COMMONS AMENDMENT (Hansard, 27 October 1982)

§ Lord Trefgarne
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 41. With your permission, may I speak at the same time to Amendments Nos. 54, 55, 59 to 68, 72 and 73. These all relate to the Mental Health Act Commission and its functions. A number of them relate to a wider power to investigate complaints, including complaints from former detained patients and complaints by other people about the use of the statutory powers. The commission is also given a wider duty to keep under review the exercise of all the powers in the Act and the discharge of the duties it imposes. The first of its biennial reports will be made two years after it is set up—a year earlier than was proposed when the Bill left your Lordships' House—and the code of practice will he subject to a negative resolution procedure to facilitate parliamentary scrutiny.
Perhaps the most important amendments of all are Nos. 51 and 72, which enable the commission's responsibilities to be extended to informal patients as well as detained ones, as was urged by some of your Lordships at earlier stages of debate. The code of practice will give guidance on medical treatment for all mentally disordered patients, not just detained ones. That is a significant step in widening the commission's role, though we will expect it to give particular attention to the need for guidance on the special ethical and professional issues involved in treating detained patients. I have already mentioned the new clause extending the greatest safeguards in the consent to treatment procedures to informal patients.
The third way in which the commissin has been extended to informal patients is Amendment No. 72, which gives the Secretary of State a flexible discretionary power to direct the commission to review particular aspects of the care and treatment in hospital of informal patients. I must not raise false expectations. We do not intend to invoke that power straight away since the commission's first priorities must be the responsibilities for detained patients which are the reasons for its creation. As I have said, those tasks have been extended during the passage of the Bill, and it would not be sensible to direct the commission to take on extra responsibilities for informal patients until it has come to grips with its primary duties. But the power for an extension will be there in the Bill, with your Lordships' agreement, to be used if and when the time is right.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Trefgarne.)

Lord Wallace of Coslany
My Lords, I am very pleased indeed to see Amendment No. 55, which means that any code of practice will receive scrutiny by both Houses of Parliament. That is very important indeed and it was a matter that some of us pressed in this House. The other matter that pleases me is that although the Government do not intend to rush their fences, voluntary patients will get protection as with the other type of patients in the setting up of the 542 commission. That I think is important. We had voluntary patients discussed in another aspect. Those noble Lords who supported the noble Lord, Lord Mottistone, will now agree with me that this is very desirable so far as voluntary patients are concerned.

§ Lord Mottistone
My Lords, in the complications of Amendments Nos. 41 and 41A, and so on, I did not thank my noble friend—which I now do—for having reassured me on one point where the specific requirement within the Bill for obtaining medical opinion has been struck out. He mentioned one of the amendments to which that referred. It is also struck out by Amendments Nos. 54, 86 and 18.
I did not raise this when my noble friend Lord Elton was talking to us about No. 18, so I thought I would do it altogether at this stage as a separate thing. It concerns me a little that the specific requirements which were in the Bill for the Secretary of State and, in the case of No. 18, the court, to obtain a specifically medical opinion as well as any other opinion which may be relevant, is rather a backward step because it is surely wrong that there should be any suggestion that the doctors who specialise in this area are not people of great eminence and probity who should be consulted on matters of importance at all times. I get a slight feeling that they are being a little "swept away" by this Bill. I hope that my noble friend can give me some reassurance in general and in particular on the three amendments to which I have referred.

Lord Winstanley
My Lords, the noble Lord will realise by now that I have no intention of trying to alter the Bill or even to improve it at this eleventh hour, but I wonder whether perhaps in his reply the noble Lord could be a little more forthcoming as to the possible extension of this role of the Mental Health Act Commission in investigating complaints and the possibility at some stage of extending that to voluntary patients. As the noble Lord acknowledges, the Bill in fact gives the Mental Health Act Commission certain duties regarding the care of voluntary patients. That being so, surely it is logical that in the end one should extend those duties even to the possibility of the investigation of complaints. The noble Lord said that various things were being done and it would no be practical to do this at the outset, and so on. But would he make it clear that it is the Government's intention that in principle that extension should be made at some appropriate time?

