78 After Clause 46, insert the following new clause:
("Management of property and affairs of patients
.—(1) In section 100(2) of the principal Act (functions of Court of Protection) for the words "the property of persons under disability" there shall be substituted the words "the property and affairs of persons under disability".
(2) In section 103 of the principal Act there shall be omitted—
§ 79 After Clause 46, insert the following new clause:
§ ("Protection for acts done in pursuance of the principal Act and this Act
§ .—(1) Section 141 of the principal Act (protection for acts done in pursuance of that Act) shall be amended as follows.
(2) For subsection (2) there shall be substituted—
(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.
§ (3) In subsection (3) for the words "any provision of this Act" there shall be substituted the words "any other provision of this Act".
(4) After subsection (3) there shall be inserted—"
(3A) This section does not apply to proceedings
against the Secretary of State or against a health authority within the meaning of the National Health Service Act 1977.
(5) For subsection (4) there shall be substituted—
(4) In relation to Northern Ireland the reference in this section to the Director of Public Prosecutions shall he construed as a reference to the Director of Public Prosecutions for Northern Ireland").
§ 80 Clause 47, page 34, line 19, after 'Act', insert 'and this Act'.
§ 81 Clause 47, page 34, line 32, after 'Act', insert 'and this Act'.
§ Lord Trefgarne
My Lords, with permission, I beg to move that this House doth agree with the Commons in their Amendments Nos. 78 to 81 en bloc. At the same time may I speak to Amendment No. 119. These are technical amendments and I hope that they need not detain us for long. However, I should like to say a word about Amendment No. 79 which meets the desire of many of your Lordships that the Bill should amend the restrictions on legal proceedings in Section 141 of the 1959 Act. Three changes have been made. In criminal proceedings, the consent of the Director of Public Prosecutions must be sought instead of the leave of the High Court. In both criminal and civil cases the amendment removes the requirement that substantial grounds of bad faith or lack of reasonable care must be shown before proceedings begin. It will, however, still be necessary to show bad faith or lack of reasonable care in the substantive proceedings. That gives hospital staff and others a defence for actions properly carried out in their professional duties. Section 141 will not apply at all to legal proceedings against the Secretary of State or a health authority.
It will be recalled that Section 141 was much debated at earlier stages in your Lordships' House. In Committee, the noble Lord, Lord Wallace of Coslany, and the noble Lord, Lord Winstanley, moved amendments. On other occasions the noble Lord, Lord Hooson, intervened as well. I think that there was a good deal of correspondence between various noble Lords and myself subsequent to that.
The Government still believe that Section 141 is an important safeguard for hard-pressed staff, so we could not agree to the repeal or substantial weakening of the section proposed in a number of the amendments which were moved in this House. But we have been impressed by the strength of opinion both in this House and in another place. We have also had regard to the views expressed to the Special Standing Committee by professional staff. The Royal College of Psychiatrists, for example, said:The College supports those who urge the Government to amend section 141 of the Act".The Royal College of Nursing said in oral evidence:…the consultations that we had with the Royal College of Nursing showed that there were no strong feelings that section 141 should remain. We agreed that the DPP would be a better route if section 141 were to be retained".In the light of all these opinions we have felt able to accept Amendment No. 79 and I hope that your Lordships will likewise welcome it. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Trefgarne.)
§ Lord Renton
My Lords, I should like to say a word about Amendment No. 79. It was important that my 551 noble friend Lord Trefgarne should explain at some length the effects of the various subsections in this new clause. I was one of the people principally concerned in the 1959 Act with Section 141 as it was then enacted, but I think I was also the first member of your Lordships' House to criticise it when it was dealt with in Committee. It was a difficult matter. I think we all agreed that there had to be some safeguards before proceedings could be brought in these sometimes rather difficult and delicate circumstances, but Section 141 contained conditions which stultified the outcome of proceedings and could be said to have prejudiced them. I think we now owe it to my noble and learned friend the Lord Chancellor, who must have had to be consulted, to have a satisfactory solution, a very much more simple arrangement and one which I should have thought all noble Lords could find acceptable. Speaking for myself, therefore, I say that we should be grateful.
§ On Question, Motion agreed to.