§ 4.32 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Elton)
My Lords, I beg to move that this Bill be now read a third time.
§ Moved, that the Bill be now read a third time.—(Lord Elton.)
§ On Question, Bill read a third time.
§ Clause 19 [Applications in respect of patient subject to hospital order]:
Lord Kilmarnockmoved Amendment No. 1:
Page 12, line 24, leave out subsection (2).
§ The noble Lord said: My Lords, at this stage it is not desirable to go back at length over sections and topics already discussed, and it is not my intention to do so. On the other hand, it is our last chance to strike a blow for improvements which we still feel should be made, especially when the House has not yet had the opportunity to express an opinion on them. This amendment is designed to bring about such an improvement. Before going into details, may I thank the noble Lord, Lord Belstead, for the letter I received this morning in which he explained yet again the Government reasoning behind the package of measures which they have put together in order to comply, according to their lights, with the ruling of the European Court of Human Rights in the case of X v. United Kingdom.
§ It will be recalled that this package contained, and still contains, what I consider to be the undesirable and unnecessary ingredient of removing from unrestricted offender patients their present right to a tribunal hearing within the first six months of their detention. It is true that restricted offender patients are now to gain the right to a tribunal hearing within the second six months of their detention, but the Government have at the same time seen fit to shackle the unrestricted patients to their more dangerous restricted brethren, thus conferring something on one group by taking something away from another. They justify this on two grounds. First, that unrestricted patients have been sent to hospital by a court on the recommendation of two medical officers, and that that should debar them from an immediate review which would also be an affront to the dignity of the court that had committed them. In any scale of values acceptable in this country, the dignity of the court is of less consequence than the liberty of the subject. Furthermore, the existing system as applied to unrestricted patients seems to have worked very well for over 20 years. If it had not, then the Government presumably would have sought to amend it in the original drafting of this Bill. Therefore it is clear that the introduction of this came as an afterthought. They seem to have said to themselves that this was something 1395 they could slip in and pin on to the European Court. But it is not a necessary corollary of the European judgment, as I shall shortly strive to demonstrate.
§ The second reason advanced by the Government is that the European judgment requires of them complete consistency as to both groups of degrees of offender patients and as it would obviously be wrong to give restricted patients, guilty perhaps of serious crimes such as manslaughter or rape, the right to an immediate tribunal, the only thing they can do is to bundle the minor offenders in with the major ones and shove them both safely behind a six-months barrier.
In the first place, as I demonstrated at Report, it was no part of the submission to the European Court that total consistency should be achieved for all detained offender patients, and Mr. Gostin, who acted as counsel for X wrote only recently in a letter to The Times which I have already quoted at greater length:
I can find no basis for such a conclusion in any of the jurisprudence of the European Court or of the Convention".
In his letter of yesterday to me, the noble Lord, Lord Belstead, thinks that he has found such a basis in Article 14 of the convention, which provides that:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status'.
It is the last two words, "other status", that the noble Lord relies upon; but I should have thought it peculiarly difficult to stretch this list of predominantly inherent characteristics to cover the temporary status of criminality. The noble Lord is always ingenious, but I think he is stretching this point too far.
§ Next, my Lords, the Government on their present course would in any case be making a distinction between Section 26 patients (who would retain their right to a tribunal in the first six months of their detention) and the unrestricted offenders who, as the Bill stands, are to lose this right by the Government's proposed amendment to Section 63(4) of the principal Act. So it is not possible for them to argue that total consistency is their aim. The Government might of course say that all offenders belong in one category regardless of the gravity of their offence and all other compulsorily detained patients belong in another But, if that is their case, I would argue that they have got the categories wrong.
§ I was very interested to discover from a highly reliable source in close touch with the workings of the tribunals that the normal policy under the principal Act has been to regard ordinary hospital-order patients for all practical purposes as identical with those admitted under Section 26. The reason, presumably, is that they show very much the same characteristics as those compulsorily admitted on the recommendation of two doctors under Section 26.
§ It therefore seems quite wrong to me that they should be summarily brigaded together with the more dangerous types of offender whose difference and potential threat to the community is recognised precisely by the placing on them of a restriction order. The noble Lord may say that he has gone some way to meet my points by the amendment moved at Report and now incorporated in the Bill as subsection (3) of this 1396 clause. What subsection (3) does is to restore the entitlement to an application within six months to patients transferred from prison and of restricted patients whose restriction order has for some reason come to an end. Why, then, can they not do the same for the unrestricted patients who are unlikely to present any more of a threat than the two sub-groups to which this grace and favour has already been extended?
I turn finally to the mechanics of the matter. The mechanism chosen by the Government to downgrade the rights of unrestricted patients has been to remove from Section 63(4) of the principal Act the words:
admitted to a hospital in pursuance of a hospital order".
But this is totally superfluous to the provisions to give restricted patients their new right to apply in the second six months and to be discharged where appropriate by a tribunal without reference to the Home Secretary, all of which is brought about by the amendments in this Bill to Sections 43 and 66 of the principal Act. I therefore urge that this measure, which goes against the whole reforming spirit of this piece of legislation, be taken out of the Bill. I beg to move.
§ Lord Belstead
My Lords, I should like to congratulate the noble Lord, Lord Kilmarnock, on the persistence with which he has moved an amendment which we have in essence discussed twice before and which the noble Lord put down in identical terms at the previous stage of the Bill. For that reason, my congratulations have to be tinged with a note of regret, because, under the circumstances, there is not anything very new that I can say. It is important that I should say something because the noble Lord has deployed arguments against a move which the Government in some ways regret because it appears at first sight that it is a withdrawal of a right. In fact, we have injected another right alongside it.
If I may therefore immediately come to the point, the noble Lord—a little to my surprise—in having a choice, has not proposed that all offender patients, both restricted and non-restricted, should have the right to apply to a tribunal within the first six months of their detention in hospital. I thought that the noble Lord might do that, and say, "All right, let us have them all with a right of applying to a tribunal in the first six months". But the noble Lord has not done that. He has proposed instead that non-restricted offender patients should be able to apply to a tribunal at an earlier stage than offender patients.
For that reason, what I have to do is concentrate on the reason why the Government do not think that it is permissible to distinguish between the two classes of offender patients in this way. In short, the Government believe that to make such a distinction in the light of the European Court's judgment in the case of X v. United Kingdom would expose us to a real risk of being found in further breach of the European Convention on Human Rights. I hope it is not tedious if very briefly I explain the reason why.
As a result of the court's judgment in that case, we now know that all detained patients, including offender patients, must have a right of periodic access to a court, and of course the European Court did not specify what type of court it was to be. It must be a body capable of ordering the discharge of those patients if 1397 their mental disorder—and I emphasise that phrase—no longer warrants detention in hospital. That is the central issue to which the mental health review tribunal's attention is to be directed. The Government have chosen—and your Lordships' House has approved—that the mental health tribunals shall be the court which the European Court says must have this function.
The mental health review tribunals have to direct their attention to this matter: namely, whether the mental disorder of the patient no longer warrants detention in hospital. That is the primary question, just as it is the primary question on which a court is required to satisfy itself when it has convicted an offender if it wishes to make a hospital order. But the question whether a restriction order should also be imposed really is a separate issue for the sentencing court, one which the court has to answer by reference to questions which are quite distinct from the offender's mental state as such. What the court is required to consider under Section 65 of the 1959 Act is whether the public requires particular protection by reason of the nature of the offence, the antecedents of the offender or the risk of further offences.
The nature and extent of the mental disorder which is present may be no different as between a restricted and a non-restricted offender patient. It is therefore the Government's view that to give an earlier entitlement to a review of that disorder to an unrestricted offender patient than that provided for those who are restricted, could be held to constitute unjustifiable discrimination in the terms of Article 14 of the convention. I shall not repeat Article 14 because the noble Lord has read it out. What I want to add is that I felt from the noble Lord's speech that he considered that the Government had some particular axe to grind in this matter; that this is something that we particularly wanted to do. That is not the case. We are not looking to take away any rights in this Bill. I hope that the general nature of the Bill which my noble friend Lord Elton has placed before the House is sufficient evidence of that.
What we are concerned to ensure in this part of the Bill is that, in seeking to amend legislation to make it "Strasbourg-proof", to do a thorough job, we shall have done a job which will not land us in the position where we find later on that we are once again inadvertently in breach of the convention. If the Government were convinced that our interpretation of Article 14 of the convention was wrong, I assure the noble Lord that we would readily think again. But we are not convinced of that, and it is because we are not convinced that we feel that we have no other alternative but to word the Bill in the way which we have rather than in the way to which the noble Lord's amendment is directed, because, if we do not, we think that we should be found on a subsequent occasion to be in breach of the European Convention, and that is the last thing that we would want after the passage of this Bill.
§ Lord Kilmarnock
My Lords, I am grateful to the noble Lord for the care and thought with which he has replied, as he always does. It seems to be a case in which we shall have to agree to differ. The noble Lord's view is that the European Convention made it incumbent upon the Government to behave in this 1398 way, whereas other opinions which I have brought forward think differently.
My difficulty about this matter is that, if the Government think that the existing state of the law was previously wrong, then that is a view to which they are perfectly entitled. I should have thought that they could have introduced a change in the law when they first brought the Bill before Parliament. As they produced this change at a later stage in conjunction with their European proposals, it seems to me that they have rather dragged it in on the coat-tails, so to speak, of the European proposals.
I do not propose to divide the House on this matter; but I thought that it was worth airing again. I hope very much that it will be looked at very carefully when the Bill moves to its first stage in another place. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.48 p.m.
Lord Kilmarnockmoved Amendment No. 2:
After Clause 36 insert the following new clause:
§ ("Powers of tribunals to give directions
§ —(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under the principal 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.
§ (2) 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: My Lords, I wonder whether I shall be able to persuade the Government to agree with me on this amendment. At the risk of repetition, I shall very briefly go over the background to this amendment which I explained at some length at Committee stage. In essence, it seeks to correct the anomaly whereby the Mental Health Act tribunals will have power to order the conditional discharge of patients under restriction orders but are not so empowered in the case of unrestricted offenders. Not only is this an affront to logic but it also hampers the work of tribunals. With a restricted patient, the tribunal has four options open to it. It can continue to detain the patient in the same hospital; it can continue to detain the patient elsewhere; it can discharge the patient upon certain conditions; or it can discharge him unconditionally. With unrestricted patients, it is itself restricted to the first and last of these four choices. Choices 2 and 3 might be preferable and more appropriate in some cases but are not available.
§ This all-or-nothing option for tribunals with unre- 1399 stricted patients is possibly the most serious weakness of the present system. At Committee stage, in column 784, the noble Lord, Lord Sandys, who replied for the Government, acknowledged that it would be helpful for tribunals to have a wider range of options. He then went on to talk about a proposed revision of the rules which would allow tribunals to recommend, but not to order, leave of absence and transfer to another hospital. He finally said he did not think that there was any need for a power to direct or recommend conditional discharge, except for restricted patients.
I must say that he did not convince me. Furthermore, I am now advised on good authority that the noble Lord was mistaken in believing that the final part of my almost identical amendment was defective in—and I quote from him, again at column 784—
…assuming wrongly that detention under the Mental Health Act 1959 is for a fixed period".
In practice it is true that most restricted patients are detained without limit under Section 65(1) of the principal Act. However, that is never the case with unrestricted patients or non-offender patients, the duration of whose detention is governed by Section 43 of the principal Act.
§ The noble Lord, Lord Sandys, also went on to say that the recommendation of tribunals for transfer from one hospital to another or leave of absence could not from a practical point of view be allowed to become directions, even though he acknowledged that the recommendations were not always implemented. His solution to that was to suggest that if the tribunal's recommendations were not implemented within a certain period, say, three months, then the tribunal should be reconvened. The comments I have received from a practised tribunal member are, first, that three months is too long a period to wait, and, secondly, that if the recommendation is ignored on the first occasion, what is to prevent its being ignored on the second occasion after the tribunal has been reconvened?
§ I welcome, of course, the power to direct a delayed discharge which is now provided for in Clause 36(3) of this Bill, but I do not think it goes far enough. The Government's intention to strengthen the membership of tribunals by the appointment of judges, recorders or persons of similar legal standing as chairmen, is an added reason why such tribunals should be given statutorily the additional scope they require to perform their functions with the greatest possible sensitivity and efficacy.
