Mental Health (Amendment) (Scotland) Bill [H.L.]

HL Deb 18 January 1983 vol 437 cc1359-405

7.54 p.m.

House again in Committee on Clause 6.

Lord Ross of Marnock moved Amendment No. 25:

Page 3, line 34, at end insert (" and on a date determined by the Secretary of State by order all reference to persons suffering from mental handicap shall be omitted from the Act.")

The noble Lord said: Mention was made of this amendment when we discussed the last amendment on the confusion in respect of "mental deficiency" and "mental handicap". I supported the Government: a change has been made and "mental handicap" is now the phrase, and I hope remains the phrase, to describe those who hitherto have been labelled "mentally deficient". I want to add to the end of Clause 6 another phrase, and on a date determined by the Secretary of State by order all reference to persons suffering from mental handicap shall be omitted from the Act.

People who are suffering from mental handicap are not mentally ill. They are mentally handicapped, which they may well have been from birth or from an accident, but they are not mentally ill. They are people who are not able to be cured of that disorder. It is not a mental illness, it is a handicap; and from that point of view it has been some people's feeling for a long time that, as the change has been made in England, the mentally handicapped should be dealt with in a Bill of their own. Because changes would need to be made in legislation which might take some time, I have not stipulated a date by which it would have to be done in respect of Scotland, because it means gathering together suitable legislation in respect of handicap and putting that into a separate Bill. Instead, I have said that, on a date determined by the Secretary of State by order", this shall be done. It is not a year. It is not 18 months. It is not two years. I know that there are difficulties about it, but the power to do it will be there and the work can be done by the Scottish Office until such time as there is an opportunity for making this change, and then it shall be put before Parliament. I am sure that that would meet the wishes of most people concerned and it would meet the practical needs of the Government in respect of parliamentary legislative timetables. I beg to move.

The Earl of Mansfield

The noble Lord, Lord Ross of Marnock, spoke to his amendment on the last occasion, when Amendment No. 24 was discussed, and I also spoke at length. I do not think that I can really say very much more. What I have tried to say is that, although one has considerable sympathy with the relatives and those who are concerned with the mentally handicapped, I do not think the mentally handicapped themselves either know or care what is the legislation which affects them. The great mass of the public at large do not read the statutes and I do not suppose they appreciate that, for the purposes of legislation—although the provisions are similar in many cases and therefore it is convenient—the mentally ill and the mentally handicapped are the subject of legislation together. If they know it at all, they must realise that there is a complete difference as between these and the other provisions, except in such matters as the function of the Mental Welfare Commission.

What this comes to is whether we should legislate in this way in the hope that on some future occasion a Secretary of State will make the necessary order, realising, as I have said, that he will have had to work to produce a massive Bill which will take into effect all the legislation which has been more or less embodied in the 1960 Act. I believe it would be a mistake to do that. It would arouse public expectation. I think that there would be continuous pressure on the Secretary of State of the day to review all the processes which would have to be gone through before the legislation could be brought forward. It would be, in a way, unkind to the relatives of the mentally handicapped to engender hope or make them believe that there was an imminent change in the law when, in fact, as I have tried to tell the Committee, there is no imminent change, and we all know it. As I have said, the resources are simply not available to do this. In the circumstances, I have considerable sympathy with what is behind the amendment but for the reasons I have given I cannot recommend the Committee to accept it.

Lord Campbell of Croy

While I do not dissent from what my noble friend has said, whatever may be happening south of the Border I am not convinced that we need separate legislation for mentally handicapped people as compared with those who are mentally ill. However, I feel I must say something because some of your Lordships may recall that I was chairman for Scotland in the International Year of Disabled People in 1981, and one of the messages I was receiving, particularly through a publication of mine and also in other articles and speeches, concerned the difference between those who are mentally ill and those who are mentally handicapped.

I entirely agree with the noble Lord, Lord Ross of Marnock, that this difference has not been known in the past. Both categories of person, if they are severely affected, are disabled, but their condition—I speak in the presence of at least one medically qualified person, and I hope he will not mind my saying this as a layman—and normally their treatment, is quite different. At the beginning of the International Year I was disappointed to find so many people among the public I met or addressed at meetings who would say afterwards that they did not understand what I meant by the difference between mentally ill and mentally handicapped. I think the message is getting through, and it is important for everyone connected with both categories, but particularly for those who are mentally handicapped and who will be like it all their lives, and their relatives.

I agree with the sentiments expressed by the noble Lord, Lord Ross of Marnock, but I do not think that completely separate legislation is required in Scotland for the category of mentally handicapped.

Lord Winstanley

I very much agree with what has been said by the noble Lord, Lord Campbell of Croy, and it therefore follows that I agree with much of what has been said by the noble Lord, Lord Ross of Marnock. I do not want to go into the merits of the argument about the precise wording that is used, but in the earlier measure which we dealt with in your Lordships' House relating to England and Wales we spent a great deal of time on this particular matter, and the arguments were developed at great length. I think that noble Lords were satisfied by the force of the arguments.

The noble Lord, Lord Ross of Marnock, referred to the fact that as regards England and Wales we have taken certain steps to make this differentiation, which we regard as important. In replying to an earlier amendment the noble Earl stated quite categorically that there is not the slightest reason why people in Scotland should necessarily feel obliged to do the same as in England and Wales. If the Scots wish to do something differently, why not? Why not, indeed? I am poking my half-English nose into Scottish affairs; but perhaps I may suggest that the other half is Scottish, and as an excuse for intervening I could perhaps claim to be the only Member of your Lordships' Committee to have played "The Earl of Mansfield's March" on the bagpipes at the Braemar Gathering. I therefore have some kind of right to say something.

If in this Scottish Bill we are to do something differently and are to use words that are substantially different from words used for England and Wales, the obligation rests on the Minister who is dealing with the Bill to give the reasons for that. If things are to be done differently (and I am not saying that they should not be) the onus rests on those in charge of the Bill to say why they are taking a slightly different course from that which your Lordships adopted in relation to the other measure. I hope that the noble Earl can say a little more on why we should deal with this matter differently.

Baroness Masham of Ilton

All I want to say is that I support the amendment and the noble Lord, Lord Ross of Marnock, in this matter. After all, the amendment says that it is up to the Secretary of State to act when he can, and I believe that there is no harm in giving people hope. I do not believe that this would raise their hopes too much or too quickly, because the amendment does not say that.

Lord Ross of Marnock

I am disappointed that the Minister has given the very old reply that the people just do not know which Bill these measures are in, or what Act of Parliament. I do not know whether many Members of your Lordships' Committee know which Act of Parliament is concerned. Actually, it is not one Act of Parliament. We have given a lot of attention to this. We have made advances in the early detection of handicap, and have placed responsibility for that on the local authorities and health authorities. We find this in changes made in recent years for the mentally handicapped as regards education and pre-school education. We are not referring to one Act, but are taking them out of three or four Acts. I do not regard the 1960 Act as a massive Act. I have sufficient knowledge of the Scottish Office to have confidence in its ability to extract the mentally handicapped from it and, if necessary, to extract from the Education Acts those aspects concerning the mentally handicapped in respect of which they are singled out for special treatment in education, and to put that all into one Bill.

The people who know the difficulties about legislation are the parents of the mentally handicapped. They are the people who have never taken an interest in it, like many Members of Parliament and many Members of your Lordships' House, and who suddenly find it affects them, their families and their lives and who try to scramble through all sorts of pieces of legislation. They then discover that the main part deals with what used to be called the "insane". I do not suppose we are going back to that term, although for a moment I saw the Minister wavering in respect of "mental defective". When we used that more readily it was "lunatics", and "mental defectives". We got away from "lunatics", and it is now "mental illness". There is a difference.

The other point is that they will still be connected with the Mental Health Bill, because like everyone else the mentally handicapped can suffer from mental illness; but we are treating them in the same way as we are treating other people. I become more convinced of this the more I hear the kind of arguments we get from the Minister about the massive nature of the task. That is absolute nonsense. We can do this quite well. We can extract the mentally handicapped from the Bill and they can have their own Bill in our own time, or in the Secretary of State's own time, although I trust it will not be all that long.

I can remember that Scotland took the right to raise the school leaving age to 16 in 1918, but it was not done until 1946. The action was not exactly immediate. We are being reasonable in suggesting that, given a reasonable amount of time, to be determined by the Secretary of State, this change should be made. The change has been made elsewhere in the United Kingdom, and while we do not glory always in the difference, is there any reason in this case why the mentally handicapped should not be treated in the same way in England and in Scotland? That has been the tendency as regards new legislation. I see no reason why we should differ in respect of this matter. The Minister will know that this was urged upon him during the discussions which took place prior to the Bill. The argument put forward then was confusion, the massive nature of the matter and no real gain. The same was said about changing "mental defective" to "mentally handicapped", but the Government were convinced by the pressure.

I do not want to divide the Committee on this matter, certainly not at this stage. I want to give the Government time to think about it and to make some assessment of the views of those in Scotland who are interested in the problem. We are not asking for the impossible; we are being very reasonable in what we are doing. I do not know whether the Minister has anything more to say, or whether he can give me any heart about the matter. However, I assure him that if I withdraw this amendment today I shall put it down again at the next stage of the Bill, hoping that the House will then be a little less crowded than it is at present so that there will be more opportunity for more people to urge their case!

Meanwhile, I am very grateful for what was said by the noble Lord, Lord Campbell of Croy. We recognise his special interest in this matter, and we are very much aware of the work that he did during that momentous International Year of Disabled People. I wish to express my thanks, too, to the noble Lord, Lord Winstanley, for his remarks. He also knows something about this matter and probably, if we take the neutral voice of the neutral half "Noes", we might be coming to the right conclusion. If the Minister has nothing more to say I shall certainly withdraw the amendment, but I promise him that he will see it again and hear from us again on this subject. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.13 p.m.

The Earl of Selkirk moved Amendment No. 26: Page 3, leave out lines 39 to 42.

The noble Earl said: I beg to move Amendment No. 26. The subsection in question appears to me to cast the reflection on the medical profession that they are putting into hospital those who are, in fact, suffering not from mental disorder but from other defects of character. I do not quite know whether it is not satisfactorily worded or whether I fully understand the intention. It is true that people suffering from mental disorder are sometimes, and perhaps not infrequently, promiscuous. That is very undesirable because the progeny may also be slightly unbalanced in mind. It is also true that people who depend greatly on alcohol and on drugs may eventually suffer from mental disorders. But I am not quite certain that that is really what the subsection is intended to cover. It may be the other way round, that there are occasions on which hospitals are used as drying out institutions. That is clearly a misuse of a hospital.

I thought I understood from the recent Criminal Justice Act that there were going to be special institutions or special arrangements for people to dry out. I am not certain whether that is correct. However, I suggest that the wording here needs some change because it is casting on certain medical officers the aspersion that they are misusing hospitals intended for either the mentally ill or possibly even mentally disabled people, and using them for purposes for which they were not intended. If that is so it could possibly be a matter that should be dealt with by the medical authorities themselves. However, the wording at present is: under this Act as suffering from mental disorder".

It looks accordingly as though someone is making a misstatement. I do not know whether it is true or not. I am not clear what exactly is the purpose of this clause.

The Earl of Mansfield

The Scottish definition of "mental disorder", which is set out in Section 6 of the principal Act, says that "mental disorder" means mental illness or mental handicap however caused or manifested. That means that no person who exhibits promiscuous, immoral, deviant or addictive behaviour should for that reason alone be taken to be mentally disordered. Such behaviour may be symptomatic of mental disorder but it does not by itself constitute evidence of mental disorder.

Let me say at once that it is not strictly necessary for the provision in Clause 6(2) to be made. Indeed, it has been taken from the English Act. But there was thought to be an advantage in having this clear statement of principle incorporated into the legislation. People may not appreciate the full implications of the definition of "mental disorder", and I do not think that it does any harm to ensure that the law is perfectly clear on this point. However, one point that I would mention to my noble friend is that certainly nobody intends to cast any aspersions upon the medical profession.

The Earl of Selkirk

It clearly suggests that people are improperly put into hospital. I would only ask my noble friend to look at it to see whether the words could be changed. Am I correct in thinking that hospitals have been used as drying out institutions for people who are not mentally disabled but who are suffering from other defects? Is that what it is trying to get at? If it is, then I think that the wording could be changed to make the intention clearer. I am not very-happy with the wording as it stands. I have no particular desire to protect the medical profession, but it is suggested that hospitals are being misused. That may be the case, and if it is I should have thought that the subsection could be worded in slightly different terms.

The Earl of Mansfield

I think that I had better take the matter away and make some inquiries as to why it was considered necessary to have this declaratory subsection. It may be that it would be better out, but I shall see what I can do.

The Earl of Selkirk

I am very grateful to my noble friend.

