court in enabling it to decide the appropriate course to adopt in a particular case. The second consideration is that it is intended that this option of remand to hospital for a medical report should constitute an alternative to the present procedure whereby when a court considers that it would be helpful to have medical reports on an accused person it has little alternative but to remand that person in custody for the preparation of such reports, without having fulfilled any formal criteria as those proposed in this clause. So, with respect to the noble Baroness, I do not think that it can logically be said that Clause 27, even with only one medical recommendation, can mark a reduction in the rights of people. On any ground Clause 27 marks a very considerable advance for people who otherwise would simply have to be remanded into custody.
I would add—and this may be in the minds of the noble Lords and the noble Baroness—that there need be no concern that a remand for a medical report would otherwise expose a person to the risk of receiving unnecessary treatment without his consent because, whatever view your Lordships may eventually take of the proposals as to consent to treatment at present
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contained in Clause 38 of the Bill, there is no intention that a person remanded under this clause should be regarded as "detained for treatment" for the purposes of Clause 38: this is expressly excluded by subsection (9)(b) of that clause. I venture to suggest, therefore, that the safeguard of two medical opinions, which is very properly required elsewhere in the legislation when the question of detention arises, is not necessary in this context.
I am sorry to cross swords with the noble Lord and the noble Baroness on this matter because I understand why the amendment has been moved. I hope that the extra points that I have put to the Committee may make the noble Lord and the noble Baroness feel it is worth withdrawing the amendment and thinking about it further.
Lord Kilmarnock: I am grateful to the noble Lord for his lucid explanation of the Government's thinking on this issue. On the face of it, it seemed to me that there was no good reason for waiving the requirement for the second doctor under this type of committal; but the noble Lord, as usual, has been very persuasive. I should like to read his remarks with close attention and possibly come back to the matter again at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendments Nos. 53 and 54:
Page 17, line 2, leave out ("handicap") and insert ("impairment").
Page 17,line 3, leave out ("handicap") and insert ("impairment ").
The noble Lord said: These amendments are consequential and I beg to move them en bloc.
On Question, amendments agreed to.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 55:
Page 17, line 28, leave out ("or further remanded").
The noble Lord said: In speaking to Amendment No. 55 I should like also to speak to No. 56, with which it is related. Under Section 25 of the principal Act a maximum of 28 days is prescribed for observation. It is not quite clear to me why longer is needed for assessment. The substitution of the word "assessment" for "observation" does not seem to carry with it any logical corollary that the time limit should be different; nor can I see any reason why the assessment of an offender should take any longer than any other assessment. I therefore submit to the noble Lord that the 12 weeks' maximum provided for here is excessive, and I beg leave to move the amendment.
Lord Belstead: I do not think there is a great deal which divides the Government from the noble Lord in this amendment, in that we both see this matter as being one in which we are all anxious that there should be no unnecessarily lengthy periods for either appraisal or treatment. If there were, it would be a misuse of the powers the Government are seeking to put into the Bill. However, your Lordships will see from subsection (7) of Clause 27—and also from Clause 28, which is affected by Amendment No. 58 standing in the names of the noble Lord, Lord Kilmarnock, and the noble Lord,

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Lord Winstanley—that the Government attach great importance to terminating these remands at the earliest opportunity. The question raised by these amendments is whether our present proposals are reasonable, whether they go far enough, or whether we should render it impossible for a Clause 27 remand to last for more than 28 days—or indeed, if I may just refer to Clause 28, whether the treatment should last for more than 56 days, if I correctly understand the intention behind that amendment.
This is essentially a question of judgment, but I think the Committee would accept that it would be very awkward, and contrary to the best interests of the accused person, if circumstances materialised in which it had not been possible to complete the purpose for which an accused person had been remanded and yet the legislation made it impossible to extend the period of that remand for even a few days. Equally, we must accept that, because of the unpredictable nature of mental disorder and the demands it can make on staff and resources, it can sometimes happen that, with the best will in the world, the reports or the treatment may not be completed within the period originally envisaged.
I think it is essential when considering Clauses 27 and 28 to appreciate that a person remanded to hospital for report or treatment would otherwise have to be remanded in custody; that is to say, would have to go to prison. Therefore, to reduce the upper limit would result in more time, possibly, being spent in prison by persons who could benefit from being in hospital. This is really a genuine argument and not just a piece of reassurance that I am trying to give. The upper limit of 12 weeks was recommended by the committee chaired by the noble Lord, Lord Butler, upon whose proposals the clauses I have referred to are based. There must be some provision for the extension of both types of remand up to a maximum, and therefore I would ask that perhaps the noble Lord might think a little further about this amendment. I hope the noble Lord did not mind my referring to Amendment No. 58 as well as to the present amendment since there is a connection between them, although we have yet to debate Amendment No. 58.
Lord Kilmarnock: I am most grateful to the noble Lord for his remarks. These amendments are related in that the 12 weeks' maximum is applied for assessment and also, in the next amendment, for treatment. It raises the question of what is meant under "assessment" and whether treatment is likely to creep in under "assessment". Of course, we all very much respect the recommendations made in the report of Lord Butler's committee. I still think that 12 weeks is rather excessive and I wonder whether the problem might not be solved by allowing a period of remand for a further 28 days for assessment or something of that nature. However, I shall think very carefully about what the noble Lord has said and possibly refer to the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 56 not moved.]
3.57 p.m.
Baroness Robson of Kiddington Baroness Robson of Kiddington moved Amendment No. 56A:
Page 17, line 34, at end insert—
(" () An accused person remanded to a hospital by a Crown Court or magistrates' court for a report on his mental condition shall be entitled to obtain his own report in addition to that made for the court from a doctor chosen by him and to apply to the court on the basis of it for his remand to be ended.").
The noble Baroness said: This amendment arises to a certain extent from the same concern that was in the mind of the noble Lord, Lord Kilmarnock, about the length of time that an accused person can be remanded to hospital for assessment. The court has power to remand to a hospital for a period of 12 weeks—it is true, for an offence which would normally be punishable by imprisonment—and in my view that is a very long time. I feel that an accused person should have extra safeguards in this connection nowadays, with the prisons as overcrowded as they are and with the advice of the Home Secretary certainly to magistrates' courts that if at all possible, even for offences punishable by imprisonment, the courts should seriously consider a fine. We could have a situation in which a remanded person lost his or her freedom for a period of 12 weeks and then was declared physically or mentally fit and the court at the end dealt with the offence by imposing a substantial fine.
I should like that remanded person to have the right to obtain his own report from his own doctor and be able to use that report in applying to the court for an end to his remand, if his own medical practitioner issues a favourable report. I think this is important because if the accused person had that right it would put some pressure on the hospital authorities to complete their investigations in the shortest possible time. I believe it is a right that the accused person should have, and I beg to move.
Baroness Trumpington: May I ask the noble Baroness, before my noble friend replies, how she would interpret this? I can foresee, speaking as a lay magistrate, that an accused's own doctor could give an unfavourable report, particularly in the case of a serious crime, which would place the magistrates in an extreme dilemma. Would she perhaps like to comment on that before the Minister replies?
Baroness Robson of Kiddington: Obviously there is a risk that the patient's own doctor will give an unfavourable report, but if that is so I should think it is likely in those conditions that the hospital authorities would also give an unfavourable report and therefore it would not necessarily create a problem for the magistrates.
Lord Belstead: The noble Baroness, Lady Robson, said in moving this amendment that this was a right which the accused person should have. May I, first, say that I agree with the noble Baroness and I believe that that is the situation. It is my understanding that the existing law is already sufficient for an additional report to be prepared by a doctor not connected with the hospital. So far as I know, there is nothing to prevent a person who is detained in hospital on remand from obtaining a report on his or her mental condition

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from any doctor who can be asked to prepare such a report. Equally, there is nothing to prevent him or her from using the information in or the evidence of such a report, on the grounds of a request for the remand not to be renewed. These are rights and they exist.
However, I do not think that that is the whole story. Indeed, if it were the whole story I think that the noble Baroness might well say that we should make this explicit and put a declaration into the legislation. There are two further main points. In the terms in which the amendment is drafted, it appears that it contemplates that a remanded person in possession of a private report may make application in the middle of a period of remand for the remand to be ended, on the basis of that report, even before the court has received the report which it has itself requested.
It may be that the intention of the noble Baroness is to deal with a situation in which the appointed doctor has been slow to supply the report as requested. However, I do not think that such a delay is likely to be a common occurrence. To be realistic, no doctor who is responsible for making a report to a court is likely to delay in doing so, and the doctor will not only wish to carry out his legal obligation, but also to get the bed in the hospital vacant for another case.
But here we come, secondly, to the problem on which my noble friend Lady Trumpington has put her finger. I think that the Government would find great difficulty in accepting a provision which required a court to consider ending a remand made under Clause 27, before it had considered the report which the court itself had requested. It seems to us perfectly right and proper that a court, when considering whether or not to make a hospital order in a particular case, should have regard not only to the report prepared under Clause 27—that is to say, the report which the court itself has asked for—but also to any report which is prepared independently for the accused person and which is envisaged in the amendment. However, we do not think that it would be right or proper that a court, which had decided on a period of remand in order to get a report prepared by a particular doctor, should be required to consider a completely different report before the appointed doctor had completed his assessment, or before the period allowed for him to do so had expired. As it appears that the proposed amendment would have this effect, I do not think that, as it stands, it would be acceptable to the Government.
Baroness Jeger: May I ask for a little clarification on this? Am I right in thinking that, even without this amendment, there would be nothing to prevent a patient from saying that he wanted to get a letter from his own doctor, or from presenting a letter about his history, and that that would obviously be taken into consideration? Am I right in thinking that there is nothing to prevent a patient from making such an application?
Lord Belstead: I entirely agree with what the noble Baroness, Lady Jeger, has said. That is the Government's understanding.
Baroness Robson of Kiddington: I must thank the noble Lord very much for his reply and for explaining the law as it stands today. I knew, of course, that any patient was entitled to get his own doctor and his own medical report. What I was trying to prevent was exactly the same as the noble Lord, Lord Kilmarnock, was attempting in his amendment; that is, an extension of the 28 days up to 12 weeks. It was my intention, by this amendment, to allow a patient to apply to the court if the first 28 days had passed, and he was being remanded for a second period of 28 days, to go back to the court with his own doctor's report. Having listened very carefully to what the noble Lord has said, I realise that this would create difficulties, so I should like to read very carefully what the noble Lord has said and think about how to deal with it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 27, as amended, shall be agreed to?
Baroness Vickers: I should like to ask the Minister one question on subsection (2)(a). Can we assume that the words "or otherwise dealt with" do not include deferment of sentence? If so, perhaps he could make this a little clearer.
Lord Belstead: I must look at what my noble friend has asked me. If I feel that we can improve the wording, I will certainly do my best to respond to my noble friend.
Clause 27, as amended, agreed to.
Clause 28 [Remand of accused person to hospital for treatment.]
Lord Elton Lord Elton moved Amendment No. 57:
Page 18, line 10, leave out ("handicap") and insert ("impairment").
The noble Lord said: This amendment is consequential. I beg to move.
On Question, amendment agreed to.
[Amendment No. 57A not moved.]
4.6 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 58:
Page 18, line 43, leave out from ("days") to ("; and") in line 44.
The noble Lord said: We are back again on very much the same ground as Amendments Nos. 55 and 56. I feel on slightly weaker ground here than I did on those amendments, and I confess that this is really a probing amendment to elucidate the reason for the choosing of this period of 12 weeks. One wonders whether it has been put in simply in order to correspond to the proposed time for assessment. We are here dealing with treatment and 28 days may be on the short side, but, by the same token, 12 weeks seems to be rather erring in the other direction. I just make the suggestion to the noble Lord that, in order to safeguard the rights of the accused person, it might be possible for the Government to introduce an amendment at a later stage, to the effect that the power

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under this clause should be used by the court only if the accused person is represented and given the opportunity to make representations against the use of this form of order. I beg to move.
Lord Belstead: I have taken on board what the noble Lord said, finally, about legal representation and, if I may, I should like to look at that. If I may say so with respect, the difficulty about this amendment is that it knocks out not only the remand period of 28 days, but the total remand for 12 weeks in all. I must say that that surprised me and those who were advising me, because we thought that that ran counter to what the noble Lord was intending to do. So if, on his side, the noble Lord would care to look at the amendment, I, on my side, could look at the point which he made about legal representation, and I think that I ought to include some mention of this amendment in the letter which I have been asked to send to the noble Lord.
Lord Kilmarnock: I am most grateful to the noble Lord for pointing out where, in his view, this amendment is technically defective. I am equally grateful for his offer to look at the proposal in the last part of my remarks. On those grounds, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28, as amended, agreed to.
Clause 39 [Interim hospital orders]:
Lord Elton Lord Elton moved Amendments Nos. 59 and 60:
Page 19, line 18, leave out ("handicap") and insert ("impairment").
Page 19,line 19, leave out ("handicap") and insert ("impairment ").
The noble Lord said: These amendments are both part of a series and I beg to move them together.
On Question, amendments agreed to.
Clause 29, as amended, agreed to.
Clause 30 agreed to.
Lord Wallace of Coslany Lord Wallace of Coslany moved Amendment No. 61:
After Clause 30 insert the following new clause:
(" Ownership, control and supervision of special hospitals.
. The ownership, control and supervision of special hospitals, as the same are defined in the principal Act, shall be vested in the Secretary of State for the Home Department and the requisite Transfer of Functions Order shall be made within one year of the date of commencement of this Act referred to in section 50 herein.").
The noble Lord said: I must apologise for the absence of my noble friend Lord Elystan-Morgan, which I understand is due to protracted proceedings in a criminal court in Cardiff. I rush in to explain that he is there in a professional capacity. This is an amendment which he particularly mentioned on Second Reading and, in the circumstances, I do not think that I should attempt to deal with it. I have already advised the office of the noble Lord, Lord Belstead, that it is a probing amendment. In view of that, the best thing to do is withdraw it and bring it back at Report stage.
Lord Elton: Before the noble Lord does that, if all that the noble Lord wants—and I hope his noble friend will know whether or not this is all he wants—is an assurance that the Government do not intend that there should be such a transfer of ownership, I am quite prepared to give that assurance now so as to save time at a later stage.
Lord Renton: I hope that the noble Lord, Lord Wallace of Coslany, the noble Lord, Lord Elystan-Morgan, and all other noble Lords will refrain from putting this idea before the House on any future occasion. I remember so well, and I expect many noble Lords do, that about 30 years ago it was considered by all parties to be an enlightened move to abolish the so-called criminal lunatic asylums and to have those unfortunate people, whether or not they had been before the courts, who were difficult in one way or another, taken out of the hands of the Home Office, a department in which I served with interest for a great many years and which I admire greatly. But health matters are not their scene. It would be a terribly retrograde step if we were to try to put back the clock and go through all that again.
I would only add that, in addition to those unfortunate people with disordered minds who have been before the courts, in the special hospitals to which the new clause refers there are a great many other patients who have not been before the courts. I do not know of a particular case myself but I have heard of cases where the parents of mentally disordered people are very happy about their children being in special hospitals. It so happens that they have settled down there. As I understand the position, if these hospitals were to be given back to the Home Office they would have to be confined to the treatment of people who have been before the courts. Many other people would therefore be taken away from them. I hope we do not hear any more about this amendment.
Baroness Hornsby-Smith: I support my noble friend Lord Renton. I remember only too well how warmly it was received by all parties in both Houses when we took out of the criminal scene those who were mentally sick, whom it was felt would be far better dealt with by a medical process under the aegis of the Ministry of Health. I know of extremely violent patients who have not appeared before a criminal court but who unhappily are not capable of being dealt with, for their own and other patients' safety, in general mental hospitals. Quite a number of them have had to be referred to Rampton or to Broadmoor. It would be putting back the clock if we were to take these people out of mental hospitals under the aegis of the Ministry of Health and put them back into the criminal scene of the prison service. I, like my noble friend, hope that we do not hear any more about this amendment.
Lord Wallace of Coslany: I am staggered. This is my noble friend's amendment. I am an innocent. I do not even pretend to be a barrack room lawyer. The Government have stated their position. I hesitate to indicate my noble friend's position because he is not here. He is involved in criminal proceedings and—
Lord Elwyn-Jones: As counsel.
Lord Wallace of Coslany: Yes. I could call on various noble Lords sitting on this Bench but I am not going to waste the time of the Committee.
Lord Elwyn-Jones: If my noble friend will forgive me, I merely corrected the impression he might have given that my noble friend Lord Elystan-Morgan is in the dock of a criminal court rather than acting as counsel.
Lord Wallace of Coslany: I think I put that right. In spite of what the noble Lord has said about the Government's attitude and, with all due deference to what the noble Lord, Lord Renton, and my old respected opponent Lady Hornsby-Smith have said, I shall at this stage withdraw the amendment. Possibly my noble friend—and upon his head be it—will bring it back again at Report.
Amendment, by leave, withdrawn.
Clauses 31 to 33 agreed to.
Clause 34 [Powers and procedure of tribunals]:
Lord Elton Lord Elton moved Amendments Nos. 62, 63 and 64:
Page 23, line 33, leave out ("handicap") and insert ("impairment").
Page 23,line 34, leave out ("handicap") and insert ("impairment").
Page 24, line 7, leave out ("handicap") and insert ("impairment").
The noble Lord said: I beg to move Amendments Nos. 62, 63 and 64 en bloc. They follow from the earlier amendment, No. 3, and change the term "handicapped" to the term "impairment". I beg to move.
On Question, amendments agreed to.
4.17 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 65:
Page 24, leave out lines 11 and 12, and insert—
("(1B) (a) A direction that a patient be discharged may direct his discharge on a future date specified in the direction. (b) The direction that a patient be discharged may include a requirement that the patient be subject to supervision by an officer of a local authority social services department, or by some other suitable person for the duration of the order, after which renewal of the order shall be considered in the usual way.").
The noble Baroness said: In moving this amendment I wish to draw your Lordships' attention to the need in some cases, though not all, for an after-care service for those patients who are being discharged. Subsection (1B)(a) of the amendment is the same, in fact, as (1B) in the Bill, but paragraph (b) is the amendment:
"The direction that a patient be discharged may"—
only may—
" include a requirement that the patient be subject to supervision by an officer of a local authority social services department, or by some other suitable person".
By this I mean that a number of patients are discharged from hospital who then find that they have nowhere to live, that they have no work to go to and that they have no family to care for them. They need help in
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resolving these problems. Besides the social services departments there are organisations such as the Simon Community, the Church Army and the Salvation Army who in some cases are able to give help with accommodation and in other cases are able to give help with both accommodation and work.
A good after-care service needs planning on the part of a voluntary organisation or a social services department. Therefore time is required. If a good after-care service is provided and if friendly supervision is offered and accepted, it means that in some cases we do not get the homeless vagrant who at the moment sometimes finds himself having been discharged from hospital with nowhere to go. It also means that a number of cases are prevented from returning to hospital. If we are to offer a community service to those who are discharged from hospital under supervision, with help offered, this will require resources in terms of hostel accommodation and help. This is a constructive recommendation. So often when patients leave hspital they do not know what to do, where to go or what work to take on. I beg to move.
Baroness Macleod of Borve: I support my noble friend Lady Faithfull. As chairman of the 1,268 leagues of hospital friends, some of whom are connected with psychiatric hospitals, I know that when some patients are discharged they are completely lost. We in our organisation try to prevent that, by putting them in half-way houses which we rent at a peppercorn rent from the local authorities who are sending their patients to the particular hospitals. A great deal of work is done by the voluntary services, but I would support entirely what my noble friend has said, because a statutory authority is perhaps more able, in some cases anyway, to help some patients, who have been in hospital for a long time and who have completely lost touch with the outside world. It is the health and security of knowing that there is somebody in the statutory services who will help them that I believe is very important. I should like to support the amendment.
Lord Donaldson of Kingsbridge: I take it that the word "supervision", which in this context usually means a probation service, explicitly does not apply to the probation service here. It is important that we should not land this kind of thing on the probation service without saying so and without demanding further resources for them, because otherwise they would not be able to do it. I want confirmation, but I believe I am right in thinking that that is excluded in the terms of the amendment.
Baroness Elliot of Harwood: I should like to support the amendment which has been moved by the noble Baroness, Lady Faithfull. As chairman of a social work committee for many years, I had some experience of finding myself with people who turned up either homeless or not knowing what to do, or who had no employment and no one to back them up in any way. The social workers had to look after them or did look after them if they applied in any way, but it would have been very much easier if this had been an obligation which the social service department in a county or city would be able to cope with. I believe that this is an

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excellent amendment and hope that the Government will accept it.
Baroness Faithfull: I should like, if I may, just to answer the noble Lord, Lord Donaldson of Kingsbridge; I must confess that I had not intended the word "supervision" in this context to apply to probation.
Lord Sandys: I have listened most carefully to the amendment which has been proposed by my noble friend Lady Faithfull, but there are difficulties here. Proposals about supervision in the community, referred to by the noble Lord, Lord Donaldson of Kingsbridge, were discussed in the 1978 White Paper. It was argued then, and I will argue now, that there would be considerable difficulties in the operation of a direction of this kind in the amendment. Here the fundamental point is that, although it is a matter of principle, what we are discussing would be the creation of a new power. This is quite fundamental to the argument. It is a new compulsory power and in the Bill we are trying to move in almost the opposite direction by adding new safeguards on the way in which existing powers are being operated.
It would be a significant step to introduce an entirely new power, as this amendment suggests. The net effect would probably be that more people in total would be subject to some kind of compulsory power, and this is not our objective. I must respectfully point out to my noble friend that there would be a considerable practical difficulty in operating a power to direct discharged patients to be subject to supervision by a social services department. If one examines my noble friend's amendment, one reads that it is a permissive power and this is quite understood. She commented upon the fact that it could be an officer of a local authority social services department or, as she says in her amendment, "by some other suitable person".
My noble friend Lady Faithfull referred to the after-care services, and also to the Simon Community, the Salvation Army and the Church Army. She had the support of my noble friends Lady McLeod of Borve and Lady Elliot of Harwood in this regard. But the problem is more difficult than that, because, for example, what sanctions would be applied if a patient failed to comply with the situation? Suppose the patient's mental disorder made it difficult for him to understand the purpose of the supervision. There is the problem that the introduction of such powers, would impose a substantial extra burden upon local authority social services departments. The use of the powers would depend upon sufficient social services staff being available and suitably trained to take on these extra responsibilities. I am aware that there is an optional part of the amendment, suggesting that "some other suitable person "should be responsible, but there is a fundamental difficulty, and in view of the difficulties which I have outlined and the undesirability in principle of seeking to introduce a new power which would bring more people under compulsory powers, I am afraid that I am not able to accept this amendment. I must stress, though, that I wholly commend the work of the social services departments and all the voluntary services and agencies to which speakers
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have referred. But it would be very difficult for the social services departments to help detained patients to make the transition from attention in hospital to life in the community, which they do not have recourse to without compulsory powers. I hope that the noble Baroness will withdraw her amendment.
Baroness Masham of Ilton: I did speak on this matter at Second Reading and I believe that it is very important. I hope that, if the noble Baroness, Lady Faithfull, withdraws her amendment now, she will bring it back again at Report stage. At the moment, psychiatrists sometimes have two choices only: whether a patient shall stay in hospital or shall go out. They would very much like to recommend that the patient goes out, with support, into the community. They know perfectly well that a patient cannot go out into the community and survive without support. During the course of this Bill, we have heard that there are to be social workers trained in mental health work. Therefore, I believe that this is an excellent amendment and I hope that the noble Baroness will pursue it. This is the whole point of the Bill; people with mental problems are supposed to be going out into the community, and I hope that the Government will look at this again.
Lord Donaldson of Kingsbridge: I believe that the noble Baroness, Lady Masham of Ilton, is perfectly right. This seems to me to be a very important point indeed. I believe that there has been some confusion in the Government's mind between doing something as a desirable accompaniment to an Act, and insisting on it. It seems to me that what the noble Lord is saying is that, where the mental health tribunal considers that the patient needs a bit of looking after, it cannot order a discharge without making some kind of recommendation that the patient should be looked after. I do not believe that the noble Baroness who proposed the amendment would insist on this being compulsory. I do not believe that that was her intention, and it need not be.
The Government ought to look at this again, because it seems to me absolutely essential that the mental health tribunal should be able to say, "This chap is really not too bad and is really no danger to the public, and, so long as somebody can look after him in some way or another, we will let him go back into the community, where he will do much better than he will in hospital." I believe that that is the noble Baroness's intention. I do not believe she has got it quite right because "supervision" is probably the wrong word; it has a sort of technical meaning. I should like the Government to take this away and look at it, because, as the noble Baroness, Lady Masham of Ilion, has just said, this is very important.
Baroness Vickers: I should like to support this idea strongly. When a patient has been in hospital for a very long time, he needs education before he is let out. Patients need to be educated in regard to money, cooking and looking after themselves physically. A lot of patients cannot cope unless they take their drugs continually. I know of a hospital in the Plymouth area where, when patients come out, they can go to centres and can be seen to take their drugs regularly.