§ Finally, I would repeat that it is illogical that tribunals should be given the right to impose conditions when discharging restricted patients but are denied that right when dealing with unrestricted patients, who are less dangerous to the public at large. I beg to move.
§ Lord Elton
My Lords, the noble Lord, Lord Kilmarnock, did indeed move a very similar amendment in Committee, and I gave him a full reply then to the point he was making. He returned to the issue in a slightly different guise at Report stage, and I gave him a reply then.
To summarise, what I explained to your Lordships on these earlier occasions was that the amendment is in the main unnecessary and in part undesirable. We fully 1400 recognise that tribunals should have a range of options open to them in considering any case. That is why we propose to revise the rules of procedure for mental health review tribunals, which are made by my noble and learned friend the Lord Chancellor, so as to allow the tribunal to recommend leave of absence, transfer to another hospital or transfer to guardianship. That will cover most of the noble Lord's amendment.
The rest of his amendment is concerned with conditional discharge. Conditional discharge is already available for restricted patients. They are detained under Sections 60, 72 or 73 of the 1959 Act and are subject to the restrictions placed upon them by the courts or by my right honourable friend the Home Secretary. The noble Lord's amendment appears to seek to provide conditional discharge not only for them but for all patients. The intention of this Bill is to increase the rights and liberties of patients. The effect of the noble Lord's amendment would be to reduce them. For the first time, as a new and reforming measure, it proposes that the unrestricted patient who walks out of the hospital gates on discharge shall be subject to recall. He would be walking into a freedom made illusory by the noble Lord's amendment. Of course it can be argued that some few patients might be discharged earlier, as a result of the tribunal's knowledge that theirs was only a partial freedom from which they could be recalled, to this partial freedom than would otherwise have been the case.
But given that very narrow advantage, we do need to ensure that it is secured by a measure that really will work: and in this I am sorry to say the noble Lord's amendment is sadly reticent. It is reticent, indeed, to the point of being defective. It gives the tribunal a power to impose conditions, but there is no requirement that anyone at all shall see that they are acted upon. The tribunal will not: it is neither equipped nor required to. And there is no indication who else is to do it.
My Lords, if the patient was restricted, of course, there would be no problem because the matter would already be in the hands of the Home Office and supervision could be undertaken by the probation and after-care service. But that is already done under existing legislation. What is now proposed is to extend conditional discharge to unrestricted patients for whom the Home Office has no responsibility and, indeed, in whom it has no interest. Supervision will not be by the Home Office, and it cannot be by the tribunal; and the fact is that the conditions could be broken at will. But that is not the end of the matter. Where the conditions are not met, the defaulting patient will presumably be recalled to detention. But by whom? We do not know, my Lords: the amendment is silent. Unless he returns voluntarily, which one cannot always expect to be the case, whence he came, therefore, he will not return at all.
Finally, there are doubts arising from the drafting of the amendment as to exactly when the patient would be free of the conditions, and these might have to be resolved by the courts. I do not want to make too much of them, but the noble Lord himself referred to the question as to whether or not detention was for a limited term, and that depends very much on an interpretation of the statute. I hope I have already shown that the amendment is not only defective in 1401 important respects, but that it is also misdirected, and a number of patients would be cheated of the liberty which your Lordships so justly wish to secure to them by this Bill.
§ Lord Kilmarnock
My Lords, I am grateful for that reply by the noble Lord. I am certainly not going to cross swords with him as regards the technical deficiency in the wording of the amendment. However, although it is certainly improper to quote oneself at an earlier stage, I will, if I may, paraphrase what I said at Committee stage which was to the following effect. There is certainly no intention he[...]e to interfere with or reduce the rights of any patient. The point which has been made by certain people who sit on tribunals is that if they are given only the choice of ordering an unconditional discharge or continuing to detain the patient, if there is an element of doubt they will continue to detain the patient, for lack of any other intermediate alternative.
The amendment, defective or otherwise, would have provided this intermediate alternative and it seems to me to be a desirable step in the way of giving greater flexibility in the working of the tribunals. Again, I do not propose to divide the House on this issue, but I hope very much that our proceedings here will be react and that this matter may well be brought up again in another place. I beg leave to withdraw the amendment.
Lord Kilmarnockmoved Amendment No. 2:
After Clause 36 insert the following new clause:
§ Amendment, by leave, withdrawn.
§ 4.58 p.m.
§ Baroness Masham of Iltonmoved Amendment No. 3:
§ Before Clause 39, insert the following new clause:
§ (" After-care.
§ .—(1) This section applies to persons who, having been detained under section 26 of the principal Act, or having been admitted to a hospital in pursuance of a hospital order made under section 60 of the principal Act, ceased to be detained and leave hospital.
§ (2) It shall be the duty of the District Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies.
§ (3) The duty laid down by subsection (2) above shall continue until the District Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services.
§ (4) In this section "the District Health Authority" means the District Health Authority for the District, and "the local social services authority" means the local social services authority for the area, in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.").
§ The noble Baroness said: My Lords, in moving this amendment, which is similar to the one I moved on Report stage in your Lordships' House, I should like to say I am sorry that some noble Lords were disappointed that I did not divide the House at that stage, because they told me they very much wanted to support the amendment and they are not able to be here today to register their approval. After listening to the noble Lord, Lord Elton, for whom I have the greatest regard, I wanted to go back and recheck all the facts I had checked before. I also thought, after the noble Baroness, Lady Faithfull, had moved her amendment, which included voluntary bodies, that I could improve my amendment. I also found it was necessary to add a few words which were needed because of sex offenders. 1402 I would never bring before your Lordships' House an amendment which I did not think was necessary. I feel that this amendment is of the utmost importance. For the benefit of noble Lords who were not here at the Report stage, I will do my best to explain the amendment and why it is necessary.
§ Before the Second Reading, I was giving a lecture on physical disability at the Brook Hospital in South-East London. There was also a professor of psychiatry doing likewise on the mentally ill. Afterwards, we discussed this Bill. He said that the greatest need was to include some positive after-care for these often very difficult, and always unfortunate, patients who come under this Bill. I mentioned this fact at Second Reading. Just before Christmas, I met a woman whose son is a patient detained in Rampton. She was, without doubt, the saddest person I have ever met, racked with remorse and guilt. It is not only the patients who need support, but often also their families. When I was 19, a friend and I were staying together in a house. On several occasions we were frightened, but on one particular day we were faced by a schizophrenic man who approached us with a carving knife. One does not forget such incidents.
§ I was surprised when I found that there was no statutory obligation to provide after-care for patients who have been detained in mental hospitals under Sections 26 and 60. Patients detained under Section 26 suffer severe mental illness, mental impairment or psychopathic disorder. Patients detained under Section 60 are mentally ill patients with a criminal record, who are sent to mental hospitals by the courts. The more secure the hospital, the more rehabilitation and adjustment is needed to help the patient back into the community. Many of these patients are in very secure hospitals for a long time. Society changes very fast these days, especially with inflation.
§ The existing legislation states that they may receive after-care. My amendment states that it shall be the duty of the district health authority and of the local social services authority to provide after-care in co-operation with relevant voluntary agencies, which can do so much to help. The decision on how much after-care and for how long is left to the discretion of the authorities. The duty will be on the district health authority for the district, and the local social services authority for the area in which the person concerned is resident, or to which he is sent on discharge by the hospital in which he was detained.
§ I added that to this new amendment, because very often sex offenders are sent to a different area from that of their original home. This will, I hope, stop any opting out of responsibility from a district or an authority. There is a difference in legislation which says "may" and that which says "shall" and, with all respect to the Secretaries of State, I do not think that their directions over the years have been very clear or positive in the matter of the provision of after-care for mentally ill patients when they are discharged from hospital.
§ After the debate on Report on this matter, I telephoned someone I know who works in the Home Office to check on Section 60 patients. I was told that there was no statutory obligation to provide after-care. I spoke to a hospital administrator in Northumberland, who thought it would be a good idea 1403 to have a mandatory power for after-care for both sections. When I went home on Friday, I telephoned one of the forensic psychiatrists who had been one of the people who had alerted me in the first place to this need. He told me that if patients who were sent by a magistrates' court to hospital did not cooperate and accept treatment, they were sometimes discharged back into the community without a statutory duty of after-care. The hospital could do nothing for them.
§ He also told me that when writing reports on patients for review tribunals it was sometimes impossible to recommend their discharge, much as he would like to do it, as he could not be sure that there would be after-care on their release. They might have to stay in hospital for an indefinite period. I think it is time that a serious look was taken into all the provisions.
§ I then spoke to the governor of one of our most important prisons. He told me that one-third of his inmates had a psychiatric condition. Had some of them had better after-care after hospital treatment they might not be blocking up our prisons today. I also spoke to the director of social services for one of the biggest authorities in the country. He was pleased that I had put down this amendment. He feels it is vital that the social services and the health districts work closely together, sharing the problems and each caring for the appropriate needs of patients or clients.
§ He told me, without hesitation, that an obligation should be placed on the authorities concerned, but at present he is not aware of one. Apart from helping the patients and their families and protecting the public, this amendment could, if it becomes law, help the social service departments by giving them some extra teeth to get a better bite of the financial cherry, when they are competing for funds with other local authority departments.
§ I serve on a regional health authority. One of our increasing pressures is on beds for psycho-geriatric patients. This situation looks as if it will get worse. Very often, pressure on beds means that more patients get an early discharge. Some of the patients under Sections 26 and 60, about whom we are talking in this amendment, may be dangerous. With no statutory after-care, the public attitude to mentally ill patients could become hostile if pressures on hospitals become too great. Is not one of the duties of your Lordships' House to try to improve legislation? It seems that the legislation dealing with mentally ill patients has become blurred over the years; certainly to the people at ground level who are trying to administer and work it. As one of the directors of social services said to me, people do not remember what is what, as everything is so spread around.
§ It seems to me that it is now time to restate what should be in the statute. The present legislation, dealing with after-care for these problem patients, is unconsolidated and non-obligatory. There are many differences of opinion among these people who are trying to work this Cinderella service for the mentally ill. This Bill, which many of your Lordships have said is a good Bill, is at present without a clause on after-care. There may not be more legislation for many years. 1404 This amendment, if passed by your Lordships, may be the only means of enabling Members of another place to have an opportunity of discussing after-care. There is so much pressure on their time. I hope that the Minister will accept this amendment, but, if not, I hope that your Lordships will vote for it. After all, it is Members of Parliament who have to face angry constituents when there is a rape or some unfortunate incident in their constituency. My Lords, I beg to move.
Lord Wallace of Coslany
My Lords, I rise strongly to support the amendment of the noble Baroness, Lady Masham. I am very pleased that she has introduced the proposed use of voluntary agencies, which I feel will greatly strengthen after-care facilities. The noble Baroness has stressed that the present powers relating to the provision of after-care are permissive. This leaves the way open for reluctant authorities to drag their feet. The fact is that some local authorities and some sections of the community fear that the provision of after-care facilities for former mental patients will downgrade their so-called socially respectable residential areas. Some claim that it would reduce the value of their properties. I am strongly opposed to such materialistic and snobbish attitudes, but they do exist.
May I give the House an example of what I mean? It is not, strictly speaking, an example of after-care but it is closely related to the spirit of the amendment. I refer—no doubt the Minister is au fait with it—to the Darenth Park project. I know Darenth Park Hospital very well indeed. The regional health authority has a scheme to move patients into desirable buildings. I have here the regional health authority's bulletin which shows a picture of a beautiful house in Blackheath where such people are residents. This scheme included a plan for a small hostel for mentally handicapped people at Bexleyheath, but it has been turned down by the borough planning committee. Many people living near the proposed site, which also houses the offices of the Bexley health authority (in the grounds of a former maternity home which unfortunately is now closed) have objected to the plan. This action prompted a local newspaper to headline the story, "Handicapped not wanted here".