Lord Ross of Marnock

The important point to remember is that it concerns not just those who are detained in hospital, but those people who were encouraged after the 1960 Act to go into hospital as voluntary patients. There could be abuse by people going into hospital because they are alcoholics—they are not suffering from a mental illness but they are alcoholics. We all know that it happens. I have even heard them referred to as "weekend visitors". They go in as voluntary patients and then discharge themselves, and probably reappear in another two or three months. Is it purely a matter of dependence on alcohol or drugs? The point which the noble Earl, Lord Selkirk, makes is very relevant. Maybe there is the implication that they are being treated when, according to the Act, they should not be treated, because that will certainly be the case if we pass this clause as it stands. I sincerely hope that the Minister will look very carefully at the implications as regards not only people detained, but treatment that can be given to voluntary patients in respect of both drugs and alcohol.

The Earl of Selkirk

I am grateful for what the noble Lord, Lord Ross, has said. It seems to me that there is a broad suggestion that hospitals are being misused. I do not think that we should say that in a statute. However, in view of what my noble friend says, I am very happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell moved Amendments Nos. 27 and 29:

Page 4, line 4, leave out (" "severely mentally impaired" ") and insert (" "protected by the provisions of this section" ")

Page 4, line 5, after ("impaired";") insert—

("(aa) after subsection (6) there shall be inserted the following subsection—

"(6A) A woman is protected by the provisions of this section if she is suffering from a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning.";")

The noble Lord said: With the permission of your Lordships' Committee, I beg to move Amendments Nos. 27 and 29 together, because I understand that Amendments Nos. 28 and 30 have been removed from the Marshalled List. Section 96 of the principal Act which we find amended by subsection (3) of Clause 6, makes provision for the protection of those whom it describes as "female defectives".

The amendments to Section 96, which are set out in the Bill, are intended to retain the protection but to replace the term "a defective" and, above all, the definition of that term. In wishing to do this, unfortunately and quite unintentionally, the use of the term—which we would quote and which your Lordships may see in Amendment No. 27—"severely mentally impaired", relying as it does on the definition of that term which is to be inserted into the Act by paragraph 23 of Schedule 2 to the Bill, would restrict the protection offered at the moment by Section 96 to only those very few mentally handicapped females who are liable to compulsory admission to hospital.

The effect of Amendments Nos. 27 and 29 will be to restore and, indeed, we hope, to extend very slightly the protection which Section 96 affords against sexual abuse or exploitation of mentally handicapped females. With that brief, and I hope not too complicated explanation, I beg to move, if it is in order, Amendments Nos. 27 and 29 together.

On Question, amendments agreed to.

[Amendments Nos. 28 and 30 had been withdrawn from the Marshalled List.]

Clause 6, as amended, agreed to.

8.21 p.m.

Lord Ross of Marnock moved Amendment No. 31:

After Clause 6, insert the following new clause:

("After Care.

. In section 7 of the principal Act there shall be added after subsection (1) a new subsection as follows:

"(1A) Without prejudice to the generality of the said section 27 the relevant authority in each area shall in respect of those who are or have been suffering from mental illness make provision for an after-care service and that service shall meet the requirements laid down by the Mental Welfare Commission of Scotland." ")

The noble Lord said: I am here proposing an important new clause. The Minister of State or, indeed, some other members of the Committee, may not be entirely happy with the wording, but I think that the general principle will be acceptable, if not to the Government, to everyone else. The clause insists that in each area there shall, in respect of those who are or have been suffering from mental illness, be suitable provision for an after-care service.

Earlier in the Committee stage I referred to the number of patients who leave hospital and who, because of lack of attention and after-care service, which is really essential, before very long find themselves back in hospital. It is probably a question of home treatment; it may well be a question of discipline. But there is no doubt at all that we require an after-care service which will pay for itself by keeping people out of hospital.

I understand that an after-care service is now mandatory in the English scene. Please do not let us have: "Because England has it, should Scotland have it?"; we have had enough of that today. It is common sense. This is the kind of thing we need. I sincerely hope that the Government will think so too.

It may be that the Government will object to requirements laid down by the Mental Welfare Commission of Scotland. I do not necessarily stick to that possibility. It could be the Secretary of State who lays them down. After all, in the long run he is responsible for the services of the local authorities. This is something that would be done by the local authorities and so, if the Government think that it would be far better to have this laid down by the Secretary of State as part of the local government functions of local authorities, then I am prepared to agree to that and would gladly withdraw the amendment so that that change could be made at a later stage.

But I must insist on this. If we care, if we want to protect and help those suffering from mental illness, let us not have them leave hospital in the sure and certain knowledge that, without proper after-care service, they will be back in hospital within two or three months. I beg to move.

Baroness Elliot of Harwood

I should like to comment on this. In the many years during which I was chairman of a health committee and a social work committee, after-care was the most important thing we had to do. We used to spend an enormous amount of time and trouble either getting the social work department to deal with this—because mostly it was that department that did so—or getting the help of voluntary organisations interested in mental health and in the after-care of mental patients. I am sure that it would be to the advantage of any local authority or health authority dealing with this aspect to know that no one leaves a mental hospital of any kind without the health committee or the health authority in the area being notified, and being absolutely certain that from that moment there is someone available to supervise, look after and care for that person, to ensure that he will not return to hospital, which otherwise is almost inevitable.

I beg the Government to include this facility in the Bill and to make it perfectly certain that we have the same after-care service in Scotland as is available under the English Act—such after-care as will prevent people returning to hospital.

Baroness Masham of Ilton

I moved an amendment in your Lordships' House concerning after-care when we were discussing the English Bill, and Amendment No. 88 which comes later is really the same amendment. However, there is a need for after-care for all mentally ill patients when they are discharged. As I am sure the noble Earl knows, many of them are schizophrenic, and when they are in hospital they are given treatment. Often when they leave hospital they throw away their tablets or do not take them and then all the problems return and, as the noble Lord, Lord Ross, has said, they find themselves back in hospital again. Therefore, it is essential to provide an after-care service for them; at the same time, by keeping them out of hospital, money would be saved. I fully support the amendment.

Lord Winstanley

In order that the noble Earl will be aware that the feeling on this particular matter is the same in all parts of your Lordships' Committee, I, too, should like to support what has been said. We have seen a change in attitudes towards the mentally ill throughout the whole of Britain in all its component parts. There has been a move away from the idea of hospitalisation and institutionalised care for the mentally ill, and suddenly community care has become the kind of popular catchphrase: that, provided these people are in the community, there is a general feeling that all is well; that we can close down the big institutions and make them smaller and smaller as long as people are cared for in the community.

That is all very well, but it is only all very well if you actually supply services of the kind which are necessary in the community to enable those people to remain in the community in a satisfactory condition. As has been said by the noble Lord, Lord Ross, and others, if we spend an enormous amount of money, as we do, on hospital care for many of these cases—the schizophrenics to whom the noble Baroness, Lady Masham, referred—and allow them to go home without the kind of support and after-care which they need, we are merely pouring those hospital resources down the drain. I think that the noble Earl should be under no illusions that this is a matter of desperate importance, and I am quite sure he will find that all Members in all parts of your Lordships' Committee feel the same about it.

The Earl of Mansfield

I can be brief in my reply to what has been said. It may help save time if I anticipate what I imagine the noble Baroness is going to say in support of Amendment No. 88. The Government accept that a specific provision in relation to after-care should be included in the Bill. The noble Lord, Lord Ross, has it right in seeking to include the provision in Section 7 of the principal Act and that it should apply to all mental patients. The draftsmen do not altogether like his wording, but if he will withdraw the amendment for now I shall undertake to come forward with a Government amendment at a later stage to give effect in substantial measure to what is proposed both in this Amendment No. 31 and in Amendment No. 88.

Lord Ross of Marnock

We have to thank the Minister of State for that response. I am sure it was in the knowledge that there was a blast coming both from the noble Baroness, Lady Masham, and from the noble Baroness, Lady Elliot, that he said: "I had better sort out these civil servants and make them change their minds about this. But don't worry, we will get away with it. We will blame Ross's words and get our own in". We shall watch these new words carefully, because there are times when we do not like the draftsman's words. When it comes to the examination of the new words I am sure I shall have the help of the noble Earl, Lord Selkirk, as well, because the pair of us are getting more and more suspicious with every line we read of this Bill.

I thank the Government for appreciating the feelings of the Committee in respect of the importance of, and the need for, after-care. In view of what the noble Earl says, I gladly help him by withdrawing the amendment, and eagerly look forward to the acceptance he has given us in principle of the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Viscount Simon)

I have to tell the Committee that I have overlooked a mistake in the marshalling because Amendment No. 32 is not in fact an amendment to Clause 7. It is an amendment to Clause 6, and should have been taken before Amendment No. 31.

Clause 6 [Definition of "mental disorder"]:

8.32 p.m.

Baroness Stedman moved Amendment No. 32:

Page 4, line 8, at end insert—

("(4) After subsection (2) of section 7 of the principal Act there shall be inserted—

"(2A) (a) It shall be the duty of each Local Authority to present to the Secretary of State by such date as he will order made by statutory instrument appoint, and again five years after that date and so on at intervals of five years, a Mental Health Care Plan for their area.

(b) For the purposes of this subsection, each Local Authority shall appoint a Planning Group which shall include as members of it, representatives of the Health Board or Boards with responsibility for the area and appropriate Voluntary Organisations within the area. In appointing persons to that group, the Local Authority shall have regard to such matters as the Secretary of State may direct.

(c) In preparing a Mental Health Care Plan for the purpose of this subsection, it shall be the duty of a Planning Group to consider such matters as the Secretary of State may direct.".").

The noble Baroness said: It is with some diffidence that I intervene in a purely Scottish affair, but needs must since my noble friend Lord Taylor is at this moment extolling the virtues of Robbie Burns somewhere or other, and the noble and learned Lord, Lord Wilson of Langside, is snowed up in Scotland and cannot get down. Therefore, I am afraid that I have to be a rather inadequate substitute for the pair of them.

In moving this amendment, we feel that it would be helpful to the Scottish Office and all those concerned if the local authorities were asked to review their services. We ask only that the local authority shall appoint a planning group, and that that planning group shall include representatives of the authority, of the health board, and of the voluntary organisations concerned with looking after these people. It is something that local authorities do in most other fields. They have forward planning departments. They know that perhaps the resources are not available to do everything as they want, but they have at least got a plan to work to. What we suggest is that the local authority should form one of these planning groups for this purpose; that they should look at the services they see as being appropriate for their areas, and, even if they cannot implement them immediately, they can at least work towards them. I beg to move.

The Earl of Mansfield

This amendment seems to me to duplicate arrangements which already exist for co-operation between local authorities, health boards and voluntary organisations, not just for the mentally disordered but across the wide spectrum of health care provided in hospitals of various kinds and in the community for different client groups. Under Section 20 of the National Health Service (Scotland) Act 1972, health boards and local authorities already have a statutory duty to co-operate with one another. In 1977, the Secretary of State for Scotland, in a circular addressed to local authorities and health boards, strongly supported the setting up of Joint Liaison Committees between health boards and local authorities. This was one of a number of recommendations made by a working party, comprising representatives of health boards, local authorities and the Scottish Office, which was set up in 1975 to examine the pattern of relationships between health boards and local government and to advise on any special arrangements which might facilitate or improve the relationship.

In all parts of the country the local authorities and health boards already co-operate with one another in a constructive manner. In most areas formal Joint Liaison Committees have indeed been set up, with representatives of both the local authorities and the health boards, and these bodies advise on the planning and operation of services of common concern to both types of authority. These services, of course, include those in the fields of mental illness and mental handicap, where both the health and social work agencies have statutory responsibilities. Under the existing arrangements, it is already open to the Joint Liaison Committee to set up working groups to advise the Committee on particular issues of joint concern such as those to which this amendment refers, and in a number of instances this has indeed been done.

In my view it is unnecessary and almost unreasonable to make further statutory provision the effect of which will be to duplicate the existing machinery for consultation, which has not been running for a very long time. Furthermore, I think it would be wrong to impose on local authorities specific additional duties which would have expensive resource implications, and, for those reasons, I hope that the noble Baroness will see fit to withdraw this amendment.

Baroness Stedman

I am grateful to the noble Earl. Our information is that there are not very considerable resource implications in establishing such a planning board within the local authorities. I am sure that my noble friend will want to read what the noble Earl has said in Hansard tomorrow, and at this point of time I withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

The Committee has already agreed that Clause 6, as amended, shall stand part, and we come to Clause 7, Amendment No. 33.

Clause 7 [Appointment and functions of mental health officers]:

[Amendment No. 33 not moved.]

Lord Ross of Marnock moved Amendment No. 34: Page 4, line 13, leave out ("officers") and insert ("persons")

The noble Lord said: It is nice to rise to move an amendment that you know is going to be accepted. I am perfectly sure that the Government will accept it, because if they look at line 30 they will see: In considering the appointment of a person as a mental health officer.