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This probably keeps them adequately fit to be with the general public in the future. However it is done, it would I think be very unwise to let a lot of people out of hospital without any support at all. They should have very good training. Those in the hospital in which I am interested get very good training before they leave. Some go out and work and come back to the hospital at night, and there they are getting adequate supervision and help. Some of them have been a great many years in hospital and the strain of going out into the ordinary world, going on the bus and so on, is too much for them unless they get guidance and help. So I hope that in some way this arrangement can be introduced, so that patients are not simply thrown out into a new world without any support and asked to stand on their own feet.
Lord Wallace of Coslany: I would like to support the amendment from these Benches. As I indicated at Second Reading, we look forward to a number of patients being discharged under this new Act. This will give rise to quite a number of social problems, not only concerning people to look after the patients but also of accommodation. I cited a case in Norwich where there were houses, which had been altered with some help from the local authority and voluntary organisations, to provide accommodation, with a former nurse to look after them. This is the ideal situation. I am sure there will be problems unless the spirit of this amendment is accepted, and I would support the amendment.
Lord Sandys: It would be churlish of me if, on behalf of the Government, I did not listen to my four noble friends behind me who have pleaded for particular reconsideration of this field. I listened most carefully to what the noble Lord, Lord Donaldson, said. We shall, of course, be coming to mental health review tribunals in later amendments. What the noble Lord said is of considerable importance. In this particular set of circumstances, while I think all those who have spoken in support of this amendment recognise the difficulties, I think there are grounds for consideration of the existing position. I am afraid I cannot offer anything more than a proposal that we meet between now and Report. I hope that may be sufficient inducement to my noble friend Lady Faithfull to feel that she may withdraw the amendment at this stage.
Baroness Faithfull: I understand my noble friend's problem with regard to the legal position, and I do realise that this makes for difficulties. He spoke about not wanting the Bill to enforce further restrictions. This amendment deals much more with providing the quality of freedom for patients who are discharged from hospital. Many of us who have worked with patients in the community have done so on a voluntary basis, and many social service departments and many voluntary organisations are doing this at the moment.
I take the point made by the noble Lord, Lord Donaldson, that perhaps the word "supervision" was an unfortunate word. I will certainly think about that. In the light of what the Minister has said, I will consider the matter and read Hansard, and with his very kind offer of discussions with him before Report I beg leave to withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
Lord Elton Lord Elton moved Amendment No. 66:
Page 24, line 12, at end insert—
("() In section 123(2)(b) of the principal Act (discharge of patient subject to guardianship) for the words "the interests of the patient" there shall be substituted the words "the interests of the welfare of the patient".").
The noble Lord said: This is a technical amendment. The phrase "the interests of the welfare of the patient" is introduced in Clause 7 and for reasons of congruity ought to be repeated here. The reason for its introduction in Clause 7 was stated in the 1978 White Paper. As your Lordships have already accepted this in principle in Clause 7, and subsequently in Clause 12, I do not propose to adduce the reason now. I beg to move.
On Question, amendment agreed to.
4.35 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 66A:
Page 24, line 12, at end insert—
("() After section 123(3) of the principal Act there shall be inserted—
" (3A) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act and the tribunal do not direct that the patient be discharged, the tribunal may, if it appears to the tribunal to be appropriate, direct—

(a) that he be granted leave of absence for such period or periods and upon such condition or conditions as the tribunal shall specify; or

(b) that he be discharged upon such condition or conditions as the tribunal shall specify; or

(c) that he be transferred from a special hospital to a hospital not being a special hospital.

(3B) Where a tribunal shall have made a direction under paragraph (b) of the foregoing subsection:—

(a) if the patient shall fail to comply with the condition or conditions specified he shall—

(i) continue to be liable to be detained in hospital; and

(ii) upon being recalled or readmitted to hospital be entitled to make a further application to a Mental Health Review Tribunal; and

(b) any condition or conditions attaching to such direction shall cease to have effect upon the expiration of the period for which the patient was liable to be detained at the date of the direction.".").

The noble Lord said: The object of this slightly bulky looking amendment is to give power of conditional discharge of unrestricted patients to mental health tribunals. This amendment has been drafted in close consultation with very experienced legal members of a tribunal and so it is based on a background of practical experience of the functioning of tribunals.
The all-or-nothing choice of tribunals in unrestricted cases is one of the most serious limitations of the present sustem. When a tribunal has heard a case it may wish to do one of four things: continue to detain the patient in the same hospital; continue to detain the patient elsewhere; discharge the patient conditionally, or discharge him unconditionally. If the patient is a restricted one the tribunal may recommend any one of those four choices. It is then the responsibility of the Home Office, if they decide to accept the recommendation, to make the appropriate arrangements.
Where the patient is unrestricted the tribunal can opt only for options one or four, that is to say, either

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continue to detain the patient in the same hospital or discharge him unconditionally. Choices two and three might be preferable but they are not available, because the tribunal is not empowered, being an ad hoc body, to make and supervise the arrangements which would be required for choices two and three. Given such a choice the tribunal will tend to elect for the first option, continue to detain the patient in the same hospital, even where the element of risk to either the patient or the public appears very low. The tribunal's reluctance to elect to discharge unconditionally is likely to be strengthened by the knowledge, first, that almost immediately the tribunal has decided that the patient should be discharged he is entitled to leave the hospital; sometimes notification of the decision to the patient will be deferred, but only up to seven days, and this gives very little time for the responsible medical officer to make after-care arrangements; and, secondly, even if after-care arrangements have been made, there is no way of ensuring that the patient complies, for the very reason that the discharge is unconditional. All this has the effect that tribunals very often resort to continuation of detention of the patient in the hospital for lack of any other real choice.
Of course, the tribunal has power to adjourn the hearing before making a decision. The use of this power—which was recommended by the Butler Committee (Chapter 7, paragraph 10)—gives the opportunity for the tribunal to adjourn while satisfying itself that suitable after-care arrangements have been made. This power of adjournment may sometimes be useful, but very often it will not be. Tne responsible medical officer who will have charge of making the arrangements may not be keen to do so, especially when he knows that the patient cannot be compelled to accept them. But even if he wishes to help, he may not be able to do so because of lack of a halfway house or other suitable accommodation.
The tribunal knows, therefore, that in most cases very little is to be gained by an adjournment. Indeed, it may be harmful to the patient to be subjected to further delay while a search is being made for suitable aftercare arrangements; then the same tribunal has with some difficulty to be reassembled. If the tribunal had power to elect one or other of the other two options, continue to detain the patient elsewhere, or discharge him conditionally, many of these objections would be met.
There is another consideration which has only just occurred to me. Under this Bill it is proposed to give tribunals a power of conditional discharge over restricted patients. It rather leaves one to wonder why this degree of desirable flexibility should be withheld from unrestricted patients, and particularly—and this is my final point—now that the tribunals are to be strengthened by the appointment of circuit judges as presidents.
Those are the main considerations behind the amendment. I repeat, it was drafted after consultation with a very experienced legal member of a mental health review tribunal. On that note I commend the amendment to your Lordships' Committee. I beg to move.
Lord Sandys: I sympathise with the intentions of the noble Lord, Lord Kilmarnock, in moving this amendment but I fear that in its present form I cannot accept it. We listened with interest to the fact that he had taken very careful legal advice upon the background to the amendment, but I fear that the final part of the amendment is defective, in assuming, wrongly, that detention under the Mental Health Act 1959 is for a fixed period. Detention is, of course, renewable at intervals which are being shortened under the provisions of the Bill we are now debating.
Experience since 1959 has demonstrated that it would be helpful for mental health review tribunals to have a wider range of options open to them in considering a case and not to be confined to directing discharge or making no direction at all. Our Bill already provides in Clause 34(3) for the tribunal to direct delayed discharge and the Government intend to provide for other possibilities also, but these cannot be provided in the way envisaged in this amendment.
This question was discussed in the previous Government's 1978 White Paper (paragraph 6.5), and in the discussion document published at the same time by the Lord Chancellor's Committee on Mental Health Review Tribunal Procedures (paragraphs 3.5 and 3.6) the discussion recognised that where the tribunal took the view that transfer from one hospital to another, for example, was the best outcome for the patient, this would have to be a matter for recommendation rather than direction. The appropriate hospital might be quite unable to accommodate the patient at once so that the tribunal's direction could not immediately be implemented.
A direction for leave of absence subject to certain conditions would have similar difficulties. A patient who is on leave of absence remains the responsibility of the hospital where he is liable to be detained. The hospital therefore has to be satisfied that arrangements for his leave of absence, and any conditions attached to it, are satisfactory. It is not practicable, therefore, to make these matters the subject of directions. But it is certainly our intention to provide in revising the rules made by my noble and learned friend the Lord Chancellor for the procedure of mental health review tribunals—under Section 124 amended by Clause 34(4)—that tribunals may recommend leave of absence and transfer to another hospital.
The Committee may say that recommendations are all very well, but recommendations are not always implemented, so that the tribunal's wishes may not be put into effect. But we intend to provide for this eventuality also by setting down in the rules that if the tribunal's recommendations are not implemented within a certain period—say three months—then the tribunal should reconvene to consider why this is so and whether another course of action now seems preferable.
I have left to the end paragraph (b) of the first part of the noble Lord's amendment where it says:
"that he be discharged upon such condition or conditions as the tribunal shall specify;"
because this raises separate issues. There is presently no power to direct or recommend conditional discharge except for restricted patients. Nor do I think that any such power is necessary. We have the leave of absence provision in Section 39 of the Act. We

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also have provision for supervision in the community in the powers of guardianship contained in Sections 33 and 34 of the Act, as amended by Clause 8 of the Bill. It is only in those special cases where a patient is subject to restrictions on his discharge that conditional discharge may be necessary.
As regards conditional discharge for restricted patients, I am pleased to say that the intentions of the noble Lord, Lord Kilmarnock, have already been met in the amendment moved by my noble friend Lord Belstead earlier today. Paragraph 5 of the new schedule introduced in that amendment provides for the mental health review tribunal to discharge a restricted patient subject to conditions. Paragraph 7 of that new schedule requires any conditionally discharged patient who is recalled to hospital to be referred within one month of his return to a mental health review tribunal.
I apologise for the length of this reply but I hope, in view of the particular care that the noble Lord, Lord Kilmarnock, has taken in drafting the amendment, that he will find that a full reply is satisfactory. I am glad to have had the opportunity to make the Government's intentions clear on this matter, and in view of the assurances given I hope that the noble Lord may feel able to withdraw the amendment.
Lord Kilmarnock: There was no need for the noble Lord, Lord Sandys, to apologise for the length of his reply; I am extremely grateful for it. I am also glad that the Government recognise the desirability of a wider range of options becoming open to the tribunals. I listened with care to the noble Lord's remarks about the powers of granting leave of absence or recommending leave of absence, and also to his remarks about the projected revisions of the rules of procedure which may, indeed, also help in introducing greater flexibility into tribunal proceedings.
Towards the end of his speech the noble Lord, Lord Sandys, referred to the right of conditional discharge for restricted patients which is contained in the new schedule. However, it applies to restricted patients only. The difference being introduced as regards the present law is that conditional discharge will not require the approval of the Home Secretary: the tribunal will be able to grant it on its own, under its own powers. That is where the real difference lies, as I understand it, in the new schedule.
Having made those remarks I shall read with the greatest care what the noble Lord, Lord Sandys, has said, and at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.48 p.m.
Lord Wallace of Coslany Lord Wallace of Coslany moved Amendment No. 67:
Page 24, line 18, at end insert—
(" () An applicant shall be entitled to be represented before a Mental Health Review Tribunal by counsel or a solicitor and the costs of such representation (and, in the case of representation by counsel, the cost of instructing a solicitor also) shall be borne by legal aid funds in accordance with the provisions of the Legal Aid Act 1974.").
The noble Lord said: I beg to move Amendment No. 67 standing in the names of my noble friend Lord Elystan-Morgan and myself. I submit that this is a
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very important amendment. Under the Legal Aid Act 1974 a solicitor may obtain remuneration for advising and assisting a person on a matter of law.
The Legal Aid Act 1979 enables regulations to be made extending the advice and assistance scheme to representation before tribunals. To date no such regulations have been made. For the detained psychiatric patient this means that he is reliant on the charity of a few committed solicitors or barristers to represent him before the tribunal and to bear the costs. The financial pressures on solicitors and barristers are such that few are able to sustain such a charitable service. Where charity is not forthcoming the detained patient must attempt to argue his own case to the tribunal.
It is enormously difficult for a detained patient to argue his case to a tribunal. The detained patient suffers handicaps that applicants to other tribunals do not experience. Many patients are under the influence of drugs or major tranquillisers to a degree which is often intellectually disabling. Indeed, many patients lack verbal skills; others have been institutionalised for many years, leading to excessive passivity or acquiescence, and often leaving them out of touch with changes that have occurred in the world to which they wish to be discharged. Living in a hospital régime is likely to inculcate deference to staff, and questioning a doctor's opinion can therefore seem dangerous and daunting to such a person.
Arguably the greatest handicap to the unrepresented patient is that he is unlikely to know the evidence against him. The Mental Health Review Tribunal Rules 1960 specifically allow the tribunal to withhold from the patient any part of the evidence before it which it would not be in his interests to see. On similar grounds, the tribunal may exclude the patient from parts of the proceedings. These powers are frequently used by tribunals and, if the patient is represented, the evidence will normally be released to the representative and he will be permitted to remain while the patient is excluded.
In 1979 the Lord Chancellor's Advisory Committee recommended that mental health review tribunals be given the highest priority in the extension of public funds to such representation before tribunals. Not only is it extremely difficult for a patient to advocate his own case, but the mental health review tribunal is the only tribunal which concerns the liberty of the subject. To date, the noble and learned Lord the Lord Chancellor has not responded to this advice. Recent decisions in the European Court strongly suggest that United Kingdom law violates the convention in not guaranteeing representation for detained patients. A case is about to be filed with the European Commission on this particular point.
This Bill represents an opportunity to amend United Kingdom law in order to bring it into line with the convention. Representation before mental health review tribunals is the minimum safeguard which is available to any other person whose liberty is threatened under United Kingdom law. I have had considerable messages of support for this particular amendment, and I hope that the Committee will accept it in spirit and that the wording will be acceptable to Her Majesty's Government. I beg to move.
Baroness Masham of Ilton: As there is another amendment on legal aid, to which I have put my name because I was going to table an amendment on legal aid, and I really do not mind which one I support—whichever the Government think is best—I shall be very happy to speak to this amendment.
The noble Lord, Lord Belstead, has told your Lordships today that mental health review tribunals will do much of the work that Crown courts have been doing. Also the noble Lord was not clear about what help legal panels can give to individual patients. It seems necessary that, where people are pleading for their freedom, they should be legally represented. Patients do not have access to their medical records; I believe that legal representatives have this facility. Against professionals, do your Lordships think that a patient stands a chance trying to represent himself? He may be under the influence of drugs or may be unable to express himself clearly. If a patient is rich, he will be able to afford to have legal representation; if he cannot afford this, it seems that he may or may not be able to have legal help—he has to rely on charity. Legal aid seems to be a safeguard, and I support this amendment.
Lord Winstanley: Like the noble Baroness, Lady Masham, I too support this amendment and, also like her, I accept, of course, that Amendment No. 67 in fact covers very much the same point as that covered by the later amendment, Amendment No. 70, standing in the names of the noble Baroness and the noble Lord, Lord Kilmarnock, and my noble friend Lord Hooson.
The noble Baroness said that she did not greatly care which of these amendments she supported. I do not think that I would be quite so amenable. Frankly, I think that, if anything, Amendment No. 70 is marginally the better of the two, but I certainly think that the principle has to be accepted. I do not know whether it is appropriate that we should debate them both at the same time, but, when the Minister replies, perhaps he will direct his reply to the rather different drafting points and the different way of dealing with the same matter in the other amendment. I do not know whether my noble friend will say anything about this; I think that the noble Lord, Lord Kilmarnock, will say something about Amendment No. 70, in which case there will be a reply to that. However, I think that your Lordships' Committee ought to be able to hear the differential argument, as it were, between the two points when we come to a conclusion. I should not have thought that there was any difference at all among noble Lords on this side of the Committee, wherever they sit, about the need for legal aid for these purposes.
To provide rights for people to go to appeal before tribunals and so on is very much an empty exercise unless, at the same time, one provides them with the kind of assistance which they undoubtedly need if they are to extract the full value from that process. I shall say no more at the moment, but I think I have indicated that, although we are entirely in support of the amendment of the noble Lord, Lord Wallace, perhaps we are also in support of Amendment No. 70, which, of the two, we might marginally prefer.
Lord Boardman: I have considerable sympathy with this amendment and with the arguments put forward by noble Lords opposite and by the noble Baroness. I think that the one point which distinguishes this from all other tribunals—I understand the reluctance of the Government and of the noble and learned Lord the Lord Chancellor to extend legal assistance to many tribunals—is that this is the only tribunal which decides on the liberty of the subject. I believe that that is a distinction which justifies exceptional treatment in this case, and I support the amendment.
Baroness Faithfull: Amendment No. 71 also deals with the same subject. From a slightly different angle I also support the amendment moved by the noble Lord, Lord Wallace, and that spoken to by the noble Lord, Lord Winstanley. From working in mental hospitals, my experience is that it is quite right and proper that these cases should come before mental health tribunals and that there should be legal representation. But the patient needs to have help to get the legal representation. Therefore, in my amendment there is a recommendation that:
"the relevant social services authority should be under a duty to furnish him with independent advice and appropriate assistance before the hearing of the Mental Health Review Tribunal".
Accordingly, this brings in another point, which is that help is needed, not on the part of the social worker, but on the part of the social worker helping the patient to know how to get legal help.
I should like to clarify one point. I think that I may have missed a point in the earlier debate, but I am still not clear about the payment of legal aid. I should like to be quite clear about this because, in some cases, with a different law altogether, I have raised money for patients to have legal aid, but under this Bill I should like to know from where payment for the legal aid is to come.
Lord Kilmarnock: We seem to be speaking not to two amendments only but possibly to three. At this stage, I should simply like to say, as the amendment which stands in my name and those of the noble Lord, Lord Hooson, and the noble Baroness, Lady Masham, has been mentioned, that my inclination is to support the amendment of the noble Lord, Lord Wallace, if the Government are disposed to accept it or if, indeed, the noble Lord wishes to press it to a Division.
At the same time I should like to say that I consider that our amendment—and I think that the noble Lord, Lord Winstanley, thought this as well—is marginally better, in that the second part of it ensures that patients will be able to be represented before mental health review tribunals; that is to say, subsection (2) of our amendment would prevent legal aid authorities from declining to grant legal aid on the grounds that a patient appears to be unlikely to succeed. That is the additional safeguard which exists in Amendment No. 70 and which does not exist in the amendment which has just been moved. My inclination is, if the present amendment is moved and either accepted or carried, that I would probably then at Report stage come back with a further amendment to introduce the idea contained in our subsection (2)

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I will not go on much longer because the noble Lord, Lord Wallace of Coslany, covered the whole ground thoroughly. Although he mentioned the Lord Chancellor's Advisory Committee on Legal Aid, who considered this to be a top priority, other bodies are involved. The Council on Tribunals in its 1979 report set out the criteria on which legal aid should be given and included the mental health review tribunals in a priority group. The Royal Commission on Legal Services reported in 1979 and followed the recommendation of the Council on Tribunals, and the Royal Commission on Legal Services in Scotland did the same thing.
Just to take up Lady Faithfull's point, she was worried about the money. So far as I understand it, at the present time patients, or rather their lawyers, have had to do the best they could by seeking extensions to the legal advice and assistance scheme. This scheme allowed or allows a basic £40 of legal assistance, but extensions cannot, under the relevant statutory provisions, be granted to cover representation at the hearing itself. In so far as patients have been represented it has depended on solicitors undertaking to appear at the hearing on a charitable or semi-charitable basis. Increasingly they are finding that they cannot accept this task because of the pressures on their firms and partnerships. As a result, there is a great danger that patients will go unrepresented. I think that is sufficient for the moment, and I support Lord Wallace's amendment.
Lord Renton: May I suggest to my noble friends on the Front Bench that in principle mental patients have a much stronger case for legal aid than do many others who already get it, whether in criminal or civil cases. I say that for two simple reasons. The first is because in nearly all of the cases which would come before mental health review tribunals the patient's liberty is at stake, and the other reason is that their mental condition makes it difficult for many of them, although not all of them, to understand their rights, to understand the issues which arise, to sift the evidence being given for and against them, and still more difficult for them to argue their cases convincingly before the tribunal.
Therefore, it seems to me that a strong case for an exception has, as my noble friend Lord Boardman pointed out, been made out. As to the amendment of my noble friend Lady Faithfull, of course it would be a welcome compromise but I feel it would be just a compromise. I hope I am not asking too much of my own profession when I say that I think that they are in the best position to give the independent advice, and indeed to argue the cases convincingly in court.
Baroness Faithfull: Perhaps I did not make myself clear. I did not for one moment suggest that a social worker should argue the case at a tribunal. I suggested that a social worker should help the patient to obtain the legal advice required.
Lord Renton: I am so grateful to my noble friend for making that clear. It comes to this: there is no reason why the Government should not accept both her amendment and an amendment granting legal aid. So there is no difference whatever between us. It seems to me that this is an exceptional case.
Lord Donaldson of Kingsbridge: May I say one word about procedure here? May I suggest that the noble Lord the Minister gives an indication of whether he can accept either, and if so which, of these amendments, in which case we will all agree to that. If he is going to accept neither, then we wish to know which we will go for. If it is in order, I should like to suggest that the noble Lord, Lord Wallace, should speak again. We have said from this Bench and the Liberal Bench that we will support him if necessary. Would he support us if necessary?
Lord Elton: It is not my duty to do the horse trading between the various Benches on the other side of the Committee. I am in the position of somebody who has been sitting on the side of a hill down which a snowball has been rolling, and I just wondered if I sat there long enough whether the whole of the rest of the Bill could be rolled up into one debate. However, there are strong connecting themes in the three amendments to which I now propose to speak. My noble friend Lady Faithfull—as it is a snowball it is proper, is it not, to approach first the outside which was rolled on last?—said that it was not her purpose to give the social services authority an advisory function except in the way in which a patient might get legal advice.
Baroness Faithfull: And aid.
Lord Elton: And aid. I must say that that was not immediately apparent from her amendment, and I take note of that. I think I should also speak to the amendment as it appeared to me, and I think to other noble Lords. What worries me is that this would give a difficult conflict of interest to the social services. If they were involved in the legal as opposed to the aid advice, they would be involved by mental welfare officers who undertake duties under the Act in making the application for the patient to be detained in the first place, and might also be involved after the patient had been discharged in providing accommodation and other kinds of help for the patient. Therefore I think they are not the proper people to advise at this stage. I sense that noble Lords tend to agree with me.
May I now turn to the other two amendments. The purpose seems to be the same, and indeed has been acknowledged to be the same; that is, to make legal aid available to patients coming before mental health review tribunals. The first point to be made on both amendments—and it has been alluded to already by the noble Lord, Lord Kilmarnock—is that there is already power in section 7(2) of the Legal Aid Act 1974 to extend legal aid by regulation to any proceedings including mental health review tribunal proceedings. Accordingly, primary legislation, such as that represented by these amendments, to achieve that end is superfluous.
Bearing that in mind, I invite your Lordships to consider that the Government do indeed recognise the desirability in principle of extending legal aid to mental health review tribunals and, as soon as money and priorities allow, the Government will do this. The cost of such an extension and the availability of funds are kept under constant review. However, any useful estimate of the cost of the present amendment would rely on complex and speculative assumptions both about the number of patients who are likely