I will give the House the details of this scheme because it is very closely related to what the noble Baroness and many of us are after. I quote from the regional health authority's bulletin, No. 8, on the Darenth Park Scheme:The hostel proposed for Bexleyheath has been designed to provide better care for mentally handicapped people from the London Borough of Bexley. If the scheme can eventually go ahead, the hostel would become home for 24 mentally handicapped men and women. The residents would not be seriously handicapped but trained staff would be on duty 24 hours a day to provide help and support wherever necessary. At present most mentally handicapped people from Bexley are cared for at Darenth Park Hospital. The hostel would mean that they could live nearer to their friends and families. Most of the men and women, because their handicaps are mild, would go out to local authority adult training centres, sheltered workshops, social centres or ordinary jobs. The progress of the residents would be assessed regularly by the staff and by a team of specialist workers from the health service and the local authority. It is hoped that some residents, after staying in the hostel for a while, would be able to return and live and work in the community. It is also hoped that the hostel would provide places where mentally 1405 handicapped people cared for at home could go when relatives needed a short break or a holiday. For mentally handicapped people to reach their full potential it is vital that they live in the community near their families and friends and within easy reach of public transport and shops".I have quoted directly from this bulletin because, although I agree that this is a question of planning permission, it points to the attitude of local authorities and some sections of the community. I humbly submit that this story strengthens in many ways the case put forward by the noble Baroness. The scheme is close to the after-care principle. Unless statutory powers are introduced to cover the vital issue of after-care for mental patients which has been mentioned by the noble Baroness, no real progress will be made. Prejudice and self-interest must be overcome. Unfortunately, a great deal of this prejudice and self-interest is to be found within local authorities. I remember that many years ago, when I was a member of the Chislehurst urban council, the Salvation Army had a scheme to use a house in Chislehurst as a home for backward girls to whom they were going to give greater care. This was turned down simply because it was not the sort of thing that they liked to have in the locality. That put up my blood pressure. This attitude of mind does exist, and that is the reason why it is essential for compulsory powers to be included in the Bill to cover the extremely desirable objective so eloquently put forward by the noble Baroness.
§ Baroness Trumpington
My Lords, I rise to support the noble Baroness. I do so because it is nice to know where your friends are! I would take issue with the noble Lord, Lord Wallace of Coslany. I do not believe that people who do not want mentally handicapped people to live in their area are snobbish. This is due to fear: people are not used to the mentally handicapped. Where this has been tried successfully, as in Cambridge, the fear has disappeared and those places have become a success. Therefore, although I support the noble Baroness, I wish to put forward a different point of view from that put forward by the noble Lord, Lord Wallace of Coslany.
§ Lord Hunter of Newington
My Lords, I rise to support the noble Baroness because I believe that after-care services are absolutely necessary, not just desirable. The Government have spent £45 million on secure units. The House has spent many hours upon considering those people who find themselves in secure units. Not to complete the job by securing after-care for them when they leave this very strange environment of the secure unit would mean that we had failed in our duty.
§ 5.17 p.m.
My Lords, like the noble Baroness, Lady Masham of Ilton, I see no point in repeating speeches on this subject which I have made before. By prolonging the debate I should not be greatly assisting the noble Baroness. I would merely say, at this eleventh hour of our discussion of this matter, that, as a result of all my discussions—and I have had many with noble Lords and noble Baronesses—I do not believe there is a single noble Lord or noble Baroness in your Lordships' House who does not believe it to be imperative that adequate after-care services should 1406 be provided in the community for the care and support of the mentally ill when they are discharged from our mental hospitals. I believe also that there is now universal understanding of the fact that, if we do not provide these after-care services, the money which we have spent upon rehabilitating these people in our hospitals and institutions will just be money poured down the drain. Many of them will relapse and have to go back. Others may have to stay in hospital longer than they would otherwise do, at great public expense.
This Bill does not come into force until September 1983. Many will say that already there is a requirement for local authorities to provide after-care services. Indeed, in reply to an earlier debate introduced by the noble Earl, Lord Longford, the noble Lord, Lord Cullen of Ashbourne, appeared to suggest that the provision of after-care services is mandatory. I am not at all sure about that point, but I do know that the Secretary of State has a statutory power to instruct local authorities to provide these services.
I do not mind how this is done. All I hope is that it will be done before September 1983, whether by virtue of the amendment moved by the noble Baroness or by the Secretary of State now using the power which he possesses to instruct those local authorities which do not provide these services to provide them. I think that the noble Baroness has done a great service, not just to this House but to the mentally ill and to their families, by raising this matter not once but again.
Finally, the noble Lord, Lord Hunter of Newington, is vastly experienced in these professional matters. As the noble Lord, Lord Elton, will know, he has had the responsibility of advising the Government professionally on a number of medical matters. In the past, Government have been anxious to accept his advice and, if they will accept his advice on this point, they will do us all a service.
§ Lord Redcliffe-Maud
My Lords, may I put in a word of very strong support for what has been proposed by the noble Baroness, Lady Masham of Ilton. I know that there is power in both the local authority and in the National Health Service to see that what we all want to happen does happen, but I am satisfied myself that, realistically speaking, with local authorities so cut back and restricted in their ability to raise money for proposals more politically viable than the health of the mentally defective and mentally ill, they are not going to do what is wanted unless there is a very clear instruction from Parliament that there must be collaboration between them, the National Health Service and voluntary organisations. That seems to be the essence of the proposals made by the noble Baroness, Lady Masham of Ilton.
I understand that powers already exist, and I personally do not believe in direction from central Government on local authorities. What we all hope for is that in the end, there will be better co-operation between the National Health Service on the one hand and local authority social services on the other. With the changes which are happening in the National Health Service in the dissolution of the regional level and the concentration on the district, it is important that there should be no doubt at all, in new legislation 1407 on the subject which concerns us this evening, who we are talking about. It is the district that will be that part of the National Health Service concerned with this matter. On the local authority side, metropolitan areas differ from the shires. But, here again, the social services department is clearly that part of the local services that somehow has to work out ways of collaborating with the National Health Service so that discharged persons can be looked after.
It is particularly important that voluntary agencies should be mentioned, because I know we are all agreed that in so many cases, voluntary agencies can do and are doing a still more subtle job in this very difficult business of trying to help people who, thank God, have been released from hospital at last to start life in the community, with the community supporting them. I hope very much that the Government have been able to have second thoughts about this since we last discussed the matter. If they have not, I personally think that the noble Baroness is right to ask the House to divide.
§ The Earl of Longford
My Lords, I speak now as an individual and not as chairman of a committee that was set up under my chairmanship following the debate on this subject which I initiated last year. I am proud to think that already three members of the committee have given their advice to your Lordships, and I am sure that it is advice which ought to be followed. In each case those noble Lords, like myself, support very strongly the amendment in the name of the noble Baroness, Lady Masham of Ilton. I am glad too that this is a matter on which my Party Leader of the day is giving a lead, which one is always pleased to follow.
What has already been said covers the ground and there is no need for me to add very much. When opening the debate last year, I said that in effect the after-care arrangements in this country were scandalously inadequate. A year later, they are no better, and I know rather more about this matter than I did then. If we start from that position, that there has been this scandalous neglect of the after-care services, we must look for an explanation. We may consider that it is in some way the fault of the local authorities. I am bound to admit, as I pointed out last year, that there is an enormous variety in the provisions provided by local authorities. Some are fairly good, but some are shocking, and that position is utterly unsatisfactory. It may, of course, be said that it is not their fault. In that case, one must look for some other culprit, and, while I am not trying to make the noble Lord, Lord Elton, personally responsible, one has to cite failure on the part of Governments, and not only those of the present persuasion. I do what other speakers have done, and support the noble Baroness, Lady Masham of Ilton, very strongly.
§ Baroness Faithfull
My Lords, I do, of course, support the spirit of the amendment. The last time we met, I myself moved an amendment for after-care, and therefore I support the spirit of the amendment moved by the noble Baroness. What I am not so sure of is arriving at how this amendment is to be implemented. I am most grateful to my noble friend the Minister for sending me a number of Acts of Parliament since the last debate, so that I could study them. Reading the various Acts of 1408 Parliament, I have come to the conclusion since the last debate that it is bad practice rather than bad law which is the problem today. The noble Baroness, Lady Masham of Ilton, said there should be consolidation of the law. I have listed no fewer than five Acts of Parliament and one circular whereby after-care can be carried out. The noble Baroness herself must have seen these to have recommended that there should be consolidation.
As I read the law, there is a statutory obligation to provide the various services which the noble Baroness so eloquently outlined. What is extraordinary is that the law does not say specifically who these services are for. I submit, therefore, that it is possible for local authorities to opt out, because it is possible for them to say, "We do not have in our area this type of person with whom we must deal". It is quite obvious that there must be local authorities who realise that there is an obligation. I believe that the noble Lord, Lord Avebury, said that out of 126 local authorities, 43 were not giving a service. That means that the others are giving a service. There seems to be a flaw in the circular that was issued in March 1974, as to exactly who should receive this service. I am with the noble Baroness, that it should be made clear, either by direction or by circular, for whom these services should be provided. But as I read the Acts—and there are several—and the circular, there is a statutory obligation to provide the services.
I suggest, that from the point of view of the Department of Health and Social Security, there needs to be more pressure and explicit guidance on the whole question of community services, based on the Green Paper which was published and on the relationship between the health and social services. To that extent, I agree also with the noble Lord, Lord Redcliffe-Maud, that our health services should bear responsibility. While I agree with the spirit of this amendment, I cannot agree with the amendment from a legal point of view. But I do ask the noble Lord, the Minister to say when he replies whether there is any possibility of bringing up to date the circular to make it quite clear for whom the mandatory services are intended and to let local authorities know where their duties lie.
§ Lord Kilmarnock
My Lords, as the noble Baroness, Lady Masham of Ilton, has been collecting voices from all sides of the House, I should like to pledge our voice from this Bench also. From the debate, it does seem to me that there is considerable doubt over whether correct powers do exist in the correct place. I myself do not consider that circulars or guidelines are really sufficient in dealing with this very important matter. I hope that, if the noble Baroness decides to divide the House, your Lordships will support her.
§ Baroness Macleod of Borve
My Lords, I would like to support the line that my noble friend Lady Faithfull has taken. I, of course, support, as other noble Lords do, the idea that there must be after-care, but my noble friend the Minister did tell us in categorical terms at the previous stage that there is a provision in the five Acts for after-care. Therefore, I do not at this time think it is necessary to dot all these i's and cross all these t's once again. 1409 I do have knowledge of the way that after-care, according to the Acts, is already implemented. I have a different approach perhaps from that of my noble friend Lady Faithfull. I happen to be the national chairman of 1,186 leagues of hospital friends. This is a vast organisation of voluntary people to whom my noble friend Lord Redcliffe-Maud (if I may call him so) spoke. The leagues of hospital friends help in every way they possibly can to get patients out of hospital when the medical profession say that they are fit to leave. They also help to look after them within the community.
The way in which most of the leagues which are attached to psychiatric hospitals operate is this. The medical people, in consultation with the nursing staff, will take about six people of both sexes who they think might possibly live together in the community; they put them in a flat which we provide within the hospital grounds. They are all sufficiently well to be able to go out to work, except one who is organising the flat; she does the housework and organises the general routine of the flat for the six people. These people live in this house for about six months. After the six months, if they are compatible and if the league of friends people and the welfare workers outside know that they are compatible, they are moved to a home of their own which is provided at a peppercorn rent by one of the local authorities in the catchment area of that hospital. This is a very big undertaking.
I would perhaps slightly disagree with the noble Lord, Lord Wallace of Coslany, when he says that 24 people in a hostel is the right way to do it. I would question that, because for one of my hospitals I have at least eight houses, homes, where these people live; they have their own latchkey, they go out to work, and to all intents and purposes they live a normal life.
The Acts to which my noble friend has referred are being implemented. My voluntary people could not do it without the welfare officers of the local authority; they co-operate too. They have done so and are doing so in ever increasing numbers. The numbers of voluntary people in this country who are now helping those people who have perhaps been less fortunate than themselves and have been in psychiatric hospitals, are increasing, not day to day or week to week but certainly by the month. I would like your Lordships to know that we have formed a housing association for each particular psychiatric hospital. This, in my opinion, is the way that we can help them, and it is within my knowledge that this is the way we are helping them. personally I think there is no need for this amendment.