They are not officers. They are not officers until they are appointed. They are persons first. I beg to move.

The Earl of Mansfield

I am not going to quarrel with the noble Lord. I will accept his amendment.

On Question, amendment agreed to.

Lord Taylor of Gryfe had given notice of his intention to move Amendment No. 35: Page 4, line 13, leave out ("officers") and insert ("approved Social Workers")

Baroness Stedman

I beg to move Amendment No. 35, and may I at the same time speak to No. 41, which is really on the same subject. We feel that it is important that the mental health officers—

The Deputy Chairman of Committees

I am afraid that this amendment cannot be moved because Amendment No. 34 has already taken the word "officers" out and put in "persons".

Baroness Stedman

I beg your pardon.

[Amendment No. 35 not moved.]

Lord Ross of Marnock moved Amendment No. 36: Page 4, line 16, after ("be") insert ("so")

The noble Lord said: This is really another piece of drafting, if we take it with the next amendment. Instead of saying, no person shall be appointed"— there is the justification again for the change to "persons": the Government themselves use it— as a mental health officer unless",

That would be far better if it read, no person shall be so appointed unless".

It is purely drafting. I beg to move.

The Earl of Mansfield

I agree with the noble Lord.

On Question, amendment agreed to.

Lord Ross of Marnock moved Amendment No. 37: Page 4, line 16, leave out ("as a mental health officer")

The noble Lord said: I beg to move.

The Deputy Chairman of Committees

This, I understand, has been wrongly printed. It should be, "leave out 'as a mental health officer'."

On Question, amendment agreed to.

8.40 p.m.

Lord Ross of Marnock moved Amendment No. 38: Page 4, line 17, leave out ("local authority") and insert ("Secretary of State").

The noble Lord said: If this amendment is made the provision will read: no person shall be so appointed … unless he is approved by the … Secretary of State

I am sorry that the noble Lord, Lord Taylor of Gryfe, who has shown considerable interest in the Bill, was not able to deal with Amendment No. 35 and the question of approved social workers. That term was used in the English Bill. It was considered in relation to Scotland, but it was decided to stick to the existing wording.

I pointed out on Second Reading that the wording here does not really make sense with the modern local government set-up. Under the 1960 Act the local health authority was dominated by the medical officer of health, who had medical officers under him, and he designated some of them as mental health officers. Today that task is being done by the social work department. They are not even social work officers, but are just social workers. The government discovered that more or less anyone in the social work department was being given the authority of a mental health officer. The position is not satisfactory yet, in my view, and I have sought to improve it by ensuring that those who will be doing the important tasks performed by mental health officers shall be qualified and competent; so the public will have a certain measure of guarantee by the reference to the Secretary of State in this provision.

The local authority is the body which has transgressed hitherto by appointing in many cases anybody at all from the social work department to become a mental health officer, without any qualification or training for that very important task. That is why I suggest that, from our experience of local government in relation to mental health officers, it would be far better to have it in the hands of, and approved by, the Secretary of State. That is the reason for and effect of the amendment, which I beg to move.

The Earl of Mansfield

The effect of the amendment would be to transfer from local authorities to the Secretary of State the responsibility for approving persons who are to be appointed as mental health officers as having appropriate competence in dealing with persons suffering from mental disorder. As the clause stands, no person is to be appointed a mental health officer unless he is approved by the local authority as having appropriate competence. So the question is whether it is to be the local authority or the Secretary of State who makes the decision.

It may be helpful if I explain that we have in mind two main concerns in relation to the appointment of mental health officers. The first is that they should be approved by their employer, the local authority, as having appropriate competence in dealing with persons who are mentally disordered. The second is that in considering the appointment of a person as a mental health officer a local authority should have regard to centrally determined minimum qualifications and standards of experience and competence. These will be the matters in relation to which the Secretary of State will give directions.

Consultation is taking place with professional and training bodies about the qualifications, training and experience which mental health officers should have, and guidance will be issued to local authorities in due course in the light of this consultation. Local authorities will be directed to have regard to this guidance, but will be able to appoint as a mental health officer anyone who is approved as having "appropriate competence". I feel sure that local authorities will welcome these guidelines because they will help to ensure that all mental health officers undertaking duties under the measure have received adequate specialised training and are experienced in dealing with mental disorder.

I should at this point stress that we are talking about guidelines, not about rules. Individual authorities will be able to work out the details of their local training programmes. But the new provisions will have real meaning only if all the local authorities concerned apply similar standards in approving social workers as mental health officers. Those are the Government's intentions, and I hope that, in the light of that explanation the noble Lord will feel able to withdraw the amendment.

Lord Ross of Marnock

I shall be able to withdraw it, though I am slightly troubled about a few other drafting matters to which we will come later and which relate to the possibility that we shall have different standards throughout the country. As the noble Earl said, they are guidelines—there will be nothing statutory about them—so that local authorities need only "have regard" to them. This is so important a matter that we want the standards to be set by the Secretary of State and those standards to be followed by the local authorities. Perhaps we should wait to see what the guidelines are. The noble Earl suggested that it would be up to the local authorities as to whether they accepted the guidelines and standards, and he hoped there would be uniformity of standards. We must go beyond that if we are really concerned about the matter.

Lord Winstanley

My knowledge of this subject is related much more to what is now happening in England and Wales than to what happens in Scotland, but my understanding is that this arose largely as a result of the Seebohm Report and the move to what are called generic social workers instead of specialist social workers in different fields. At one time, mental health officers and social workers doing mental health work had a detailed training. We then moved to a situation in England and Wales in which all social workers were "social workers"—full-stop. Some of them happened to look after children, others looked after the mentally ill, and so on.

My understanding of the present situation in England and Wales is that there has been substantial progress recently in redefining the training and qualifications of those appointed to be social workers in the mental health field. I wish to underline the request of the noble Lord, Lord Ross, that in all parts of Britain we proceed in a uniform way; one would not want one part of the nation to have mental health workers with less specific training than those in another part.

I therefore hope that when we return to the subject, as we no doubt shall, the Minister will be in a position to say precisely what is the present state of play in Scotland with regard to the negotiations which have been going on with those responsible for the profession of social workers—many noble Lords have had a great deal to do with the progress which has been made recently with training schemes; for example, the noble Baroness, Lady Faithfull, has done a great deal of work in that sphere—to provide for a uniform qualification in relation to the amount of training actually done. I hope the noble Earl will then be in a position to tell us that Scotland's standards will be every bit as high as those standards which, I understand, must apply in the rest of the United Kingdom.

The Earl of Selkirk

My amendment, to which we shall come next, is concerned with exactly the point just raised by the noble Lord, Lord Winstanley. The social worker with whom we are concerned here is a vitally important element. He is the man whom the local authority immediately puts in touch with someone who may require attention. He it is who, I suppose, collects two doctors to get their certificate and who then makes the application; and apparently he must make the application whether or not he likes it. This is a peculiar arrangement.

What I should like to know is this. I have put down two words—and it is merely a question of emphasis. They are "competence" and "capacity"; that is to say, whether a man is qualified or whether a man has a special ability to do the job. What are the qualifications? What sort of men (or women, for that matter) are you getting for this important job? They are not qualified doctors, they are not registered nurses. Have they any specific qualifications? This matter of protecting and handling people who through illness of some kind are of unbalanced mind is very difficult. Some people have a gift for it; others do not. In my mind it is difficult to conceive of a short training to enable a man to fulfil what I feel to be a fundamental role in the whole working of our system. I wonder whether we can be given any enlightenment. It is quite true that directions will be given. One can give directions, but how can one achieve the recruitment of someone who must hold the confidence of most of the community and, indeed, of the patient? I take it that it is meant to be that he should be personally acquainted with the patient. That is very difficult. There will not be many such. I should be very glad to have a little enlightenment on this important matter.

Lord Ross of Marnock

I am grateful to those noble Lords who have spoken. I think that they appreciate the complexity. I do not know whether the noble Lord, Lord Winstanley, appreciates that we started off in the 1960 Act under a different local government set-up in which the medical officer of health really was something. Then local government was re-organised, and the importance of the medical officer of health was very considerably changed, many of his services being spread over different authorities. But then you have to add the fact that there was a change made—I think it was in 1967; I should know because I was the Secretary of State who instituted it—when we introduced a social work Act in Scotland. Under that they took over tasks that used to be specific tasks. There used to be a children's committee, and there was no longer a children's committee; and there used to be a welfare committee, and there was no longer a welfare committee. They were all under the one, and that one was the social work committee.

In Scotland, more so than in England, there was the general term of "social work" and general training for social work even to the extent that you do not have in England. Probation officers in Scotland come under the social work department. I think that in England they are still separate and come under the Home Office. This is what makes me worried about whether or not there has been some failure to follow through all the changes in function of local government and, now, the new changes in function of the medical officer of health which stem form a different set-up altogether.

Knowing the set-up of social work historically, I am concerned about this. Are we in Scotland going to break away now from general social work? Are we going to have someone specialised in a particular field? This is what I want to know. It may well be that the person who is carrying out the after-care service—which I hope will be adequately provided for—or some other kind of service with those who are mentally ill will require more than one type of specialism because of the type of problem that will arise.

I will withdraw this amendment, where I seek to lay the responsibility on the Secretary of State. I will leave it with the local authority and hope that we will be able to get from the Minister of State a lucid explanation that will satisfy us all in respect of the training that will be given. I have another amendment which deals with the question about competence and capacity raised by the noble Earl, Lord Selkirk; it concerns the word "appropriate". I will not speak about it now, but will beg leave to withdraw this particular amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 39: Page 4, line 17, leave out ("appropriate")

The noble Lord said: This amendment seeks to leave out the word "appropriate". I think it is otiose and useless to specify "appropriate" competence in dealing with persons who are suffering from mental disorder. They either have competence or they have not got competence. The word "appropriate" does not add anything. I suggest that we leave it out. I beg to move.

The Earl of Mansfield

I am prepared to accept this amendment.

On Question, amendment agreed to.

The Earl of Selkirk moved Amendment No. 40: Page 4, line 18, leave out ("competence") and insert ("capacity")

The noble Earl said: I beg to move Amendment No. 40. I have really spoken to this. I wonder whether we can possibly elicit a little explanation. I admit that my amendment is purely a "fishing" amendment. There is a slight difference of emphasis between "competence" and "capacity". "Competence" indicates to me that a person has the qualification and "capacity" that the person has the ability to do the job. I would not pretend that there is a wider difference than that. This is a key point, as I see it, in this whole Bill, which turns on the quality of people who can fulfil this role. At the moment my mind is absolutely blank as to who that person is. I can think of friends who are good at it; and those who are not. There are perhaps not so many in the world who are able to fulfil this extremely delicate social task. I wonder whether we can expand a little upon this, if not now, then later on. It is really a most important appointment and the essence of this Bill will fall to the ground if we do not get the right people.

Lord Airedale

I do not think I would quarrel with the word "competence" in this context, though, if it were to be changed, I think that "capability" would perhaps be a better alternative than "capacity". But I really do not quarrel with the word "competence".

Baroness Elliot of Harwood

Having run a social work committee for a number of years, and a children's committee as well, and dealt with people who came from mental hospitals, I would assure my noble friend Lord Selkirk that in no circumstances would anyone be appointed to that job who was not a trained social worker with, very often, training in dealing with mental patients. At no point was any amateur or anyone who could just be described as "good with people" appointed to a post of that kind. It was extremely carefully advertised; people were interviewed and the whole thing was done in the most professional way possible. Certainly in the area where I operated, we would never have appointed anybody who was not absolutely first-class at this difficult job. I hope very much that that standard (which I am bound to say applied up to the year 1975) is continuing. It is certainly so in the area where I lived and where the social work department was responsible for these things. They are all trained people with great experience. Far from the word "competence", or whatever it is that people are putting forward, I would use the word "trained". What is needed is social work training, and it certainly takes three or four years before anybody should be allowed to undertake a job as important as this.

The Earl of Mansfield

If I may first of all reply to the actual narrow amendment of my noble friend, "competence" is the right word because one can have the capacity to do something and yet not be competent until one has been trained. If one has not the capacity, one is unlikely ever to become competent. That is the essential difference.

What I can tell the Committee regarding subsection (3) of this clause is that a working party is at present working on the guidelines. The working party consists of representatives of the Association of Directors of Social Work, the Central Council for the Education and Training of Social Workers and the British Associ- ation of Social Workers. My department is also represented. For the benefit of the noble Lord, Lord Winstanley, the working party is keeping a close eye on what is going on in England. The matter is being taken seriously. Between this stage and the next I shall make further inquiries, and if I can then help I shall do so. In the meantime, I hope that my noble friend will agree that "competence" is the right word in this particular instance.

The Earl of Selkirk

I shall not press this matter, but we have not learned a great deal. My noble friend Lady Elliot of Harwood told us that training in the Borders is of a high order.