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to exercise the new rights of access to the tribunal conferred by the Bill and the number who would apply and be granted legal aid. We are at present seeking to estimate that cost.
Making legal aid available to patients may involve them in sometimes lengthy and complex procedures to assess resources. It would be both less burdensome to them and administratively cheaper to the legal aid authorities if legal representation for patients were made available under the "assistance by way of representation" scheme provided for in Section 2A of the Legal Aid Act 1974. Under that scheme, the patients' solicitor, rather than the Department of Health and Social Security, would carry out a simplified means test and the Legal Aid Committee or indeed, the tribunal itself, would approve extending the patient's green form advice and assistance to cover legal representation before the tribunals. Like legal aid, assistance by way of representation may be extended to any proceedings by regulations made by the Lord Chancellor. This is another aspect of legal representation before mental health review tribunals which the Government have now under active consideration. Though it is too early to say what conclusion will be reached, the amendment would pre-empt a proper consideration of the matter.
Turning to the second part of Lord Kilmarnock's amendment, I should say at this stage that it is undesirable and indeed unnecessary to abrogate the test of reasonableness in Section 7(5) of the Legal Aid Act 1974 in the case of mental health review tribunals only. The purpose and effect of Section 7(5) is to put a legally aided litigant in the same position as a person who can afford to pay his own legal costs by ensuring that legal aid is available to finance a case only in circumstances where a reasonable person who had to meet his own legal cost would pursue the proceedings. Looked at in that light, the requirements of Section 7(5) cannot be objectionable in principle even in relation to mental health review tribunal proceedings.
Further, in practice it is inconceivable that where a patient had an arguable case affecting his liberty to put before a tribunal, legal aid, or assistance by way of representation, would ever be refused on the ground that there were no reasonable grounds for the patient to be a party to the proceedings. Only in the most hopeless case where there was no argument at all would legal aid be refused and such cases would rarely if ever occur.
Exempting patients from the requirements of Section 7(5) would not only put them at an advantage over all other applicants for civil legal aid—many of whom are also concerned to enforce rights of vital personal importance—but would also, in the few exceptional cases where it had any effect, represent a waste of resourses. Accordingly, the test would unnecessarily increase the cost of extending legal aid or assistance by way of representation to mental health review tribunals and, in the present financial circumstances, make such an extension less likely to be achieved.
I hope noble Lords who have spoken in this debate will be persuaded that my noble and learned friend the Lord Chancellor has this matter in hand and will withdraw the amendment and that the noble Lord,
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Lord Kilmarnock, will be content not to move Amendment No. 70. As your Lordships will be aware, I have carefully stuck to my brief, but the sum of the matter is that we are seized, as are your Lordships, of the needs of the patients to whom we refer; that we recognise the wish your Lordships have to see them embraced by the scheme; that we are pursuing the exercise, rather more complex than one might expect, of discovering what exactly the costs of implementing such a scheme would be; that we would propose to implement it through the channels I have already described; that these do not require legislation; and that they are more appropriate than those in the amendment. I hope the Committee will accept that in good faith and not press the amendment.
Lord Wells-Pestell: I regard the Minister's reply as extremely astounding and confusing and I hope that when he reads it tomorrow in Hansard he at least will be able to understand what he said. Early in his reply he implied that provisions already existed to grant legal aid, but he went on to say that it was not possible to do that because the money was not there. We have heard that in regard to the Children Act since 1975; year after year we have been told that money is not available to implement the legal aid section for parents. The noble Lord is now saying that much the same will apply to this Bill because the money is not available.
Either there is or there is not on the statute book at present provision to enable a person to be represented at a mental health review tribunal. If there is not, we must make it clear that it should be done before all else. I have had some experience as a member of a mental health review tribunal. Although a number of your Lordships may have had such experience, nobody has mentioned that so far. There is no situation of which I know that makes it essential in many instances for the person to be represented. The mental health review tribunal cannot take up the case, as it were, for the applicant. In the ordinary magistrates' court, if the person does not have the good fortune to be legally represented, for whatever reason, either the stipendiary magistrate or the bench of magistrates will watch the interests of that person. That is not possible with a mental health review tribunal.
I say with great respect that, while the chairman of the tribunal may be a lawyer, the mental health review tribunal is governed very much by the report of the medical side. And we are expecting a person who perhaps has had quite a long period in a mental hospital to have sufficient competence, experience and knowledge to conduct his own affairs. That is quite unreasonable. It cannot be expected and, as a number of noble Lords have pointed out, including the noble Baroness, Lady Faithfull, and the noble Lord, Lord Renton, here is a person fighting—I use the word in a general sense—for his liberty; there is nothing more important than helping a person who wants his liberty to put forward the best possible case. There is nothing comparable with that.
The Minister cannot expect the Committee simply to accept the reply he gave. I hope even now that he will agree, notwithstanding his reply, to take the matter back and look at it afresh. I have not consulted my noble friends on this matter, but I should like to know whether there is authority anywhere on

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the statute book to enable a person appearing before a mental health review tribunal to have legal aid. If not, the Government should give way on this, as it is a matter of supreme importance to the person wanting his freedom; he should have an opportunity of being properly represented so that the full facts may be put to the tribunal.
Lord Elwyn-Jones: So far as I recollect, there is at present no right to obtain legal aid for representation before a mental health tribunal. The discussion has become a little confused, partly because of the galloping rate at which the noble Lord, Lord Elton, delivered his advice to us, if he does not mind my saying so. What exists at present is what the lawyers know as the green form scheme whereby a solicitor can, for a small fee, advise an applicant as to his rights and the possibilities and can do a great deal short of the all important question of actual legal representation before the tribunal. No doubt that advice is very useful so far as it goes and what has often happened, as has been pointed out, is that generous, public-spirited solicitors with a conscience have carried through what they regard as their obligations to the stage actually of appearing without fee for the applicant before the tribunal. That of course is possible.
It means that the well-off person who is now detained can appear through representation before the tribunal. We are therefore in a very unhappy situation in that on the important question of the liberty of the subject, the financial means of the person concerned is a critical matter. No system of justice accepts that without at least protest and, one would hope, without remedying the situation.
I confess that I am in some slight embarrassment personally in this matter in that I was Lord Chancellor at the time when the power to make the necessary regulation was available, and we did not then feel that the situation, in the face of other demands and priorities, provided or justified it. There have been a number of changes since then and I think the awareness of the importance of the patient in sintitutions has become more acute and that there is a greater sense that they have tended to be a somewhat abandoned section of the community. There is now a greater awareness than there has ever been of the need for positive assistance.
It is quite true that there is power by regulation, which should avoid legislation, to do what the two amendments, Amendments Nos. 67 and 70, ask for. First, may I say this? It seems to me that, if Amendment No. 67 or Amendment No. 70 were carried, that would at the very least certainly strengthen the hand of the Lord Chancellor in putting forward the need for legal aid to be extended. It would give him power with the Treasury. The Treasury is the final deciding factor in this matter, and in the struggle for priorities it has the last word.
As I understand it, at the moment legal aid is available in regard to only two tribunals. One of them is the Lands Tribunal, and I have forgotten what the other one is, though I do not think that it is a particularly significant tribunal; but otherwise legal aid does not existing in relation to tribunals.
I submit that it has been shown from all sides that the mood of the Committee is that the time has come
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for advance in this field for the patient held in a hospital seeking his liberty in the appropriate case. Therefore, I greatly hope that the Minister will at any rate go much further than he has already gone. He has said that the matter is being studied and is under review; it has been studied and been under review for years, and nothing has happened. Perhaps I and the previous Administration have as much responsibility as anyone else, but the situation ought to be remedied.
As I understand it, the Minister is not in a position to give an assurance, an undertaking, to the Committee that this will be done. Least of all is he in a position to give an assurance as to when it would be done, if it is to be done, and, in the circumstances, I think that on this occasion it would be proper for the Committee to assert its strong feeling about the proposal being put into effect in the public interest, in the interests of the liberty of the subject, by supporting one or other of the amendments.
I do not know that there is much to choose in terms of drafting as between Amendments Nos. 67 and 70. Amendment No. 67 has the benefit of clarity, as opposed to legislation by reference, and it is not for any party reason that I cleave to it. As the noble Lord, Lord Kilmarnock, has said, it would seem that the second part of his amendment concerns a slightly different point that no doubt he could deal with at a later stage in the proceedings.
Lord Hooson: I very much support the plea made by the noble and learned Lord, Lord Elywn-Jones, that the Committee should declare itself on what is a vital matter of principle. The noble and learned Lord, Lord Elwyn-Jones, referred to the fact that today there is a heightened appreciation of the position of a mental patient, and it seems to me that that is because we are debating in depth the welfare of mental patients generally. It will probably be another 20 or 30 years before your Lordships again deal with such a matter.
We should bear in mind in particular the experience of debates on the Children Act. It was claimed that the matter in question was of top priority but that the money was not available. It is an old tale, we have heard it before. But your Lordships' Committee should declare itself in principle on the matter.
I believe that the other tribunal that the noble and learned Lord, Lord Elwyn-Jones, was thinking of was the Employment Tribunal, where legal aid is available. But surely it is more important to have legal aid for a mental patient, who, of all people, is the least able to put forward his own viewpoint, who is least articulate, who is at a singular disadvantage in dealing with the doctor who is supervising him from day to day and who is giving evidence before the tribunal. The mental patient of all people needs help to put over his case, and in many ways he is the least able to take the fullest advantage of advice given to him by solicitors, since he is not perhaps best able to assimilate the advice and to use it to best effect. He is at a psychological disadvantage.
I believe that one of the most important occurences in today's debate was when the noble Lord, Lord Belstead, inadvertently thought that a mental patient was entitled to legal aid before a tribunal. That

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was, if I may say so, the reaction of a civilised man, and as a civilised community we are lacking in not providing legal aid. We should certainly divide on the amendments.
Lord Renton: I think that it would help us to judge the Government's intentions and our own responsibilities if my noble friend Lord Elton could give us some idea of when the review of the likely cost will be completed. If it is to be completed while the Bill is still before your Lordships' House, we could quite safely leave the matter today, and I very much hope that it will be completed within that time. Certainly it would be most unfortunate if it is not completed before the Bill receives Royal Assent, which will be several months hence. If we could be told about that, it would at any rate help us to judge the matter more efficiently.
Lord Kilmarnock: Since the amendment in my name has also been mentoned during the course of the debate, I should like to repeat that I am and my friends are disposed to accept the advice of the noble and learned Lord, Lord Elwyn-Jones, and to offer our support to the noble Lord, Lord Wallace of Coslany. The matter contained in the second part of my proposed amendment is indeed an additional safeguard for the mental patient before a tribunal, and it is a point that I could consider and possibly bring in at a later stage of the Bill.
On the matter of cost, which has come up—though no figures have yet been mentioned—it is extremely difficult to guess at the cost because of the problem of assessing the likely take-up, but I am reliably informed by all the people who have considered the matter that it is not expected to he very great. No doubt the noble and learned Lord will correct me if I am wrong, but apparently the legal aid budget runs at about £150 million a year at the moment. We are concerned with the marginal extra cost of representation at tribunal hearings, and the White Paper estimated the number of hearings at about 4,500 a year. One calculation given to me of the likely cost is in the region of £250,000 a year. That is less than one quarter of 1 per cent. of the present total legal aid budget, and, even if we were to suppose that that was an under-estimate and that the figure was £500,000 that would represent 0·33 per cent. of the total legal aid budget. So, I would strongly suggest to the Committee that this should not he an impediment, and, if the noble Lord, Lord Wallace, wishes to press his amendment, we shall be happy to support it.
Lord Elton: Noble Lords have spoken with obvious feeling, much of which I share, and with a great deal of knowledge beyond what I have, on a very important issue. The noble and learned Lord, Lord Elwyn-Jones, in two successive breaths advised me to go slower and to go further. I shall try to go slower. I am not in a position to go much further. Perhaps I ought to underline how far I have gone, since no one seems to have noticed.
I have indicated that the present Government have taken an important step forward in this area, because we now accept in principle the desirability of extending legal aid to mental health review tribunals, and this
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has never been accepted by any previous Administration. As I explained further—the noble Lord, Lord Wells-Pestell, was in some doubt about the point, but I imagine that he has already been reassured by what his noble and learned friend has said—the power exists on the statute book to take action by regulation. The power to make the regulation exists. My noble and learned friend the Lord Chancellor is in a position to make the regulation. Of course, he cannot make the regulation until he is fully cognisant of what the detailed implications of it will be.
My noble friend Lord Renton has suggested that I might be able to tell your Lordships when this consideration would be complete. I cannot do that tonight. If your Lordships wish to ask me later in the proceedings, I shall no doubt be able to give a better answer. But I want to make it perfectly clear, first, where the Goverment's heart and intentions lie, and, secondly, that the power to do this already exists in statute. I do not think it is good law to put a duplicate power into statute; and I do not think that my noble and learned friend the Lord Chancellor is the sort of person who needs arming against the Treasury. He is a very senior and respected person. My view is that credit should be given to the Government for what they have already done to advance this cause, and that your Lordships would perhaps be well advised to allow us to proceed on the path which I have suggested.
Lord Wallace of Coslany: I am very grateful indeed to all the Members of your Lordships' Committee who have taken part in this debate. If it is a collection of voices, then obviously the amendment has the support of the Committee; there is no doubt about that. The Minister has done his best to put a case. He rests on the Government's ability to make regulations. That is a possbility, but the point is that we want to establish firmly in this particular Bill an amendment which clearly indicates the rights of mental patients to receive legal aid. That is a vital principle.
I do not think I need to speak any longer on the issue; so much has been said so strongly by many other Members of your Lordships' Committee. I did not want to face a situation on this particular Bill where a Division was called for, but I have no option. I think the Committee must express its view on a vital principle.
5.31 p.m.
On Question, Whether the said amendment (No. 67) shall be agreed to?
Their Lordships divided: Contents, 77; Not-Contents, 82.

DIVISION No. 1

CONTENTS

Ampthill, L.

Colwyn, L.

Ardwick, L.

Cooper of Stockton Heath, L.

Aylestone, L.

Banks, L.

Craigavon, V.

Birk, B.

David, B.

Bishopston, L.

Davies of Leek, L.

Boardman, L.

Donaldson of Kingsbridge, L.

Bruce of Donington, L.

Byers, L.

Elwyn-Jones, L.

Chitnis, L.

Evans of Claughton, L.

Cledwyn of Penrhos, L.

George-Brown, L.

Collison, L.

Gladwyn, L.

797

Glenamara, L.

Molloy, L.

Gore-Booth, L.

Noel-Baker, L.

Halsbury, E.

Peart, L.

Hampton, L.

Ponsonby of Shulbrede, L. [Teller]

Hanworth, V.

Harris of Greenwich, L.

Richardson, L.

Hooson, L.

Roberthall, L.

Houghton of Sowerby, L.

Robson of Kiddington, B.

Hunt, L.

Rochester, L.

Hunter of Newington, L.

Ross of Marnock, L.

Hylton-Foster, B.

St. Davids, V.

Irving of Dartford, L.

Seebohm, L.

Jacques, L.

Sherfield, L.

Jeger, B.

Stedman, B.

Jenkins of Putney, L.

Stewart of Alvechurch, B.

John-Mackie, L.

Stewart of Fulham, L.

Kennet, L.

Stone, L.

Kilmarnock, L.

Taylor of Mansfield, L.

Kinloss, Ly.

Terrington, L.

Listowel, E.

Thurlow, L.

Llewelyn-Davies of Hastoe, B. [Teller]

Underhill, L.

Wallace of Coslany, L.

Longford, E.

Wells-Pestell, L.

Loudoun, C.

Wigoder, L.

Lovell-Davis, L.

Wilson of Radcliffe, L.

Masham of Ilton, B.

Winstanley, L.

Mayhew, L.

Wootton of Abinger, B.

Melchett, L.

Wynne-Jones, L.

Minto, E.

NOT-CONTENTS

Alport, L.

Mancroft, L.

Avon, E.

Mansfield, E.

Beloff, L.

Margadale, L.

Belstead, L.

Marley, L.

Bridgeman, V.

Massereene and Ferrard, V.

Campbell of Alloway, L.

Cathcart, E.

Mersey, V.

Chelwood, L.

Mottistone, L.

Cockfield, L.

Mowbray and Stourton L.

Cottesloe, L.

Cromartie, E.

Murton of Lindisfarne, L.

Cullen of Ashbourne, L.

Norfolk, D.

Daventry, V.

Northchurch, B.

Davidson, V.

Nugent of Guildford, L.

De Freyne, L.

Orkney, E.

De La Warr, E.

Pender, L.

Denham, L. [Teller]

Plummer of St. Marylebone, L.

Dilhorne, V.

Drumalbyn, L.

Rankeillour, L.

Elliot of Harwood, B.

Rawlinson of Ewell, L.

Elphinstone, L.

Redmayne, L.

Elton, L.

Renton, L.

Fairhaven, L.

Rodney, L.

Fraser of Kilmarnock, L.

Saint-Oswald, L.

Gainford, L.

Sandford, L.

Glanusk, L.

Sandys, L. [Teller]

Gormanston, V.

Selborne, E.

Gridley, L.

Selkirk, E.

Hailsham of Saint Marylebone, L.

Sempill, Ly.

Sharples, B.

Henley, L.

Skelmersdale, L.

Hornsby-Smith, B.

Soames, L.

Inglewood, L.

Spens, L'

Kemsley, V.

Swansea, L.

Kinnoull, E.

Teviot, L.

Kitchener, E.

Trefgarne, L.

Lane-Fox, B.

Trenchard, V.

Lindsey and Abingdon, E.

Vaizey, L.

Long, V.

Vaux of Harrowden, L.

Lucas of Chilworth, L.

Vickers, B.

Lyell, L.

Vivian, L.

Mackay of Clashfern, L.

Westbury, L.

Macleod of Borve, B.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 34, as amended, agreed to.
Clause 35 [Duty of managers of hospitals to refer cases to tribunal]:
5.41 p.m.
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 68:
Page 24, line 37, leave out ("48(3)") and insert ("38(2), 48(3), 52(6)").
The noble Lord said: This is a technical amendment to repair a drafting omission. Clause 35(1) is intended to ensure that a patient who is detained under Section 26 will automatically have his case reviewed by a mental health review tribunal after six months' detention if he has not already made an application to the tribunal himself, or otherwise had his case considered by them. Several sections of the 1959 Act under which a patient may have a tribunal hearing are mentioned in Clause 35(1) already, but we unfortunately omitted the two which are to be added by this amendment—Section 38(2) and Section 52(6). These are both provisions for hearings by a tribunal in special circumstances. Section 38(2) applies where the classification of a patient's mental disorder has been changed. Section 52(6) applies where a county court has made an order displacing the patient's "nearest relative" in favour of someone else. This amendment will clear up an anomaly, and I hope your Lordships will find it acceptable. I beg to move.
On Question, amendment agreed to.
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 69:
Page 25, line 17, leave out ("those subsections") and insert ("that subsection").
The noble Lord said: This is a very simple technical amendment, to change a plural to a singular. You will see that Clause 35(5) begins by referring to "subsection (1) above", and ends in line 17 with the words "the period mentioned in those subsections". Only one subsection is relevant and so the reference should be to "that subsection". I hope your Lordships will find this amendment acceptable.
On Question, amendment agreed to.
Clause 35, as amended, agreed to.
Clause 36 agreed to.
[Amendment No. 70 not moved.]
Baroness Faithfull Baroness Faithfull moved Amendment No. 71:
After Clause 36, insert the following new clause:
("Advice for patients.
.—(1) In circumstances where the care of a patient has been referred to a Mental Health Review Tribunal in accordance with section 35 or section 36 above, the relevant local social services authority shall be under a duty to furnish him with independent advice and appropriate assistance before the hearing of the Mental Health Review Rribunal.
(2) For the purpose of subsection (1) above—

(a) "relevant local social services authority" is the social services authority in whose area the hospital responsible for the medical treatment of the patient is situated;

(b) "independent advice" in relation to any patient means advice from an approved social worker defined by section 45 below not being an approved social worker directly involved in the management of the patient's case;

(c) "appropriate assistance" means such assistance as the social services authority consider it appropriate in the circumstances to ensure his adequate representation at a Mental Health Review Tribunal if this is in accordance with his wishes.").

The noble Baroness said: I am in some difficulty over this amendment because had Amendment No. 67 been won I should have withdrawn Amendment No. 71. As it is, I should like to move this amendment but regard it at this stage as a probing amendment. This amendment really means that patients could seek help from an approved social worker, not being the approved social worker dealing with their case in this instance, for help on how to get legal aid and how to get finance for that legal aid. I should like to air this difficult situation.
In another context, I know that I have often helped children and young persons with legal aid against me as the then-director of social services because I felt that they were entitled to independent help apart from me although I have been the person to take them to court. I think that patients need help and advice as to how to get legal aid and from where to get money. I move this as a probing amendment. I should like my noble friend Lord Elton to know that I shall withdraw it, but I should like to hear his comments.
Lord Winstanley: Briefly I should like to say that I support the noble Baroness strongly on this. I agree with her that had the previous amendment been carried this amendment would not have been necessary. But it seems to me that, as we have not carried that amendment and as the Government's further thoughts that we heard about from the noble Lord, Lord Elton, have not yet been carried into action, this amendment becomes even more necessary. I am not sure that the noble Baroness is wise not to press it; although it would surprise me if she needed to do so because it seems to be such a reasonable, simple, logical and sensible request that I should have expected the noble Lord, in relief at not having been defeated on the earlier matter, to embrace this amendment with enthusiasm. At least, I hope so.
Baroness Masham of Ilton: The noble Lord, Lord Elton, told the Committee that patients who went to a Crown court will now go before a review tribunal. Can he say how many patients this will involve and if they can choose whether they go to a Crown court or to a review tribunal; or will they be put into mental hospitals without a fair hearing in court? If so, this country will look very bad in regard to the human rights of the European Court.
Lord Elton: It is charming to hear the noble Lord, Lord Winstanley, woo my noble friend Lady Faithfull towards what I would term an indiscretion. But I think I can persuade her that it is not necessary for her to err in this fashion. As I said before, the amendment she has tabled does not appear to me or to my advisers to achieve what it is she says it sets out to achieve. It says in the new clause that,
"where the care of a patient has been referred to a Mental Health Review Tribunal in accordance with section 35 or section 36 above, the relevant local social services authority shall be under a duty to furnish him with independent advice and appropriate assistance before the hearing of the Mental Health Review Tribunal".
The noble Baroness tells us that what she has in mind is that there should be advice as to how to get legal aid; but of course it could be legal advice as well.
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I would suggest that the clause that she has proposed would need to be redrafted so that it would mean with certainty what she intends it to mean.
Having said that, I should like to repeat what I said in the debate on the earlier amendment. The Government have it in mind to discover the extent of the difficulty and the way of implementing, by regulation the powers which already exist on the statute book for providing legal aid by one particular route to these people. My understanding is, first, that that is a fairly straightforward procedure so far as the beneficiary of the aid will be concerned; and, secondly, it will already be perfectly appropriate for a social worker to elucidate any difficulty which the patient may find.
We are dealing with patients who have intellectual difficulties and I accept that even what to your Lordships might seem a simple procedure may seem pretty frightening and baffling to the people concerned. That is why I listened with such sympathy to the last debate and regretted that it was brought to a Division. I accept that this is a probing amendment. I am not certain that I have answered the points which my noble friend put to me. I hope that I have done so.
Baroness Macleod of Borve: In my experience—which perhaps is not universal—there are excellent welfare officers attached to the hospitals who could give advice. Would they not be the people to ask in that context?
Baroness Faithfull: Yes, there are social workers attached to hospitals who would, I am sure, if asked give advice. The difficulty is that not all patients ask their advice and are confused as to how to get the advice. I am in some difficulty here because if it is not absolutely certain that financial help can be given, how is a patient going to get legal representation at a mental health review tribunal? I agree with my noble friend the Minister that perhaps this amendment has not been worded as well as it might have been. But I have often had to get money from voluntary sources in order to enable somebody to appear before a tribunal or a court.
This amendment was dealing with the situation where it was thought that there should be legal support and the case put by a member of the legal profession. But I was worried about who was going to pay for that legal aid. I imagined that the social services would therefore be appealed to by the patient and they would help to obtain the necessary finance to enable the patient to appear before the tribunal with legal support. Some patients need advice before the tribunal sits as to what the tribunal means and how to get legal representation.
Lord Elton: This has been very instructive for me. I take note of what my noble friend says: that there is difficulty in obtaining advice. On the face of it, it seems to me that a request for this information to a social worker or anybody attached to a hospital in which one of these patients might be would already be acceded to. I hear what my noble friend says, that this does not always happen. She has said that this is a probing amendment. If I can find out more