§ Lord Thurlow
My Lords, I think your Lordships will agree that this is a modest amendment in so far as it deals with only the tip of a vast iceberg of social problems of after-care. It is concerned only with the narrow point of the after-care of detained patients. This Bill and your Lordships' discussions on previous stages have been much concerned with rights, with matters of consent and with standards. But there has been no provision in the Bill dealing with the whole of the great subject of after-care, which is perhaps the biggest single field of the problem of therapy.
I am reminded of the story of the Eastern sage who was found by his neighbours one night looking for a lost key under the lamp post outside his house. His 1410 neighbours came and helped him, and eventually said, "Are you sure you lost the key here?" And the sage replied, "Oh, no; I lost it in the house, but it is a much better light for looking here"! The light of public interest has fallen on the field of rights and standards and has not fallen on this great social problem of after-care. The amendment the noble Baroness and I have put forward is designed to send this Bill to the other place with a provision that will, at any rate, enable the other place to discuss the subject of after-care, and in particular this most important section of the problem, the plight of detained patients.
Many of your Lordships have referred to the problem of resources. The local authorities are in an awful fix, let us face it. They have been told that they have to reduce their net expenditure by, I believe, 5 per cent. below the 1978–79 level. They have most difficult problems of allocating priorities with shrinking funds. I suggest that it is only fair to them that Parliament should give a clear indication that higher priority in the cutting up of the cake has in future to be given to the most unfortunate in the community.
§ 5.39 p.m.
Lord Paget of Northampton
My Lords, I had no intention of speaking tonight until I heard the noble Baroness, Lady Faithfull, and the noble Baroness, Lady Macleod. I think they misunderstand what we were thinking about. I am quite sure that the noble Baroness who introduced this amendment did not expect the Government to get up and say, "We are going to put this into the Bill", and write it into the statute book in the words that are proposed. Of course, the Government have to reconsider drafting matters, reconsider particular machinery, and all that sort of thing.
An amendment introduced by a lay member of your Lordships' House is merely a means of putting up an idea and a principle which the Government ought to consider. What I think the noble Baroness who introduced the amendment wants from the Government and certainly what I want is the following. First, an assurance that they fully recognise the need for aftercare. It is a need not only of the unfortunate people who are released, but of the general public, who need protection too. It is essential—and this is possibly even the most essential thing of all—that people who come out from treatment are looked after.
I should also like to hear the noble Lord who is to answer for the Government say not only that this is an obligation that must be undertaken and that the Government will consider very carefully indeed how best it shall be done, but that he can assure us that somebody will be put under an obligation to provide this all-necessary service. That is all we want. I hope that the noble Baroness will not think me impertinent and perhaps rather putting words into her mouth, but I am sure that what we want is an assurance of the recognition of this need and of the obligation to deal with it, and that somebody shall be made responsible.
Lord St. Just
My Lords, I shall not keep the noble Lord, Lord Elton, for more than a moment or two. However, during the last stage of this Bill I did talk about the strain on patients coming out of mental 1411 hospitals, and of course, the more secure the hospital has been, the greater the strain for those people in facing life again. That is certainly also the case when parents are concerned. They must be in a position where they feel that they can call upon help at times when the situation becomes difficult, which it will. Therefore, as I said during the last stage of the Bill, I support the noble Baroness, Lady Masham.
§ Lord Seebohm
My Lords, I must lend my voice to this amendment, which I strongly support. First, I take the view that if there is some doubt about the statutory obligation, then the amendment makes the situation abundantly clear. That is my main reason for supporting the amendment. However, other points have been made which are also very important, especially the point made by the noble Lord, Lord Redcliffe-Maud. It has been very distressing for me since the 1970 Act—in which I was involved—to see how difficult it has been to get the national health services and the local authority social services working closely together. I believe that this amendment will help. I think that it is necessary.
Secondly, after-care is one of the most important preventive methods that there are in our social services. I do not believe that it is costly: it is the reverse. In fact, it prevents collapse very soon after someone has left institutional life and has gone back into the community, which is a great shock for anybody.
Finally, on the question of resources, I think that we are talking of about 1,000 people. The noble Minister may be in possession of the figure, but I believe that it is about 1,000 people. From my experience, I do not believe that this is something which could not be undertaken by the present staffing of the social service departments. I admit that there will be a training need. However, if we consider also the number of voluntary agencies which can help in this field, and which in some areas are very large indeed, I do not believe that the resources will be over-strained by this amendment. Therefore, I strongly support it.
§ Lord Elton
My Lords, the noble Baroness has certainly done one signal service to this House and to the community and that is to bring to prominent public notice the uniformity of opinion, which I share, that the after-care of patients, and particularly mental patients, is a matter of very great importance for reasons of compassion as well as reasons of common sense. The compassionate reasons are that when a patient comes out of security into insecurity and out of certainty into uncertainty he needs somewhere to turn. If he has nowhere to turn he is likely to relapse. If he suffers a relapse, then we come to the common sense argument that he is again going to be a charge upon the community. There is no difference of opinion about that.
The Government are seized of the importance of the role which after-care plays and they have been at pains almost since they came into office to underline the priority which they give to people who suffer from mental illness and mental handicap. There is no issue in that connection to which I have to respond.
However, what I do have to respond to is the question 1412 of whether this is a matter of practice or of law. That is a very important matter. I came to your Lordships with notable—it would appear—lack of success at the Report stage on this matter, to explain to your Lordships that there was a statutory duty. Your Lordships will forgive me if I attempt that task once more. In Schedule 8 to the National Health Service Act 1977, which I have in my hand, at paragraph 2(1), I read:A local social services authority may,"—and I ask the noble Baroness to be patient—with the Secretary of State's approval, and"—and this should relieve her anxiety—to such an extent as he may direct shall, make arrangements for the purpose of the prevention of illness and for the care of persons suffering from illness and for the after-care of persons who have been so suffering".That is the power. It becomes mandatory by reason of the Secretary of State's direction.
I have here in my hand the circular No. 19 of 1974 and I find therein at paragraph 2:directions to authorities to make arrangements for certain services are in the Appendix"—and they are indeed. They appear in paragraph 4 of the Appendix and they are elaborated elsewhere in the document. But, mighty a huntress though I acknowledge the noble Baroness to be in a just cause, I am not surprised that she was at this point thrown off the scent because the enabling statute was consolidated after the circular was published and before the noble Baroness read it, and therefore the references in the circular led her off on a false trail. I have to assure the noble Baroness and the House that the circular is still in force, that the Secretary of State's direction is still in force and that they have the same effect under the consolidated Act as they had under the previous Acts. Noble Lords have asked for consolidation. I have just proved—have I not?— that there has already been a measure of consolidation. We are consolidated up to the 1977 Act.
Your Lordships will remember that at Second Reading we considered the needs of consolidation very closely in another context and I emphasised to the House what I re-emphasise now—namely, that we shall be consolidating the 1959 Act and this amending Act as soon as it is possible to do so after it has passed on to the statute book. I hope that I have convinced your Lordships—I am not done with the matter because I want to speak further on it—that there is a statutory duty firmly imposed by the Secretary of State and his predecessors on the local authorities and it is as much in force now as it was on the day when he blotted his signature all those years ago.
§ The Earl of Longford
My Lords, if the noble Lord is leaving that matter, I should like to raise a point. If that is the situation, why is the provision so inadequate?
§ Lord Elton
My Lords, I would rather not turn this into a Committee stage debate. The noble Earl and many other noble Lords—11 or 12, if I am not mistaken —have put their points of view. I am endeavouring to answer them all, keeping as closely to my brief as I can, consistent with not repeating myself by saying things ad hoc and then from the paper. Our concern 1413 is with this legislation. If the noble Earl, who courteously interrupted me, is not content with the result of the legislation, if the noble Baroness is not content with the result of the legislation and if the House is not content with the result of the legislation, then it is no good pretending that the statutory duty does not exist and that to place it again in a different form upon the statute book would not be what I believe is technically called otiose. It is a word that I have always wanted to use correctly; it means "non" effect, because it duplicates what is already done.
§ Lord Elton
My Lords, no. We have been on this point for a very long time. If I can anticipate what the noble Lord would wish to say, I am explaining to your Lordships that there is a statutory duty exactly analogous to, and a great deal more precisely and effectively drawn than, that which the noble Baroness, Lady Masham, wants to put on the statute book. I am saying to your Lordships that this is a House of revision; that it should not issue bad law to another place, and that we ought not to do this.
I am not brushing aside your Lordships' concern over the question of after-care. Far from it. When the noble Lord, Lord Wallace, preaches with such fire against prejudice and snobbery, it is indeed difficult to resist him. I must just say to him that, in fact, he was preaching from the wrong text because—as I think he hinted in his speech—the provision to which he referred is not directed to detained patients, as is this Bill.
That leads me to the next point of difference that I have with the noble Baroness, whom I greatly admire because she is a very persistent huntress after a just cause. My point is that by addressing herself to detained mental patients she is giving them a sort of primacy, a priority among patients. That may even be a little different from what the noble Lord, Lord Paget, from his seated position, thinks is right. Detained patients quite often cease to be detained patients before they are released from hospital. They become informal patients and are subsequently released. The noble Baroness's amendment would exclude them from this priority.
I find it difficult to express clearly enough both the sympathy that I have for this amendment and the revulsion I have at the idea of adopting it. I think that I have made the sympathy clear. Many of your Lordships have done so better than I can. Your Lordships are saying that here are some of the most exposed, unfortunate, frightened, nervous and insecure people in our society; let us then do something about them to ensure that they can have a lifeline and be protected. I have said that the lifeline is there. Your Lordships have said that it is not being properly deployed. I did say that there might be a difficulty in interpolating the two texts.
I want to assure your Lordships, first, that the Government are already acting to encourage, centrally, a proper quality and consistency of services. Noble Lords have referred to the great variety of levels of provision. We are aware of that. We shall be referring in the guidance which is to be issued to 1414 hospital managers, health and local authorities and the professions about the new Act, to the importance of, among other things, after-care. Perhaps I could just rebuke your Lordships very mildly for treating this as if it were a separate issue. In my view, ideally, care for a patient begins before he goes into hospital, continues while he is in hospital, follows him through into the community and remains available until he is cured. We have tended to look at it as a single item.
In that guidance we also intend to take the opportunity to refer to all the relevant statutory provisions and duties. There is a small point to which I, personally, attach some importance. As a result of what we are doing, I hope to ensure that no patient—certainly no detained patient—shall ever leave a mental hospital on discharge without carrying in his pocket a postcard bearing at least an address, a telephone number and a name to which he can go for help. That is the beginning of putting him in touch with what all your Lordships wish him to have available. If he does not use it, that is another matter. Of course, in this context I should say that we cannot force aftercare on patients—this whole Bill is about what you cannot force patients to accept—we can only offer it. It will be there for him to take.
In the matter of the circular, my noble friend Lady Faithfull was considering whether it should be reissued. I thank her for that idea. I support the intention, but I think that we want something much wider. We want something which will embrace all the statutory provisions as well and, instead, as I have said, we intend to refer to all the relevant statutory provisions, including the circular, in the guidance that we issue about the Act. This will put the directions in the right context and make it quite clear that they apply to all patients, whether or not they have been detained. It will also make it clear that duties in respect of after-care are part of the wider duties of care as a whole, as I have already said.
I have referred to consolidation. I think that I must have convinced your Lordships that the power already exists. If I have not, it is beyond my competence, but any lawyer will do it for me. Both the noble Baroness, Lady Masham, and the noble Lord, Lord Thurlow, said that this would give the Commons an opportunity to discuss the matter. With the greatest respect, I think that the other place would resent being told what amendments it should table and is quite capable of tabling its own. I think that the noble Baroness and the noble Lord are referring to a stage when a Bill has come from another place, with parts of it not having been discussed, and we can then open them up by amendment. But this is not necessary here. I think that it is beyond the bounds of possibility that there will not be amendments in this sense in another place, because I think that there is a burning desire to discuss it. Your Lordships have lit that fire. I congratulate you on your concern; I share it. But, as a revising Chamber, to put confusing duplications on to the statute book will not solve the problems of one single mental patient coming out of one single mental health institution. It is a question of practice, not of legislation.