Baroness Elliot of Harwood

Everywhere.

The Earl of Selkirk

Maybe everywhere. May I ask what certificate people get at the end of training? How do we know what the qualifications are? Who does the training? Is it a university or medical course? Do they give a certificate at the end of it?

Baroness Elliot of Harwood

Yes, it is a university course. They give a degree.

The Earl of Selkirk

I did not realise that. I should be interested to know whether all social health workers have a degree from a university. Perhaps the noble Earl will tell us about this at a later date. I shall now withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Lord Ross of Marnock moved Amendment No. 42 Page 4, line 30, leave out ("In considering the appointment of') and insert ("Before appointing").

The noble Lord said: Perhaps we can take Amendm Amendment No. 42 together with Amendment No. 43.

The Earl of Mansfield

I would rather not do so.

Lord Ross of Marnoek

Then we shall take them separately. I suppose the Minister will accept the first one because it is purely drafting. But, for the weakness of this subsection, one has to read it as a whole: (3) In considering the appointment of a person as a mental health officer, a local authority shall have regard to … It does not say they "must" but they "shall have regard to". To my mind that is weak. I do not think that the phrase "in considering" is right, as the Secretary of State may direct. I suggest that we leave out "In considering the appointment" and insert "Before appointing". That will be much more decisive. I also consider that we should leave out: … shall have regard to such matters … and insert—and I hope this will please the heart of the noble Earl—the following: ensure that the person has the qualifications, experience and competence in respect of dealing with mental disorder and such other matters as the Secretary of State may direct. That will be much clearer and nearer the type of question that has been sought from the noble Earl about qualifications than we have in the rather weak, watery words that are in subsection (3). I beg to move.

The Earl of Mansfield

I am prepared to accept this amendment.

On Question, amendment agreed to.

Lord Ross of Marnock moved Amendment No. 43: Page 4, line 31, leave out from ("shall") to ("matters") in line 32, and insert "ensure that the person has the qualifications, ex[experience and competence in respect of dealing with mental disorder and such other").

The noble Lord said: I beg to move.

The Earl of Mansfield

I am with the noble Lord in principle, but the draftsmen are not wholly with him. If he will withdraw the amendment I shall take it away and produce something else.

Lord Ross of Marnock

If the noble Earl, Lord Selkirk, allows me to withdraw the amendments, I shall gladly withdraw them. I know he is very anxious to see qualifications, experience and competence all tied together. That being so, and having had the right nod of the head from the Bench opposite, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 44 not moved]

Lord Ross of Marnock moved Amendment No. 45: Page 4, line 45, after ("required") insert ("in writing").

The noble Lord said: This is a small amendment, but I recollect that somewhere else in the Bill we are insisting on somebody who agrees to something doing so in writing. I do not think that there is anything more important than a relative agreeing to someone being detained in a mental hospital. From the point of view of the safeguard of other people concerned it would not be a bad idea that we should put the words "in writing" in the Bill, so that it will read: It shall be the duty of a local authority, if so required in writing by the nearest relative".

They may well agree to it and then subsequently deny that. But the proof would be there in writing. That is the reason for the amendment. I beg to move.

The Earl of Mansfield

The effect of this amendment would be to require the nearest relative to apply to the local authority in writing. Most relatives in this predicament are faced with the urgent need to make an application, and they are more likely to make it by telephone or in person; therefore it would be inappropriate to require this application to be in writing. Indeed, it would negate the purpose of the provision. The whole point is to ensure that a nearest relative can obtain help when he or she may well be uncertain as to the steps to take. One has to visualise the situation where the nearest relative will probably be in some emotional state. He or she will probably have undergone an experience which will not be very pleasant and is therefore driven to make the application.

I would impress upon the noble Lord what I am sure he knows very well already—that this is the beginning of quite a long chain of proceedings. There is therefore no question of somebody being taken away from his home or wherever it is and incarcerated in a mental hospital, without proper regard being had to his rights, interests and welfare. So I really do not think there is any particular point in making an application in writing in such circumstances, and, as I have said, it may well negate the whole point of the subsection.

Lord Ross of Marnock

The Minister has been at his most persuasive. I gladly agree to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mansfield moved Amendment No. 46: Page 5, line 4, leave out ("his admission to hospital") and insert ("admission or a guardianship application in respect of the patient").

The noble Earl said: A patient's nearest relative may be in doubt as to how to set about making an application under the 1960 Act, or may prefer that a mental health officer should make the application if he is prepared to do so. The new subsection which is inserted into Section 26 of the principal Act by paragraph (a) of subsection (3) of Clause 7 will enable a patient's nearest relative to require a local authority to direct a mental health officer to take the patient's case into consideration with a view to making an application for admission to hospital. There are, however, two kinds of application: applications for admission and guardianship applications. The nearest relative may require help with either kind, and the amendment will extend the provision to cover both. I beg to move.

On Question, amendment agreed to.

Lord Ross of Marnock moved Amendment No. 47: Page 5, line 33, leave out ("nevertheless").

The noble Lord said: We can make sense out of this only if we take Nos. 47, 48 and 49 together for discussion. The matter was raised by one of your Lordships concerning surprise that a mental health officer has to make an application for the detention of someone in hospital even though he himself thinks that the application should not be made. I, too, feel that this is quite wrong. I think it was the noble Earl, Lord Selkirk, who drew attention to this. What I have done, therefore, is, in the first amendment, to leave out the word "nevertheless", and, in the second amendment, to leave out the words the application; and it shall include—".

Therefore, the wording should now read: … but who is of the opinion that such an application should not be made shall make:

1. (a) a statement that in the opinion of the mental health officer the application should not be approved; and
2. (b) a statement of the grounds on which that opinion is based."

We then add a new subsection: Where a mental health officer considers that an application should not be made the application may be made by the medical practitioner approved for the purposes of section 27 of this Act.".

I think it would be quite wrong that an approved social worker or a mental health officer should be placed in a position in which, although he disagrees that an application for detention of someone in hospital must be made, he must make it, although he says that it should not be made and is not necessary. I think in a case like that you have to relieve the mental health officer of that obligation and ensure that something should be done on medical advice or on overwhelming advice—although the decision is eventually to be made by the sheriff—and then the medical practitioner should be allowed to make the application. Then, when it comes to the decision, the matter can be sorted out and the statement opposing it is already there from the mental health officer. I beg to move.

The Earl of Selkirk

I must say that I think the noble Lord, Lord Ross, is right. It is a slightly absurd position. Supposing the mental health officer refuses to make the application, there is no sanction upon him. You cannot put a duty on someone and say there is no sanction if he does not fulfil his duty. I think that something of this sort is really necessary, although this may not be the right way to do it.

The Earl of Mansfield

The provision in this Part of the clause is to avoid a fortunately rare possibility in which a mental health officer could find himself on the horns of a somewhat awkward dilemma. Circumstances can arise in which a psychiatrist who believes that a patient ought to be detained has no choice but to ask a mental health officer to make the necessary application. If the mental health officer honestly believes that the application should not be made he must either suppress his own views and make it or else take the risk that if the patient does, for example, commit suicide, he will be blamed for having brought about this tragic outcome by refusing to co-operate.

The provision which the noble Lord, Lord Ross, seeks to amend would rescue the mental health officer from this uncomfortable position. He would be obliged to make the application, but also to include a statement of his own opinion. The matter would then go before the sheriff, who is well qualified to weigh the merits of the opposing views and take an objective view as to whether he approves or refuses the application. This is a perfectly sensible way out of what could be an unpleasant situation.

But where I take issue with the noble Lord is over the matter of Amendment No. 49, because that flies in the face of one of the basic principles of the Act. Except in emergency, the detention of a patient is in pursuance of an application which must come from someone other than the doctors who are responsible for treating that patient. The application must be founded on two unbiased and objective medical recommendations, but the doctors would be placed in an invidious position if the application were to be made by one of them. I can assure your Lordships that there would be no support from any professional quarter—medical, social work or other—for this amendment.

So there is a dilemma here, as I have sought to illustrate, and this is a reasonable way round it, because it allows the mental health officer honestly to dissent from the view that has been taken. But, at the same time, it does the best for the patient and, above all, it does not breach the rule that the person who makes the application should be in no way connected with the persons who are, in fact, going to treat the patient. In those circumstances, I very much hope that the noble Lord will come to agree that this, and certainly not his amendment, is probably the best way out of it.

Lord Ross of Marnock

It may certainly not be my amendment, but if we have not got my amendment we have not got a way out. We are still compelling a man who believes that no application should be made to make an application. That, to my mind, is quite wrong. If I withdraw the amendment, it means that I will apply myself and I hope that others will apply themselves, to this dilemma and find a way out.

I am glad that the Minister appreciates that it is a dilemma. But I think it is absolutely ludicrous that, although a man who will be subject to all this experience, competence and so on, and who has been dealing with a person for quite a time, says, "No, this person should not be compulsorily detained in hospital", the Minister says that he has to make the application and be satisfied with making a statement as to why he opposes the very thing for which he is compelled to apply.

It may well be that my amendment does not meet the dilemma, but there is this other difficulty in respect of the medical practitioner. I am perfectly sure that we could find some other medical practitioner. I beg leave to withdraw my amendment, but I can promise the Minister of State that I will be searching, and I hope that others will help me to search, for another solution.

Amendment, by leave, withdrawn.

[Amendments Nos. 48 and 49 not moved.]

Clause 7, as amended, agreed to.

Clause 8 [Grounds for compulsory admission to hospital or guardianship]:

9.18 p.m.

Baroness Stedman moved Amendment No. 50: Page 6, leave out from beginning of line 41 to end of line 3 on page 7.

The noble Baroness said: I should like to speak to Amendments Nos. 50 and 51. We have had a lot of discussion on the differences between mental illness and mental handicap in the process of this Committee stage. This is really just another attempt in these two amendments to try to clarify the position, and make it a little more understandable to those who will have to operate the Act. I beg to move.

The Earl of Mansfield

I take it that the noble Baroness would like me to deal with Amendment No. 50 first, because it is a very different matter from No. 51. The provisions which apply in this clause are identical, in effect, to those which were debated at considerable length in the House less than a year ago, in connection with the amendment of the equivalent legislation in England and Wales. In Scotland we go our own way where there is a good reason for doing so, or where we prefer our own methods. But, in this event, I do not think that there is any good reason for taking a different line on provisions which, I suggest, reflect a sensible compromise on a contentious issue.

The use of the terms "mental impairment" and "severe mental impairment" make it clear that mental handicap in itself can never be grounds for compulsory detention in hospital. For the grounds to be satisfied, a mentally handicapped person must be suffering from one of two specifically defined conditions, both of which are associated with abnormally aggressive or seriously irresponsible behaviour. Even then, in the case of mental impairment which is less than severe, there must be a likelihood that treatment in hospital will be of benefit to the person concerned.

I do not think that we are likely to come up with a better compromise on this particular issue than the provisions of this clause, and I hope that in this particular instance the noble Baroness will see fit to withdraw her amendment.

Baroness Stedman

In the light of what the noble Earl has said and in the absence of my Scottish friends, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51 not moved.]

Clause 8 agreed to.

Clause 9 [Medical recommendations]:

The Earl of Mansfield moved Amendment No. 52: Page 8, line 15, after ("patient") insert ("or to the safety of other persons").

The noble Earl said: Where a patient is to be admitted to hospital or received into guardianship under Sections 24 or 25 of the principal Act, the relevant application must be supported by two medical recommendations. Section 27 provides that one of these medical recommendations must be made by a psychiatrist and the other, if possible, by the patient's general practitioner. It also provides that only one of the recommendations may be made by a doctor on the staff of the hospital to which the patient is to be admitted.

Clause 9(2) seeks to provide for the circumstances which can sometimes arise in which the patient is not known to a general practitioner or any other doctor outside the hospital. In such circumstances, hospital, medical staff may have great difficulty in finding an outside doctor who is willing to come and examine the patient and make a recommendation. The new provision will permit both medical recommendations to be made by doctors on the staff of the hospital, subject to certain stringent conditions. These conditions are designed to ensure that the two recommendations are made independently and that the normal rule is relaxed only in cases of urgency.

One of the conditions is that compliance with the normal rule would result in a delay involving serious risk to the health and safety of the patient. Elsewhere in the Act and in the Bill, the element of danger which may stem from a patient's mental disorder is expressed in terms of risk to both the health and safety of the patient and the safety of others. The purpose of this amendment, therefore, is to ensure that the new provision is consistent with others in this respect. I beg to move.

On Question, amendment agreed to.

[Amendment No. 53 not moved.]

Clause 9, as amended, agreed to.

Clauses 10 and 11 agreed to.

Clause 12 [Amendment of law relating to emergency admissions]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

If Amendment No. 55 is agreed to, it will not be possible for the noble Lord, Lord Campbell of Croy, to move Amendment No. 56.