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about this difficulty, I will do so and be in touch with my noble friend.
As to the noble Baroness, Lady Masham, I think that she slightly misheard what I said because there is no option such as she described. The case comes before a tribunal and a Crown court is not an option. I am not quite sure how I managed to give her the impression that it was.
Baroness Masham of Ilton: The noble Lord, Lord Elton, said earlier this afternoon that much of the work done by Crown courts would be carried out by review tribunals. He did speak rather fast and until I read Hansard tomorrow it is difficult to know exactly what he said. I heard something about that which worried me.
Lord Elton: Plainly we cannot again go over the debate that we have just concluded. I will make great efforts to reduce the speed of my delivery. If Members of the Committee find that I forget this undertaking, they are very free to remind me of it. In the meantime, I think that if the noble Baroness looks at Hansard—which is accustomed to though not altogether contented with my speed of delivery—she will perhaps discover that her worry is groundless.
Baroness Faithfull: May I say how grateful I am to the noble Lord, Lord Winstanley, for his support. I hope he and I may present to the world the partnership between the medical profession and the social worker profession as it should exist. With the assurance of my noble friend the Minister, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
5.55 p.m.
Lord Wallace of Coslany Lord Wallace of Coslany moved Amendment No. 72:
Before Clause 37, insert the following new clause:
(" Repeal of s. 141 of principal Act
Section 141 of the principal Act is hereby repealed.").
The noble Lord said: There is a similar amendment to this one, which is Amendment No. 96 in the name of the noble Lord, Lord Hooson. My amendment calls for complete repeal of Section 141 of the Mental Health Act 1959 which provides that no criminal or civil proceedings can be brought against anyone as a result of any action purported to be done in pursuance of the Mental Health Act unless the High Court is satisfied that there are substantial grounds to show that the act was done in bad faith or without reasonable care. It is not clear whether it applies to voluntary patients as well as compulsorily detained patients. The reason appears to be, as the noble and learned Lord, Lord Simon, said in the case of Pountney v. Griffiths. in 1975, that the mentally ill and handicapped are:
"inherently likely to harass those concerned with them by groundless charges and litigation".
This fear appears to be groundless. Approximately one-third of the beds in this group of patients are occupied by the mentally handicapped. Further, the substantial proportion of the remainder will be severely depressed and in no state to commence any kind of litigation. It is fair to say that psychiatrists would agree that, apart from a few patients, the majority are too
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withdrawn to pursue even their own genuine legal interests. The courts already possess sufficient powers—both inherent and statutory—to deal with vexatious litigants. The philosophy behind the 1959 Act was to ensure that mentally ill and handicapped people were treated so far as possible on the same basis as patients suffering from other types of illness. If there is no practical reason for this section to be retained, then the overriding philosophy on mental health legislation seems to demand its repeal. That is the short purpose of the amendment, which I move in my name and that of my noble friend Lord Elystan-Morgan.
Lord Mottistone: I suggest we resist this amendment. In the first place, it is a little illogical without amending Clause 49(3)(e) which specifically says that Section 141 shall be retained. Sections 141, 142 and 143 of the Mental Health Act 1959—all of which are to be retained under Clause 49 of this Bill—are essentially of a parcel. Section 141 gives a certain measure of protection from civil and criminal proceedings to persons acting in good faith and with reasonable care within the terms of the 1959 Act. That is a very necessary type of safeguard for many things that public servants in carrying out the terms of this Act may have to do in relation to this particular problem area.
It covers other circumstances over and above the ones specifically mentioned by the noble Lord, Lord Wallace of Coslany. Section 141, coupled with the powers given to the Minister in Sections 142 and 143, is more than satisfactory to take care of the general position, at the same time providing reasonable safeguards for those public servants who have to do a whole range of difficult tasks, or tasks which can be difficult. I suggest to the Committee that this amendment should be resisted. In any case, without an amendment to Clause 49 it does not mean very much.
Lord Renton: Be that as it may—and I accept what my noble friend says about the drafting technicalities so far as this Bill is concerned—I have a great deal of sympathy with the desire of the noble Lord, Lord Wallace, to have Section 141 of the 1959 Act repealed. It is a monstrosity, an anachronism; and I do not know of any other case in which in order to start civil or criminal proceedings it is necessary first to obtain the leave of the High Court. This is a strange proposition because if a judge or master of the High Court gives leave for the start of proceedings, it by-passes some of the procedures of the High Court which enable the court itself to stop proceedings which are, for example, frivolous or vexatious; it stultifies applications for security for costs which in proceedings such as this might very well sometimes be asked for, and it is not the kind of provision which should remain on the statute book. Whether it should simply be repealed and nothing put in its place is another matter. This particular amendment says simply that it shall be repealed.
Amendment No. 96, to which I assume we may refer because it is very much in point, does more than merely repeal Section 141. It says that:
"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".

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That is a much more sensible and much more useful type of provision, for which there are precedents approved by Parliament. I know that what exercises the mind of my noble friend Lord Mottistone, because an exchange we had last week made it clear, is that fewer nurses and doctors should be submitted to unreasonable attempts to sue them in the courts. I think that Parliament should be very careful before we inhibit the right to sue.
I happen to be one of those who are opposed to immunities. For example, I do not think it is right—I hope it is not irrelevant for me to say so—that we should have the wide range of immunities which trade unions still enjoy. But for us to perpetuate this particular immunity could, I think, lead to injustice. Moreover, it is not necessary, and the reason I say that is that the rules of the High Court, as I mentioned earlier, have their own inherent safeguards for preventing vexatious or frivolous actions or requiring security for costs. I do not think that doctors and nurses need more protection than that. Certainly the patients in mental hospitals should not, in my opinion, any longer have their reasonable causes of action stultified by the anachronism of Section 141. Therefore, I am very sympathetic towards this amendment although I would wish it to go further, as Amendment No. 96 does.
Lord Kilmarnock: I should like also to support this amendment. As the noble Lord, Lord Renton, has already pointed out, the section is based on the assumption that patients are vexatious litigants, and the courts in their legislative powers under the Supreme Court of Judicature (Consolidation) Act 1925 already have adequate powers to deal with vexatious litigants. There is also the point, though I am not sure that it was made by the noble Lord, Lord Wallace, that it is very unclear at the moment as to whether Section 141 applies to informal patients. It seems to me that those are two drawbacks of the existing legislation. One would have thought the Government would have taken the opportunity of this essentially reforming Bill to bring forward something to correct the position, but they have not seen fit to do so. There is also the suggestion embodied in a later amendment put down by some of my Liberal friends which might provide a way out of the difficulty. Before deciding what I should do, I should like to hear from the noble Lord, Lord Elton, whether he is at all disposed to accept the suggestion that prior application to the Director of Public Prosecutions will be a satisfactory alternative.
Lord Elton: I have not actually been asked that in terms of an amendment and I wonder whether in fact the noble Lord, Lord Hooson, is going to speak to his amendment at this stage, in which case it would be convenient for me perhaps to hear what he has to say.
Lord Hooson: I did not intend to speak to the amendment at this stage, hoping to hear from the noble Lord what the reaction of the Government was to the proposal. If I knew what his reaction was in principle, perhaps I would then be in a better position to deal with the amendment.
Lord Elton: I can only speak to the amendment we are discussing. The intention of Section 141 is to protect staff who were going carefully and conscientiously about their duties under the Act, often in very difficult circumstances, from the continual threat of litigation. We have to realise that for staff caring for the mentally disordered this threat can be a very real one. Patients may suffer from severe and persistent delusions which make them quite unreasonably antagonistic towards a member of the hospital staff. The problem is particularly severe in the case of detained patients. These patients arc in hospital against their will and it is likely that they will harbour resentment towards the staff whose duty it is to prevent their leaving hospital, particularly until they have had the opportunity to understand what their presence in the hospital is all about.
It is not reasonable to expect staff to work in constant fear of malicious litigation. If we ask people to do this difficult work we must provide them with some protection from the risks associated with it. I think my noble friend Lord Renton would accept that there is a need—and here we are addressing ourselves to the first part of the question—for some kind of protection. If we do not have it, it will in the end be the patients themselves who will suffer both regarding the reduction in the quality of staff who are willing to do this work and from an understandable preoccupation on the part of staff as regards protecting their legal position. You really may arrive at the position where members of staff, going about their perfectly ordinary duties in relation to patients, would find it necessary to do so continually accompanied by a witness. Therefore, I would not think that the undiluted repeal of Section 141, whatever its linkage with the other two sections to which my noble friend referred, is something to which the Committee should give its support.
I am being cunningly tempted to deploy my troops by the noble Lord, Lord Hooson, as regards the second leg of the argument which he has not actually deployed himself. I am not sure that is altogether fair. However, I would ask him to consider this. If it is agreed that protection under Section 141 is necessary, or something like it—and I think that really should be agreed—the question arises whether the form that protection takes is the most suitable. If one is to decide that question one is doing it in fact while Section 141 is in a sense sub judice because we have to await, before producing our own solution to this problem, the view which the European Commission and the Court of Human Rights, if the case is referred to that court, will express on a case that has recently come before them as to whether, and if so in what way, Section 141 is itself in breach of the European Convention on Human Rights.
For the present, our view is that Section 141 is an essential safeguard, but that it would perhaps be worth considering whether the reference to the High Court is appropriate. I can see that there may be some advantage in providing that the leave of the Director of Public Prosecutions, rather than the High Court, should be sought, before criminal proceedings may be brought. But, as I have said, I do not think the time is right for this and our view is that Section 141 is an essential safeguard. If amendments seem neces-

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sary, your Lordships may be sure that we shall find a vehicle to introduce them, but it would be premature to do so at this stage.
Lord Hooson: I am grateful to the noble Lord, Lord Elton, for dealing with the matter as he did. But I find that the answer he gave is very unsatisfactory, because I do not think there is justification for Section 141 of the principal Act, as it now stands. From my information, there are four or five applications made to a High Court judge in a year—that, I think, is the maximum in any one year for civil actions—and the provision in Section 141 is to ensure that no frivolous actions are brought. But if only four or five applications are made in a year by everybody detained in mental institutions in this country, that does not seem to suggest that that kind of safeguard is appropriate or necessary.
With regard to the safeguard against criminal proceedings, I am sure that the whole Committee is sensitive to the point made by the noble Lord, Lord Elton, that some kind of protection is required by those who care for and have to nurse people with degrees of mental aberration. But surely the right course here would be to ensure that no prosecution can be brought, either privately or otherwise, without the consent of the Director of Public Prosecutions. This is the essential safeguard in this country to make sure that frivolous criminal proceedings are not launched in important matters, and, bearing in mind the peculiar situation of mental patients, surely that safeguard is enough. With great respect to him, I do not think that the noble Lord, Lord Elton, while establishing that some kind of safeguard is required, has really made out a case for the maintenance of Section 141 as it now is.
Lord Elton: If I may take the first leg of the noble Lord's argument at the start, that there are so very few cases brought to the High Court for permission to proceed, I took it that his contention was that the hurdle was too high, the sieve was too small or the intimidation was too great, that he wanted something easier and I imagined that a larger number of cases would ensue. However, be that as it may, I have said that we are prepared to look at whether this is the appropriate sieve, hurdle or disincentive, but that, in all honesty, while there is a case before the Commission, we do not think that it is sensible to commit ourselves in legislation when it will be perfectly feasible to get a legislative vehicle for this amendment, if it proves to be advisable, when we know what the finding of the Commission and, possibly, subsequently of the court will be—and those decisions are notoriously difficult to predict.
Although we had a disagreement on the last amendment, I hope your Lordships will recognise that we are in a generally conciliatory position on this Bill, that we recognise the disinclination that some of your Lordships have for this particular bar, that we really do not think we can remove all protection, but that we ought not to commit ourselves to the substitute until we have a ruling.
Lord Mottistone: I hope that my noble friend, when considering further stages, does not overlook the fact,
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which I think rather tended to be pushed on one side by the noble Lord, Lord Hooson, and to a certain extent by my noble and learned friend Lord Renton, that there can be circumstances in which safeguards against civil action need to be retained, and that all one's thoughts should not be directed towards criminal action. For the very good reasons which my noble friend advanced, that could be as much of a threat to people in their daily business as could the criminal one.
Lord Renton: May I say a word about the two applications which have been made to the European Commission of Human Rights? In those cases, it is alleged that Section 141 of the 1959 Act is in violation of the European Convention on Human Rights. In one of those cases, the Commission has already decided that this is a claim which is admissible for hearing and the hearing has been fixed for 5th February. It looks as though both of those cases will be as successful as other recent cases brought in the European Court of Human Rights about other aspects of our law relating to mental health.
It happens that these cases are very expensive for the Government, very expensive for the citizens concerned and the costs run into thousands of pounds. May I make a suggestion to my noble friend, which could save a lot of public money and a great deal of concern on the part of those who are worried about Section 141; namely, that he accepts this amendment—that will perhaps convince the European Commission that there is no need for these cases to be proceeded with—and in due course comes up with a suitable Government amendment which he may discover would be acceptable to all concerned, including the European Court. A good deal of time in Parliament would be saved and, as I said, a good deal of public money and concern on the part of those who think about these things.
In a recent case on another matter, the Government could have submitted to judgment after the Commission gave its view, but they did not. They plodded on and spent thousands of pounds of public money and eventually lost. We do not want this kind of proceeding to go on indefinitely—we come out of it badly every time—and it is so obvious on this occasion that we could save ourselves trouble and, indeed, some degree of ignominy.
Lord Hooson: May I respectfully suggest to the noble Lord, Lord Elton, that the suggestion just made to him by the noble and learned Lord, Lord Renton, should be very carefully considered? It seems to me, apart from anything else, if the noble Lord is saying that the Government are awaiting the decision of the European Court, that we do not know when that decision will be given. If they accept the repeal of Section 141 now, and are then in a position to bring in their own amendments which can then be considered by this House, they will not be in any way prejudicing their own position at Strasbourg—
Lord Renton: They are strengthening it.
Lord Hooson: I respectfully agree that they would he strengthening it. It would then be open to this House to consider the Government's amendments and whether they could be supported. It seems to me

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that there is general disquiet about Section 141, which was greatly criticised in the 1978 White Paper, and that the Government should take such a negative attitude when they are faced with two likely adverse decisions in Strasbourg does not seem to accord with common sense.
Lord Mottistone: May I suggest to my noble friend, even before he lets the siren voices to which he has just been listening sink in, that if he were to follow the advice of my noble and learned friend Lord Renton, as endorsed by the noble Lord, Lord Hooson, he would be casting great distress upon those very people whom, in his opening remarks, he sought to protect from unreasonable threat from various directions. Perhaps it is rather better to look to the general wellbeing and morale of public servants than to bother with what is happening across the Channel in Europe.
Lord Elton: I am surrounded by sirens! I would certainly not accept that we should repeal Section 141 and put nothing in its place. That would be unwise from two points of view: that which I have adduced and that which my noble friend Lord Mottistone has adduced. I have met many of the people who do this work since I took on my present responsibilities and I have a totally unbounded admiration for the dedication of people who in exhausting circumstances, day after day, week after week, year after year, give of themselves to the disordered, and sometimes pathetic and sometimes aggressive people whom they serve and whom, willy-nilly, sometimes they must detain. I believe that they deserve and must have protection from the sort of litigation which can endlessly get them into court and against which they can protect themselves only by being always accompanied, like St. Paul, by a great cloud of witnesses. I stand absolutely firm on that.
However, I am aware that there is a desire to consider whether the route by which a prosecution may be proceeded with is entirely appropriate. I would want to read what my noble friends and others have said on that matter in this debate. I would also say to noble Lords opposite that they would be unwise to press an amendment which I should he bound to resist when in fact we have not, with one notable exception, considered the way it meshes with the rest of the principal Act. They could find that they were legislating defectively. That is something which one should not do, even between stages of a Bill. So if the noble Lords want to go away and think about that, I will think about what I have talked about, and it may be that we can reach a conclusion at Report. But the initiative is of course with the noble Lords opposite.
Lord Winstanley: While the noble Lord, Lord Wallace of Coslany, is thinking about his reply perhaps I may ask the noble Lord, Lord Elton, to explain one point arising from his answer which relates very much to the point which was made by the noble Lord, Lord Mottistone. The noble Lord, Lord Elton, said that the Government could not possibly agree to the repeal of Section 141 here and now and putting nothing in its place. For the Government merely to
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accept this amendment does not mean, and surely the noble Lord is not suggesting that it means, that Section 141 of the principal Act disappears as from today. Nothing happens at all. Section 141 remains in force and the people about whom the noble Lord, Lord Elton, and the noble Lord, Lord Mottistone, are concerned will still have all the protection of Section 141. Merely to accept the principle does not mean that Section 141 will come out of the principal Act until this Bill goes on to the statute book. The noble Lord, Lord Elton, has made it perfectly clear that by then he may have had to alter Section 141 and replace it with something new, arising from what is going on in Europe. What is the matter with that situation?
Lord Elton: The matter is that the noble Lord is asking me, through the Printed Paper Office, Hansard and everything else, to accept the principle that Section 141 should go. What I am accepting is that it is possible that Section 141 ought to be altered. They are very different principles.
Lord Wallace of Coslany: We have had a long discussion. I must confess that having listened to the noble Lord, Lord Hooson, I am inclined to think that his amendment, Amendment No. 96, is a little better because it gives some degree of protection so far as staff are concerned. I know that some members of staff are under pressure at times and that this is causing severe embarrassment. The Minister has dropped the rather broad hint that between now and Report he may think about the matter. We are quite prepared to think about it between now and Report, unless Amendment No. 96 should be accepted. In those circumstances, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
6.24 p.m.
Lord Winstanley Lord Winstanley moved Amendment No. 72A:
Before Clause 37, insert the following new clause:
(" Period of detention of mentally disordered persons found in public places.
. In section 136(2) of the principal Act (which provides that a person appearing to be mentally disabled who is removed to a place of safety may be detained there for up to seventy-two hours) for "seventy-two" there shall be substituted "twenty-four".").
The noble Lord said: This is a simple and self-explanatory amendment dealing with a comparatively narrow point. It deals with the point whereby, under Section 136(2) of the principal Act, a constable may remove a person who appears to be mentally disabled to a place of safety, and the person may then be detained there for up to 72 hours. All that this amendment does is to reduce that period of 72 hours, which seems to my noble friends and I to be perhaps a little excessive in these particular circumstances, and substitute a period of 24 hours. We should have thought that within a period of 24 hours it would be perfectly possible to obtain medical opinion and to mobilise whatever is necessary so as to make a further order, or some other order if that, indeed, proved necessary. At the moment, I have no intention of pressing this amendment firmly, because it is my impression—the noble Lord, Lord Elton, will correct me if I am wrong—

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from observing these cases at the practical end that this is not a device which is frequently used. I have seen great reluctance on the part of the police to use it at all. If it is infrequently used, then perhaps it is not all that important that it should be altered. Nevertheless, I welcome an opportunity to hear the Government's response and whether they think there would be wisdom in altering this figure from 72 hours to 24 hours. As I say, I shall not press the amendment, though I certainly will not raise any objections if the Government decide to accept it. I beg to move.
The Lord Bishop of Norwich: I hesitate to speak after a noble Lord, who is himself a medical man. I speak more in terms of the individual in the setting of his social and family background. When a case reaches this sort of state, it usually means that there is a good deal of—I think "aggro" is the modern phrase which young people use. There will be a good deal of disturbance not only for the patient but for the family around him. I should have thought that 24 hours was a very short time for anxieties to be allayed, for tempers to settle, for stress to calm. I think that there is quite a lot to be said for the humanitarian figure of 72 hours rather the shorter, sharper figure of 24. I would feel, with great respect, a desire on those grounds to resist this amendment.
Lord Belstead: My understanding is the same as that of the noble Lord, Lord Winstanley: that this emergency clause is used sparingly. I know, furthermore, that the police themselves would wish to hand over the care of persons who are found under this clause to a medically qualified person as quickly as they can. However, Section 136 was a matter which was looked at by the Butler Committee. After discussing the matter, the Butler Committee concluded that it would be difficult to justify amending the law. Among other things, the Butler Committee had in mind that there should be a long enough period for an appropriate examination to be carried out, and that the law must make allowances for exceptional difficulties. Whether in the mind of the Committee were the same sort of reasons which were in the mind of the right reverend Prelate the Bishop of Norwich I am not so sure, but clearly that is also a factor in looking at the matter.
The other factor, of course, is that it is tempting to imagine that the imposition of a lower time limit would ensure that the necessary procedures were carried out more quickly. But the end result in a difficult case may on the contrary be simply that a medically disordered person would have to be released, possibly at the cost of endangering himself or others, before proper consideration had been given by qualified persons to that person's condition. I know that this is a matter of judgment. We are in an area where the liberty of the subject is concerned, and one has to reach a compromise. We ought to pause and consider carefully before we do anything about putting any extra difficulties in the way of police officers and others upon whom the Act places a responsibility for dealing with these cases, which can be very difficult. In accord with the view of the Butler Committee and, incidentally, in accord with the previous Government's White Paper of 1978, I would ask that on balance we should perhaps leave the matter where it is.
Baroness Jeger: Of course this is not a party point. We all appreciate that careful thought has been given to this, but, speaking personally, I do not support the noble Lord, Lord Winstanley, which is a very unusual situation in which to find myself. I can recall cases where, for instance, patients have had to be very heavily sedated and the period of 24 hours is all too short in fairness to the patient concerned. To leave it at 72 hours as a maximum is probably fair enough to all concerned. I hope we can leave it at that, and I speak in no party spirit at all but am thinking from the patient's point of view, how short a time is 24 hours for some people who have been through the most traumatic and disturbing experiences.
Lord Winstanley: I am very grateful to the noble Lord, Lord Belstead for the answer he has given. I am particularly grateful also, and perhaps reassured, to learn that he confirms my impression that this device is used only very seldom and, indeed, is a device that the police prefer not to use. In those circumstances, perhaps it is not important that I should proceed with it. However, I am bound to say that I believe there is something of a misunderstanding between myself and the noble Baroness, Lady Jeger, and perhaps the right reverend Prelate too. It was not my intention that people who had perhaps been behaving in a disorderly, wild or violent fashion and who had been removed to a place of safety by a constable should be sent home in 24 hours. My fear is that I am not entirely satisfied that people should be incarcerated in this way for 72 hours purely on the opinion of a constable. I should have thought that, within that time, in cases where further confinement is undoubtedly necessary not only for the benefit of the patient himself but also for the benefit of his family and others, there would be an opportunity for the person to he detained further under Section 25 or 26, or whatever. But, in view of the answer I have been given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 agreed to.
6.33 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 73:
After Clause 37, insert the following new clause:
(" Right of voluntary patients to vote
. In section 4(3) of the Representation of the People Act 1949 (as amended by the Mental Health Act 1959), the words "who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or other form of mental disorder, or are hereby repealed.").
The noble Lord said: This amendment is designed to correct a particular injustice of electoral law which could he rectified in the Bill before your Lordships' House. In case it should be argued that this is not the appropriate place to deal with questions of electoral law, I must point out to your Lordships that the Mental Health Act 1959 itself made an amendment to the Representation of the People Act 1949, so there is in fact a precedent for using mental health legislation to change electoral law.
Section 4(3) of the Representation of the People Act 1949, as amended by the Mental Health Act 1959, reads as follows:

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"A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or other form of mental disorder, or who is detained in legal custody at any place, shall not by reason thereof be treated for the purposes aforesaid as resident there".
The purpose of "aforesaid" is registration for the vote. Any mental hospital patient who lacks a residence outside the hospital is thus disfranchised. Note, that the disfranchisement occurs, not because the patient himself lacks the necessary mental capacity to vote but simply for lack of an address. That is the technicality used to disfranchise him or her. It cannot therefore be defended on the grounds that mental hospital patients ought to be voteless. Indeed, it is a curious anomaly that a patient in a psychiatric wing of a general hospital can use the hospital's address to register.
Without doubt, there are many—perhaps tens of thousands—of patients residing in mental hospitals who would easily satisfy the common law criteria of legal capacity to vote. These criteria specify, first, that "idiots"—now termed severely handicapped, or perhaps I should say severely impaired—cannot vote. Next, for other mentally disordered persons, the Returning Officer must satisfy himself that the person offering himself to vote is sufficiently compos mentis to discriminate between the candidates and to answer the statutory question, "Are you the person whose name appears in the register of electors?" and to take the oath if required to do so in an intelligible manner.
Section 4(3) works a particular injustice to long-stay patients to whom housing is not provided to enable them to leave the hospital. We all know the difficulties and constraints which exist. The Speaker's Conference has urged that this provision be removed but, for lack of Parliamentary opportunity to do so, nothing has yet been done. However, as I have already pointed out, the Mental Health Act 1959 itself did amend electoral legislation. Some of your Lordships may know of two county court cases heard recently involving Section 4(3). In both cases it was contended for the applicants that, although they were inmates of establishments
"wholly or mainly for the reception and treatment of persons suffering from mental illness or other form of mental disorder",
they were none the less not "patients" since they were not suffering from mental disorder in the terms of the Act. Both these cases succeeded.
However, these two decisions did not remove the problems since they enfranchise only those who can show that the term "patient" is inappropriate for them. Many inmates suffer from mental disorder but only to a minor degree and not to such an extent as to render them incapable of voting at common law, yet they remain voteless. Moreover, I have been advised that, under the new definition of mental handicap in the present Bill, cases which might win today would lose after the Bill comes into effect. I have not followed this up, but possibly the noble Lord, Lord Renton, will know something more about this.
The amendment in the name of the noble Lord, Lord Hooson, and myself would leave the following words in Section 4(3):
"A person who is detained in legal custody at any place shall not by reason thereof be treated for the purposes aforesaid as resident there".
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Although patients liable to detention under the Act would still be unable to register by using the hospital's address, I believe it would be difficlut to go further without affecting electoral law for other categories of detained persons, such as prisoners. In fact, since 1959, most residents are informal patients, and it is surely wrong to withhold the franchise from them if they are able to satisfy the Returning Officer of their capacity.
I am sorry to have spoken at some length. I hope that I have set out adequately the reasons why this reform is overdue and I hope also that the Government will see fit to include it in what is basically a reforming Bill. I beg to move.
Baroness Jeger: This is a very important amendment. It may seem that we are trying to amend a different Act under the terms of the Bill which is now before your Lordships, and it may be that we ought to try to get to work in a different way. Nevertheless I believe it would be fair and right to give some thought to this problem this evening. The whole tendency of this Bill and of our thinking on the treatment of mental illness is to make sure that as many people as possible live in the community; they will live at home or they will live in hostels; they will have addressees; they will be on the electoral register, because I cannot see anything in present law that forbids someone in such circumstances from being on the electoral register.
I speak from experience here because, when I was the Member for Holborn and St. Pancras, where there are several big hospitals, I had constituents who were in a psychiatric wing of a hospital hut who still had their home address on the electoral register; therefore no one could deny them a vote. But there would be other people in the same psychiatric wing, whom I would visit, who could not vote, either because they had been there longer or they had been adrift, but mentally were no different in ability or discrimination; and they would all like me equally, so that it was really quite unfair that some could vote for me and some could not. It seemed totally illogical that we should have this division. I am not being frivolous; this was a very real, practical difficulty. We have the situation now where people can be in a psychiatric wing or a mental handicapped unit but still remain on the register and vote, while others cannot.
Whether this is the right place and the right way in which to bring this matter before your Lordships may be arguable, but I do not think there can be any harm done in looking at the whole question of Section 4(3) of the Representation of the People Act—I hope not out of order, because that is not the Act we are dealing with. We must all bear in mind that in statute law we, the Peers, and the lunatics are forbidden to vote. Now we are trying to get a totally different attitude to people who under the old legislation used to be described as lunatics. I think, therefore, we should give careful thought to bringing about a situation in which only your Lordships should be forbidden to vote, while other people should have the chance to do so.
Lord Underhill: I rise to support the amendment. I hope the Minister will not take the view that this is not the way to deal with amendments to the Representation of the People Act. Generally I am one of those who does not like almost ad hoc amendments to the

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RPA; I believe it should be done in a proper amending Bill. But over the last two years we have had examples of brief Bills introduced into this House, one by the Government, which have made amendments for various reasons to the Representation of the People Act.
I would support this amendment because of the history of this matter. The 1972/74 Speaker's Conference made this precise recommendation and decided that an inter-departmental committee should see what arrangements should be made to carry it into effect. That committee threw up some problems and the matter was delayed until May 1976, when the Government of the day decided to accept the recommendation of the Speaker's Conference, which is what this amendment proposes. They decided that the interdepartmental committee should look into these problems by consultation with the organisations concerned and the representatives of political parties.
I particularly support this amendment, not only because of the principle but because I was the re-representative of one of the political parties who attended the meetings of the interdepartmental committee which considered the representations made by the various organisations. Without going into all the details of the problems which they dealt with, I was thoroughly satisfied that the problems of registration, voting at polling stations, postal voting, were all dealt with satisfactorily by the working party, and I was able to give my name to the report which it put forward. I believe there are sufficient clarifications and safeguards in the report, and there is no reason at all why the recommendation of the Speaker's Conference should not now proceed.
Lord Renton: Although I feel very great sympathy with the principle underlying the amendment, perhaps I have not been a Member of your Lordships' House long enough to know whether this is the appropriate legislative Chamber in which it should be dealt with. It has been mentioned that this was considered by a Speaker's Conference in a previous Parliament. I would have thought that if this change in the law is to be made, those who are elected democratically to another place should be the people to make the change rather than on this occasion the Members of your Lordships' Committee.
Lord Underhill: May I say to the noble Lord, Lord Renton, that in the last two years at least one Bill to amend the Representation of the People Act started in this House. There would appear to be no reason why an amendment of this kind should not start in this House.
Lord Renton: That I did not know.
Lord Belstead: On an issue involving a problem which has not been solved hitherto by Parliament, I think my noble friend Lord Renton has got a strong point, that one should hesitate before trying to crack this particularly difficult nut by starting it in your Lordships' House, in a Bill which, incidentally, would not, I think, within the scope of its Long Title allow for this amendment.
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Having said that, I think this is an important debate. I am sure that this is an important issue. I would like briefly to add my comments to what the noble Lord, Lord Kilmarnock, and others have said. With respect, I think the amendment rests upon two misapprehensions. The first one I would state very swiftly. This Bill does not deprive anyone who can vote at the moment of the right to vote; it does not in any way alter or extend the definition of mental disorder which is at issue in Section 4(3) of the Representation of the People Act. I think there is a feeling behind the amendment, even if not explicitly stated, that perhaps in some way this Bill does make the situation more difficult for those who are mentally disordered. If there is that impression-1 am not suggesting that any of your Lordships have suggested that impression explicitly, but there must be that feeling behind it—that is not the case.
If I may go on from there, it is, of course, so, on the other hand, that there is an anomaly in the law. As the noble Baroness, Lady Jeger, explained from personal experience, we have the anomalous position of a mentally ill or mentally handicapped or mentally impaired patient who is in a general hospital who can be included in the electoral register, but not those who are in a hospital for the mentally ill or the mentally impaired.
I should like to emphasise that the Speaker's Conference did not think it would be enough to sweep away the existing provisions, as this amendment would have us do. The Speaker's Conference recognised that certain difficulties would first have to be resolved and practical arrangements made to take their place. I would not for a moment suggest that the noble Lord, Lord Kilmarnock, is unaware of the sort of problem that the Speaker's Conference had in mind, but those problems cannot simply he got rid of.
It is the duty of the electoral registration officer to include the names of all those, but only those, who may legally vote in elections in the area for which he is responsible. Mental illness and mental impairment hospitals are bound to contain individuals who, with the best will in the world, we cannot expect to vote. How is the electoral registration officer to know which individuals to include and which to exclude if all the rules are swept away? Clearly he must have some guidance if he is to exercise this invidious responsibility in anything like the right way. But from whom would the guidance come? Incidentally, the noble Lord may quite reasonably say that problems do not seem to arise in the case of mentally ill or mentally impaired patients in general hospitals, but of course there are ten times fewer such patients there than in the mental illness and mental impairment hospitals.
I come to the second point which I think is a misapprehension in this amendment. The noble Lord, Lord Kilmarnock, referred to recent decisions of the courts in the Winwick Hospital and the Calderstones Hospital cases. The first of those cases established the right to be included on the register of three long-term residents who were no longer receiving treatment, and they were in a mental illness hospital. The second case dealt similarly with three residents of a mental handicapped hospital. What in essence the learned judge found or ruled was that the three residents, certainly in the first case, were not suffering from, or

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did not appear to suffer from, mental disorder and therefore they were not patients, and therefore they ought to be allowed to vote by having as their home address presumably either the hospital or, if they had last been at an address, the last address that they were at on the proper day.
What has not come across to me as regards the amendment is the fact that the Government have attached very great importance to the judgment in those cases which in our view went a long way towards rectifying the anomaly which the Speaker's Conference identified. The Department of Health and Social Security has drawn these judgments to the attention of electoral registration officers and health officers by advising those officers to exclude from the register only those residents of mental illness hospitals and hospitals for the mentally impaired who are suffering from mental disorder as defined in Section 4(1) of the Mental Health Act, 1959. If I may say so, I think that that brings some clarity where there was obscurity, although it does not put the anomaly completely right.
To sum up, I would like to say that before we could accept the Speaker's Conference recommendation, I think that there are a number of problems which we simply would have to settle, and we could not just sweep the rules away. As it stands at present, it is true that the law does create an anomaly, but an anomaly which cannot easily be removed without causing grave difficulties. The Winwick and Calderstones cases have indicated that the law needs to be approached with flexibility, but flexibility which will give a bit more certainly. That is precisely what the Government tried to do in sending out the circular to electoral registration officers on 7th December 1981.
My right honourable friend the Home Secretary has been examining this issue as part of a review of electoral law, but I am afraid that I am not in a position today to be able to reveal what conclusions that review is likely to reach. However, to sweep away all the rules about voting rights for the mentally disordered, surely, cannot be wise. It is for those reasons that I feel that it would be very difficult to accept the amendment.
Baroness Jeger: I wonder whether the noble Lord could answer specifically one of my questions? I appreciate the sympathetic way in which he has spoken. However, when people come out from the hospitals and are in community hostels or in whatever kind of social service situation they find themselves, will those addresses he valid for purposes of electoral registration?
Lord Belstead: I am answering the noble Baroness off-the-cuff. What Section 4(3) of the Representation of the People Act 1949 provides for, among other things, is that a person who is a patient in any mental illness or mental handicap hospital shall not by reason thereof be treated for the purposes of electoral registration as being resident there. As the noble Baroness knows, that creates the anomaly, since it means that once you are in that type of hospital you are precluded from voting because that is not counted as being an address. Therefore, that leads me to the
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conclusion that the answer to the noble Baroness is that when such people are in other addresses, those other addresses could, I feel almost certainly, count for the home address on the right date in October for the purposes of electoral registration. If by any chance I have got that wrong, I shall put it right as immediately as possibly by telling the noble Baroness. However, I am almost 100 per cent. certain that that must be the right answer.
Baroness Faithfull: May I say that the noble Minister is right.
Lord Kilmarnock: I am extremely grateful to the noble Lord, Lord Belstead, for the care and thought with which he has given his answer on this very important question and stated the Government's view. I was particularly struck by the anomalies which the noble Baroness, Lady Jeger, pointed out from first hand experience. They rather seemed to underline my own feeling that, atlhough anomalies may be inevitable in law, this particular one seems almost to have got out of hand.
It was encouraging to learn from the noble Lord, Lord Belstead, that a recent circular of guidance for electoral registration officers was issued with the aim of increasing the flexibility that they apply to these matters, and also that the Home Secretary is examining this as part of a general review of electoral law. The point made by the noble Lord, that in fact there are 10 times fewer mental patients in general hospitals than there are in special hospitals, seems to me to cut both ways, because it also highlights the injustice to the far greater number who are in special hospitals or units.
I would of course accept that the point made by the noble Lord, Lord Renton, is quite a telling one. The reason why we put this amendment down at this stage and in this House is that, after all, this Bill has started its life in your Lordships' House and it is an important matter which we would expect to take a look at in Committee. It also has the advantage that we have been able to attain some inkling of the Government's view on the whole matter before the Bill goes to another place which, as the noble Lord, Lord Renton, I think rightly says, would be the proper place to amend or change the law if it should turn out to be the desire of that place.
That is really all I want to say at this stage. I am most grateful to the noble Lord, Lord Belstead, for the thoroughness with which he handled the matter in his reply. We shall want to look very carefully at what he has said and decide whether we want to come back again at the Report stage in this House or whether indeed, in accordance with the suggestion of the noble Lord, Lord Renton, we should leave it to our colleagues in another place. With those few comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.57 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 74:
After Clause 37, insert the following new clause:
(" Medical review
.—(1) A patient who is detained under the principal Act or this Act under any section of the principal Act or this Act

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which specifies detention for a period in excess of 14 days is to receive within 14 days of the date of commencement of his detention a comprehensive medical review, to include a physical assessment for the purpose of detection of any physical malfunction of the patient which requires medical treatment as a priority.
(2) The review described in subsection (1) above shall be conducted by a consultant physician who shall forward a copy of the results of the review to the responsible medical officer.
(3) The protocol for the review shall be specified by the Secretary of State and shall include a thorough physical examination and laboratory investigation.").
The noble Baroness said: I beg to move Amendment No. 74 and, for the convenience of the Committee, I would like to discuss Amendments Nos. 74 and 94 together.
The purpose of Amendment No. 74 is to ensure that any patient who is suffering from a physical illness which gives psychiatric symptoms has an opportunity for a proper medical investigation. Currently, many patients receive less than adequate physical as opposed to psychiatric assessment in mental hospitals. The reason is that psychiatrists are so often wrapped up with the patients' minds that physical symptoms may be overlooked, and in our big mental hospitals it is not surprising that psychiatrists are overworked and very often under considerable stress themselves.
These amendments, I think, will help to bring normality into our mental hospitals. Research carried out in America has shown that 46 per cent. of people investigated have physical illnesses which cause, or significantly exacerbate, their psychiatric symptoms. Little research seems to have been done on this subject in the United Kingdom of Great Britain.
I deal first with Amendment No. 94. The purpose of this amendment is to have the details of the full range of medical tests to be done on the physical assessment laid down in the Mental Health Act Commission's Code of Practice. A patient may have organic disease which is the primary cause of his or her disturbed mental state—for instance, neuro-syphilis, hypothyroidism, B12, B6 or foliate deficiency, epilepsy and many more; or they may have organic disease which, although not being a primary cause may contribute significantly—for instance, chronic liver failure, hypertension, anaemia and malignancy. The basic aim is to ensure that for patients who are detained reasonable care is taken by attending physicians to exclude organic disease which may be the primary cause of the disturbed mental state or be contributing significantly to it.
Discussion is needed with the Royal College of Physicians and the Department of Health and Social Security on specific investigations to be recommended. I hope that your Lordships will be able to support these very important amendments, which I consider will raise the overall medical care for mentally ill patients. I beg to move.
Lord Richardson: No doctor could fail to have great sympathy with the views expressed by the noble Baroness, Lady Masham, that patients should be properly investigated and that organic disease should not be missed in psychiatric hospitals. But I must point out that the training of psychiatrists contains a very high element of training in organic medicine at a sophisticated level. Certainly those who achieve consultant status, in obtaining the higher diplomas
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that they must have, have had to satisfy examiners as to their competence in organic medicine. Some of those who are in junior positions may not, in fact, be committed to psychiatry at all and may be at the stage when they are there to learn an aspect of medicine in which they wish to strengthen their knowledge but are primarily interested in organic medicine.
The noble Baroness suggests that a consultant physician should see these patients. That, to me, is an impractical suggestion. In my view it would not be a proper use of the time of a consultant physician, unless there was some specific reason—some particular difficulty—that required his expert attention. Furthermore, under subsection (3) the noble Baroness suggests that a physical examination should be supported by laboratory investigation. Surely this provision in a statute could cause difficulties. What laboratory investigations? Who would determine that they could be considered to be appropriate? The doctor concerned or some other body that could criticise the inadequacy of investigation? I think that good practice in medicine and in psychiatric circles will cover all the highly commendable desires that underlie—at any rate in my mind—this amendment placed before us by the noble Baroness, Lady Masham. I hope that your Lordships will not accept it.
The Lord Bishop of Norwich: Medically, lay Members of your Lordships' House must naturally bow to the professional wisdom of their medical colleagues. Yet, with some diffidence, I should like to support the noble Baroness, Lady Masham, because the phrase "a comprehensive medical review"—whatever should be the final outcome of this amendment—is one that I hope the Government will look at very carefully. I can understand that the Government may think that subsection (3) is too detailed, but the phrase "a comprehensive medical review" in subsection (1) is I think well worth fighting for.
I instance this fact: in one of the psychiatric hospitals in the diocese where I serve we now have a full interdisciplinary consultation over most of the patients who enter. In fact, our chaplains are built into that interdisciplinary discussion and the chaplain is part of the team. There are medical and psychiatric chaplains and chaplains of all denominations taking it in turn to be present. This means that the difficult areas of psychiatric illness seem to get looked at from these three or four different views.
Therefore, I, too, should like to support the noble Baroness, because most of us have our own horror stories. As a very young incumbent of a parish I was called in to see an elderly woman who appeared to be about to die. There seemed to be no life at all and so I sought to apply what are rudimentarily called the last rites; and then her daughter came home and told me that her mother was in a diabetic coma, gave the appropriate shot and all was well. I did not know. However, I give that as a horror story problem with which one is faced unless there are enough interdisciplinary views, because most of us tend to see things from our own particular angle.
Even the psychiatrist must occasionally be caught up with all the blind men round the elephant; one touches the ear, one touches the trunk, one the tail, and so on—it is an old story and we know it—and

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each one thinks that is the elephant. Therefore, with those rather homely supporting illustrations, I should like to wish the noble Baroness well in this amendment.
Lord Auckland: Like the right reverend Prelate the Bishop of Norwich, as one who is not professionally medically experienced I find myself in some difficulty over this amendment. However, I think that it is an amendment which needs considerable thought by the Government. Is it not the case that if physical defects are examined and investigated early, they can very often assist considerably in the mental defects of the patient concerned, and particularly the young? It seems to me to be quite wrong that all the emphasis should be on the mental defects and that the physical defects are not given the attention which they merit, if, in fact, that is the case.
The other point is that any patient who is detained in excess of 14 days ought surely to be given a thorough examination. As, in the amendment, no determinate time is given as to the detention, from the point of view of the amendment it seems essential that even if the extent of the investigation—and the noble Baroness, Lady Masham, has had a great deal of experience in this field—cannot be put into law, there is surely a very strong case for the spirit of this amendment to be very carefully considered.
Lord Cullen of Ashbourne: We have had a particularly interesting debate on this amendment, with views from the medical profession, from my noble friend Lord Auckland, who I know has much experience in hospitals, and from the right reverend Prelate. I was grateful to the noble Lord, Lord Richardson; his views are closer to those of the Government. Although we agree with the concern behind this amendment, we do not agree that a statutory provision is needed to ensure that detained patients receive the medical investigations and treatment that they require for any physical malfunction in the way that this amendment proposes. It is already good practice for all mentally disordered patients to have a thorough examination of their physical and mental condition, and this includes a range of special investigations. Psychiatrists are well aware of the need to ensure that all the medical needs of their patients are considered and met. Where they suspect the existence of a condition which requires assessment or treatment by a consultant in another specialty, they would arrange for a consultation as a matter of good practice. And consultant psychiatrists are particularly careful in assessing a new patient to see whether there is an underlying condition which may be contributing to what seem to be symptoms of mental disorder. There is no need—and I am convinced it would be wrong—to legislate or say in a code of practice how doctors are to set about performing their professional duties: that is purely a matter for the profession. Diagnosis is the keystone of medical practice and is what doctors are trained to do—a long and thorough training, both undergraduate and postgraduate. I am grateful to the noble Baroness for reminding us of the importance of this aspect of medical care, but I hope she will agree to withdraw her amendment.
Lord Renton: I feel obliged to agree with my noble friend on the Front Bench on this occasion. There is a real danger in this amendment which perhaps the noble Baroness, Lady Masham, may not have foreseen; namely, that if we specify that some clinical procedures are to be carried out and there are other clinical procedures which might have been carried out in a particular case, the fact that the other procedures were not carried out would perhaps be a good defence to the doctors concerned although it should not be a good defence. It is far better that we should leave matters of this kind completely open so that, as my noble friend has said, doctors will do what is necessary in the circumstances of each case. When we start legislating in detail, there could be dangers.
Baroness Masham of Ilton: I am grateful to all noble Lords who have spoken, including the noble Lord, Lord Richardson. I should just like to say to him that I have discussed this amendment with practising consultants whose views are not quite the same as his. I think there is a code of practice laid down for the procedure of examining patients in normal hospitals, non-mental hospitals. Therefore, I want to take this back and reexamine it myself and take further advice on it.
I know that many mental hospitals in our country have foreign doctors working within them, and I know that many of our foreign doctors—and we must be grateful to them for working in this difficult field—like having a code of practice to work to. Therefore, I think we are going to have a very long Report stage on this Bill. I do not want to keep your Lordships from your dinners any longer. I am particularly grateful to the right reverend Prelate the Bishop of Norwich for what he said. With that, I beg leave to withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
Lord Sandys: I think this juncture is the appropriate moment to suggest that we break for a dinner adjournment of three quarters of an hour, and take during the adjournment further business. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Shipbuilding Bill
7.14 p.m.
Lord Cullen of Ashbourne: My Lords, because few noble Lords intend to take part in this debate I do not propose to deliver the fairly lengthy speech that I had been planning to make. If, however, any noble Lord wishes to raise any matters relevant to the Bill, I shall be happy to respond later. Without further ado, I shall come straight to the provisions of the Bill. The Bill has two purposes. The first is to increase British Shipbuilders' statutory borrowing powers, and the second is to enable the shipbuilding redundancy payments scheme for Great Britain and for Northern Ireland to be prolonged for two years.
Before I deal with these provisions in more detail I would like to stress that neither represents a departure