In so far as it is a matter of legislation, it can only breed confusion if you have two different converging or diverging sets of instructions in statutes trying to do 1415 the same thing. The noble Lord, Lord Paget, is absolutely right; it cannot go in in this form. It is not only otiose; it would be confusing. I hope that I have achieved the difficult task of persuading your Lordships that the Government's heart and their intentions are in the right place; that the House has given sufficient impetus to public opinion to draw the attention of local authorities, which will be followed up by the Government, to the importance of this issue; and that to place this amendment on the statute book would be the wrong thing for a revising House to do.
Lord Paget of Northampton
My Lords, before the noble Lord sits down, perhaps he would permit me one moment, because he really has not dealt at all with the point which we are trying to put. People who have to administer this Act want to know what our intention is. At the moment there is nothing in the Bill to convey to them that after-care plays a large part in our intention. It is not sufficient to say that if they search another Act and find another Minister's direction, they will find that there is a power here. They want to have it in the Act which they are administering. They want to know that, if they release this chap, he will be subject to after-care and will be helped. It ought to be in the Bill. That is what we are asking.
§ Lord Elton
My Lords, the noble Lord has breached the Standing Orders of the conduct of debates and I hope your Lordships will allow me to reply in kind, because this really ought not to happen. I have said that guidance will be issued; that is to say, a document will go out embodying the points about which the noble Lord is anxious, and a great many other points as well—they will all be in one place. I do not think that there is a single arm of local or national government that is not subject to more than one statute at one time.
What the noble Lord asks is unreasonable. What is reasonable in what he asks is that Government shall pledge their interest in ensuring that local authorities are aware of the priority. If the noble Lord has read our electoral and subsequent publications he will know that it is a matter of priority. If he has been following the press recently he will know that we are now improving our means of holding regional health authorities accountable.
We are not idle in this matter, but I think your Lordships will become impatient of this issue. I have said all that I can say. I am trying to defend this House from making a bad statute and being put right by another place. I have said that everything noble Lords believe about what should be achieved is already in the intention of Government. There is no more that I can say. If the noble Baroness wishes to press the amendment, I ask your Lordships to consider the reputation of this House in legislation and not to pass this amendment.
§ Lord Sandys
I think, my Lords, that the view of the House will be that the noble Baroness would wish to conclude.
§ Lord Mottistone
My Lords, I think I have a right to speak. I have not spoken earlier. It has not been wound up.
§ Lord Sandys
My Lords, the Minister has replied now at the end of the amendment. If it is the wish of the House to conclude, which I feel it is, I think we should do so.
§ Lord Donaldson of Kingsbridge
My Lords, I believe that the noble Lord has the right to speak. I should like it to be made absolutely clear whether he has or not. He has not spoken yet.
§ Lord Mottistone
My Lords, I think I have the right to speak. I wish to say, if I may, that if it is any consolation to my noble friend I entirely agree with all that he has said. I was convinced at Report stage at cols. 913 to 916. The Government have clearly issued all that they should have done both in legislation and instructions. They are clearly going to do more to endorse what the House clearly wants them to do, and I should think that that is enough to it.
§ Baroness Masham of Ilton
My Lords, I should like to thank all noble Lords who have supported this amendment. I must say to the Minister particularly that there is a new secure unit, the first purpose-built one in this country, and it is without a social worker attached to it at this very moment. How depressing this is for the hospital staff—the doctor and the nurses—to work so hard with these difficult patients and then not to be able to give them social support when they leave.
In addition, these patients detained under Sections 26 and 60 are special patients because they are detained in special hospitals, and sometimes they are detained for a long time. I cannot say more because already noble Lords have said what is necessary. Last night I sat next to a judge at dinner. He told me that the law on after-care at the moment is a crazy one—and this is a judge who comes from Merseyside, dealing with these patients, and speaking as at this moment. I do not think I can do more now than to ask your Lordships to divide and to say what you think on this matter.
§ 6.3 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 83; Not-Contents, 79.1417
|DIVISION NO. 1|
|Alport, L.||Briginshaw, L.|
|Ampthill, L.||Bruce of Donington, L.|
|Amulree, L.||Burton of Coventry, B.|
|Ardwick, L.||Byers, L.|
|Auckland, L.||Collison, L.|
|Aylestone, L.||Darcy (de Knayth), B.|
|Balogh, L.||David, B.|
|Barrington, V.||Diamond, L.|
|Beaumont of Whitley, L.||Donaldson of Kingsbridge, L.|
|Birk, B.||Elwyn-Jones, L.|
|Bishopston, L.||Erroll, E.|
|Boston of Faversham, L.||Ewart-Biggs, B.|
|Fisher of Rednal, B.||Oram, L.|
|Gaitskell, B.||Paget of Northampton, L.|
|Garner, L.||Peart, L.|
|George-Brown, L.||Ponsonby of Shulbrede, L.|
|Gosford, E.||Redcliffe-Maud, L.|
|Gregson, L.||Roberthall, L.|
|Hall, V.||Rochester, L.|
|Halsbury, E.||Ross of Marnock, L.|
|Hanworth, V.||St. Just, L.|
|Houghton of Sowerby, L.||Seear, B.|
|Hunt, L.||Seebohm, L.|
|Hunt of Fawley, L.||Shinwell, L.|
|Hunter of Newington, L.||Spens, L.|
|Ingleby, V.||Stamp, L.|
|Irving of Dartford, L.||Stone, L.|
|Jacques, L.||Strabolgi, L.|
|Jeger, B.||Taylor of Gryfe, L.|
|Jenkins of Putney, L.||Thurlow, L. [Teller]|
|John-Mackie, L.||Tordoff, L.|
|Kennet, L.||Underhill, L.|
|Kibracken, L.||Wallace of Coslany, L. [Teller|
|Kinnoull, E.||White, B.|
|Llewelyn-Davies of Hastoe, B.||Wigoder, L.|
|Longford, E.||Willis, L.|
|Lovell-Davis, L.||Wilson of Langside, L.|
|McGregor of Durris, L.||Winstanley, L.|
|Masham of Ilton, B.||Winterbottom, L.|
|Melchett, L.||Wootton of Abinger, B.|
|Mishcon, L.||Wynne-Jones, L.|
|Abinger, L.||Lane-Fox, B.|
|Adeane, L.||Lauderdale, E.|
|Ailesbury, M.||Lawrence, L.|
|Airey of Abingdon, B.||Linlithgow, M.|
|Avon, E.||Long, V.|
|Bellwin, L.||Lothian, M.|
|Belstead, L.||Loudoun, C.|
|Bessborough, E.||Lucas of Chilworth, L.|
|Campbell of Alloway, L.||Lyell, L.|
|Cathcart, E.||McAlpine of Moffat, L.|
|Colwyn, L.||Macleod of Borve, B.|
|Cullen of Ashbourne, L.||Marley, L.|
|Daventry, V.||Marshall of Leeds, L.|
|Denham, L. [Teller]||Massereene and Ferrard, V.|
|Digby, L.||Mersey, V.|
|Dilhorne, V.||Monckton of Brenchley, V.|
|Drumalbyn, L.||Morris, L.|
|Elphinstone, L.||Mottistone, L.|
|Elton, L.||Mountgarret, V.|
|Faithfull, B.||Murton of Lindisfarne, L.|
|Ferrers, E.||Northchurch, B.|
|Ferrier, L.||Nugent of Guildford, L.|
|Fortescue, E.||Orkney, E.|
|Fraser of Kilmorack, L.||Oxfuird, V.|
|Gainford, L.||Portland, D.|
|Glanusk, L.||Rawlinson of Ewell, L.|
|Glasgow, E.||Renton, L.|
|Glenarthur, L.||Rodney, L.|
|Gray, L.||Rugby, L.|
|Greenway, L.||Sandford, L.|
|Hailsham of Saint Marylebone, L.||Sandys, L. [Teller]|
|Harmar-Nicholls, L.||Tenby, V.|
|Henley, L.||Trefgarne, L.|
|Home of the Hirsel, L.||Vaux of Harrowden, L.|
|Hylton, L.||Wakefield of Kendal, L.|
|Ilchester, E.||Ward of Witley, V.|
|Killearn, L.||Windlesham, L.|
|Kinloss, Ly.||Wise, L.|
|Kinnaird, L.||Young, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 6.11 p.m.
§ (" Civil and criminal proceedings.
§ .—(1) Section 141 of the principal Act is repealed.
§ (2) A person shall not be liable to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of the principal Act or this Act or any regulations or rules thereunder, unless the act was done in bad faith or without reasonable care.
§ (3) Civil or criminal proceedings shall not be brought against any person in any court in respect of any such act without the leave of the High Court, and the High Court shall not give leave under this section unless satisfied that the person to be proceeded against has acted in bad faith or without reasonable care.
§ (4) This section does not apply to proceedings for an offence under the principal Act or this Act, being proceedings which can be instituted only by or with the consent of the Director of Public Prosecutions.").
§ The noble Lord said: My Lords, I suppose it is really a question of try, try, try again in the hope that we may succeed, and I need not spend long on this matter because we have discussed it at some length during various stages of the Bill. The intention is to alter Section 141 of the Mental Health Act 1959 to follow the provisions of Section 111 of the Northern Ireland Mental Health Act 1961. The burden which this provision would place on the patient contemplating legal proceedings would be much less severe but of course would still afford protection for staff. There is no evidence to suggest that the Northern Ireland provision has allowed the floodgates of litigation, vexatious or otherwise, to be opened, and, on that basis, there is every reason, as this provision is contained in another piece of legislation, to accept the amendment.
§ Lord Renton
My Lords, although, as the noble Lord, Lord Wallace, knows, I am unhappy about Section 141 of the 1959 Act and have twice asked the Government to get something better on to the statute book, I regret to have to tell him that his amendment would perpetuate too much that is wrong in Section 141. In fact, it would make scarcely any change in it at all. I hope that I shall not be considered discourteous if I even go so far as to say that I wonder why the noble Lord drafted it and placed it on the Order Paper, because it would make so little change. Indeed, he might even have worded the first subsection of his amendment, "Section 141 is repealed and re-enacted as follows", because that is very nearly what it comes to. I must, therefore, continue to press the Minister to do something, and to do something pretty drastic, about Section 141, and to persuade my noble and learned friend the Lord Chancellor to give the subject urgent consideration, remembering that my noble friend said last week that he would be referring the matter to the Lord Chancellor with a view to obtaining his advice. In any event, I hope your Lordships will not think that this amendment is a satisfactory substitute.
§ Lord Mottistone
My Lords, as on earlier occasions, I take a somewhat different view on this matter from my noble friend Lord Renton. I, too, think the amendment would do very little to change Section 141 of the principal Act, and I find it surprising that it should have been tabled at all. I have no real objection to it, and it is difficult to see whether there are any hidden differences which an untutored mind cannot uncover. I, too, wonder whether there is any need for 1419 it and I shall be guided by my noble friend Lord Elton as to whether the amendment should be backed as being an improvement on Section 141. I would only say before we finally leave the subject that it is important that there should be sufficient protection against civil action by persons involved in the way described by Section 141. It is important that we should keep that, whatever happens and however things may change in the future in the way requested by my noble friend Lord Renton.
§ Lord Elton
My Lords, we are indeed on familiar ground on this and the next Amendment, No. 5, and almost all of what I have to say about this amendment relates to the next one also, so I hope the noble Lord, Lord Kilmarnock, if he intends to move No. 5, will give me a sympathetic hearing. On Report my noble friend referred to, "the second time of asking"; this is presumably the third, and I must say I am beginning to see the noble Lord, Lord Wallace, rather like a very nice vicar. Noble Lords will recall that on the last occasion he preached the sermon from the wrong text, although with a remarkably successful result—more so, perhaps, than had he preached it from the right one—and now he appears to be calling the banns. In effect, he is saying, "If anyone knows any just cause or impediment why this amendment should not be joined to the Bill, ye are to declare it". I do declare it and, what is more, I declare it from the front pew. In fact, it is not quite such a sensational declaration as it might be in a church because I seem to have made it at every service I have attended with the noble Lord since the Bill was christened.