9.24 p.m.

Lord Campbell of Croy moved Amendment No. 55: Page 9, leave out lines 32 to 34.

The noble Lord said: I beg to move Amendment No. 55.I believe it would be for the convenience of the Committee if at the same time we were to discuss Amendment No. 56. As has just been pointed out, Amendments Nos. 55 and 56 are alternatives. Only one of them can be selected, not both. Amendment No. 55 would have the effect of reducing the period from seven to three days for Scotland as a whole. Amendment No. 56 would reduce the period for the areas of the islands councils, not for the whole of Scotland.

I realise that this provision of three days is already in the 1982 Act for England and Wales, and I accept that in this matter there is some advantage in having uniformity north and south of the Border. However, I am glad to note that my noble friend has already said today, and from amendments which he has down—notably Amendments Nos. 90 and 94—that he is not slavishly copying the legislation that was enacted last year for England and Wales.

Against the uniformity advantage there is the geographical problem in Scotland; the barriers of mountains and sea and the remoteness which exists in parts of Scotland. These are to be found in Scotland to a degree not experienced in England and Wales. In particular, there are the problems of transport between the islands and the mainland and between the islands themselves. There could be a patient in Stornoway or Lerwick and, if the procedure was followed, he could be taken to Inverness or Aberdeen respectively within three days and the medical assessment carried out. I would add that that is not necessarily as easy as one might think because, certainly, Inverness Airport is open for only two hours on a Sunday, as I myself know very well.

But I am thinking also of the remote islands—for example, Barra or Yell where the transport between the islands, before one gets anywhere near an airstrip or an airfield, can be slow or subject to delay. As for areas served by sea transport, it is not uncommon for ship connections between the islands and the mainland to be much delayed. My noble friend Lord Mansfield will know of the number of interruptions there have been so far this winter in the sea transport around Northern Scotland and the islands because of the winter gales.

If a patient is detained on an emergency recommendation on a Saturday in a remote place in Scotland, there may not be time for him to travel and for the medical assessment all to be carried out within 72 hours. I have been speaking about the islands, but there are areas of the mainland too where the remoteness means delay. Some areas are normally served by sea and not overland. In the news recently there has been the area of Knoydart; like other remote areas of that kind it is sparsely populated although served by sea. We have to legislate none the less for the single case.

I believe there is a good argument for the first amendment in my name; that is, deleting the proposed change from seven days to three days for the whole of Scotland. Members of the medical profession in Scotland are worried about this proposal to reduce the period. The problems are likely to be much more frequent in the areas of the three islands councils—that is, the three groups of Orkney, Shetland and Western Isles. So I come to my second amendment, Amendment No. 56, which I suggest that the Government might adopt if they are reluctant to accept Amendment No. 55.

Amendment No. 56 would cover the most difficult areas as regards remoteness, distances and reliability of transport. It would also illustrate a matter that arises from time to time in relation to the three islands groups. Recently the government have appointed the Montgomery Committee to examine the special problems of Orkney, Shetland and the Western Isles.

I would be grateful if my noble friend could make some comment this evening, or could perhaps consider in his own time an amendment of this kind and in this form—making an exception of, or making different arrangements for, the areas of the islands councils. Do the Government, for example, see any difficulty in including an amendment of this kind in a public Bill? The persons who are resident in the areas of the islands councils fall within a clear category within Scotland, and the three islands councils are themselves in a clear and distinct category, by their nature and also because their functions are entirely different from all the other local authorities in Scotland. So, even if the Government do not accept this amendment on this health subject, I would be interested in their comments on whether they see any difficulty about a section containing this kind of wording in a public Bill, or whether this kind of amendment would have to be treated, or might be thought to have to be treated, as private legislation.

The Earl of Selkirk

I would like to support what my noble friend Lord Campbell has said. I think these fixed periods are rather dangerous to leave as they stand. Supposing they are exceeded. There is no criminal sanction to it, but are these certificates invalid? Does the whole thing fall to the ground? I am quite certain many of these periods will be exceeded from time to time. What happens then? I suppose nothing happens; the doctor has done the best he can to meet the requirement. I think to stand too closely on these rigid figures may be a little counter-productive.

The Earl of Mansfield

I think I can take it that my noble friend Lord Campbell is concerned solely with geographical troubles and is not really suggesting that the period of seven days should not be reduced to 72 hours, as it were, on merit. If that is so, I think his concern is perhaps misplaced, and I say that for this reason. If one goes to Section 31(3) of the 1960 Act one can see there that three days are allowed for the removal of the patient, and the period of detention does not begin until the patient is admitted to the hospital. In other words, what we are saying is that, even if somebody is to be removed from the Western Isles to, let us say, Inverness, a period of no less than three days is allowed for them to get there. The period of 72 hours during which the patient may be detained in hospital naturally begins only when he is admitted to the hospital, and it is of course that period which is designed to provide sufficient time for a psychiatrist to decide whether further detention is necessary.

Even in the worst of the weather I think it will always be possible to get from Stornoway or somewhere in the outer isles to Inverness within a period of three days, particularly having regard to the modern flights which operate every day between those places. If that is so, my noble friend may agree that neither of his amendments is necessary. If I have got his point wrong, or if he really feels that three days is not necessarily sufficient to get from the outer isles, or any of the isles, to the hospital, which, as he says, is likely to be either Inverness or Aberdeen for these purposes, I will look at the matter again. Certainly from the information I have, I really do not think it is necessary.

Lord Campbell of Croy

Perhaps I could return to that point because I thought I had made it clear that it was not simply the journey between Stornoway and Inverness—which is one that I know quite well—or between Stornoway and Lerwick (one I know even better, having done it four times in the last few weeks) because from the capitals of those island groups to Inverness or Aberdeen is an easy flight, once one is in the air. But I thought I had made it clear that it is islands that are some distance from the capitals of the main groups, the lesser isles, which are the ones which often have difficulties with transport between the islands especially when there is no airstrip on those isles.

When my noble friend says that there are flights every day, I assure him that there are no flights on Sunday from Inverness to these places. I was allowing for the situation when these things happen at weekends. I was speaking also of a combination of factors. I was naturally emphasising the geographical barriers, the distances and remoteness, because that is the particular difference between the problems in northern Scotland and the position in England and Wales. I do not think there are places as remote or as difficult south of the Border, for which legislation of this kind was passed last year. That is why I am suggesting that there needs to be a different approach to the problems which I have described.

I emphasised the questions of distance and geography but I also included the accessibility of the appropriate psychiatrist. Members of the medical profession who have been in touch with me are worried also about their availability when these questions of distance and remoteness arise, because a psychiatrist may well go off to another part of the area, having to deal with some other case. Therefore, the question of his availability on the medical side also arises.

If my noble friend is quite confident that there will be no case of somebody who requires treatment—I am thinking of a patient on one of the smaller islands of the three island groups or in some other remote part of Scotland—being in difficulty owing to the provisions which he has been describing, then, naturally, I shall be satisfied. But I can tell him that the members of the medical profession to whom I have been speaking in northern Scotland, in the area around my home, are definitely worried about the proposed reduction. They accept that it is not something that is of any great concern perhaps in England and Wales, but different factors apply in Scotland, especially in the remoter areas of Scotland.

I am grateful to my noble friend for giving me the assurance that he has so far, but—it was with the particular cases of patients in Stornoway or Lerwick that I am concerned about—someone who has to get to Stornoway or Lerwick from another island first. He may find that in bad weather conditions it takes him a day or two to reach the starting point at Stornoway or Lerwick. That is the kind of situation I have in mind.

The Earl of Mansfield

With whatever sanity I possess, I must say I have knocked all round the Western Isles in all sorts of weather in the last three and a half years and I have never taken anything like 72 hours to get back to Edinburgh or Glasgow. I think what I should do is this. As my noble friend says that apparently the medical gentlemen have expressed anxieties to him, that is something I must go into. I shall do that if he will be good enough to withdraw his amendment for now.

Lord Campbell of Croy

I am very grateful to my noble friend. I would not ask him without notice to comment on the more general point I was putting, which is of wider application but of great interest. I am referring the question of the form of the second amendment; that is to say, whether an amendment which would make exception for the areas of the three islands' councils is an amendment in a form acceptable in a public Bill. I hope that he will be able to get in touch with me about that in due course. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56, 57 and 58 not moved]

9.40 p.m

The Earl of Mansfield moved Amendment No. 59: Page 10, line 1, leave out subsection (2).

The noble Earl said: I have already spoken to this amendment on Amendment No. 54. I beg to move,

Lord Ross of Marnock

I know that I am in terrible company on this amendment. I did not recognise it. I thought that the Minister said Amendment No. 54, but it is Amendment No. 59 on which his name is strangely bracketed with mine. It is more than just a formal amendment. We are seeking to save the draftsman from a terrible error. This is something that should never have been done on a Scottish Bill, anticipating dealing with something in this subsection as renumbered by Clause 13 of this Bill. We have not yet come to Clause 13. It is very bad drafting and I am glad the Minister agrees with me. I hope that he will also agree that when we reach Clause 13 another amendment is required to put things right. I support the Minister in this amendment.

On Question, amendment agreed to.

[Amendment No. 60 had been withdrawn from the Marshalled List.]

Clause 12, as amended, agreed to.

Clause 13 [Power to detain patients already in hospital]:

Lord Ross of Marnock moved Amendment No. 61: Page 10, line 8, after ("section") insert ("and after the word "or" where first occurring there shall be inserted the words "subject to section 31(6) of this Act".").

The noble Lord said: Having done what we did on the last amendment, we have to put it in the right order and that is the purpose of this amendment. It is a redrafting between Clause 12(2) and this opening subsection of Clause 13. I beg to move.

The Earl of Mansfield

On the face of it, the proposal in Clause 13 might, I suppose, constitute an unjustifiable addition to the existing powers to detain patients and be contrary to the spirit of the 1960 Act. It is however of the essence of the 1960 Act that a patient should not be detained unless it is absolutely necessary. If a patient is willing to enter hospital voluntarily for the treatment which he requires, he should not be detained simply because there is a possibility that he may at some time act unpredictably so as to place himself or others at risk. It surely follows, in full accordance with the spirit of the Act, that powers should be available to prevent a voluntary patient from leaving hospital if it is thought that serious harm would be likely to result from his doing so—if, for example, he had made it clear that his intention was to commit suicide.

Such circumstances are not likely to arise with any great frequency, and in most cases a doctor would be available to decide whether the patient should be detained under an emergency recommendation. In some cases, however, there may be no doctor immediately available, and it is left to the nurses to prevent the patient from leaving the hospital. Nurses are uncertain as to whether they have any right to stop a voluntary patient who intends to leave. I hope your Lordships will agree that it would be undesirable and potentially dangerous to allow that uncertainty to persist. Without the provisions made in Clause 13, the uncertainty would not merely persist: it would become more serious in Scotland because similar provisions have been made in respect of England and Wales by Section 6 of the Mental Health (Amendment) Act 1982. The absence of such provisions in the Scottish legislation could have tragic consequences and I hope your Lordships will agree, therefore, that Clause 13 should stand part of the Bill.

The noble Lord, Lord Ross, has moved three amendments—

Lord Ross of Marnock

I have moved only one.

The Earl of Mansfield

He has put down three amendments.

Lord Ross of Marnock

Yes, but with all due respect, I never mentioned the principles of the Bill. I dealt with a purely drafting point which was consequential on an amendment that should have been moved to the previous clause. I have never mentioned the substance of the Bill at all; that will come in my later amendments.

The Earl of Mansfield

I suppose that my desire to limit the debate to a reasonable time was probably ill advised. As regards Amendment No. 61, I accept the principle of the amendment but not its form. If the noble Lord will seek to withdraw it, I will arrange for a substitute to be prepared.

Lord Ross of Marnock

I shall be very glad to do so and also very glad for it to be suggested to me where the amendment is wrong. However, I shall take the draftsman's word for it. I beg leave to withdraw Amendment No. 61.

Amendment, by leave, withdrawn.

9.47 p.m.

Lord Ross of Marnock moved Amendment No. 62: Page 10, line 14, leave out ("of the prescribed class")

The noble Lord said: I beg to move Amendment No. 62. A power is being given to a nurse—a unique power in Scotland—to detain a patient against his will for, I think, six hours. We have no indication as to the nature of the nurse or the qualifications of the nurse; it just says, "of the prescribed class". I would like a little more information about the specialties of this nurse to whom the Government suggest that we should give this unique power, which we have previously never had in Scotland. I beg to move.

The Earl of Mansfield

This is very similar to Section 6(3) of the Mental Health (Amendment) Act 1982. Nurses of the prescribed class are nurses who have experience of these particular types of mental care. I am not sure whether the noble Lord is actually attacking what is proposed. Nursing organisations, including the Confederation of Health Service Employees, have requested that some provision be made to clarify their position.