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from present Government policy of reducing subsidy and financial support for the industry, and I would like to assure the House that the power to prolong the redundancy payments scheme is not an inauspicious omen. Both provisions allow present policies to continue. The statutory borrowing limit governs the amount which British Shipbuilders and its wholly owned subsidiaries may borrow in the form of loans or receive by way of public dividend capital. Clause 1 of the Bill increases this limit to £700 million with provision for a further increase, by order, to £800 million. These limits may be compared with the original maximum limit, under the legislation which set up British Shipbuilders in 1977, of £300 million; a limit which was then said to be sufficient to last until 1982.
When this Bill was introduced in another place the borrowing limit was £500 million, but as one could not be sure as to when this Bill would be passed an order was also introduced to raise the limit to £600 million—the upper limit under the 1979 legislation. This order came into effect on 1st December last year. British Shipbuilders' borrowing against this limit is expected to be about £500 million at the end of this financial year, in two months time. There is, therefore, unlike the position in 1979, no urgency. This Bill is not a crisis measure. It was, however, decided—and British Shipbuilders agreed—that it would be prudent not to defer legislation to the next Session.
Similarly there is no immediate need for the provision in Clause 2 which enables the shipbuilding redundancy payments schemes to be prolonged. Under existing powers the schemes cover redundancies which may arise in British Shipbuilders and in Harland and Wolff up to the end of June 1983. It was thought convenient to use the opportunity of this Bill to take enabling powers to prolong the schemes by two years to June 1985. The House will have another opportunity to debate prolongation of the schemes as this will require orders needing the approval of the House.
Taking these powers is not a cause for alarm. However, as this House is aware, job opportunities in surface warship building for the defence programme will decline from present levels. The extent, if any, in the decline in the employment levels at the yards currently engaged on this activity will depend on British
Shipbuilders' success in gaining alternative work.
British Shipbuilders showed great foresight in seeking to offset the decline in naval orders by diversifying into offshore constructions. Two yards—Cammell Laird and Scott Lithgow—are now heavily occupied on this work. BS is to be congratulated for its success in breaking into this difficult and technologically advanced sector. It has won orders for semi-submersible drilling rigs from BP, Dome Petroleum and more recently from BNOC. Other BS defence yards have enough work to keep them busy for a while, which gives time for adjustment. BS have also been very successful in selling small naval craft such as offshore patrol vessels. Exports from the Warship Division were nearly £100 million in 1980–81. But substantial efforts are needed to get back into the export market for larger warships.
British Shipbuilders receive the full support of the Defence Sales Organisation and our embassies abroad in their attempts to step up their penetration of export markets. In drawing up their specifications for new vessels for the Royal Navy such as the offshore patrol
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vessel now in service and the Type 23 frigate, and new conventional submarine currently being designed, much thought is being put into how these vessels can also be made more attractive to overseas customers as well as meeting the Navy's requirements which must remain the first priority.
Before concluding, I would make a point which may be of interest to the House—namely, that this Bill contains no provision to facilitate the introduction of private capital. This should not be taken to imply any lack of resolve to implement our manifesto commitment. I can repeat the assurance given by the Minister of State in another place that it is the Government's aim, time permitting, to take the necessary powers during this Parliament. British Shipbuilders has come through a difficult period and, in the process, has undergone considerable, and painful, restructuring. This is now beginning to pay off and the corporation is striving hard for further improvements. The Bill is proof of the Government's willingness to support British Shipbuilders' efforts to attain viability, and I commend it to the House.
Moved, That the Bill be now read a second time.—(Lord Cullen of Ashbourne.)
7.21 p.m.
Lord Ponsonby of Shulbrede: My Lords, I thank the Minister for introducing the Bill and for finding himself able to cut the long speech which he had prepared. I always thought it was a tradition of this House that when we had a dinner break, those who were involved in the heavy business were let off for an hour. But the noble Lord appears to have landed the task of introducing this measure as well as being heavily committed on the previous matter which was before your Lordships' Committee. It would therefore be churlish of me at this time to speak at great length.
As the Minister said, the primary purpose of the Bill is to raise the borrowing limit for British Shipbuilders to £700 million, with provision for a further increase to £800 million, and to enable the redundancy payments scheme to be extended for a further two years. We on this side are glad that those are the only measures included in the Bill. We had feared, when there was a shipbuilding Bill to be introduced, that it would include a proposal for the privatisation of British
Shipbuilders. The noble Lord mentioned that towards the end of his speech and reaffirmed the Government's intention during the course of this Parliament to introduce some element of privatisation for BS. But my feeling is that the Government have learnt a lesson from the time-wasting exercise in which your Lordships were involved last year on the measure to enable the privatisation of British Airways to take place. In view of that, I have a feeling that we shall not see—indeed, it would be far too near the end of the present Parliament—any proposal for the privatisation of British Shipbuilders, and perhaps the Minister in his reply would care to comment on that.
We were glad to hear of the progress that BS have made and about how they have managed to diversify their work—for example, the success they have made in the sphere of offshore construction and selling smaller craft. However, we should be concerned about the total level of investment. While we know that there has been a reduction in the losses of BS over the past three years,

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the Minister did not mention that there had also been a reduction in the level of investment. The level of investment by BS is still of a different order of magnitude from that of shipyards in Korea and Japan. I particularly refer to Japan, where the level of investment is roughly 30 times as high as that in Britain. That must be bad for the future competitiveness of the industry.
It is indeed worrying to know that British operators are still going to the Far East to place orders for shipping, instead of placing them in British yards. It is worrying to know that the size of the British fleet is continuing to drop, although it is still the fourth largest in the world. In view of that, and in view of the situation, one can say that there is a case for a very much higher borrowing limit than that proposed in the Bill, which, basically, has been geared up to take account of inflation since the limit was originally set: perhaps the Minister would comment on that as well.
One could make a long speech on the different aspects of the British shipbuilding industry today, but, in view of the situation tonight, I shall content myself with what I have already said, although I should be glad to have the Minister's comments on whether a very much higher level of investment for British Shipbuilders would be to the advantage of the industry as a whole.
7.27 p.m.
Lord Lucas of Chilworth: My Lords, nearly all that the noble Lord, Lord Ponsonby, said, and indeed much of what my noble friend said in his introductory speech, seemed to relate to shipbuilding, and the Bill is designed to enable British Shipbuilders to borrow more money. I do not disagree that that facility should be put at the disposal of an industry which is struggling hard and quite successfully against the present world recession and fierce world competition. I do not think that we as taxpayers can be wrong in giving support to an industry of this nature. Indeed, all our competitors, in Western Europe and elsewhere, receive support of one kind or another.
My concern, however, is on the ship repairing side. When I read the Official Report of the debate in another place on 17th November, I was struck by a remark made by the honourable Member for Wallsend, who said that the ship repair sector was not doing too badly, although things could be better relative to world conditions. I am not sure whether he was talking in terms of the whole industry or that part of the ship repairing industry in which British Shipbuilders engage, particularly as he is the Member for Wallsend, which houses the Wallsend Dry Dock Company, one of the nine repair companies in that part of the world owned by British Ship Repairers.
Can my noble friend say whether the Government feel that ship repairing is to be considered a profit centre or a loss leader? I wish to quote only one instance of tender prices which have been offered by a number of companies for the repair of one particular ship. Of the five North-West European yards tendering, the highest tender was £1,038,000. The middle line seems to have been around £800,000, whereas British Shiprepairers Tyne Group quoted a figure of £555,000. The tenders of the three Mediterranean yards which I compare in regard to this particular ship were in the bracket of £800,000 to £900,000.
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Not for a minute am I making any criticism of the fact that British Shipbuilders should offer a keen price. What I wonder is whether the quote was such that more money might not be made. The top figure was £1 million and the middle line out of five was around £800,000. Why were we pricing a quarter of a million pounds behind? I recognise that in any repair industry price is not the only factor; there is the distance, the time, the service, and so on. Nevertheless, we have heard that the British yards are competitive in terms of time, service, and quality. My point is not one of adverse criticism, but rather one of criticism in that, based on the example that I have quoted, it does not appear that the best opportunities are being taken.
My noble friend might well say that pricing and tendering is for the commercial judgment of the board and management rather than for Government. On the other hand, I feel it is quite fair to suggest that since Parliament is underwriting the losses—£341 million in the last few years, underwritten by the £400 million advance made by Government—it is not unreasonable for us to want to satisfy ourselves that the losses are minimised, that profit is earned wherever it can be earned. It would seem to me that there is a case to be made for saying, Yes, have an increased borrowing limit, but asking, just where is the money to be spent? Is there to be a loss leader in the repair side? Where more can be made of the position regarding a tender, that should be done, as I have felt in relation to the example that I have given your Lordships. So while, of course, I give support to the Bill, I would ask my noble friend whether he, or the Department of Industry, is totally satisfied that, notwithstanding the diversifications the most is made of all opportunities.
7.34 p.m.
Lord Cullen of Ashbourne: My Lords, I am grateful to the two noble Lords who have spoken for their general welcome for the Bill, and I shall try to answer one or two questions that were put to me. The noble Lord, Lord Ponsonby of Shulbrede, asked about privatisation and how likely it was that it would take place during the lifetime of the present Government. I would draw his attention to the fact that I said that, time permitting, we would wish to take powers during the lifetime of the Government; I did not actually say that we would be privatising it.
The noble Lord asked about the level of investment, and referred to the huge sums being made in Japan. Perhaps I cut a little too much out of my initial speech, and so I think I shall just read it. The Government have paid British Shipbuilders very large sums of public money in the form of intervention fund assistance, public dividend capital, and redundancy benefits. A considerable modernisation was undertaken in the 'seventies with Government assistance. British Shipbuilders' chairman takes the view that shipbuilding is not an industry which requires continuous capital investment and that British Shipbuilders is not suffering because of lack of capital investment. However, I should add that the level of capital expenditure is expected to rise this year.
On the subject of the capital investment which has been taking place in Japan, I should like to point out, in order to put the record straight, that there have

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been reports of investment exceeding £600 million. I am told that that figure relates to the total investment of the large industrial conglomerates, such as Mitsui, and that only a fraction of that will be spent on their shipbuilding interests. I asked the same question when I was being briefed on the matter, and I was as equally surprised as the noble Lord now appears to be at the reply, but I gather that that is the fact of the matter.
The noble Lord also asked whether the borrowing limit was high enough. In the past the forecasts as to how long the borrowing would work have been fairly inaccurate. The present estimate is that the current borrowing limit as laid down in the Bill should last British Shipbuilders for three years, and they are not asking for further borrowings. In point of fact they are gradually reducing the subsidy which the Government give them in one way or another each year, and there is expected to be a further drop this year in the amount of money which the Government will have to provide. I think that the figure should come down from £150 million to £125 million in way of external finance this year. If I am not quite right about that—I am not sure that I am—I shall write to the noble Lord.
My noble friend Lord Lucas of Chilworth asked about ship repairing and wondered whether the private sector was being disadvantaged by the ship repairing companies in BS. I would say to him that ship repairing is an international market and there is fierce competition for the limited amount of work available. We are aware of the losses that British Shipbuilders are incurring in the majority of their ship repairing subsidiaries, and linked with this is the concern of private sector ship repairers who say that there is unfair price competition.
Our concern has been brought to Mr. Atkinson's notice. The size of the public sector ship repairing industry has been reduced from 8,000 employees to approximately 4,000 since 1978. This indicates BS's concern that it should be viable. We are disappointed that we have not been able to reassure the private sector. Mr. Atkinson has also assured us that it is not his policy to quote uneconomic prices for this work. Despite this, we are concerned that there is still disquiet about the fairness of the competition. If the private sector has any evidence of unfair competition, we shall consider it and discuss it with BS.
I hope that I have adequately answered all the points that have been raised, and I commend the Bill to your Lordships.
On Question, Bill read a second time and committed to a Committee of the Whole House.
Lord Lyell: My Lords, I beg to move that the House do adjourn during pleasure until eight o'clock, since I understand that this was the time which has been agreed by the usual channels.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.40 until 8 p.m.]

Mental Health (Amendment) Bill [H.L.]
House again in Committee.
[LORD DRUMALBYN in the Chair.]
Clause 38 [Consent to treatment]:
Lord Hooson Lord Hooson moved Amendment No. 75:
Page 27, line 18, leave out from beginning to end of line 20 and insert ("be required for any medical treatment specified in this section given to him for the mental disorder from which he is suffering.").
The noble Lord said: With your Lordships' permission, I will deal with Amendments Nos. 75 to 79 inclusive and touch on Amendments Nos. 81 to 91 A, and my noble friend Lord Kilmarnock, who is also a sponsor of Amendments Nos. 75 to 79, will deal with the detail of Amendments Nos. 81 to 91A. May I say at once that this the most controversial clause in this very important Bill, and I appreciate immediately that here we are dealing with one of the most delicate situations known in a civilised world: how we can deal with mentally ill or mentally impaired patients whose capacity is limited; whether treatment should be given to them—sometimes very serious treatment indeed—without their consent; and who is to determine whether or not they are able to give consent.
It seems to me that Clause 38 is of vital importance as drafted, for four specific reasons, with which I will deal. It is the first legislative provision which specifically empowers psychiatrists to treat detained mental patients against their will, without their consent. No such power existed in the 1959 Act, and though there has been legal controversy as to whether or not it existed, and though in the interpretation of statutes one is not allowed to look at debates in Hansard, I do not think that in your Lordships' House or in the other place it was ever suggested that psychiatrists were given that power.
Secondly, no such power as is envisaged under Clause 38 as drafted exists at common law. The third point is that it goes against the recommendations of consent to treatments made by the very important committee which sat under the noble Lord, Lord Butler, and which, incidentally, included three very distinguished psychiatrists in its membership. Fourthly, it goes against the 1978 White Paper recommendation, and though that was a White Paper of a different Government it emanated from the same department. Therefore, this is clearly a very important clause, and whichever way we resolve the differences between us we must recognise that it is a matter of very important principle. Therefore, I do not intend to apologise to your Lordships for taking a considerably longer time than I have done with other amendments and than has been taken with most of the other amendments that have come before your Lordships.
I am sure that your Lordships' Committee will share my disquiet at a clause which gives doctors such wide powers and at the same time departs radically from long-established common law principles. My disquiet is greatly increased by the fact that in important respects the clause ignores the recommendations of the Butler Committee without, I think, sufficient

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grounds being given for that departure. My amendments—and to have a proper understanding of them one really needs to look at the clause as it would be if the amendments put forward by my noble friend Lord Kilmarnock, my noble friend Lord Winstanley and myself are read in toto—virtually replace the present Clause 38 with a very different emphasis.
So that your Lordships can properly appreciate what I am trying to achieve, let me say that my amendments are designed to achieve two fundamental objectives. The first is to retain the basic right of patients who are capable of understanding the treatment offered to them to refuse that treatment except in especially defined situations of necessity—and they must be very carefully defined. The second is to ensure that the capacity of a patient to understand, and hence to be able to refuse treatment, is determined by a body which is genuinely independent of the medical profession. When I say this I also want to emphasise that I think it is very important that the medical profession itself should have the protection which an independent element gives them.
Perhaps I may refer to subsection (1) and invite your Lordships' attention to it for a moment. One sees that in the original clause it reads:
"Subject to the provisions of this section, the consent of a patient detained under the principal Act or this Act shall not be required… "
subject to certain provisions; whereas my amendment puts the positive side to it when it says:
"Subject to the provisions of this section, the consent of a patient detained under the principal Act or this Act shall be required…"
So we set out what I regard as the basic general principle which we have always known in this country.
Now let me deal with the two vital principles which I seek to achieve by this series of amendments, and let me deal first of all with the right of a comprehending patient to refuse treatment. The present clause as drafted gives psychiatrists the power to treat or detain patients without their consent provided that a concurrent second opinion is obtained from a Government-appointed independent psychiatrist. The only limit to these wide-ranging powers, it seems to me, is that a patient's consent will be required to certain treatments of special concern. These treatments are not defined, and it is clear from the White Paper that only such extreme treatments as psycho-surgery will be classified as treatments of special concern. This means that treatments of choice, such as electro-convulsive therapy, could be given to a non-consenting patient without any safeguard other than a second doctor's opinion.
I have the greatest regard for the ethics which bind a doctor's behaviour and judgment, and we in this country are very fortunate to have a medical profession of a very high standard. In my professional life I have come into contact frequently with very distinguished psychiatrists, and I have the highest regard for them; but I will come to the basic question of principle, as to whether they should be given this power to decide whether a patient is capable of consenting. Whether that is a medical decision or whether it is not in essence a legal decision, it is a decision which affects the rights of an individual in the community; there are dangers which are inherent in it; and countries which (as it
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were) have allowed this power to slip into the hands of doctors alone, without any safeguard, have learned to regret it.
Clearly these new provisions make inroads into the mental patient's common law rights to refuse treatment, but my principal objection is that the Government's proposals fail to make any distinction between the rights of a patient who is capable of understanding the treatment offered him and the rights of a patient who is not. Both are likely to have a refusal of treatment overruled on the say-so of a second psychiatrist.
Let me quote what the Butler Committee—and, as I have reminded the Committee, it had three distinguished psychiatrists on it—said about 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".
That is a very weighty opinion and I should have thought that it needed a great deal of justification to avoid enacting it into legislation. Behind that statement of principle lies the recognition of an important fact that among the 7,000 patients who at any time are detained under the Act are many whose faculties of reasoning and powers of understanding are quite sufficient to understand a treatment proposal.
Those suffering from severe subnormality or who are going through a period of gross delusion clearly cannot he said to appreciate the nature and purpose of a treatment; but others suffering from, say, psychopathic disorders or effective disorders may have the intellectual capacity and the necessary insight to appreciate what is involved in a treatment proposal. The fact that a patient at some stage in the past has been placed in detention under the Mental Health Act does not necessarily mean that he is lacking in insight and appreciation. Nor is it the fact that a person's detention is legally justified, perhaps principally, for the protection of others. It does not necessarily imply intellectual deficit or lack of insight on his part. The Butler Committee recognised this important factual distinction, as did the White Paper in 1978. But the later White Paper and the Bill appear to ignore it.
My own amendments seek to recognise this fact and to restore the principle that a patient should not automatically be stripped of his most fundamental common law rights of self-determination merely by virtue of his admission to a mental hospital. One can think of where that road could lead us eventually. I ask the Government to justify this departure from the Butler Committee principle on this point and I ask the Committee to consider whether, except in a situation of emergency—and my amendments allow for situations of emergency to be dealt with, for we all know they are likely to occur—the comprehending patient's objection to treatment such as ECT should be overridden.
It is important when dealing with this delicate sphere to be practical. It is important to recognise that the effect of our amendment is not to give patients an unqualified right of refusal. Doctors will still have the power to give emergency treatment to prevent patients from injuring themselves or others—for example, under the provisions of our amendments to subsection (7). In such cases, they could override a patient's refusal or consent in the emergency. Furthermore, it must be demonstrated that doctors have very considerable

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powers of persuasion, given the fact that it is they who determine a patient's eventual release date; and the very relationship of doctor and patient gives the doctor tremendous persuasive powers. But ultimately, when persuasion fails and no real emergency obtains, the comprehending patient, as a matter of principle, I believe, should retain his right to self-determination.
If that is accepted, there still remain two questions of interpretation which are dealt with in my series of amendments. First, the test of the capacity to consent; and, secondly, the body that should apply this test. If I come to the first question, the test of capacity to consent, the test that I have proposed is whether the patient can understand the nature, purpose and effects of the treatment. One finds this in Amendment No. 83.
This test—and I do not claim to have invented it myself—has the authority of the Butler Committee behind it. It also accords with other medico-legal criteria such as, for example, those governing fitness to plead in court and contractual capacity. There are certain medico-legal tests laid down. This test is introduced to exclude as incapable of consent all those suffering from intellectual defects or delusions about their treatment and whose thinking is so affected that they lack any insight into the purpose of the treatment. The question was posed to me: "What do you do with a patient who understands well the nature of the treatment and how it will affect him, who has no real objection to it when you ask whether he will consent to it, but who says, 'A man from Mars has told me to object'?". That is the kind of practical problem which was posed to me. I would answer that by saying that that patient cannot possibly understand the purpose of the treatment as he is so deluded. The three criteria must be satisfied.
Now, the independent body to consider the matter. If the capacity to understand the treatment is to be the determinant of the patient's right to refuse treatment, it is obviously crucially important who determines whether the patient has this capacity. My proposal is that it should be the mental health review tribunal, comprising a doctor, a layman and a lawyer, as it does at present. But the sole function of the whole multidisciplinary tribunal is to determine the question of capacity to consent. That, I maintain, is not purely a medical issue. It is much wider than that. If the tribunal find that a patient is capable of understanding and therefore capable of consenting to treatment, then his refusal to accept the treatment, if that is his view, would be respected. If they find him incompetent to consent, then the main tribunal team would cease to operate at that stage, because the next step in the procedure is a purely medical one. It is the medical member alone—and it is one doctor assessing another doctor's evidence—who would then proceed to determine the question of whether the incompetent patient should have the treatment or course of treatment proposed by the responsible medical officer. So there is an additional safeguard brought in of the doctor determining what is really the purely medical issue.
Therefore, to appreciate this, there is the legal decision as to the competence; and this seems to me to be the key to the whole issue: whether the decision of competence is one which is purely medical or whether it is much wider in its application than that. On that issue, all three members will determine whether
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the patient had or had not the right to refuse treatment. The second stage is the clinical decision on the advisability of treatment. It only arises where the patient is incapable of consent and is held to be so by the whole tribunal. But the clinical decision will then be taken by the medical member alone.
I have dwelt on this point at length because my amendments are designed to achieve a compromise between two viewpoints. It is a compromise that arises from a long-standing controversy. On the one hand, some organisations have for a long time ad-advocated multidisciplinary reviews of treatment decisions. I am not suggesting that that should be acknowledged in this Bill; but those arguments found favour in the 1978 White Paper and they reflect, I am told, although this is not within my own knowledge, medico-legal practice that is widespread in the United States of America.
On the other hand, the Royal College of Psychiatrists—a very distinguished body—has been opposed to the principle of lay interference with clinical decisions, and on this point can pray in support the views of the Butler Committee and of the present Government as reflected in this Bill and in their White Paper. My compromise proposals, which are of great importance, try to do justice to both sides. On the one hand, there is the multidisciplinary involvement in the legal question of competence. On the other hand, there is to be respect for the principle of the purely clinical decisions, and that decision should be taken by medically qualified people alone.
My amendment therefore renders the medical man what is clinical and to the full tribunal what is legal. I present it not only as a desirable compromise but also as right in principle and practicable. On both the point of principle and that of practicability I have canvassed the view of certain mental health review tribunal chairmen. I have received letters expressing not only support for my proposals but also assuringly on the practicability point.
Let me deal with the question of principle. The principle of an independent multidisciplinary review of the competence question is right first of all because it is a decision to determine what a patient's civil rights are—that is what it determines, nothing less than that. As such, it is broadly a legal question. This question can properly be put to a tribunal which operates a legal test. In my Second Reading speech I referred the fact. When a man is brought up in court and the court has to consider whether he is fit to plead to the indictment, of course the medical evidence is all important but it is not determined by the doctor. The court determines it; the jury determines it because what happens to him thereafter greatly affects his rights as a citizen.
The Court of Protection, when it has to consider what protection has to be given over property, and so on, is greatly influenced by medical evidence but it does not let just the doctors decide it. Is the consent to treatment—and very important treatment—of any less importance in the scale of legal rights? I should like to mention on this point that I have received fulsome support from Professor Sir John Wood, who is one of the most distinguished tribunal chairmen in this country. He also assures me of his support for the practicality of the proposals.
I have great respect for the medical profession in general and for the psychiatric branch in particular. Let me ask the question why a doctor alone should not decide the question of competency. My answer is not only that it is a legal question but also that there is a great danger in giving to the medical profession too extensive powers to police themselves over questions of compulsory treatment—note "compulsory treatment"—of patients. The profession already have, by the very nature of the illnesses with which they deal and the circumstances in which they deal with them, enormous powers over those in their care. There is always a danger of professional solidarity and overzealousness in pursuit of the therapeutic end.
On the competency question, the involvement of lawyers and laymen in the decision-making process would reassure both patients and potential patients—and the potential patients are almost as important here as the patients—and produce some counterbalance to the danger of a psychiatric monopoly over the freedom of individuals suffering from psychiatric disorders. One can more readily accept psychiatrists policing themselves over the treatment of the incompetent if one has a proper independent body to determine whether or not a patient really is incapable of deciding for himself.
I have no doubt that the Government will say, "Well, of course our present proposals are much simpler; we would only need one other person, an independent psychiatrist to be brought in, whereas under your proposal you would need two others"—that is the two other members of the tribunal. The Government's proposals require the setting up of a panel of independent psychiatrists to give their opinion. These independent psychiatrists would lack the quasi-judicial expertise and experience of tribunals. In contrast, the mental health tribunal would bring to the competency decisions both their greater experience of legal decisions in their normal work and the specific approach of their legal member. They would be able to rely and be guided by the medical expertise of their medical member; but they would be assessing it. They would be facilitiated in their decision by having the guidance of their medical member.
Then there is the question of the availability of tribunals to give decisions at short notice. Even under the Government's provisions they would have to bring the independent psychiatrists in at short notice. I accept that in certain circumstances the tribunal would have to be convened at short notice. I am assured by those who are in a much better position than I am to judge that there is no difficulty envisaged about this matter. The tribunals are in any event making regular visits to the special hospitals for hearings on other matters concerning other sections of the principal Act. I am told that there is really no practical difficulty.
In conclusion, I think that this Committee is faced with a very important decision of principle here. We deal with mentally handicapped and mentally impaired people in depth in this way every 20 years or so in this House, so it is very important that we get it right and if we do not get it right this time it will be many years before we can put it right. What I am concerned about is the creation of a highly therapeutic atmosphere in our mental hospitals. If psychiatrists
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are given too great powers to treat patients against their will, there is a danger that psychiatry may be associated in the minds of many patients with coercion.
We are dealing with a minority of patients, and this is one of the hallmarks of a civilisation that its legislature can give time to considering the effects of legislation for this kind on a minority. The number of patients which my amendment will affect may be small; but their rights are none the less vital for them and vital to a civilised country. We have to balance first of all the clinical independence of the doctors which we all appreciate very much. We are grateful as a country that we have a medical profession with such high ethical standards. I appreciate as a member of a very independent profession myself the importance of the clinical independence of the doctors. Against it there must be counter-balanced the right of self-determination of the comprehending patient. That is what is involved in this clause and that is why I have taken such a deal of the time of your Lordships to talk about the amendments. Although I have been officially dealing with simply one, I have attempted to lay before your Lordships the outline of what I seek to achieve by the totality of the amendments to this clause. I beg to move Amendment No. 75.
8.30 p.m.
Lord Renton: The noble Lord, Lord Hooson, has performed a most valuable service by studying this matter in great depth and presenting it so fully and clearly as he has done to the Committee. The points he made about patients' rights are so clearly well made that I do not think the Government could leave the Bill in its present state with regard to that part of the case made by the noble Lord. May I say in passing that of course what is in Clause 38 and in the amendments refers essentially to those people who are mentally ill, but does not refer to those mentally impaired people who are not also mentally ill and, not being mentally ill, they are untreatable. I think it is right to make that point clear so that we understand each other.
Of course, both the Government and the noble Lord, Lord Hooson, have acknowledged the necessity to enable treatment to be given, without consent if necessary, to prevent a serious deterioration of the patient's condition. That is a power which will have to be exercised in a very responsible way because on occasion it could be interpreted—and I hope it will not be taken amiss when I say so—too liberally.
So much for the patient's rights. As to the people who are to have the responsibility for making the ultimate decision, I agree with the noble Lord that it is not really right simply to get a second medical opinion, as the Bill at present envisages. Something more independent and broader has got to be inserted in the Bill, I would have thought. It is no disrespect to the medical profession—and I speak as the son of a doctor—when I say that if one doctor has given an opinion and another doctor is called in to confirm or change that opinion, the instinct of the doctor who is called in will be to support the first opinion if he can reasonably do so. Therefore there will not be sufficient safeguard of the patient's rights if in the Bill we just leave the matter as envisaged by the Government.