We have two amendments before us, as I said, and I shall address myself first to those all too familiar grounds for resisting them that are common to both. All of us, I believe, recognise that something like Section 141 is needed. It is needed to protect members of staff—who are going carefully and conscientiously about tasks which are often exasperatingly difficult and which meet with very small thanks—from malicious and misdirected litigation by or on behalf of the patients for whom they care.
The Bill concerns detained patients who are suffering from disorders of the mind. Any patient detained against his will is likely to feel some degree of resentment against those who detain him. A patient who is mentally disordered is likely either to do so more easily or to misdirect his efforts and misconceive their results. It follows that the need for protection of this sort, or of some sort, is greater for staff caring for detained mental patients than for others. The principal Act extends this protection by way of making it necessary for anyone wishing to bring a prosecution, whether in the civil or criminal court, to obtain the leave of the High Court in order to do so. That is an effective protection. It relieves staff of the necessity, under which they would otherwise labour, of having to provide that almost everything they did was done in the presence of a witness.
The noble Lord, Lord Wallace, and his allies and the noble Lords, Lord Hooson and Lord Kilmarnock and theirs, now accept, as I say, that some protection is needed, but they do not accept that the present level of protection is warranted. Each has come forward 1420 with a proposal, and to each I say yet again that the time is not meet for it, whatever its terms. I say that because at the very moment there is a case before the European Commission of Human Rights, and noble Lords anticipate that the Commission will rule, and subsequently that the court will find, against the Government. They assert that Section 141 puts us in breach of the European Convention on Human Rights.
Of all that I am not competent to judge. I cannot judge the issue of what will be decided, nor, I submit, can this House. We cannot anticipate what the outcome will be. What we can anticipate is that if the court does decide against the Government, then the Government will have to make any changes in the law necessary to bring the law into conformity with the convention. What those changes will be, again we cannot anticipate.
When my noble Lord, Lord Belstead, has been so lately and so effectively at this Dispatch Box, I need scarcely remind your Lordships that when it comes to legislation on these matters in order to keep us in step with our European obligations, we act very swiftly. I very much hope that your Lordships will rest content with my undertaking to seek a legislative vehicle should any change be made necessary by a finding of the court, when the finding is known. It is on that simple ground that I ask your Lordships to resist both of the amendments.
As regards the amendment of the noble Lord, Lord Wallace, there is a further objection. I am grateful to him for his kindness in warning me of his intentions and in particular for letting me know that he intended to follow the wording of the Northern Ireland Mental Health Act 1961. Unfortunately, it does not appear that he has succeeded in doing so. The requirement of that Act is that the Supreme Court should apply a test to any application before it is allowed to proceed, and that the test is that there should be a prima facie case of bad faith or lack of reasonable care. That Act has "prima facie case" where we have "substantial ground". The noble Lord, Lord Wallace, however, has neither. He proposes that the court must be satisfied about bad faith or lack of reasonable care, and that, I am advised, is an altogether stiffer test. I doubt whether that is what the noble Lord intended, and I am certain that it is not what your Lordships wish.
Lord Wallace of Coslany
My Lords, obviously the noble Lord, Lord Winstanley, wants to pursue his own little, lonely path—OK. The noble Lord, Lord Renton, is almost right, but not quite. Our amendment was an attempt, at least at the repeal of Section 141 and to put something in its place, hoping that something better would come along from Strasbourg. The noble Lord, Lord Elton, has come forward with a great deal of humour. At one stage I was almost going to call the final hymn and go for a collection. I would advise him that, although the banns have been called, this bridegroom is not going to the altar. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.23 p.m.
§ (" Amendment of s. 141 of principal Act
§ .In section 141(2) of the principal Act for the words "substantial ground" there shall be substituted the words "a prima facie case".").
§ The noble Lord said: My Lords, the noble "vicar", if I may now so call him, was entirely correct in divining that I remained mute with intent, not inadvertently, on this amendment because I took the view—I think rightly—that this amendment which I now move is a somewhat more moderate, more direct, and perhaps to the Government a more acceptable proposal, covering a slightly different point. Therefore, quite deliberately I have kept it separate.
§ As the noble Lord, Lord Elton, said, as indeed did the noble Lord, Lord Wallace, Section 141 is already the subject of a case before the European Court of Human Rights—a case which is likely to go against the Government. That fact alone should make us examine the country's conscience on this matter. If the section as at present drafted is unnecessarily oppressive—and I stress the word "unnecessarily"—this House should not allow the Government merely to sit back passively awaiting condemnation from the European Court. We should make our own judgment now and reform the section if it appears to us that its present purpose can still be served in a manner supportable in that court.
§ As I have said, our amendment is very moderate. It is modelled on a similar section that has been operating successfully in Northern Ireland. It is designed to do three things. First, it is intended to preserve proper protection for nurses, doctors and social workers acting in the mental health field—a point about which the noble Lord, Lord Mottistone, is so concerned. Secondly, it is designed to improve the wording of the section by removing the unfamiliar word, "substantial" and substituting the words, "prima facie", which import a test well known to lawyers. Thirdly, it is designed to protect the patient's civil rights from what is an unnecessarily oppressive bar to civil litigation.
§ The amendment preserves ample protection for mental health professionals. The purpose of Section 141 is to protect those involved in the mental health field when they exceed their powers but are none the less acting honestly and reasonably. Our amendment leaves that protection intact. We retain subsection (1), which states the principle that only where there is negligence or bad faith should a civil or criminal proceeding be instituted against a person purporting to act in pursuance of the powers given by the Act. Under our amendment honest and reasonable mistakes will still be exempted. Furthermore, we retain the prior hearing before the High Court in which the patient has to prove that there are reasonable grounds for his contention that the defendant has acted unlawfully.
All we do is substitute the words, "prima facie" for the word, "substantial" which imparts a difficult and oppressive test. The word, "substantial" is clumsy and difficult to interpret. Indeed, judges have remarked on that fact. For example, in the case of Richardson v. LCC in 1957, Lord Parker stated:
The word 'substantial' is not easy to define".
In contrast, the words, "prima facie" are well known
to lawyers and impart a test which has general legal currency.
Here I come to a point that was indeed raised by the noble Lord, Lord Renton, in earlier stages. It is important to note that our amendment would bring the law more in line with the position as it was in 1890. Section 330(2) of the Lunacy Act 1890 referred to a,
reasonable ground for alleging want of good faith or reasonable care".
It was not until 1930 that Parliament introduced the word "substantial" and the higher test that goes with it in Section 16 of the Mental Treatment Act. It was not the noble Lord, Lord Renton, who provided these words; they came from the earlier statute. That is the unfortunate source from which Section 141 of the Mental Health Act 1959 was derived—perhaps without sufficient consideration of whether the old 1890 test was not a fairer one.
§ From the moment of its introduction the word "substantial" has been the subject of both criticism and interpretative difficulties. The words, "prima facie" restore the "reasonable ground" test of 1890, and the spirit of that test. Are we really to support a test which is more oppressive to the patient than our Victorian predecessors thought necessary to protect staff in the far more dangerous atmosphere of the 19th century asylum?
§ Sadly there are occasional instances of nurses acting with negligence or bad faith. The recent outrages at Rampton cannot be forgotten. It is wrong to discriminate against this particularly vulnerable class of people when experience has shown that they might need more, not less, protection from the courts.
§ The "substantial ground" test was intended to place another hurdle in the way of vexatious mentally disordered litigants. Experience has shown that there are far fewer such litigants than an over-anxious legislature imagined in 1913, when the term, "substantial ground" was introduced. Leave to institute proceedings under Section 141 is sought only four or five times a year. Furthermore, as has been frequently pointed out, there are numerous other effective ways by which the courts can in any event put a stop to vexatious litigation. I consider that this is a moderate amendment, which the Government might consider accepting. I beg to move.
§ Baroness Macleod of Borve
My Lords, before the noble Lord sits down, I should like to say I am sure that he would not wish to mislead your Lordships, or anyone else, about the cases at Rampton that he has just mentioned. I have a certain knowledge, as I am sure does the noble Lord. Cases have been brought, but only one charge has been found proved. Having a knowledge of the subject, it seemed to me that perhaps the noble Lord's reference to "outrageous"—I think that that was the word he used—goings on at Rampton might have misled not only your Lordships, but people outside the House, into believing that charges had been proved in the courts. In actual fact they have not been proved, and I should like to make that perfectly clear.
My Lords, I am grateful to the noble Baroness. I, of course, accept that no charges 1423 have been brought to a final conclusion. I nevertheless stated, and I think I would repeat, that the kind of events that surrounded the publicity given to various matters made it utterly clear that certain things went on that should not have gone on. But it was not my intention to suggest that any particular incidents should be regarded as such, and it was not my intention to judge on any particular case which is not before the courts or which might be before the courts or which has not been before the courts.
The Lord Bishop of Norwich
My Lords, I came in at a moment when, with my apologies for not being here earlier, I felt thoroughly at home with the exchange about vicars, churchwardens, sermons and banns, and felt that I had come to the right place at the right time. I want to say a word about this clause now, but first it may encourage the Government to know that I travelled very fast from Norwich, where I have been engaged in diocesan business since eight o'clock this morning, to vote for Lady Masham's amendment, but I did not get here in time by three minutes and was unable so to do. I hope it may be some encouragement to the Government that I was not able to vote against them on that occasion.
Having said that, when we come now to this new clause I want to encourage the Government even more by saying that I hope we shall resist the amendment moved by the noble Lord, Lord Winstanley, for these reasons. The first is that we in every section of your Lordships' House, on all the Benches, have worked very hard on this particular amending Bill, which I think is going to be of tremendous help and encouragement to all those people who are disadvantaged within the area of mental health, and also to the very courageous people who care for them and seek to treat them. I think that when finally we send this Bill to another place we shall (if we may be modest about it) have done a very good piece of legislative business.
To come to this particular clause and to this amendment, we have I think done our utmost to care for the disadvantaged mentally as fully as we can. I think we ought to remember that, because of the pressures upon those who carry out the principles that we arc enunciating, when it actually comes to the hospital situation, they need all the support, help and encouragement we can give them. I therefore think that to move this final amendment so late in the Third Reading, as almost the last amendment that we tackle, would be discouraging to those who I think at this point we want to encourage. That is the psychological side.
On the simple grounds of plainness, I take Lord Winstanley's clear statement about "substantial ground" but, nonetheless, to take that phrase out and put in "prima facie case" I think makes for more difficulty because of lack of precision. I have listened very carefully to the noble Lord, Lord Wallace of Coslany, who takes his title from our ancient and glorious City of Norwich—no better city in the country can there be, which we agree upon. He talked about vicars. The other day I was walking through the ward from which he takes his title, and there were three men digging a hole in the ground. They looked up and said to me, "Good morning, vicar". I paused and 1424 said, "I'm the bishop", to which they chuckled and said, "We know you're the bishop, vicar". So this particular title is, I think, one that all of us can enjoy having and sharing.
Having said that, I would ask for clarity in this particular section. Therefore, on those simple terms of care for those who look after the disadvantaged and of clarity, I rather hope that we shall withstand the winsomeness of Lord Winstanley.
§ Lord Renton
My Lords, I, too, join with the right reverend Prelate in hoping that your Lordships will reject this amendment. I say that for two main reasons. The first is that the amendment would increase the burden of proof on those unfortunate mental patients who feel that civil or criminal proceedings should be brought against those people whom they allege have maltreated them in hospital. I feel that it would be wrong to increase the burden of proof in that way, so that would be my first ground of opposition to the noble Lord's amendment.
The second ground is one on which I will not elaborate very greatly because your Lordships may say that this is a legal matter and I would not wish to weary your Lordships with too much legal procedure. But the application to the High Court—and I am assuming that Section 141 is to stand; one must for the purpose of this argument—will be made ex parte by the proposed plaintiff. There will be no defendant at that stage on whom proceedings can be served. Yet the proposed plaintiff will have the advantage, without having his witnesses cross-examined or anything like that, of having established a prima facie case.