§ Lord Kilmarnock
My Lords, I think the noble Lord also spoke to Amendment No, 73, which is the one that I wanted to touch on. It provides that in the second year after it is established, and then in every subsequent second year, the Mental Health Act Commission shall publish a report. In Standing Committee in another place, that was changed to annual reports, which I personally favour. Unfortunately, that was overturned at Report stage in the other place and so we now have biennial reports. I still think, and I hope the Government will give consideration to this, that there is a very strong case for having annual reports.
When we were considering the Mental Health Act Commission at an earlier stage in your Lordships' House it appeared as a rather cloudy body. It is now 543 becoming less shrouded and is emerging as an extremely important body with teeth. Among its functions are such things as to appoint and monitor independent second medical opinions, to prepare a code of practice, to decide the treatments which should be included in the regulations—and that is a very important function—to review the exercise of the powers of detention of patients under the Act, to investigate any complaints, to visit and interview patients and, finally, at some future date it seems, from what we have just heard, that it will also incorporate voluntary patients within the ambit of its responsibilities. It is an extremely important and wide-ranging body that we are setting up, and I must say I cannot for the life of me see why a body of this sort, like other quangos (if that is the right term) should not report annually.
The other place has decided that it is going to report biennially, but I hope the Government will keep this under review; and I also wonder whether it might not be possible for the Mental Health Act Commission to consider in the alternate years when it is not required statutorily to make a report, either to do so voluntarily—because particularly in the first year of its operation we shall be extremely interested to hear what it is up to—and alternatively whether in the alternate years between the statutory reports it should not set itself to make selective reports on particular issues within its remit. It seems to me that the issues within its remit are many and of very great importance, as I have already pointed out. That seems to me to be another road the commission might go down, and I should like to have some assurance from the noble Lord that he will convey these suggestions to the commission when it is set up, and that it will give them serious consideration.

§ Lord Trefgarne
My Lords, I think it would be a mistake to impose too many burdens on the commission in the early months and years of its life. Certainly, I think that annual reports would be too great a burden, but I hope the noble Lord, Lord Kilmarnock, will agree that what is now proposed is at least an improvement on the original provisions in the Bill. That is not to say that the Mental Health Act Commission could not and would not produce ad hoc reports about something which they think ought to be brought specifically to public attention in between their biennial reports, but I certainly would not wish to impose an obligation upon them to do so.
As for the extension of their activities to cover the affairs of informal or voluntary patients, which was raised by the noble Lord, Lord Winstanley, that is a matter which the Secretary of State of the day will wish to direct them to do in due course. However, I must make it clear that we do not anticipate that happening right away, for the same reasons that I advanced to the noble Lord, Lord Kilmarnock, just now. In the early months and years of the life of this commission, they will have their hands full in seeing to the primary purposes for which they have been established, namely, safeguarding the affairs of the detained patients: and I think it would be wrong to ask them to look after the affairs of the informal patients at the same time. In the light of how they get on with their primary task, my right honourable friend, or whoever 544 might one day succeed him, may wish to consider the possibility of directing them to look into the question of the informal patients when the moment appears right for that purpose.
My noble friend Lord Mottistone asked me first of all, in respect of Amendments Nos. 54 and 86, about consultation arrangements. I can assure him that we shall consult everyone with an interest in these matters, and especially the medical interests. I really would wish to dismiss at once the suggestion that we are in any way dispensing with medical advice in the preparation of these things. I am sorry that idea has gained currency, if only in the mind of my noble friend, and I do assure him that it is not so. On the question arising out of Amendment No. 18, which my noble friend Lord Elton spoke to earlier, that is consequential to the provision for an accused person to get his own medical report; and in that case the court will of course want to have regard to the relevant advice. I think those are the main anxieties in the minds of your Lordships concerning these matters and I hope you will now see fit to agree to these amendments.