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The question arises as to whether the mental health review tribunal would be the right body or whether something more elaborate is needed. The noble Lord mentioned a word which always rather horrifies me, and that is the word "multi-disciplinary". I do not think you can say that a body which consists of a lawyer, a doctor and a layman can be described as "multidisciplinary". That is not my idea of what that somewhat forbidding kind of body means; but I think that we do not need more than a lawyer, a doctor and a layman to decide this matter.
Therefore I go along with the noble Lord also in his suggestion that the decision should be taken by a mental health review tribunal. We heard this afternoon, when my noble friend Lord Belstead was moving his amendments dealing with mental health review tribunals—indeed he added a new schedule to the Bill to deal with just that matter—that their geographical distribution will be quite considerable and their availability very ready indeed. I should have thought that in conjunction with all the other work that they will be called upon to do it would not be impracticable, or would lead to delay, for them to be given this responsibility, as the noble Lord has suggested. Therefore for the reasons which he has given and which there is no need for me to underline any further, I support him and I hope that my noble friend on the Front Bench will give a very sympathetic ear to what he has said.
Lord Hunter of Newington: I am very sorry that I missed the latter part of the debate during the Second Reading of this Bill, although I have of course studied Hansard with care. The range of that debate was remarkable in its tone and breadth, extending from broad issues of policy to detail. Now, as I conceive it, we must exercise a very important judgment. What are the issues that have been discussed on which there is a large area of agreement, which should be enshrined in the Bill and which are better left to regulations by the Minister or supervised and updated by the Mental Health Act Commission?
In what I say I speak as a medical man with some 30 years' clinical experience, but not in the field of psychiatry. My special interest was clinical pharmacology and the introduction of new drugs. I therefore specialised in treatment. From this point of view can look critically at the psychiatric scene, and of course accurate treatment requires accurate diagnosis and a long training, such as modern psychiatrists have.
I am amazed at the improvements introduced in the last quarter of a century, and the scene even now is a credit to this country and to all those who have contributed to that change. Team work and collaboration between the different disciplines is vitally necessary in medical work, and in the field of psychiatry there are special needs, well known to your Lordships, which are not so evident in other fields. Co-operation and the necessity for the professions to have job fulfilment are also very vital, because they are vital to recruitment. I am sure that this Committee is unanimous in the view that recruitment of the best people from the various professions is necessary. You cannot compensate for that by rules and regulations. So the climate in which the psychiatrists, nurses, social workers and others operate, is a prerequisite for success.
What then is the best framework for action and
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recruitment? One also has to recognise that diagnosis in this field is by no means as accurate as in many other medical fields. Often the diagnosis is in part at least a descriptive label. Unfortunately, this does not mean that any person's opinion is as good as the next man's: it means that more research is required in the field of psychiatric disorders. I might also say that those doctors who have the benefit of the new extended and rigorous post-graduate training are only now beginning to get senior posts in psychiatry. I believe them to be equipped for the twentieth century.
One of the changes that are taking place is this. When I was a medical student I was taught that a doctor had a responsibility to his patient and to his conscience. Now, increasingly, doctors are recognising, as I shall illustrate in a moment, that they have a very much wider responsibility and they must be accountable to society in a host of ways.
The proposals in relation to consent to medical treatment and the form of a second opinion, as formulated in the Bill, are broadly acceptable to the Royal College of Psychiatrists, many of whom have moved very substantially from their original points of view. They have arrived at this view only after a considerable period of debate, and they undoubtedly wish to see reinforced the principle which is applied in good practice at the present time; namely, that a second psychiatric opinion is obtained when treatment is proposed for a detained patient, or when he may not fully appreciate the nature of the proposed treatment or is voicing an objection which is based upon a failure to understand or which is irrational.
Doctors have always taken the view that decisions about treatment are essentially clinical matters, and that a second opinion should be independent and, also, independently clinical. Laymen would not be competent or able to give a technical opinion, to make a professional judgment or to understand the clinical implications—which is one of the most important consequences—involved in rejecting a proposed form of treatment. I have to confess that I should he in the same position in the field of law.
The proposals in the Bill provide for an independent psychiatric opinion responsible to the Mental Health Act Commission, which would include lay members among its membership. I hope that at a suitable moment the Minister will tell us more about this, be cause some flesh has to be put on the bones. But I myself see it as not only closely monitoring second opinions, but as issuing guidelines leading to a steady improvement in practice, ensuring in this way that the patient's rights and interests are continually safeguarded. So I believe that the profession is accepting the necessity—in fact, the desirability—of the commission.
The amendments that have been proposed so eloquently and, indeed, brilliantly by the noble Lord, Lord Hooson, would mean, first, that, instead of an independent doctor, a mental health review tribunal,
"after hearing the responsible medical officer and the patients",
would certify in writing that the patient was not capable of understanding the nature, purpose and likely effects of the treatment, and the medical member of the tribunal would certify that, in his opinion, the treatment should be given in the patient's own interests, if indeed he was not capable of understanding.

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There are a number of objections to this. A mental health review tribunal, including a doctor but also a lawyer and a social worker, would be no more capable—probably, less capable—than an independent psychiatrist of making these judgments, the primary judgment being the clinical one. Secondly, it would often be undesirable for the patient to be interviewed by a tribunal if he was in a disturbed state. Doctors often have to make similar judgments in relation to other issues in medicine, and have shown themselves perfectly capable of doing so; and, as I have said before, increasingly they are accountable, as it is proposed they should be here. They are controlled by their own medical ethics and the common law.
Further, even if desirable, I maintain that it is impracticable to expect a mental health review tribunal to be convened speedily when treatment has to be given without undue delay. As it is, as your Lordships know, the amendments proposed elsewhere in the Bill are likely to increase the work of tribunals from 450 cases a year to somewhere in the region of 5,000. The present proposals in the amendment would put a very much increased additional burden on the shoulders of tribunals. Further, there remains the question of how the patient will be treated, and by whom will he be treated, if the tribunal overrules the patient's responsible medical officer. This may make his task impossible.
If the patient is thought to be capable of understanding the nature, purpose and likely effects of the treatment but objects, the amendment would, it appears, make it impossible for a doctor to treat a patient against his will. Under the Bill, the patient could be overruled with a second independent opinion. The only exception to this rule would be in an emergency situation, to avert a clear and imminent risk of bodily injury or death to the patient himself, or to some other person, pending a hearing. To wait until things were desperate might be bad practice, and desperate medicine is liable to misjudgments.
In the Second Reading debate, the noble Lord, Lord Hooson, quoted the Butler Report, and he quoted it again this evening. He said that the Butler Report refers to the principle of no treatment for the non-consenting. This principle fails to provide for the patient who may be capable of understanding the nature, purpose and likely effects of the treatment, but who is objecting for irrational reasons, because of the influence of delusions, hallucinations, paranoia or other symptoms arising from his mental state.
In such situations, even though capable of understanding, there should be provision in his own interest to overrule his objection, with due protection of his interests by reference to a second independent medical opinion. Patients of this kind may be very disturbed, but would be untreatable if the amendment were supported. It is necessary to have some provision to treat such patients, and the Bill as proposed by the Government would allow for procedures to he carried out, so that such treatment could be given. This is regarded as very important by psychiatrists who have to plan the treatment of these difficult patients.
Baroness Faithfull: It is quite evident that we are all agreed that there must be safeguards for the patients. What we all disagree about is how it should be done.
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I rise to speak very briefly, because my Amendment No. 80 deals with this same matter. I have recommended in the amendment that the decision should be taken at a more domestic level and that, after discussion with the patient's relatives, an approved social worker and other professionals working with the patient, treatment should be given, provided that in such cases any objections to the treatment of the patient or others consulted must he recorded. I make no further statement than that, but, rather than move another amendment later, I thought that I would intervene at this stage.
Baroness Masham of Ilton: May I ask the Minister whether he can tell the Committee approximately how many detained patients need to have operations performed against their wishes each year?
Baroness Elliot of Harwood: I should like to add one word. I have listened with the greatest interest to the speeches that have been made by both the noble Lord, Lord Hooson, and my noble friend Lord Renton. I think that what my noble friend said appeals more to my feeling about this clause in the Bill, which is obviously something that concerns us all very deeply indeed.
To take compulsory powers over a patient, however the treatment is carried out, is extremely important. I have here a letter from someone in the Patients' Association who strongly supports the idea that there should be a lay voice, a non-medical voice, somewhere in the tribunal, in the inquiry or anywhere else involved in the working of this clause. There is a great deal to be said for that. Listening to the noble Lord who spoke from the point of view of psychiatrists, I realise that they have a strong feeling that, being the great experts, they are the people who should have the final voice. That to some extent is correct. On the other hand, as we know, experts can sometimes be wrong. In a case of this kind, which is of such importance in the life of a patient, there should also be an opportunity for somebody of a non-medical character who knows the conditions, who knows the patient's background and who knows the family to be involved.
I agree with my noble friend Lady Faithfull that social work departments dealing with patients of this kind are very often the people who can make that contribution: a great study of the character, conditions and family of the person concerned. It is worth considering, and I hope the Government will consider it, that there should be not only medical opinion but opinion of a general nature from people who really understand the case which is being dealt with and who can make a contribution which is of equal importance to that of the medical practitioners, whether they be psychiatrists or doctors.
8.51 p.m.
Lord Kilmarnock: One listens to the noble Lord, Lord Hunter of Newington, with vast respect, but it is worth putting the point to your Lordships' Committee that essentially he was discussing the question of the second opinion which is contained in Amendments Nos. 76 and 77. Whether or not one agrees with the noble Lord, Lord Hunter, I do not think that his objections on that score should obscure the general

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principle which was stated by the noble Lord, Lord Hooson, when he spoke on subsection (1) of Clause 38.
The important point that we must keep in our minds is that the Government's Bill, as drafted, states a general principle that the patient's consent shall not he required. It then sets out a certain series of safeguards, but if the safeguards were ever to be knocked away the bald text of subsection (1) would stand. This is extremely undesirable. The noble Lord, Lord Hooson, on the other hand, has in a sense reversed that principle, or stood it on its head. He has stated the principle, that the consent of a patient detained under the principal Act or this Act shall be required. Then he sets out the exceptions, with their safeguards. Even the removal of those safeguards would not affect the principle.
If you consider all the safeguards simply as derogations from subsection (1), if they were all knocked away the principle that the patient's consent shall be required would stand on the statute book. That is an extremely important principle which we should not lose sight of, despite the objections which the noble Lord, Lord Hunter, has made on that particular point of where the second opinion may lie, on which of course we may possibly differ. I thought it was worth pointing that out to your Lordships' Committee.
Lord Winstanley: Before the noble Lord replies, as the third signatory to this group of amendments, I should like to say a word with particular regard to what was said by the noble Lord, Lord Hunter, to which I listened with great interest. His words are regarded with great respect throughout the whole of the profession, and rightly so. However, I think that it is right for me, as another doctor, to say that there are two sides to this issue. The noble Lord, Lord Hunter, told your Lordships' Committee that the second doctor, as a matter of clinical judgment, is perfectly able and perfectly competent to say whether or not the patient is capable of giving consent and that it is better that he should do it, because he is able to do it, rather than have the mental health review tribunal. Is it? A doctor called as an expert witness who has examined a woman who complains of being raped is often perfectly competent and able to say whether or not that woman has been raped. But as a matter of public policy we do not leave it to the doctor to say whether an accused person is guilty. We leave it to lay people. We leave it to a jury. I think that as a matter of public policy there must be an independent element which is not a medical element.
The noble Lord, Lord Hunter, talked—and rightly—about the importance of not interfering with the consultant's clinical freedom. If a patient is not of mentally unsound mind or mentally ill so that he is capable of giving consent or withholding consent, and if that patient withholds consent, whatever the consultant says out of his inspired clinical judgment, what happens to the consultant then? He has to take it, and quite rightly so. I do not think, therefore, that one must necessarily say that because a consultant psychiatrist takes a certain view, that view must inevitably prevail in all circumstances. So there are those two points with regard to the very compelling arguments which the noble Lord, Lord Hunter, put before your Lordships' Committee, and I hope that
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they will be considered before the noble Lord the Minister replies.
Lord Richardson: May I follow the noble Lord, Lord Winstanley, who has put to your Lordships the sequence in consultation and decision-making about the advice to be given to patients and to their relatives. In parenthesis, I should like to defend my profession against Lord Renton's suggestion that their instinct is to agree with each other. I believe that your Lordships can think of examples where doctors disagree. The opinion having been formed by the doctors with one, two or even more consultations, sometimes from different disciplines within medicine, it is normally presented to the patient and to the family. Then, as the noble Lord, Lord Winstanley, quite rightly said, if the treatment and advice is refused the matter ends there. The doctors make the best of the job—as they see it, a bad job—in the interests of the patient. I feel that your Lordships would agree that while the purely medical period of forming an opinion is in process it should be conducted on the same sort of principles as in organic disease, with the discussion and the formation of an opinion from perhaps several different opinions.
The question your Lordships are addressing yourselves to, which I found so fascinatingly put by the noble Lord, Lord Hooson, is how one proceeds from the time when the medical opinion has been formed. In this case an expert medical opinion—expert in the sense of understanding the effect of delusions and perceiving them, or of hallucinations, or the great subtleties of the mind of the highly integrated paranoid—cannot be other than technically of the highest value. T question whether, with all their judicial expertise and worldly knowledge, lawyers are comparable in this particular instance. But quite clearly, when reaching the point that normally would be with the patient and with the relatives, where it is felt that the patient is not a comprehending patient, although perhaps to lay people he might appear so, the question is whether it is better dealt with in the way that Lord Hooson, supported by Lord Renton, has suggested, or by the Government.
As to the White Paper which the Government produced—if I may be permitted to do so, I should like to read to your Lordships literally half a dozen lines—
"A psychiatrist so appointed, appointed by the commission either from its membership or from the knowledge of the commission of the psychiatrist, who gives a second opinion on any case will he able to discuss the principles which should apply in giving second opinions with the commission members from other disciplines and to take account of their views. It is also intended that the independent doctor will discuss the patient's treatment with members of the team caring for him before giving his opinion and will take account of wider social and medical matters".
If the spirit and indeed the letter of those sentences put before us by the Government are carried out, I would have thought that this was a wider means of determining the rights and position of the patient in the circumstances which we are discussing, rather than by three members of a health tribunal, however experienced. After all, prejudice does not rest solely in the minds of doctors, and it is for these reasons that I hope the Government's version of the Bill in this particular clause will be accepted by your Lordships, and that the amendment will be rejected.
9.2 p.m.
Lord Elton: If I may dispose of one point of substance but detail first, may I tell the noble Baroness, Lady Masham of Ilton, that I am not aware of any "operations" as such—by which I take it that the noble Baroness means psycho-surgery—done without consent, certainly in recent years. But treatment without consent—and I hope your Lordships will throughout this debate remember the definition of "treatment" which occurs in the Act, because it is very wide—would apply I believe, to about 10 per cent. of the patients we are discussing. The patients we are discussing are those detained for treatment of mental disorder. In the same spirit, I would just mention in passing that although the noble Lord, Lord Kilmarnock, very gently chided the noble Lord, Lord Hunter of Newington, for bringing in matters in Amendments Nos. 76 and 79, the noble Lord, Lord Hooson, had in fact brought those specific amendments before the House and it is quite proper for all of us to be discussing them.
On this question of how we take these amendments, I slightly regret that we did not take Amendment No. 75 on its own because then perhaps I could have been more helpful than I am going to be. Amendment No. 75 has at least in its intentions a certain degree of merit in that it adopts a positive rather than a negative approach. That is to say, it says that we must presume no treatment is to be given without consent and then gives derogations from that, rather than saying we must presume that no consent is needed for treatment and then give derogations from that, as the Government at present propose. I would have been suggesting that this was something I could take away. I would have to take it away rather than accept it now in the Chamber because it is rather like an algebraic formula; the noble Lord has changed the sign outside the brackets and has not, I believe, adequately adjusted the terms within it—so that from the point of view of drafting some adjustment is needed. However, I am in sympathy with what was intended under that amendment and indeed that might still prove to be a matter of interest to your Lordships.
I would like to take up, by way of introduction, the noble Lord's statement that the Bill represents a departure from the position set out in the 1978 White Paper, that it is new in law, and that it is new to both Houses of Parliament. If I can follow the paper-chase that I have made for myself during the noble Lord's speech and successive speeches, I would point out that the 1978 White Paper did not so differ from what we are doing. Perhaps I may refer the noble Lord to paragraph 68.23 on page 74 of the Review of the Mental Health Act 1959. I read about halfway down the paragraph:
"The Government's view is that if a detained patient who is capable of giving valid consent refuses to give it, the doctor should not be able to impose any treatment except in an emergency"—
and when it comes to "emergency", I believe we are on common ground—
"without a concurring, second opinion".
That is the position of the Government and I see nothing new in that.
As to the second point, that this is new in law, the Bill does not, in my view—as some noble Lords are claiming—make any fundamental change or take away any right to refuse treatment. The Royal
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Commission that led to the 1959 Act in fact assumed that patients who are detained for treatment could be treated without consent, and the 1959 Act provided for admission for treatment of detained patients. The department, on legal advice, have taken the view that where the purpose of the detention is treatment the Act gives the responsible medical officer concerned implied authority to treat a patient for his mental disorder, if necessary without the consent of the patient or any other person. This has been done. The purpose of putting this into an Act is to codify in law existing practice which is now in question but which has not yet been questioned by the courts.
As to the question of whether this is new in both Houses of Parliament, I would refer the noble Lord, Lord Hooson, to column 77 of Commons Hansard, Volume 849, for Tuesday 23rd January 1973, when my right honourable friend Sir Keith Joseph said:
"I am advised that in the case of a patient detained for treatment under the Mental Health Act, any recognised form of treatment which is considered necessary for such a disorder may lawfully be administered without the consent of the patient. Where, however, the patient is capable of understanding what is proposed, it is the normal practice to explain this to him and if possible to obtain his agreement".
I am not saying that this will convince the noble Lords or their friends that all this is satisfactory; I am only claiming at this stage that it is not, as they would have us believe, new either in law or in the other House of Parliament.
If I may now come to the mainstream of the amendment, I make no apology that I, like noble Lords who have preceded me, and particularly the noble Lord, Lord Hooson, recognise the fundamental importance of what we have been discussing and I cannot deal with the matter with the brevity which the hour might suggest, would be convenient. The first major point concerns the group of patients covered. The movers of these amendments propose a procedure whereby medical treatment can be given to detained patients incapable of giving their own informed consent because they cannot understand the nature, purpose and likely effects of the treatment. The Government are at one with the movers in agreeing that some sort of procedure is needed in these cases, though as I shall explain in a moment, we differ as to the nature of the procedure.
People suffering from some forms of mental disorder may as a result of that disorder be unable to understand even a simple explanation of the nature and purpose of a medical treatment. If I may refer to a case in point and illustrate this: a patient who clearly understands the treatments which are proposed to him and their effects but whose mental disorder, schizophrenia, is such that he does not believe that he is mentally disordered. He is competent to decide in the terms of the noble Lord's amendment, but because he is deluded as to his state of health he will not give consent. There are many cases. I will not delay your Lordships with lists of not only delusions but hallucinations, misinterpretations of reality, morbid preoccupations, impaired memory—from which I sometimes find myself suffering—or severely depressed mood, which make people unable to appreciate the nature of their condition and cloud their judgment about the need for treatment. It would be uncompassionate in the extreme if doctors were prevented from giving all such people treatment which

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might alleviate or improve their mental condition, and, indeed, alleviate their suffering.
Might I at this stage mention the second point, where I think the movers have made a welcome addition to the Bill. Amendment No. 79 uses the term,
"the patient is not capable of understanding the nature, purpose and likely effects of the treatment",
whereas in the Bill we have only a reference to the patient being capable of consenting to that form of treatment. The amendment clarifies very usefully what is meant by consenting, and I will see what we can do before Report to take on board the spirit, and as far as can the wording, of that part of Amendment No. 79.
The movers of these amendments have proposed a procedure for giving treatment to patients who cannot understand the nature, purpose and likely effects of the treatment. In the Bill we have provided also for cases where a detained patient understands what is involved and refuses to give his consent to treatment. It is often the case that a patient is capable of understanding the nature, purpose and likely effects of the treatment but, because of his mental disorder, does not accept that he needs any treatment. I am well aware that this touches on a key issue of individual liberty. None of us would lightly take the responsibility for deciding on behalf of another person whether or not to accept a particular form of medical treatment. I again refresh your Lordships' memories as to the nature of treatment in the definition in the Act, which is not only concerned with things that we would consider invasive of private metabolism, but nursing treatment and so on.
May I here take up the point—I think it was the noble Lord, Lord Hooson, who said it—that we had departed from the report of the noble Lord, Lord Butler, as chairman of the Committee on Mentally Abnormal Offenders. If the noble Lord, Lord Hooson, will turn to page 49 of that report, paragraph 3.54, about halfway down, I will remind him of it:
"Treatment other than nursing care should not be imposed on any patient without his consent if he is able to appreciate what is involved. Three exceptions should be allowed. Treatment may be given without such a patient's consent,

(a) where not being of a hazardous or irreversible character it represents the minimum interference with the patient to prevent him from behaving violently or otherwise being of danger to himself or others; or

(b) where it is necessary to save a patient's life; or

(c) where not being irreversible it is necessary to prevent him from deteriorating. Where by reason of his disability the patient is unable to appreciate what is involved despite the help of an explanation in simple terms the treatment may he given, but special considerations apply to treatment involving irreversible procedures".