So when the trial itself comes on, counsel for the plaintiff could very well say to the judge, "My Lord, my case has already been prima facie established by statute". Then the unfortunate defendant—and here I would hope to have my noble friend Lord Mottistone on my side—would find that he was having to answer a case which he would have challenged if he had had the opportunity to do so but which has been established prima facie in his absence, That would be the quintessence of injustice, and, knowing the noble Lord, Lord Winstanley, to be a just man, I trust he will withdraw his amendment.
§ Lord Mottistone
My Lords, very briefly I should like to endorse what my noble friend Lord Renton has said and, indeed, what the right reverend Prelate said. It seems to me that it would be inappropriate to make this amendment. I think it is significant, and I should like to thank the noble Lord, Lord Winstanley, and the other movers of this amendment, and the noble Lord, Lord Wallace (or should I say the noble and ecclesiastical Lord, Lord Wallace?), for having come so far in the direction of accepting that Section 141 is not the wicked thing that I think perhaps they thought at the early stages of this Bill. That in itself, I think, is a good thing, and I hope that in another place they will take it where it stands.
§ Lord Donaldson of Kingsbridge
My Lords, I do not know whether I am misunderstanding, but why is it so much worse for the defendant if the plaintiff can say that he has already established a prima facie case 1425 than if he says that he has already established a substantial case? Or have I got hold of the wrong end of the stick?
§ Lord Elton
My Lords, I do not think the opportunity exists for a reply to that question to come from the right quarter, because we are at the Third Reading stage. The noble Lord, Lord Winstanley, almost overreached the House by saying at the beginning of his remarks it was the guardian of the conscience of the country, but I think not quite. I have already said virtually all there is to say about this in connection with the previous amendment, and I do not intend to do more now than say that it is not right to carry this amendment at this stage.
I should like to welcome the right reverend Prelate's intervention. It is so much of a relief to find that somebody who had intended to vote against the Government without hearing the speeches in the case—and I hope that all who read Hansard will duly note—should then decide to vote with the Government when he hears the speeches in the next case. It shows that even bishops are redeemable, my Lords!
I think I should say to your Lordships that this is an untimely amendment for the reasons I have already given. I think I should also say that I do not propose to pursue the question of Rampton at this stage, except to draw to your Lordships' attention the fact that there have been six cases tried, there being one conviction and five acquittals. I think that ought to be in the same record as the record of what other noble Lords have said in this respect. I hope your Lordships will be both wise and patient enough not to accept this amendment. Indeed, I hope the noble Lord himself will he both wise and patient enough not to press it.
My Lords, I think the noble Lord has already suggested that I was unwise to poke my medical nose in Church matters. Not for the first time have I found disagreement within the Church on a particular matter. But I have gathered also from the remarks of the noble Lord, Lord Renton, that perhaps I am not wise in poking my nose into legal matters either. But if I have done anything, I have done him one service. The noble Lord, Lord Renton, at an earlier stage appeared to suggest that in his former capacity as a Minister of the Home Office he personally was responsible for introducing the words "substantial grounds". I think I have released him from that unfortunate obligation, in that I have shown that it came from earlier legislation and that it was not really his fault; so that if I have done nothing else I have done at least that.
I am glad that the noble Lord, Lord Elton, took the opportunity in his reply to this short debate to make that correction and clear statement with regard to Rampton. The last thing that I wanted to suggest about Rampton was that there were outstanding cases that ought to be dealt with. All that I wanted to suggest was that events had occurred at Rampton which make it necessary for certain matters to be looked at by the courts. The noble Lord has made it clear that they were looked at by the courts and looked at entirely satisfactorily. I do not wish to detain the House. I have served a purpose in getting those earlier words on to the record. I am sure that this is a matter 1426 which will be looked at again very carefully in another place. I hope that what has been said not only by me but by other speakers on this particular amendment and on others will be considered carefully in another place. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ An amendment (privilege) made.
§ 6.41 p.m.
§ Lord Elton
My Lords, I beg to move that this Bill do now pass. I think it might be as well if I were to reserve the generality of my remarks on this Bill until I have had the benefit of hearing what other noble Lords wish to say. But there is one doubt that I think I ought to resolve before we go further.
Your Lordships will remember that on Report the House disagreed on Division to an amendment (No. 47) moved by the noble Lord, Lord Winstanley, to provide an independent element by increasing from one to three the number of persons entrusted with the duty of determining whether a patient has given informed consent to treatment which has an irreversible effect. In my speech on that amendment, I said that I would consider urgently what I would be able to bring back on Third Reading as I had some sympathy with parts of the amendment. We arc talking about certain very exceptional treatments which, as we have always recognised, need very particular safeguards; and so the Bill already provides that they can be given to a detained patient only with his consent and a second opinion from a Mental Health Act Commission doctor.
For these exceptional treatments which can be given only if the patient consents, it is very important to ensure that the patient really has understood what is involved. I agree with the part of Lord Winstanley's amendment which provided for the Commission psychiatrist to share with two other "wise men"— as the noble Lord, Lord Richardson, called them—the responsibility for certifying that the patient has consented. The question of whether the treatment should then be given is a separate question which is a matter for clinical judgment by the psychiatrist alone.
I was therefore willing to put down an amendment at Third Reading. However, I am advised that the rules of order prevent me from reopening this issue on Third Reading because it was fully debated and decided on at the Report stage. I explained this to the noble Lord, Lord Winstanley, before this debate and showed him the amendment which we would have put down at Third Reading, had that been possible. The amendment would have required three people appointed by the Mental Health Act Commission, of whom only one would be a doctor, to sign a certificate that a detained patient understands the nature, purpose and likely effects of a treatment and has consented to it, before he could be given any treatment specified in regulations.
Those regulations would set out the few very exceptional treatments about which Lord Winstanley spoke at Report, like psycho-surgery and hormonal implants, but not ECT for which the Bill already requires the patient's consent and a second opinion. There is no change in our proposals about consent for other forms of treatment. I am glad to say that 1427 the noble Lord, Lord Winstanley, agreed that my proposed amendment met his concern. I can tell noble Lords that the Government will bring forward amendments on these lines on this matter when the Bill is considered in another place and, subject to what happens to it there, they will give your Lordships an opportunity to consider the matter again when the Bill returns to your Lordships' House. I felt that your Lordships should be aware of this position and of my undertaking before you expressed your views on the Bill as a whole and your work upon it. My Lords, I beg to move.
§ Moved, That the Bill do now pass—(Lord Elton.)
Lord Wallace of Coslany
My Lords, I think it is fair to claim that this Bill has been improved during its passage through this House and it goes forward to another place who, no doubt, will give it further consideration. It is true that some vital issues such as legal aid have not yet been resolved and we had hoped that there were to be some "goodies" from the noble Lord. He mentioned this at the Report stage but no doubt he is reserving it for an announcement in the Commons. As far as Amendment No. 141 is concerned, if it is not settled in another place, I feel sure it will be settled in Strasbourg. This Bill cuts across party lines and all sections of the House have played a constructive part in improving it. Finally, I should like to place on record my sincere appreciation of the constructive and co-operative attitude displayed by the noble Lord, Lord Elton, and his team. The noble Lord has been very helpful and has displayed a deep sympathy with the Bill and its objectives which I am sure we all appreciate.
My Lords, it would be churlish if I did not begin by giving my very warm thanks to the noble Lord for the statement he made earlier with regard to the action which will be taken in another place regarding the very important matter of the consideration of whether a detained patient is or is not able to give consent or to withhold consent from certain forms of treatment defined in the Bill as treatments of special concern. I should like to confirm, as I have privately to the noble Lord, that the proposal is acceptable to me and that I and my noble friends are grateful for it.
I was glad the noble Lord began with that statement because I have been in some difficulty. He will remember that in the Hansard for the last Report stage are the words that the noble Lord said that his mind is not shut on this matter and that he would consider putting something down. According to Hansard, he said he would discuss it with me so that if he were not content with what I propose he could make a proposal of his own. Since nothing appeared on the Marshalled List, I was lobbied constantly by various organisations, voluntary bodies and colleagues, as to why I had not put down an amendment and why the Government had not. Therefore, it has been helpful that the Minister should have explained the circumstances in the way he did when he said it was not technically possible for him to put down the amendment but that the amendment will be moved in another place. It will be, in effect, a Lords amendment when it comes back to us—and all those concerned with that debate ought to be grateful.
1428 On the Bill in general, on behalf of my noble friends, I would say that we regard it as a good Bill. It substantially improves the position and rights of detained patients and does something to tilt back a little the balance towards the rights of patients which perhaps had moved the other way with the original Mental Health Act. I agree with Lord Wallace that there are still matters to be looked at carefully in another place, and particularly legal aid. But there is time to spare and I am sure that we will have heard something in some way to reassure us about the provision of legal aid before the Bill gets on to the statute book and before it finally becomes operative.
We on these Benches welcome the Bill. It has been improved substantially by the debates and discussions in this House and by the informed comments made from every part of the House. At the outset of his Second Reading speech, the noble Lord, Lord Elton, told us he wished to approach the whole matter in a non-partisan fashion, and to try to arrive at mutually acceptable solutions. I should like to say to him now on behalf of my noble friends that he could not have tried to do that more thoroughly and wholeheartedly than he has actually done. I have not been in your Lordships' House so long as some, but I had not previously experienced a degree of positive understanding and co-operation such as we have had at every single stage, a willingness to listen to arguments—sometimes to listen to unwelcome arguments—to consider them carefully and to come back to them. The noble Lord, Lord Elton, has shown that to a quite unusual degree. My noble friends and I would most certainly like to express our warm thanks.
Perhaps I could also say that one cannot have a co-operative procedure in dealing with a Bill without the co-operation of others. We have had that co-operative attitude from noble Lords on the Front Bench and from other noble Lords in various parts of the House. In particular, perhaps I could say that the noble Lord, Lord Renton, has been of immense help to the House on certain particular aspects of this Bill, about which he has detailed professional and personal knowledge. Without his help and advice, this Bill would not have finished up quite so good a Bill as it now is.
I should also like personally—if I may without straying from Standing Orders—to say a word of thanks to my noble friend Lord Kilmarnock. He has worked indefatigably on this Bill and has assisted me very greatly in carrying out what has not always been an easy task. In the legal profession I should like to thank my noble friend Lord Hooson. A doctor, stumbling into legal matters, is in difficulties unless he has a learned friend. I have had a number of learned friends in all parts of the House and I am grateful.
I shall not delay the House any more, except to say that this is a very good Bill. It is a better Bill now than it was when it first arrived. I hope that there will be one or two other matters dealt with in another place as a result of the discussions that we have had here. With that, I merely say that I hope the Bill proceeds speedily in another place. It has our best wishes. The noble Lord opposite has our personal thanks for his courtesy and helpfulness in dealing with our arguments and assisting us to satisfactory solutions of some very difficult and complex matters. In particular, there was the announcement that he made at the beginning 1429 of his speech on this particular debate. That will be heard with very great relief and gratitude by many people: professionals, doctors and others who were worried about that particular part of the Bill but who now will be less worried than they were.
§ 6.53 p.m.
§ Lord Kilmarnock
My Lords, I too should like to express my thanks to the noble Lords on the Front Bench opposite for the very great attention that they have given to our comments and worries about the Bill, and particularly for the letters that they have written to some of us on intricate matters. I am also extremely glad to hear that Lord Winstanley's suggestion about the mental health panel of three members has actually been adopted by the Government and will be introduced into the Bill in another place. It is extremely good news and introduces an inter-disciplinary element into the certification of capacity to consent which many of us have been very concerned about.
For myself, I agree in general that the Bill was a good Bill when it came to the House and is leaving the House in somewhat better shape than when it arrived. My only areas of regret are concerning the Mental Health Act Commission which is still shrouded in some mystery. It is a pity that a schedule was not introduced into the Bill giving us more details about its composition and operation. Also outstanding is the matter of legal aid, about which we may possibly have some good news from the noble Lord when he comes to wind up. I thought that the noble Lord, Lord Wallace of Coslany, when this was last mentioned at Report stage, raised the bidding when he spoke of a possible cost of something in the region of £600,000 or £700,000, which of course is 10 times the Law Society's estimate of £60,000.
