COMMONS AMENDMENTS (Hansard, 27 October 1982)

§ Lord Elton
My Lords, with the leave of the House, I beg to move that this House doth agree with the Commons in their Amendments Nos. 17 to 21 en bloc. The purpose of Amendment No. 17 is to broaden the scope of Section 52 of the Act so that the county court will be able to appoint an acting nearest relative for the benefit of a patient who is detained in hospital or subject to guardianship in pursuance of a Hospital or Guardianship Order made under Section 60.
The nearest relative for such a patient has, of course, no power to authorise his discharge under Section 47 499 because of the provisions of subsection (3)(a) of Section 63 but he does have the right to apply to the tribunal on behalf of the patient under subsections (3)(a) and (4) of Section 63 as amended by Clause 19. This represents an additional safeguard of the interests of such a patient and in the Government's view is an appropriate provision in a Bill which is intended to advance the interests of all detained patients.
With regard to Amendments Nos. 18 to 21, your Lordships will recall that an amendment to very similar effect to those on the list in relation to Clause 28 was proposed in Committee in this House by the noble Baroness, Lady Robson, was then resisted by the Government and then withdrawn. In the Special Standing Committee in the other place, however, the Government's arguments did not prevail and amendments to both Clause 28 and 29 were carried. The effect in each case is to give to a person who is remanded to hospital, either for assessment under the new power conferred by Clause 28 or for treatment under Clause 29, a statutory right to obtain a report from a doctor of his own choosing and the right to apply to the court for the remand to be terminated on the basis of the information contained in that report.
We remain of the opinion expressed in this House by my noble friend Lord Belstead—it is a matter of irony for me that I am brought in now at the only part of the Bill which I did not speak on then—that these amendments are unlikely to be of great benefit to the accused person, first, because he has already the right to commission his own private medical report and, secondly, because the court is unlikely to end his remand on the basis of such a report until it is satisfied that this would be appropriate by the evidence of the medical practitioner responsible for making the report or giving the treatment that the court originally requested. Equally, however, we recognise that there is a strong feeling among many people that such a provision would be helpful and certainly we must concede that it would do no great harm.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

Lord Wallace of Coslany
My Lords, I rise not to speak against the amendments but to accept them; but I want to revert to the remarks made by the noble Lord, Lord Winstanley, about the short notice that we have had and so on. These are the facts of life towards the end of a Session and we have got to put up with it. I rise to my feet to be fair to the noble Baroness the Leader of the House and to the Chief Whip for sending to us quite a detailed list and a simple explanation of a number of amendments. For that the Government are to be thanked. Their action is appreciated. I would also say that I hope that they will be as generous to me later this evening as I am to them at this moment.

Lord Winstanley
My Lords, may I take the opportunity of welcoming the noble Lord, Lord Elton, on his return to this territory with which he had became so familiar and with which, I may say, he really had become so expert. I say that without any disrespect at all to the noble Lord who has now replaced him in office terms. On this particular block of amendments. I should like to raise one point which arises in both Amendments Nos. 19 and 21. The point 500 is with regard to the ability of the accused person to be entitled to obtain at his own expense an independent report et cetera. I do not necessarily quarrel with that as a principle. I think that there are many occasions on which it is perfectly proper that an independent medical report of that kind should be paid for by the person asking for it. But I must bear in mind—and no doubt the noble Lord will bear it in mind—that from time to time there will be people with very limited means or even with no means at all.
Therefore, I would hope that we might get some assurance from the noble Lord, Lord Elton, that in operating these clauses and, in particular, the requirement that the person concerned should be required to pay the cost of the independent report, where circumstances arise with a person of limited or no means at all, that some effort will be made to provide funding for a necessary report for that person if the need should happen to arise. I do not know what thought has been given to this or what particular funds might be available. I would not have thought that it would be the wish of this House or another place that a person, because of limited or absent means, should be deprived as something which he might regard, rightly or wrongly, as something essential to his interests. I hope that the noble Lord will be able to give us some kind of assurance on that point, about a safety net for those who cannot afford to fulfil this requirement.

§ Lord Renton
My Lords, the noble Lord, Lord Elton, must have breathed a sigh of relief over the important amendments that he persuaded your Lordships to accept when the Bill was before your Lordships previously, amendments for which he had shown initiative and in regard to which great wisdom. But now that he is responsible for other parts of the Bill, the Home Office part. I hope I am not taking an unfair advantage with him to ask him for an assurance that the Commons amendments which he is now suggesting we should agree with do not affect the principle that when the courts have made a hospital order and the person in respect of whom it is made has been sent to prison or perhaps even discharged meanwhile, it is the court and not the hospital authority which retains ultimate responsibility in respect of the case. This is important not only in order that all concerned may know where the responsibility lies but also because upon that may depend the ultimate question of who exercises aftercare.

§ Lord Kilmarnock
My Lords, Amendment No. 19 refers to people remanded for assessment and Amendment No. 21 to people remanded for treatment. These amendments were SDP amendments in Standing Committee in another place. As important issues of liberty are at stake, the accused person should, in my view, be able to produce his own evidence for the court to balance against the rest, particularly as our attempts in your Lordships' House to reduce the period of remand for assessment from 12 to 8 weeks were not successful. Twelve weeks is a long time if it eventually turns out that the patient's mental condition is satisfactory and that a custodial sentence was inappropriate.
This was resisted by the Government in Standing Committee in another place but carried by seven votes to six. I am glad to note that the Government did not 501 seek to reverse this decision on Report. On these grounds, I congratulate the Government for leaving these amendments in the Bill. This is a tribute to the spirit in which this Bill at all its stages has been approached by all parties in both Houses of Parliament. If we conducted all our affairs in Parliament on the same basis as we have conducted the Mental Health Bill I think that our political affairs would be in better shape than they are. Finally, I should like to add my hacking to the query put forward by the noble Lord, Lord Winstanley, regarding some assistance with the costs of an independent medical opinion.

§ Lord Elton
My Lords, may I acknowledge the kind remarks made by noble Lords in welcoming me back to this well trodden ground. On the matter raised by the noble Lord, Lord Winstanley, as I recall, we at no time were considering giving an unfettered right to patients to get opinions at the taxpayers' expense but merely about putting into legislation a confirmation of the right of any patient in a hospital to be seen by another doctor. However, we are dealing here with accused persons most of whom will in any event be eligible for support via legal aid in the preparation of their cases. I am assured that where the commission of an independent medical report forms a proper and necessary part of the accused's case so far as the court proceedings are concerned, legal aid may reasonably embrace the cost of the preparation of the report. Thus the effect of the words, at his own expense is only to make it clear that the subsection does not confer an automatic right to obtain a second report at the taxpayers' expense irrespective of the accused's circumstances, or the merits of his case. It is a right which, in so far as it is exercised at the taxpayers' expense, ought to he exercised reasonably and therefore the legal aid criteria will apply.
As to the question of my noble friend Lord Renton, only the court can order a patient into the hospital. His question is whether the hospital can annul the order. The answer to that is certainly, no. Therefore, I commend these amendments to your Lordships.