It should be pointed out that these detention powers are to be used only when absolutely necessary. It is essential that powers are available in circumstances where the need for detention may arise suddenly and unexpectedly and the only alternative would be a wider use of detention in cases where there is a risk of unpredictable behaviour.

So far as this amendment is concerned, if it were to make sense it would have to be coupled with an amendment to remove subsection (4) of the new provisions. If such an amendment had been moved and agreed to, any nurse would be able to exercise the new power. The nursing profession does not want that. As I have said, the intention is that the new power should be exercised only by registered nurses qualified in mental illness or mental deficiency.

Lord Winstanley

The Bill states: a nurse of the prescribed class". Can the noble Earl tell the Committee who prescribes?

Lord Ross of Marnock

It comes under subsection (4); it is the Secretary of State, by order. Had I intended to attack this whole matter, I should have gone the whole hog. I should have suggested another amendment to leave out subsection (4)—which is the answer to the noble Lord, Lord Winstanley. In subsection (2)… "prescribed" means prescribed by an order made by the Secretary of State". But, with all due respect to that, "prescribed" means prescribed. That is world-shattering information; I am sure that we are all very much happier about that; we are all clear as to what that means. Of course we are not.

I want the Minister to explain "of the prescribed class." The noble Earl referred to experience. Experience for how long?—a fortnight, a week, two days? I think that we are entitled to be treated as reasonably intelligent individuals and should be given some information as to what is in the Government's mind in respect of that. We have to be satisfied here and in another place, as well as some nursing association being satisfied. I think that the nursing association would be very worried indeed about it. It may well be that they have been given more information than we have. I want the information as to what type of nurse and what will be prescribed.

The Earl of Mansfield

As the noble Lord has already said, it is the Secretary of State who will prescribe. He is to make an order and will lay down those registered nurses who are qualified in mental illness or mental deficiency. There are classifications of registered mental nurse and registered nurse in mental deficiency.

Lord Ross of Marnock

Mental handicap.

The Earl of Mansfield

I do not know the precise details of who can be classified as a registered mental nurse, but I shall try to obtain the information as to the sort of order that the Secretary of State is likely to make when he carries out his duty under subsection (4) of this clause.

Lord Ross of Marnock

I do not think that we are going much further forward, but at some time or other we are to be told, and we are grateful for that. I shall certainly be even more grateful if the Minister, having wiped out in an earlier amendment the term "mental deficiency", will remain of that view and meantime use the words "mental handicap" when that is what he now means. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 63: Page 10, line 25, leave out from ("hours") to ("or") in line 26.

The noble Lord said: This amendment raises another detail that concerns me. The Bill says: the patient may be detained in the hospital for a period of six hours from the time when these facts are so recorded".

It might be three hours before these facts are "so recorded". There is nothing to say that they have to be recorded immediately. When we are dealing with a period of time as short as six hours, the delay of a further hour is quite considerable. That is why I seek to leave out these words. I think it should start from the point of detention, and should provide: the patient may be detained in the hospital for a period of six hours

and that is that; but not: from the time when these facts are so recorded", without any qualification to ensure that these facts will be recorded at once. I beg to move.

The Earl of Mansfield

I am not at all certain that I can help the Committee. If a patient can only be detained once the nurse has made a record, he can walk out of the hospital while the record is being made. The noble Lord's amendment is unnecessary and would merely remove an explicit statement of what is in any case implied. In a matter of interpretation it is clear that the patient can be held while the record is being made, and the time taken to enter a few details on a prepared form would only be a matter of moments.

This, I must say, does not convince me, and I do not think it will convince the noble Lord, Lord Ross. If I may, and if he will withdraw his amendment, I will take it away and consider it.

Lord Ross of Marnock

When the Minister suggested that what he was saying could not help me I was about to say how right he was. He quickly discovered he could not help himself. He did the wise thing, and on that promise I shall withdraw the amendment.

Amendment, by leave, withdrawn

On Question, Whether Clause 13 shall stand part of the Bill?

9.56 p.m.

Lord Ross of Marnock

This is new to Scotland. As far as I know, no one in Scotland has ever asked for this. Before we allow this to go through I hope the Government will tell us about threats of suicide, or actual suicides that have happened, because this power was not available. I am not convinced at all. There are very few people convinced that this is necessary. It would be wrong for us to let this pass. If this was early in the day I would divide the Committee on this, probably the most important thing in the Bill from this point of view.

I do not know whether or not my noble friend agrees with me. If he is trying to get me to create a Division, it is not on at this hour of the night. I am far too reasonable a person. It is a serious matter. I have not been convinced about it. To detain a person who may have been a voluntary patient, who went in on the understanding that he could come out when he wanted to, and to give power to a nurse to say, "No, you are not going out for at least six hours", requires far more proof than the fact that it was in the English Bill.

Where in Scotland has this difficulty arisen? It is strange that it should suddenly arise after this power has been given in respect of English hospitals. It is a pity there are not a few more of the Members here who were here earlier, but who preferred the delights of a Burns supper in this noble place to doing their work here. Well, I have always called the SDP the "superior drinking party". I am sure that they feel exactly the same way as I do about this particular clause. If we do not handle it now, we shall have to return to it later. May I have information about where these difficulties have arisen in Scotland, and how many there have been?

The Earl of Mansfield

I am not in a position to give chapter and verse as to the representations which have been made by the nursing professsion that in this particular instance Scotland should go down the same road as England and Wales. I am slightly surprised that the noble Lord had taken against Clause 13 quite so fiercely. It is a difficulty which can arise, that a voluntary patient who has arrived in circumstances where he would be a voluntary patient able to go announces that he is going to go, and a nurse is certian that a tragedy could very well ensue if the patient is allowed to leave—particularly, for instance, if he announces or it is obvious that he is going to commit suicide.

If there is no doctor immediately available and the nurse is left in the position of having to prevent the patient from leaving the hospital, then what position is the nurse in? It is, at best, a position of uncertainty. All that Clause 13 does is to remove the uncertainty. It would be extraordinary if, in an area such as this, in England and Wales they quite happily pass Section 6 of their Act and, for reasons which I quite appreciate that the noble Lord harbours, we decide that we are not going to have any such provision in our Bill, and we do not really mind whether or not there could be these tragic consequences.

If the noble Lord really wants chapter and verse as to what cases there have been and the representations that have been made to us following the publication of the consultative document, I shall of course obtain the information; but for now I should have thought it would be only proper to allow the clause to remain in the Bill.

Lord Ross of Marnock

When a Government bring forward a Bill containing a power as new as this, they should already have all the arguments. I can only assume that when the Minister says. "Let us have the Bill and I will bring along all the arguments later", he does not have them, and I think he does not have them because he does not have any. However, I shall not divide the Committee on the issue.

Clause 13 agreed to.

Clause 14 [Short term detention]:

The Earl of Mansfield moved Amendment No. 64: Page 11, line 17, leave out ("(5)") and insert ("(6)").

The noble Earl said: This is a drafting amendment to correct a reference to a provision which was renumbered at some stage in the preparation of the Bill.

On Question, amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 agreed to.

Clause 16 [Duration of authority for detention and guardianship]:

[Amendments Nos. 65, 66 and 67 not moved]

Lord Lyell moved Amendment No. 68: Page 13, line 15, leave out ("have been") and insert ("appear to him to be").

The noble Lord said: This amendment seeks to resolve a drafting difficulty in relation to the requirement placed on a responsible medical officer to consult other professionals before he assesses the need for the detention of a patient to be renewed. The purpose of the provision is to ensure that a representative of every profession engaged in the medical treatment of a particular patient is consulted. Medical treatment is broadly defined for the purposes of the measure as including nursing and also care and training under medical supervision. It is conceivable that in a particular case a nurse, a psychologist, a social worker and an occupational therapist could all be brought into the consultation. In other cases, however, it might be that no professional other than a nurse would be involved. The important point is that where the patient is receiving attention from members of a variety of different professions, a member of each of those professions should be consulted.

It has proved difficult to express without ambiguity the intention behind this provision. However, the words "one or more other persons" and "appear to him to be professionally concerned" do not, as may be suspected, give the responsible medical officer discretion to consult just one person whose concern may be less apparent than another's. Where only nurses are involved in the patient's treatment, it will be sufficient to consult one nurse. But where, for example, both nurses and psychologists are involved, it will be necessary to consult one of each.

The amendment does not stand entirely on its own. Amendments Nos. 90 and 94, which I shall beg to move at a later stage in our proceedings, will have a similar effect on the requirement to consult which is included in the new provisions relating to consent to treatment. The explanation I have given, I am afraid in some detail, will be repeated in the code of practice which is to be published in accordance with the new provisions introduced by Clause 33. This will have considerably more authority than notes of guidance on the measure and will prevent deliberate exploitation of any ambiguity which may be read into the provisions in question. I apologise for the detailed nature of that explanation, which, I fear, was required by the nature of the amendment. I beg to move.

On Question, amendment agreed to.

10.5 p.m.

Lord Lyell moved Amendments Nos. 69 and 70:

Page 13, line 31, leave out ("and") line 35, at end insert ("and (iv) at the end there shall be added the words "if such a report has been obtained.";")

The noble Lord said: I beg to move Amendments Nos. 69 and 70 together. These two amendments hang together. Amendment No. 69 is a paving amendment for Amendment No. 70 which is the substantive amendment. They are consequential upon an earlier amendment. No. 68. The new sub-paragraph which it is proposed to add to paragraph (c) will insert at the end of Section 39(4) of the principal Act the same words as appear at the end of the new subsection (3) which is substituted by paragraph (b) of Clause 16. I beg to move.

On Question, amendments agreed to.

[Amendment No. 71 not moved]

Clause 16, as amended, agreed to.

Clause 17 [Discharge of patients]:

Lord Lyell moved Amendments Nos. 72 and 73: Page 14, line 30, leave out ("subsection (2) of") line 32, leave out paragraph (a)

The noble Lord said: I hope that it will be for the convenience of the Committee if I move Amendments Nos. 72 and 73 together. These are technical amendments. The words "under this Part of this Act", which appear in Section 43(1) of the principal Act, make it unnecessary to insert additional words as proposed in paragraph (a) of Clause 17. The amendment therefore removes paragraph (a) and makes the necessary consequential changes.

On Question, amendments agreed to.

Clause l7, as amended, agreed to.

Clauses 18, 19 and 20 agreed to.

Clause 21 [Right of appeal of restricted patients etc.]:

Lord Lyell moved Amendments Nos. 76, 77, 78, 79, 80 and 81 en bloc: Page 18, line 42, leave out ("discharged under") and insert ("remitted under subsection (2) of) Page 19, line 12, leave out subsection (4) and insert— (" (4) Where the sheriff makes a recommendation under subsection (1)(b) of this section the Secretan' of State may by warrant give a direction under subsection (2) of this section and in any case where the Secretary of State does not give such a direction the patient shall continue to be detained in a hospital under the relevant transfer direction and restriction direction.") line 20, leave out ("discharged under") and insert ("remitted under subsection (2) of) line 22, leave out (", 60C") line 31, leave out ("has not been") and insert ("is not") line 39, leave out subsection (3) and insert— (" (3) If in any appeal under subsection (1) or (2) of this section the sheriff is satisfied as mentioned in section 60B(1) or (2) of this Act, he shall uphold the appeal and—

1. (a) where he is satisfied as mentioned in the said section 60B(1), he shall direct the absolute discharge of the patient;
2. (b) where he is satisfied as mentioned in the said section 60B(2), he shall direct, or (as the case may be) continue the conditional discharge of the patient; and, in either case, he may vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith.

(4) Where a patient is absolutely discharged in an appeal under subsection (1) or (2) of this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.")

The noble Lord said: I beg to move Amendments Nos. 76 to 81 en bloc. These amendments seek to correct certain defects in the new Sections 60C and 60D which are among the new provisions to be introduced into the principle Act by Clause 21.

Where a transferred prisoner appeals under Section 60C for discharge from hospital, it would clearly be wrong for the sheriff to be required to discharge him into the community if he finds that there are no grounds for continuing his detention in hospital. Section 60C therefore provides for the sheriff in such cases to notify the Secretary of State of his finding. Where the sheriff finds that the patient would be entitled to absolute discharge the matter is straightforward: the patient should not any longer be detained in hospital, but should be returned to prison, to be released in due course in accordance with the normal arrangements applying to prisoners.

However, where the sheriff finds that the patient would be entitled to conditional discharge, it would not always be appropriate for the patient to be returned automatically to prison. What is required here is consideration as to whether the patient may be discharged from the hospital into the community under certain conditions, or whether he should be returned to prison. The effect of Section 60C, as amended, will be to enable the sheriff to recommend that the patient should remain in hospital while this matter is being decided.