These special considerations we have recognised in the Bill. So we have followed the White Paper and also followed Lord Butler's report.
We are talking in this Bill about very special circumstances, patients who are detained in hospital in order that they can receive medical treatment for their mental disorder. We have already debated the procedures by which patients are detained and the criteria which must be satisfied. Those criteria are all about medical treatment for mental disorder. A patient can only be detained under Section 26 if his mental disorder is of a nature which makes it appropriate for him to receive treatment in a hospital and if it is necessary for his own health or safety or for the pro-
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tection of other persons that he should receive such treatment.
A court must be satisfied before it makes a hospital order rather than, say, sending the offender to prison, that the offender's mental disorder makes it appropriate for him to be detained in a hospital for medical treatment. The Bill and the Act are essentially about procedures under which certain mentally disordered people may be detained in hospital and given medical treatment for their mental disorder. Therefore, if we make no provision for that treatment, we are left with nothing but detention for those people, and hospitals are no place for detention without medical treatment. In that respect this amendment would put the clock back to the days before developments in psychiatric treatment opened hospital doors and made it possible for patients to return to life in the community.
No psychiatrist wishes to treat an unwilling patient if he can win the patient's understanding and agreement. I notice that the noble Lord, Lord Peart, is looking at his watch, and I am getting notes from behind me telling me to speak slower. I am trying to oblige everybody. This really is very important ground. It must be covered, and I think that it must be covered in a manner in which everybody can join in. Most detained patients do agree to accept the treatment their doctor recommends. They appreciate that this is their best chance of getting better and being able to return to the community. If a patient objects to a particular form of treatment, his psychiatrist quite naturally will try to offer an alternative form which the patient is willing to accept. I have visited hospitals, and in those that I have visited I have satisfied myself that this is the case. I am told that only about 10 per cent. of detained patients—in fact, I have already raised this matter with the noble Baroness so I shall pass over it and merely say that we are not talking about a great many cases.
It cannot be in the best interests of patients that their disorder should be left untreated and perhaps deteriorating, and the position of staff in containing, but not being able to treat, such patients would in fact be to reduce them to the position of warders. The only alternative is that patients would be discharged from hospitals because they did not want to be treated. And my fear is that there would be cases where a dangerously mentally disordered person received no medical treatment because he wanted none, left hospital and committed a serious crime under the influence of his mental disorder. The consequence for him would be prison since it would be clear that the hospital could do nothing for him; the consequence for the victims of his crime, I leave to your Lordships' imagination.
If someone is detained in hospital for medical treatment for his mental disorder, under the provisions of the legislation we are debating it must be possible to ensure within the carefully spelt out safeguards that he receives the treatment he needs. The Government cannot accept amendments to this clause which would prevent that. That, I say again, is no new practice and has never, I understand, been challenged in the courts.
Before I turn to the second point of fundamental disagreement about who should give the second opinion—and we are, it would seem, forced to debate both—

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I would like to mention briefly the third aspect of the amendments with which I do agree. Amendment No. 78 adds in line 28 words to show that the legal requirement is that the patient has consented rather than that the responsible medical officer should report his consent at second hand. That is an acceptable amendment and I undertake to introduce something to the same effect at the Report stage, although I must say that I prefer the noble Lord's first shot at it in Amendment No. 78. I will say more about this when we come Amendment No. 91A. Indeed, I was saying that I prefer the noble Lord's first version of Amendment No. 78 to Amendment No. 78A which is the present version.
I will turn now to the second major question: who should give the second opinion? The Bill proposes that it should be an independent doctor who would be appointed by the Mental Health Act Commission on behalf of the Secretary of State. Our intention is that the medical practitioners so appointed would be psychiatrists and would take account of the views of members of the Mental Health Act Commission from other disciplines, including lay people and lawyers. These I know are the two aspects which are very attractive to noble Lords who have said that they are not confident of their uniquely medical opinion or two uniquely medical opinions, that they feel that the common man wants another common man on his side, and some lawyers feel that a lawyer is needed to control the medics. Both of these elements are built into the Mental Health Act Commission.
The alternative as proposed in these amendments is that the second opinion, and only on the question of ability to consent, should be given by the mental health review tribunal. The whole tribunal—a lawyer, a doctor and a lay member—would decide whether or not the patient was capable of giving valid consent; if he was not, the medical member only would have the responsibility of deciding whether the treatment should be given "in the patient's own best interests". The movers of the amendment and the Government are therefore both proposing that the decision on whether treatment should be given should be made by a doctor rather than by a multi-disciplinary panel. I am glad of that agreement and I believe that it is very important.
This is the moment for my last favourable comment. The words:
"in the patient's own best interest",
are a helpful clarification of the reasons which justify imposition of treatment. There may be other forms of words proposed, but I would favourably consider on Report which would be best as an improvement on what we have in the Bill.
However, to return to the main point, I think it is a mistake to involve mental health review tribunals in issues of consent to treatment. The tribunal has a clear role already—and that is a judicial one—to decide whether a particular patient should be discharged. The tribunal would, I believe, no longer seem to patients to be fair and impartial if it was also involved in detailed decisions about their treatment while they were detained. The role the tribunal would be given by these amendments would be one of detail: it would have to decide whether the patient was capable of understanding the nature, purpose and likely effects of
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a particular treatment. That is not a once-and-for-all decision: conditions of patients change. It has to be brought up, possibly, quite frequently with a patient who will change his or her mind under different circumstances. The treatment may only be a course of tablets or nursing procedures; we are not talking only about major issues. The patient may understand what is involved in some forms of treatment but not in others, and his condition may vary from time to time.
Let us suppose that a particular patient sincerely believes that he understands the nature, purpose and likely effects of a form of treatment and does not want to accept it. If the tribunal decides that he is not capable of understanding and should be given the treatment, will the patient really believe that the tribunal which at present represents one of the few available escape hatches for him into the outside world, will look fairly at his application to them for discharge when they have just overruled him on how he should be treated?
In practical terms the movers are proposing that three people should be convened to decide each case where the Bill proposes that only one should be called in. That means more delay. We are putting a lot of extra burdens at short notice on tribunal members, including Section 25 tribunals. If we add even more meetings, which would usually be urgent, to decide on consent to treatment, the consequences for the tribunal system could be grave. Moreover, neither do I agree that it is necessary for the patient's ability to give informed consent to be decided by a multidisciplinary tribunal panel rather than by one doctor. It is indeed likely that in some cases repeated questioning, or an appearance before three people rather than an interview with just one, will only confuse and upset the patient.
It is part of day-to-day practice for psychiatrists to talk to patients and explain forms of treatment. The commission would he able, if it thought fit, to give guidance on the general issues involved in assessing a patient's competence, and to discuss decisions or principles with the psychiatrist who gave the second opinion. I appreciate the movers' concern that the principles involved in decisions on consent to treatment are not purely medical, but I do not think that these amendments are the right way to ensure that those wider principles are taken into account.
My final argument against this whole group of amendments is that the Mental Health Act Commission will do its job as a watchdog for detained patients a great deal better if it has responsibilities for consent to treatment. The Bill proposes that the commission will do three things. First, it will appoint the independent doctors to give second opinions. Secondly, it will publish advice and guidance on consent to treatment in the code of practice and, thirdly, it will visit hospitals to monitor the way in which the consent to treatment procedures work in practice.
These amendments have the direct effect of removing the first of those three functions: appointing independent doctors. They also effectively remove the third, as it would be inappropriate for the commission to monitor the way in which the tribunals carried out their responsibilities. If the amendments are accepted, the commission would be able to do only half a job as a watchdog; it would monitor the way in which powers of detention were used, but would be excluded

845
from the area we all agree to be so important, consent to treatment.
The tribunals have a role as a safeguard for patients against unnecessary detention. It is a very important one and it is working well at present. We are now proposing to introduce additional safeguards concerning the care and treatment of detained patients. I believe that we shall do a far better job for detained patients if the new safeguards are all the responsibility of the Mental Health Act Commission, rather than trying to split them between the tribunals and the commission. Therefore, subject to the points that I have agreed to take away and reconsider on Report, I hope that noble Lords will be prepared to withdraw their amendments. I know they regard it as of fundamental importance. So do I. I respect their aims; I cannot agree with their methods.
9.25 p.m.
Lord Hooson: I greatly appreciate the degree of care that the noble Lord, Lord Elton, has given to considering his reply in this important debate. As he spoke, I was reminded of some advice given to me by a wise old MP when I first went into the House of Commons. He said to me, "You should always seek to legislate as though that legislation was always going to be on the statute book, because some of the statutes on our statute book have been there since the 12th century, and have been used for very different purposes from those for which they were originally intended."
The Government will find it very difficult indeed to justify in retrospect the giving of such an important decision as this—the consent to treatment of a detained patient—simply to a second psychiatric opinion, with no independent voice in it whatsoever. Basically, the Government are making a grave mistake. May I come to some of the detail that the noble Lord has mentioned? I am grateful to him for indicating those parts of my drafting which have excited his interest, and possibly eventually his adoption of those words. But, nevertheless, as I made clear at the outset when moving these amendments, I regard these amendments as important as a whole, and he is as a whole rejecting them.
The noble Lord referred me to the White Paper of 1978, and quoted paragraph 623, where he said that that White Paper was in favour of a second opinion. He quoted a paragraph there, but did not come to the final words. I should like to read to him the final words at page 74:
"The form of the second opinion is discussed in paragraphs 628 and 629".
If he turns over to paragraphs 628 and 629, he will find that in those paragraphs the White Paper set out three possibilities. The third was a multidisciplinary panel especially established for the purpose.
Lord Elton: Would the noble Lord be kind enough to give way? Perhaps I should have saved my fire, but the Mental Health Act Commisison is a multidisciplinary panel. That is exactly where we are taking the opinion from.
Lord Hooson: With great respect to the noble Lord, he said that the White Paper had come down in
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favour of a seond medical opinion. They did not. If he looks at paragraph 628 he will see:
"There was a good deal of support for the multi-disciplinary panel on the grounds that this would add a new and important safeguard in relation to contentious treatments. Much but not all medical opinion was against the introduction of multidisciplinary panels, but it is hoped that in the light of the widespread support for them the medical profession will feel able to go along with this proposal".
It is clear which way they were recommending.
I am not going that far. I do not think that they should decide on treatment, or have a voice in deciding on treatment. But for the noble Lord to quote that paragraph 623, although I accept that he did it inadvertently, was entirely wrong. The noble Lord then referred me to the Butler Report and to page 49, and to the various suggestions there as to treatment that was necessary in an emergency. He will find that in my amendments I have dealt with each of the points in the Butler Report.
Let me remind the noble Lord of my Amendment No. 84. It says:
"("(7) Subsections (1), (2) and (4) above shall not apply to any treatment—

(a) which involves the minimum interference necessary to avert a clear and imminent risk of bodily injury or death to the patient himself or any other person; or

(b) which, pending the hearing of a reference to a Mental
Health Review Tribunal under subsection (2), is necessary to prevent a serious deterioration of the patient's condition.

provided always that such treatments as are given under this subsection are established treatments and are not irreversible.")".
Therefore, the noble Lord will find that the very paragraph he quoted, paragraph 354 at page 49, I have met in my amendements: I have met the very requirements which the Butler Committee suggested.
The noble Lord then said the matter had been discussed in the House of Lords because Sir Keith Joseph in another place referred to certain legal rights in 1973. The point I made was that in 1959, when the principal Act was going through this House and the other place, there was no suggestion that psychiatrists would be given the power to give treatment against consent. Although I said that it was not admissible in law to refer to debates to get the meaning of an Act—and a lawyer may advise later than an Act means something totally different from what the Houses of Parliament on passing it thought it meant—it is important for the purposes of this debate to appreciate that neither House suggested that psychiatrists would have that right or power. I am right, therefore, in the suggestion I made that the matter had not been canvassed by this House, and the fact that Sir Keith Joseph nearly 14 years later gave it as his opinion that he was in possession of a legal opinion that suggested that psychiatrists might have this right is a totally different point.
I cannot agree with the noble Lord either that discussion by independent psychiatrists with members of a commission is in any way the equivalent of having a decision arrived at by a medical tribunal. After all, one member is a doctor and undoubtedly, on a medical issue, is likely to have great influence on the tribunal. They will hear evidence from the responsible medical officer, who undoubtedly will carry a great deal of weight. The point I am concerned with in the long run is the safeguarding of liberty. We may be dealing with a small number of people, but the way in which we build in these safeguards is very important, and I know

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of no provision under our law where a person can be deprived of liberty, with no kind of appeal to a court or elsewhere, on the say-so of two doctors. What will happen here is that a patient will be able to be given what can amount to irreversible treatment if two doctors say he is incapable of giving consent.
I am asking the Government to build into the Bill—for their own sake as well as everybody else's—an independent element. I have sought to do it in the way I have described—at length, I am afraid, but it is vitally important that we get this right—and although the Minister has indicated that he intends to adopt certain of my wordings, and I am grateful for the crumbs, he has not begun to acknowledge the major principle which I have tried to introduce in my amendments. In those circumstances, I shall divide the Committee, on the understanding that it will indicate the view of your Lordships on the important principles I have adumbrated.
9.34 p.m.
On Question, Whether the said amendment (No. 75) shall be agreed to?
Their Lordships divided: Contents, 35; Not-Contents, 52.

DIVISION NO. 2

CONTENTS

Allen of Fallowfield, L.

Loudoun, C.

Aylestone, L.

Masham of Ilton, B.

Bishopston, L.

Mayhew, L.

Brockway, L.

Peart, L.

Byers, L.

Ponsonby of Shulbrede, L.

Chitnis, L.

Renton, L.

Craigmyle, L.

Robson of Kiddington, B.

Davies of Leek, L.

Rochester, L.

Elliot of Harwood, B.

Stedman, B.

Elwyn-Jones, L.

Stewart of Alvechurch, B.

Hampton, L.

Stewart of Fulham, L.

Hooson, L.

Stone, L.

Houghton of Sowerby, L.

Thurlow, L.

Kilmarnock, L.—[Teller.]

Tweeddale, M.

Kinloss, Ly.

Underhill, L.

Llewelyn-Davies of Hastoe, B.

Wigoder, L.—[Teller.]

Winstanley, L.

Lloyd of Kilgerran, L.

Winterbottom, L.

NOT-CONTENTS

Avon, E.

Hastings, L.

Beloff, L.

Henley, L.

Belstead, L.

Hornsby-Smith, B.

Boardman, L.

Howe, E.

Boyd-Caprenter, L.

Hunter of Newington, L.

Brougham and Vaux, L.

Hylton-Foster, B.

Campbell of Alloway, L.

Kemsley, V.

Cathcart, E.

Kitchener, E.

Coleraine, L.

Long, V.

Cullen of Ashbourne, L.

Lyell, L.

De La Warr, E.

Macleod of Borve, B.

Denham. L.—[Teller.]

Mansfield, E.

Drumalbyn, L.

Margadale, L.

Elles, B.

Marley, L.

Elton, L.

Mersey, V.

Faithfull, B.

Mottistone, L.

Gardner of Parkes, B.

Murton of Lindisfarne, L.

Glanusk, L.

Norfolk, D.

Greenway, L.

Norwich, Bp.

Gridley, L.

Platt of Writtle, B.

Hacking, L.

Richardson, L.

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Rodney, L.

Trenchard, V.

Sandford, L.

Trumpington, B.

Sandys, L.—[Teller.]

Vaux of Harrowden, L.

Sharples, B.

Vickers, B.

Skelmersdale, L.

Vivian, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.42 p.m.
[Amendments Nos. 76, 77 and 78A not moved.]
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I should draw the attention of your Lordships to the fact that if Amendment No. 79 should be agreed to it will not be possible to call Amendment No. 80.
Lord Hooson: It may assist the noble Lord if I say that I do not intend to move any amendment which stands in my name between that just called and Amendment No. 91A.
[Amendment No. 79 not moved.]
Baroness Faithfull Baroness Faithfull moved Amendment No. 80:
Page 27, line 32, leave out from ("that") to end of line 33 and insert ("after discussion with the patient's relatives, an approved social worker and other professionals working with the patient, he has concluded that the treatment should nevertheless be given.
Provided that in such cases any objections to the treatment of the patient or others consulted must be recorded.").
The noble Baroness said: I have obviously had a hint from the Chief Whip to be as brief as possible. This amendment is on a slightly different point from the last one. It deals with the question of early consultation. I believe that in taking a decision of such extreme importance as that which we have been talking about it is necessary, first, to have a interdisciplinary team; and in my amendment there is reference to such an interdisciplinary team. What is much more important, I think, is that the patient's relatives should be consulted. I think that is of the utmost importance.
Secondly, the recommendation I have made concerns people who know the patient and have been working with and for the patient. It concerns not only the doctor and the social workers, but other workers—the physiotherapist, the occupational therapist or whatever. Lastly, when a decision has finally been taken after the consultative process, that decision must be written down and recorded, so that later, when the patient is better, or if there is any trouble at all about the decision, it will be known that it was recorded at the time the decision was taken. I beg to move.
Lord Mottistone: I should like very briefly to say that I support strongly the principle of this amendment, and I hope very much that the Government will give it favourable consideration.
The Lord Bishop of Norwich: Because the loneliness of many patients is such a real part of their illness and this is an attempt, at least, to surround the patient with as much general support and encouragement as possible, I, too, should like to support this amendment.
Lord Sandys: I am going to disappoint not only my noble friend Lady Faithfull, but also my noble friend Lord Mottistone and the right reverend Prelate the Bishop of Norwich; because I am afraid that I am opposed to including this amendment in the Bill although I agree with my noble friend's intention in proposing the amendment. This is the sort of advice which the Mental Health Act Commission will, I have no doubt, include in the code of practice. It is difficult to make provision about the kind of consultation which would be involved in the precise terms required in a statute. I am sure noble Lords would agree with that. That would involve considerations of such matters as which relatives should be consulted and which professionals. And what about the views of unqualified staff, like ward orderlies, who may have close contact with the patient? The position is not quite as straightforward as may be thought at first sight. The code of practice will be able to give practical advice which will be much more helpful to those concerned than anything we, however well intentioned, attempt to enshrine in a statute, and I believe we should leave it to the commission. I am sure they will take note of this debate.
Baroness Faithfull: Before my noble friend sits down may I clarify a point? Do I understand that he supports the spirit of this amendment going into the code of practice?
Lord Sandys: Yes; I made that perfectly clear.
Baroness Faithfull: I thank my noble friend. With that assurance I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I wonder whether the noble Lord, Lord Hooson, could inform the Chair of which amendments he does not wish to move.
Lord Hooson: I do not propose to move any amendments standing in my name up to Amendment No. 91A inclusive.
[Amendments Nos. 81 to 91A not moved.]
Clause 38 agreed to.
The Deputy Chairman of Committees: The next amendment is Amendment No. 91B. I would point out that if this is agreed to it will not be possible to call Amendments Nos. 92 and 93.
Lord Winstanley Lord Winstanley moved Amendment No. 91B:
Page 29, line 1, leave out subsection (1) and insert—
("(1) The Secretary of State shall prepare, and from time to time revise, a code of practice for the guidance of medical practitioners and members of other professions concerned in the admission, detention or treatment of patients suffering from mental disorder and in particular of patients detained under the principal Act or this Act.").
The noble Lord said: This is a simple amendment which I think the noble Lord, Lord Elton, will probably agree does not make any dangerous inroads into the Bill as now drafted. I hope that after some explanation he will accept that this amendment improves the
850
Bill. If one looks at Clause 39(1), which this is designed to replace, it reads:
"The Secretary of State shall prepare, and from time to time revise, a code of practice for the guidance of medical practitioners and members of other professions concerned in the medical treatment of patients detained under the principal Act or this Act".
The amendment clearly extends this; so that instead of saying merely "and members of other professions concerned in the medical treatment", it says "members of the profession concerned in the admission, detention or treatment of patients"—which is wider and includes all the people whom I hope we would wish to include.
It widens the Act in another way. It provides this protection not just to detained patients but to all patients. And I think it right that it should. Instead of saying:
"medical treatment of patients detained under the principal Act or this Act",
the amendment would read:
"patients suffering from mental disorder and in particular of patients detained under the principal Act or this Act".
In other words, it extends it to voluntary patients as well. Surely the code of practice should apply to all patients and not merely to one section. This amendment—although maybe the wording is faulty somewhere—widens this particular subsection in a way which the noble Lord, Lord Elton, may consider helpful. I beg to move.
Lord Elton: I pause to see whether my noble friend Lady Faithfull wishes to speak in view of the fact that, if this amendment succeeds, hers falls. It would seem normal practice therefore to discuss them together.
Baroness Faithfull: I was going to see whether this amendment succeeded. If it did, I was going to withdraw my amendment.
Lord Elton: I do not think my noble friend will have that pleasure; but that remains to be seen. I hope to be a little more friendly than that dour first reply may have given the Committee reason to think.
This amendment—and also Amendments Nos. 92 and 93—would extend the coverage of the code of practice in two directions at once. I have a good deal of sympathy with one of the extensions—the suggestion that the code of practice should cover good practice in compulsory admission procedures and other matters concerning detention under this legislation, as well as the medical treatment of detained patients. I undertake, if these amendments are withdrawn, to introduce an amendment at Report to make that aspect clear.
I was careful to say "medical treatment" rather than "treatment"—the term which is used in these amendments. Medical treatment is defined in Section 147 of the 1959 Act to include nursing, and care and training under medical supervision. Clause 44 amends that definition so that it includes "care, habilitation and rehabilitation under medical supervision". "Medical treatment" is thus not just those things a doctor does himself—it encompasses the whole range of a patient's treatment whether carried out by a doctor or by other staff. Of course, we recognise that the care of patients in hospital includes providing them with a warm and caring environment, as well as a therapeutic setting, and

851
many different people are involved in this as well as doctors. But this is covered by "medical treatment" as defined in the Act and amended by the Bill. "Treatment", without the qualifying "medical", seems to me to be too vague in this context. The code of practice is to be about medical treatment, in the sense that it is defined in the Act and the Bill, and we should say so in this clause. I hope my noble friend Lady Faithfull will accept that as the Government's reply to Amendment No. 92.
The second extension would be that the code of practice had to be for the guidance of staff concerned in the admission and treatment of all mentally disordered patients, not just detained patients. I do not agree that that is the best way to help staff and benefit patients. There are particular problems, as shown in our previous debates, about giving medical treatment to detained patients. Clause 38 sets out legal procedures to be followed by responsible medical officers; but it will be extremely helpful to practitioners to have guidance on good practice in following those procedures. For example, I suggested in the debate on an earlier amendment moved by my noble friend that the code of practice could give guidance about the people that the independent doctor might need to talk to before deciding whether treatment should be given without the patient's consent. Clause 39(2) provides that the code of practice shall specify treatments which give rise to special concern and which should not be given to detained patients without their consent and a concurring second opinion. This consideration has been rendered more important—has it not?—by our decision on the previous group of amendments.
In all these ways the code will address itself to particular ethical and professional problems which arise in giving medical treatment to detained patients. As a result of the undertaking that I gave a moment ago, it will also cover good practice for all professions involved in compulsory admission and detention. It already promises to be a weighty document and I hope that noble Lords will be satisfied with that.
Baroness Masham of Ilton: Before the noble Lord sits down, as Amendment 94, to which I have already spoken, also includes physical medical review and a code of practice, will he please look at all the things I referred to previously and consider them along with the other matters?
Lord Elton: With pleasure.
Lord Winstanley: I would be misleading the noble Lord, which is the last thing I want to do at this late hour, if I told him I was entirely satisfied with the reply he has given, but I will study his reply carefully. I have some doubts about it, in particular regarding the definition of "medical treatment". I understand that the nursing profession are rather unhappy about the somewhat narrow way that definition is used and the way in which it is taken to embrace nursing, and they tend to feel that perhaps it should not. Nursing being a profession on its own, it has its own forms of treatment and it should not be just included in the general umbrella of "medical treatment". However, I will consider most carefully what the noble Lord has
852
said. I think it is possible that the clause which we seek to amend by this amendment could be improved. I have looked at the suggested improvements made by the noble Baroness and other thoughts which noble Lords have on this matter. Therefore, reserving the right to raise this matter on another occasion, I beg leave to withdraw the amendment.
Lord Elton: Before the noble Lord sits down, may I just refer him for his future consideration to Section 147, which is the interpretation section of the Act, so that we are clear what we mean when we talk about "medical treatment"?
Lord Winstanley: I am grateful for what the noble Lord has said.
Amendment, by leave, withdrawn.
Baroness Faithfull Baroness Faithfull had given Notice of her intention to move Amendment No. 92:
Page 29, line 4, leave out ("medical").
The noble Baroness said: Having listened to what my noble friend the Minister has said, I will take note and will not move Amendment No. 92 at this stage.
[Amendment No. 92 not moved.]
Baroness Faithfull Baroness Faithfull had given Notice of her intention to move Amendment No. 93:
Page 29, line 4, after ("patients") insert ("suffering from mental disorder and in particular patients").
The noble Baroness said: The same remarks apply to Amendment No. 93, but may I just ask my noble friend this question. Does a code of practice come out with the Bill? Shall we have it before we finish dealing with this Bill?
Lord Elton: Certainly not before we finish dealing with the Bill. As to the exact date, I would have to take advice. It is not the sort of thing one rushes into lightly. It involves some consultation. I shall have to write to the noble Baroness, or return to the matter on Report.
[Amendment No. 93 not moved.]
[Amendment No. 94 not moved.]
Clause 39 agreed to.
Lord Denham: I think this is probably a suitable moment to adjourn the Committee, and therefore I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.