My only positive achievement in the Bill has been to remove one word: "immediate". At least I have had some effect on the statute law of England and I am very glad to have been able to take a part in these proceedings, and make that modest contribution. With those few remarks, on behalf of myself and my colleagues on this Bench, I repeat our thanks to the noble Lords opposite. We wish this Bill well on its way into another place.
§ 6.56 p.m.
The Lord Bishop of Norwich
My Lords, from these Benches, if it is not otiose, I should like to say that I believe that this is a good Bill and a better Bill after the work that we have done on it. We have seen the House rising to the highest standards of co-operative work on an issue of great importance to the whole national life. I should like publicly to absolve the noble Lord, Lord Elton, for his remarks about the bishops. He is publicly absolved and forgiven for that. We are a forgiving lot on this Bench. We have an arm between our Benches to keep it quite clear that we have an independence of spirit although always a willingness to support good men on all sides of the House. Although our "church warden", the noble Lord, Lord Renton, will probably be going to take the collection at the end of the "service", I am willing at the end of this long ecclesiastical service, to give the blessing to this Bill if it is so desired.
§ Baroness Masham of Ilton
My Lords, like other noble Lords, I should like to thank the Minister the noble Lord, Lord Elton, for the way that he has given information and answered letters on matters brought up in connection with this Bill. He has worked so hard, with such gusto and with such good humour. I am pleased with the result of my amendment on after-care and I thank all its supporters. I hope that this legislation will now get the departments concerned with health and social security to work closely together and to provide what is essential to the detained patients on discharge.
There is one question that I should like to ask the Government: Now that the mentally handicapped patients have been removed from this Bill, are they to be left in limbo, or are they to be placed for administration needs under the wing of the Minister for the Disabled? Perhaps the noble Lord can contact his colleagues in another place and look into this matter.
§ Lord Auckland
My Lords, in the 24 years that I have been a Member of your Lordships' House, I do not think that there has been a more important or far-reaching Bill than this one, with the possible exception of the 1959 Act, on which I made one of my first speeches. What we have to remember is that the vast majority of patients detained in these hospitals are there through no fault of their own. It is therefore incumbent upon Parliament to do all that it can for their welfare. This has been very largely done in the course of the passage of this Bill, which I believe has substantially improved on the 1959 Act.
It is a Bill about people and I think all parts of your Lordships' House have done their bit to ensure that the lot of the people who are unfortunately detained has been substantially improved. We also have to remember, as this Bill goes to the other place and subsequently into law, those who look after these patients; not only the doctors and nurses, but the social workers and voluntary workers who are engaged in this very important matter of after-care, about which we have had such a long discussion. It is the after-care part which is perhaps in many ways the most important of all. This Bill goes to the other place substantially improved. Whatever criticisms the other place may have about us from time to time, they can have no criticism on the score of this Bill.
Finally, I should like to pay a very sincere tribute to my noble friend Lord Elton. This is his first major incursion into health matters. He has always been courteous and helpful to all sides. if ever there has been an example of fine teamwork, I believe that your Lordships' House on this very important Bill has turned up trumps.
§ 7 p.m.
§ Lord Renton
My Lords, if I may, I should like very briefly to add my thanks to those which have already been expressed. Although I have tabled so few amendments—and none since the first part of the Committee stage—I really feel that my noble friend Lord Elton deserves immense praise because he has had so many other responsibilities to bear while this Bill was proceeding; but his skill and helpfulness have never failed. As chairman of the Royal Society for the Mentally Handicapped, may I say that I wish the 1431 orders of your Lordships' House enabled me to take advantage of the inspiring suggestion of the right reverend Prelate. Had I been able to do so, I can assure him that the funds would have been devoted to a worthy cause.
Speaking as one of many people who have been worried for some years by the confusion and lack of clear understanding caused by the fact that people did not understand the difference between mental handicap and mental illness, I rejoice at the extremely satisfactory solution of the problem brought about by my noble friend Lord Elton and embodied in the Government's amendments to the first two clauses of the Bill. They have the effect that the mentally handicapped will not be subject to compulsory hospital orders or compulsory guardianship under Parts IV or V of the 1959 Act unless they are "abnormally aggressive or socially irresponsible". But the mentally handicapped will still be subject to other provisions of that Act, including Part VIII, where they will get the benefit, where it is needed, of the Court of Protection.
It is a load off our minds that Parliament has at last acknowledged the true position of the mentally handicapped. The amendments which my noble friend asked the House to make perhaps affect the position that he stated at Second Reading and which is stated in the White Paper with regard to consolidation; and when he replies he may care to say a word about that, because we have had some discussion of it. Of course, as has been said, the Bill has been improved in many other ways as well. There are two matters which now will go to the noble and learned Lord the Lord Chancellor—the question of legal aid and the question of Section 141. They are both of great concern, in my opinion, and are greatly discussed.
I should like warmly to reciprocate what the noble Lord, Lord Winstanley, so kindly said about the part I have played in this Bill. At times I have felt rather like a parasite because I was dependent upon other people's amendments in order to say what I felt might be said, but I am very grateful to those noble Lords who tabled the amendments and tolerated my interventions. Having been one of the parents of the 1959 Act, I feel rather like the father of a daughter who at the immature age of 23 needed a face-lift and has now got it—and for that I can be thankful.
§ Lord Mottistone
My Lords, very briefly, I took would like to thank my noble friend for his courtesy and care in taking this Bill through. I should like to make only one contribution. It is quite clear that noble Lords who know a great deal more about this subject than I do feel that not only is it a good Bill but that it has been improved by us. I am left with a feeling that we have made quite a lot of progress in looking after and improving the general relationships and civil rights, if you like, of patients. However, I fear there is a slight risk that we may have gone too far in not looking at the civil rights of the other people involved, to which my noble friend Lord Auckland referred. He mentioned the doctors, the nurses and the social workers, but he did not refer to the relations; and I think that they too need to be protected in this very difficult area in which we operate. I hope that the Government are fully aware—I am sure they are—of 1432 the fact that it must be necessary for those people who have to deal with mental patients to have their courage buttressed—and reference has been made to their courage—rather than eroded. I think that is something which, when the Bill finally leaves Parliament, we must hope it preserves, as well as all the other good things it has tried to do.
§ 7.5 p.m.
§ Lord Elton
My Lords, since I moved that this Bill be read a second time, your Lordships have spent very nearly 29 hours debating its provisions, and even that figure was typed some hours ago. Between us we have filled 433 columns in the Official Report and we have given a very thorough airing to many issues of principle and of detail. If I can trust my arithmetic, 198 amendments have been moved, taking Committee and Report together, and 119 of those amendments—more than half—were agreed. The Bill is therefore different from when your Lordships received it and I believe it is better. One of the most significant changes we made to the Bill was one we came to earliest: the change from "mental handicap" to "mental impairment", on which my noble friend has remarked.
I should like at this stage to acknowledge with gratitude the very kind things all your Lordships have said about my colleagues and about my own performance in relation to this Bill. I think your Lordships may have been a little too kind—after all, we have only done our job—but I would reciprocate by saying that it has been very agreeable to take the Bill in circumstances where there has been so much good feeling and co-operation around the House.
My noble friend Lord Renton mentioned a moment ago the change of definition, and he made a reference to the new phrase, which is of course "abnormally aggressive or seriously irresponsible"—I think lie said "socially irresponsible". When I moved this group of amendments, with the support of my noble friend, I think I did change the situation to which he referred. In paragraph 54 of our White Paper published last November, we said that when consolidation of this branch of legislation takes place,… the opportunity will be taken to separate out those provisions which relate to the mentally handicapped".At the Second Reading of this Bill I confirmed that intention. However, your Lordships will have taken note of the important amendments which I asked you to make on our first day in Committee, to which I have just referred, and which have the effect that only those mentally handicapped people who suffer from "abnormal aggressiveness or serious irresponsibility" will be subject to compulsory detention or guardianship under Parts IV and V of the Mental Health Act 1959. This has been achieved by introducing the new concept of "mental impairment". The mentally handicapped will continue to be subject to other provisions of the Act, notably admission to hospital for assessment under Section 25; and they will continue to have the advantage of being eligible for the jurisdiction of the Court of Protection under Part VIII.
The question arises as to whether these changes affect our decision with regard to separate consolidation. After discussing the matter with my noble friend, who is chairman of the Royal Society for the Mentally 1433 Handicapped, I have come to the conclusion (with which he agrees) that separation is no longer necessary. It would be a complex and rather clumsy process and would involve some delay. But, quite apart from that, the legal position has been so much improved and clarified to the advantage of the mentally handicapped that separate consolidation would not do anything to improve their position any further.
Two themes have run through the Bill and through our debates. One theme concerns patients' rights. Most of the Bill is about additional rights and safeguards for patients. The major development to which your Lordships have agreed during the passage of the Bill is of course contained in the new Schedule 1 with regard to restricted patients: this was ably moved by my noble friend Lord Belstead. It provides that such a patient may apply directly to a mental health review tribunal with power to order his absolute or conditional discharge from hospital. This is a major change for the patients thus affected, and I am glad that your Lordships have seen my noble friend's amendments as a fair and speedy response to the judgment of the European Court of Human Rights. A second theme of our debates has been a very real and deep concern for the welfare of patients both while they are detained in hospital and once they have left it. Your Lordships made this abundantly clear—almost embarrassingly clear earlier this evening.
I think we all recognise that, strictly, this Bill covers only a part of the field—that concerned with legal powers for those who are subject to detention. It does not directly affect the services provided for mental patients, particularly for the vast majority who are not subject to detention and, indeed, are not in hospital at all. Many of your Lordships have spoken from personal experience of that work. Others of us are able to pay tribute and express our strong desire that services for mentally disordered people should be as good as possible.
But let us not under-estimate the importance of clear and enhanced legal rights in promoting the general well-being of the mentally disordered. In this respect, the Bill carries forward the work of the 1959 Act, which has already done so much to promote changes of attitude and to make possible developments in services. May I, at this point, add a word of recognition for the very important work done ahead of this Bill by my noble friend Lord Butler.
I do not want to detain your Lordships longer, but some of your Lordships inquired about the matter of legal aid. I said on Report that I expected to be able today either to satisfy or to dissatisfy your Lordships on the question of legal aid or assistance, by way of representation for patients before mental health review tribunals. I regret that I must dissatisfy you. The urgent consideration of the matter continues, along with the consideration of equally important calls for extension of legal aid elsewhere. However, given the exigencies of the timetable, it now appears that this Bill will leave your Lordships' House with that question unanswered. The Government are in no doubt, however, that the matter will be raised again in another place. At this stage, I can do no more than repeat the Government's intention to extend legal aid or assistance by way of representation to patients, as 1434 soon as money can be made available and any questions of priority can be resolved.
I do not think it is necessary for me to recapitulate what we have done in this Bill; your Lordships have done it for me. I should like to end on a theme which I introduced at Second Reading, alongside that of the interests of people affected by the legislation; that is, the theme of practicability. In looking at proposals to change the Bill, I have tried to keep this at the forefront of my mind; that attempts to improve rights and conditions are helpful to patients only if they are workable in practice. We in this House cannot make a single patient more comfortable or relieve his mental disorder by one jot. What we can do, and are seeking to do in this Bill, is to enable professional staff to use their skills to make patients better, within a clear legal framework which gives detained patients more rights than they have ever had before in this country.
In that context, I must say one plaintive word to the noble Baroness, Lady Masham, who I hope remains my friend. I do not think that what she has achieved this afternoon has clarified the law, but, not wishing to sour the relationship, I would add that I will very gladly take to my honourable friend her suggestion that there should be a change of responsibility for mentally handicapped patients to the Minister for the Disabled. I give no commitment as to what the result of that transfer of information will be.
I should like to conclude by giving my heartfelt thanks to all those who have taken part with a will in this Bill. I believe that the Government have honoured their commitment given at the beginning, that we would always listen carefully to practical proposals for improving the legislation. It is a different and a better Bill. In reciprocating the very kind things that your Lordships have said, I should like to include my own gratitude for the really remarkable, efficient and almost omniscient support which I have had from the Box to the right behind the Throne. Since that service which I have received has enabled me to give a service to the House, I am sure your Lordships will feel it is proper that I should mention it. I think that we have now reached the Blessing.
Bill passed, and sent to the Commons.