The amendments to Section 60D will make clear the provision for the outcome of an appeal by a patient who, having been conditionally discharged, is then recalled to the hospital. At present, Section 60D(1)—that is approximately where Amendment No. 79 is concerned—merely provides for a right of appeal against recall. It is necessary to provide also for what is to happen if the appeal is upheld by the sheriff. That is what the new subsections (3) and (4) will do.

I have explained the purpose of some rather technical amendments to a set of very complex provisions. I think the Committee will agree that if they look right through Clause 21.I am confident that with the amendments that I have moved these provisions will now be in accordance with the Government's obligation to provide rights of appeal for patients who are subject to restrictions. If there are any points in relation to these provisions on which the Committee are not entirely satisfied I hope that—given the lateness of the hour—the Committee will allow me to go into greater detail in writing. I beg to move.

On Question, amendments agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Restriction orders and restrictions directions]:

On Question, Whether Clause 22 shall be agreed to?

The Earl of Selkirk

May I refer to the last words in that clause: "from serious harm". Will the noble Lord consider whether the word "serious" is too strong? One might even leave it out. The words, "from harm" seem quite enough.

Lord Lyell

We are very grateful to my noble friend for his detailed scrutiny of the Bill. He is quite correct. There is clearly a need for the words "serious harm" as written. We shall consider his point. We thank him for raising it and we shall write to him, if that is acceptable.

Clause 22 agreed to.

Clause 23 [Continued detention in hospital]:

Lord Lyell moved Amendment No. 82: Page 21, line 32, leave out ("184") and insert ("183, 184, 384")

The noble Lord said: This amendment adds to the paragraph which Clause 23 inserts into Section 68 of the principal Act. The amendment adds a necessary reference to two further sections of the 1975 Act under which probation orders may be made. The paragraph would have been incomplete without these references. I beg to move.

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clauses 24 and 25 agreed to.

Clause 26 [State Hospital Management Committees]:

[Amendments Nos. 83 to 86 not moved.]

Lord Lyell moved Amendment No. 87: Page 24, line 29, leave out ("to") and insert ("and")

The noble Lord said: This is a drafting amendment which has precisely the same purpose and effect in relation to the provisions concerning the state hospital management committees as Amendment No. 10 had in relation to those concerning the Mental Welfare Commission. With that brief explanation, I beg to move.

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Clause 27 agreed to.

10.15 p.m.

Lord Ponsonby of Shulbrede moved Amendment No. 88:

Before Clause 28 insert the following new clause:—

"After care of persons leaving hospital or detention.

(.—(1) This section applies to persons who, having been detained under section 24, 31 or 32A of the principal Act, or having been admitted to the hospital in pursuance of a hospital order made under section 55 of the principal Act, or having been transferred from a hospital in pursuance of a transfer direction given under section 66 of the principal Act, cease to be detained and leave hospital.

(2) It shall be the duty of the Local Health Authority and of the Local Authority to provide, in cooperation 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 Local Authority and the Local Health Authority are satisfied that the person concerned is no longer in need of such services.

(4) In this section "the Local Health Authority" means the Local Health Authority for the District and "the Local Authority" means the Local 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 Lord said: On behalf of my noble friend Lord Ross of Marnock, I formally move this amendment.

Baroness Masham of Ilton

I should like very strongly to support this amendment as it was one which we moved successfully with the support of your Lordships in this Chamber. These are patients who are detained, some of whom can be exceedingly dangerous, and it is more than unwise to discharge them into the community without after-care. Some of them are psychopaths, murderers and sex offenders. Not only is it for their own good but for the good of their families and the community; and therefore I hope the Government will support this.

The Earl of Mansfield

I do not know whether the noble Baroness was in her place when we were discussing the last amendment regarding after-care, but I then gave the undertaking that not only would I consider it but I would bring forward a Government amendment on the subject.

Lord Campbell of Croy

May I just ask whether in fact it is correctly worded? In subsection (4) of this new clause, I wonder whether it is correct for a local health authority in Scotland to be the local health authority for the district. I only draw attention to the fact that the local authority units in Scotland are quite different, as are the health units; and it may be that, unless someone has given attention to the necessary changes, the amendment will need to be drafted rather differently if it is in a Scottish Bill.

Baroness Masham of Ilton

I should like just to say to the noble Earl that I was in my place but we were speaking to a different amendment and that one did not include detained patients. I am very pleased to hear what the noble Earl has to said.

The Earl of Mansfield

It may not have' been included, but I included it specifically.

Lord Ponsonby of Shulbrede

I have pleasure in begging leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

Clause 29 [Consent to treatment]:

Lord Winstanley moved Amendment No. 89: Page 27, line 3, leave out ("is capable of understanding") and insert ("understands").

The noble Lord said: This is indeed a very important part of the Bill, dealing as it does with the rights of detained patients in relation to certain forms of treatment which it is considered should not be given to those patients without their express consent and a clear understanding that they have consented, and with a number of safeguards attached thereto. The matter being so important, I make no apology, despite the lateness of the hour, for dealing with it here and now, because, if I may say so, I think it is every bit as important as some of the matters about which we took a considerable time earlier and I do not think we should skate over this particular part of the Bill.

In many ways what is contained in this Bill in relation to the special forms of treatment is very satisfactory. There is treatment requiring consent and indeed certain safeguards; namely, a medical practitioner not being the medical practitioner responsible for the particular patient, and, in addition, two other persons who are appointed by the commission must certify in writing, that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it".

The kinds of treatment we are considering in this section are matters like psychosurgery and certain other matters which will be listed by the Secretary of State in regulations which will be made. There are certain forms of treatment which were described in the English and Welsh Act as "treatments of special concern".

I regard this part of the Bill as satisfactory, but we could clarify it. It requires those certifying to state, in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it".

I may say here that I am also speaking to Amendment No. 93, which deals with precisely the same point at a later stage, so it will not be necessary to detain your Lordships' Committee again. The amendment merely seeks to delete the words "is capable of understanding" and to insert the word "understands". That is surely what matters. We are all capable of understanding many things, but it may be that we do not always understand. A patient may be capable of understanding the nature of the treatment and its likely effects, but he may not understand. He may not understand, perhaps, because of his own lack of attention. That is one factor. But he may also not understand because it may not have been explained to him with sufficient clarity. What we need to know is not just that the patient is capable of understanding, but that he does, in fact, understand.

The whole intention of this part of the Bill, which deals with all these cases except those covered under Section 93G, under which certain forms of treatment can be carried out in an emergency situation to protect the patient, is that we must be sure that the patient has consented. We must know that he has consented. If he does not actually understand, he can never say that he has consented. The fact that he is capable of understanding should not necessarily assure us that he has given an informed consent. Therefore, this amendment merely takes out the words "is capable of understanding" and substitutes the word "understands". I beg to move.

Lord Lyell

I am sure your Lordships will be very grateful to the noble Lord, Lord Winstanley, for very clearly and succinctly explaining the purpose of these two amendments, Nos. 89 and 93, which are in his name. We are fully in sympathy with the spirit of these amendments, but I would say immediately that we believe they would ask too much of those who are appointed to give certificates for the purposes of the new provisions in Clause 29.

Certainly, we need to ensure that where a specified form of treatment is to be given with the patient's consent, the patient both knows and understands what it is he is agreeing to. That is, indeed, the purpose of the provisions in question. However, while we can reasonably expect someone to talk to the patient and come to a view as to whether the patient is, or is not, capable of understanding what has been explained to him, it is quite another matter to ask that person to certify that the patient has definitely understood the full implications of a proposed form of treatment. The point is that no one can be absolutely certain as to what is going on in someone else's mind. One could ask a patient to say what he believes to be the nature, purpose and likely effects of a proposed form of treatment and receive a perfectly lucid and satisfactory answer. On that basis, one could honestly certify that the patient shows every evidence of full understanding. But, in our view, that would not be sufficient to enable one to certify with complete confidence that the patient does, in fact, understand.

Let me make it quite clear that, although there is an important difference between the words "is capable of understanding" and the word "understands", from the point of view of the person signing a certificate there should be very little difference in effect so far as the patient is concerned. We do not see how, in practice, one could reasonably form a view that the patient is capable of understanding the matters in question, without being confident in one's own mind that he does understand. However, being confident is one thing and signing a certificate to the effect that one is absolutely certain is another. Clause 33 of the Bill makes provision for a code of practice, in which it will be possible to express the intentions behind the new provisions more effectively than can be done by juggling with words in the Bill itself. We give the assurance that clear guidance on this point will be included in the code of practice. In the light of what I have said, I hope that the amendment will be withdrawn.

Lord Airedale

I do not think that the noble Lord, Lord Lyell, has fully understood the point which my noble friend made when he implied that there might be a case where a doctor is in a hurry and does not have the time and patience to go to the fullest lengths in order to make this perhaps rather dimwitted person understand fully. If the matter is not patiently, at length, explained to him, the doctor escapes liability because the patient is capable of understanding and that satisfies the paragraph, but care has not been taken to make certain that the patient does understand. That is why my noble friend wants the word "understands" to be put in the place of "is capable of understanding".

The noble Lord says that nobody knows exactly what goes on in the mind of somebody else. That is perfectly true. As a possible alternative, would the noble Lord consider saying that the doctor should be satisfied that the person understands or is of opinion that the person understands, rather than simply leaving it at "is capable of understanding"?

Lord Lyell

When I attempted to reply to the noble Lord, Lord Winstanley, it appeared to me that it was not so much a question of whether the patient was capable of understanding or being understood: it had far more to do with the doctor, psychologist, psychiatrist or whoever was speaking to the patient, because it was this person who had to sign the certificate. The effect I was striving to put to the noble Lord, Lord Winstanley, was that if one had to sign a certificate it was different from merely expressing an opinion or wondering whether the patient was capable of understanding, or did understand. There has to be a great deal of certainty if an expert is to sign a certificate. I wonder whether the noble Lord, Lord Airedale, would consider that merely expressing an opinion would be a strong enough basis upon which to sign a certificate. Signing a certificate is the basis of what we have included in 93A, 93B and 93C of Clause 29. However, I shall certainly take on board the point which has been raised by the noble Lord, Lord Airedale. I believe that the noble Lord, Lord Winstanley, has another point to put to me.

Lord Winstanley

I am grateful to the noble Lord. I was merely going to say that I am most certainly capable of understanding the noble Lord, though at this hour of the night I am not wholly satisfied that I totally understand him. I am grateful to my noble friend Lord Airedale for his support and for the suggestion which he has made. I am also grateful to the noble Lord for saying that he will consider the most helpful suggestion which was made to him by my noble friend.

Although I am not wholly reassured, may I say at this stage to the noble Lord, Lord Lyell, that I am partially reassured by what he said about the code of practice? It is possible that this point could be provided for effectively in the code of practice, but I shall wait until I have had the opportunity to study the noble Lord's words with a little more care. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.29 p.m.

Lord Lyell moved Amendment No. 90: Page 27, line 15, leave out from ("consult") to the end of line 19 and insert ("any one or more persons who appear to him to be professionally concerned with the patient's medical treatment.")

The noble Lord said: I beg to move Amendment No. 90, and with your Lordships' permission I wish to speak also to Amendments Nos. 94 and 95. The purpose of these amendments was explained when we considered Amendment No. 68, to which I spoke earlier, in relation to Clause 16.

The persons to be consulted under the relevant provisions in the new Sections 93B and 93C will be at least a nurse—and, wherever they are also involved in the care of the patient, any psychologist, social worker or other professional person who is so involved. I hope your Lordships will agree that all three of the amendments to which I have spoken—Amendments Nos. 90, 94 and 95—are sensible. I beg to move.

Lord Campbell of Croy

Amendment No. 95 is indeed one of my amendments, but I quite understand that my noble friend should wish my Amendments Nos. 95 and 90A—which is a similar amendment to the same wording in a previous passage—to be discussed with the Government amendments. The reason for this is that the Government have more than met the point in my amendments; they have taken my point and gone further. I rise to thank and congratulate them for that.

My concern was that there seemed to be a bias against anyone who is medically qualified. As the Bill is now worded, the action has to be taken by one medical practitioner and by four other people who, specifically, are not medical practitioners. As the Bill is at present drafted, this is prescribed in paragraph (a), where two persons have to sign the certificate and they must not be medical practitioners; and in sub section (3) there are two others, one of whom has to be a nurse and the other a person who is not a nurse. Neither of them are to be medical practitioners, but both have to have been professionally involved in the case. It is quite a problem to consider who that fourth person is going to be, who must be neither a nurse nor a medical practitioner. Except for a social worker, it is not easy to visualise enough professional people who might be involved in an individual case.

I believe my noble friend has made a good decision because, as I understand it now, in both sections, instead of two people it can be just one person—one or more—and they have simply to be people who, in the opinion of the medical practitioner, are professionally concerned in the case. That makes both sections very much more workable and will make it easier for the medical practitioner, who is basically the person who has to take the action.

On Question, amendment agreed to.

[Amendment No. 90A not moved.]

Lord Lyell moved Amendment No. 91: Page 27, line 26, after ("and") insert ("(b).").

The noble Lord said: At the outset I must apologise to my noble friend Lord Campbell of Croy for moving Amendment No. 95, which was in fact his amendment. He was very kind and I understand that we have fully satisfied him. If I may return to Amendments Nos. 91 and 92, your Lordships will recall that a minute ago I was dealing with Amendments Nos. 89 and 93 in the name of the noble Lord, Lord Winstanley, which dealt with the form of the certificates which are to be given in respect of the patient's ability to understand the nature, purpose and likely effects of certain forms of treatment. For the purpose of giving such certificates, the medical practitioner and two other people concerned are to have the right to visit and interview the patient in private and to inspect his medical records. Quite properly, only the medical practitioner is to have the right to examine the patient.

It has been strongly represented to the Government that the right to inspect medical records should also be confined to the medical practitioner, and that would be the effect of the amendment. This is a question of the patient's right to have the confidentiality of his medical records respected. In reaching a conclusion about the patient's ability to understand what is involved in the proposed form of treatment, the medical practitioner may well glean or obtain useful information from the patient's medical record. The information would not, however, be likely to be useful to the two non-medical people. Indeed, the purpose of requiring certificates from them is to have a non-medical view of the patient's ability to understand the matters in question, and they should not be swayed by what has been set down in the medical records.

On Question, amendment agreed to.

Lord Lyell moved Amendment No. 92: Page 27, line 29, leave out (" (b)")

On Question, amendment agreed to.

[Amendment No. 93 not moved.]

Lord Lyell moved Amendment No. 94: Page 28, line 31, leave out from ("consult") to the end of line 35 and insert ("any one or more persons who appear to him to be professionally concerned with the patient's medical treatment.")

On Question, amendment agreed to.

[Amendments Nos. 95 and 96 not moved.]

Clause 29, as amended, agreed to.

Clause 30 [Duty of boards of management of hospitals to give information to detained patients and nearest relatives.]:

10.37 p.m.

Lord Lyell moved Amendment No. 97: Page 31, line 9, leave out (", section 102 and section 104") and insert ("and sections 102, 102A and 104A")

The noble Lord said: This is a drafting amendment, the purpose of which is to ensure that appropriate references are made in the new provisions introduced by Clause 30 to other provisions which may affect patients and about which, where relevant, they should be informed. I beg to move.

On Question, amendment agreed to.

Clause 30, as amended, agreed to.

Clause 31 agreed to.

Clause 32 [Correspondence of patients]:

The Earl of Selkirk moved Amendment No. 98: Page 32, line 23, leave out ("Any") and insert ("No")

The noble Earl said: This clause deals with correspondence, and I have made two amendments here. First, I think it has the wrong emphasis. It says: Any postal package addressed to any person … may be withheld".

Quite frankly, it needs to say the opposite, that no postal package addressed by any patient may be withheld. That is really what they are saying, except with one minor exception. I suggest this is a better way of expressing that first part.

I have omitted paragraph (a) which says: if that person has requested that communications addressed to him by the patient should be withheld.

I am very anxious that there should not be any inhibition on patients writing letters. They have not very much to do and one of their entertainments is writing letters; it may be to the Lord Chancellor or other people. I think they should be given very free licence to do so as far as possible. There is one limitation, and it may be that I go too far in taking this out altogether; that is, if it causes distress to other people. That is a very small limitation. I do not think we should say, "You must not write any letters", for no reason. I wonder whether the Government would consider an amendment on the lines "unless the letter gives distress to the recipient", to indicate a valid and proper reason why a letter should not be written. Otherwise, I believe people in this distressing situation should be given the utmost liberty to write letters as they see fit. No doubt many of your Lordships receive letters of this sort; there is no harm in it, and on the whole it provides an outlet which, where possible, should not be denied. I beg to move.

The Earl of Mansfield

If one considers Clause 32, as opposed to Section 34, for instance, of the 1960 Act, in fact this clause introduces new provisions which much reduce the present powers to intercept patient correspondence. The reason for the change is that it is felt that patients should enjoy their freedoms, unless there is good reason to take them away; and that, of course, is entirely consistent with the European Convention on Human Rights. As I say, Clause 32 liberalises the régime as far as patients' correspondence is concerned.

My noble friend's first amendment, Amendment No. 98, would drastically alter the effect of the new Section 102. That effect, taken together with the effect of Amendment No. 99, the second amendment, would be to provide explicitly that "no" rather than "any" postal packet addressed to a patient in a mental hospital would be withheld by the Post Office if the hospital was a state hospital and the board of management considered that the postal packet was likely to cause distress or danger. I do not believe that my noble friend is as hard-hearted as that implies. In fact, he says that he is not.

I believe that it is humane and reasonable to provide for a person who is receiving letters from a patient to be able to ask for them to be withheld. I appreciate what my noble friend says, that if mental patients, who do not have much to do, want to write letters which may embarrass their friends and relations, I suppose that is something which their friends and relations will probably put up with. Nevertheless, they very often write to third parties who really do not want to be embarrassed, and I think it is only reasonable to provide for such letters to be withheld. For instance, a patient can suffer from delusions which lead him to write a constant stream of letters to a particular person, which may be distressing in a variety of ways. Such a person should be given some right to protect himself against such distress.

In subsection (3) your Lordships will see included the noble and learned Lord the Lord Chancellor, who, I am afraid, obtains no protection. The persons concerned can write as many letters as they like and such will not be intercepted.

I take my noble friend's point. It might be an improvement if we were to write something into the clause to the effect that a person who wishes to have the letters intercepted should claim some kind of distress. It would be impossible to monitor. It would merely enjoin the person who, as it were, is claiming relief, to satisfy himself that he was not doing it merely out of a spirit of pique or irritation. If I undertake to think about the matter, perhaps my noble friend will be persuaded to withdraw the amendment.

Baroness Masham of Ilton

Before the noble Earl sits down, may I suggest that if he or I received a letter it is not really necessary to read the letters, if we do think they contain nothing we want to hear. It does no harm. I get lots of letters from people who perhaps have been in mental hospitals or are still in mental hospitals, and who ramble on. I do not always read them all, but it does no harm.

The Earl of Mansfield

I am afraid that I always do read the letters, because I always feel that among the dross one is going to find a nugget of gold. It occasionally happens that somebody who is receiving mental treatment and complains bitterly, suddenly actually points the finger in the right direction and one is in a position to help them. I have found that on more than one occasion, but I am afraid I do read all these letters and I read them right through.

The Earl of Selkirk

May I venture to agree with the noble Baroness, Lady Masham. I get some letters which I do not even open. I know the handwriting well and I have read a great many of them, and I have given up doing so altogether.

I do not agree with what my noble friend has said. It is much easier to say that no postal packet will be interfered with, lest they cause distress. I must say that my noble friend has subsection (3) wrong. Subsection (3) does not apply to people in hospitals. It applies only to people in state hospitals. That is a different proposition. May I, as a matter of drafting, suggest that it should be under quite a separate subsection. As it is, it is in a paragraph dealing with state hospitals, which is totally different from dealing with just hospitals. I should have thought that it would have been simpler to say "if it causes distress". It is a pity if people are discouraged from writing. As the noble Baroness said, one does not need to open the letters; they are generally pretty simple.

I merely want to make it clear that there is no easy way of stopping people from doing what is a very simple and innocent thing. I may be wrong, but I should have thought that comparatively few letters from hospitals really cause distress. It is only in those circumstances that it is necessary to take appropriate steps.

If the noble Earl shows that sympathy which is characteristic of him and looks at this again, I should be extremely grateful and will withdraw the amendment.

The Earl of Mansfield

I am grateful to my noble friend for putting me right on subsection (3). Of course I shall look at it again.

The Earl of Selkirk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 99 not moved.]

Clause 32 agreed to.

Clause 33 [Code of practice]:

[Amendment Nos. 100, 101 and 101A not moved.]

Lord Winstanley moved Amendment No. 102: Page 35, line 18, at end insert ("and the code of practice shall, in particular, give advice regarding the use of treatments which are not fully established and the need to obtain the informed consent of patients upon whom such treatments are attempted.")

The noble Lord said: I hope we can deal with this amendment fairly rapidly. It is essentially a probing amendment. It seeks to look further into what can be said in the Bill to define what will ultimately be included in the code of practice, which we all know will be very important to the working of the Bill when it becomes an Act. The amendment specifies certain matters which I believe will be helpful if included in the code of practice.

My understanding is that during the passage of the English and Welsh Bill an undertaking was given that such words would be included in the code of practice, and I merely seek an assurance that a similar undertaking might be given on this Bill. I beg to move.

The Earl of Mansfield

I am happy to give that undertaking if the noble Lord will withdraw the amendment.

Lord Winstanley

I am most grateful, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Winstanley moved Amendment No. 104: Page 35, line 21, leave out from ("bodies") to end of line 23.

The noble Lord said: I am sure that this amendment, too, can be dealt with rapidly. The noble Earl will recollect, if he will cast his mind back several hours, that when he was speaking to his own Amendment No. 4, which sought to do precisely what this amendment proposes, he said that when we reached this amendment he would accept it. I beg to move.

The Earl of Mansfield

The noble Lord is right. I gave that assurance several hours ago, and I am happy to accept the amendment.

On Question, amendment agreed to.

Clause 33, as amended, agreed to.

[Amendment No. 105 not moved.]

Schedule 1 [Transitional provisions and savings]:

The Earl of Mansfield moved Amendment No. 106: Page 39, line 39, leave out ("regulation") and insert ("recommendation")

The noble Earl said: This is a drafting amendment to correct a mistake. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 107: Page 40, line 11, leave out ("transfer") and insert ("restriction")

The noble Earl said: This is a drafting amendment to correct an error. Paragraph 9 of Schedule 1 makes a transitional provision in relation to the effect of the amendment made to the principal Act by Clause 24. The provision should relate to "restriction" directions, not "transfer" directions, and the amendment will make the necessary substitution. I beg to move.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Minor and consequential amendments]:

The Earl of Mansfield moved Amendment No. 108: Page 40, line 34, leave out ("in") and insert ("to")

The noble Earl said: This is a straightforward drafting amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 109: Page 41, line 1, at end insert— (" . In the following provisions, for the words "local health authority" or "local health authorities", in each place where they occur, there shall be substituted the words "local authority" or "local authorities" respectively—

• Section 5(2)
• Section 7(1A)(c)
1404
• Section 7(2)
• Section 10(1)
• Section 12(1)
• Section 12(3)
• Section 12(4)
• Section 25(2)
• Section 25(3)
• Section 26(1)
• Section 29(2)
• Section 29(3)
• Section 29(4)
• Section 33(1)
• Section 33(2)
• Section 36(2)
• Section 37(1)
• Section 37(2)
• Section 37(3)
• Section 38(1)
• Section 38(2)
• Section 38(3)
• Section 39(4)
• Section 39(6)
• Section 43(4)(b)
• Section 43(5)
• Section 44(2)
• Section 44(3)
• Section 48(2)
• Section 49(2)
• Section 51(1)
• Section 53(2)
• Section 87(1)
• Section 87(2)
• Section 88(2)
• Section 91(1)

In Schedule 2, the entry relating to section 53.")

The noble Earl said: I beg to move Amendment No. 109, and it may be convenient if I also speak to Amendment No. 114, which is consequential to this amendment. The effect of these amendments is to remove from the Social Work (Scotland) Act 1968 a paragraph which provides for references in the principle Act to "local health authorities" to be construed as references to "local authorities" as defined for the purposes of the 1968 Act, and to amend the text of the principal Act so that references to "local authorities" will replace references to "local health authorities" wherever they appear. It is inconvenient and confusing to have an out-of-date expression occurring so frequently in the principal Act, and I hope your Lordships will agree that these amendments will make a desirable textual improvement. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 110: Page 41, line 50, after ("and") insert ("shall")

The noble Earl said: This is a small but important amendment. It inserts the word "shall" into the words which paragraph 5 of Schedule 2 will substitute for part of subsection (1A) of Section 7 of the principal Act. This will ensure that local authorities are required to comply with any directions given by the Secretary of State in relation to the making of arrangements for the purposes of Section 7. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendments Nos. 111, 112 and 113: Page 43, line 38, leave out ("(1)") line 39, after ("directions)") insert ("— (a) in subsection (1)") line 42, after ("Act") insert (";and— (b) in subsection (2) for paragraph (c) there shall be substituted the following paragraph— (c) persons detained under the Immigration Act 1971.".")

The noble Earl said: I beg to move Amendments Nos. 111, 112 and 113 en bloc. These amendments bring up to date a reference in Section 66 of the principal Act to persons detained under the Aliens Order 1953. Section 66 provides for the transfer from prisons and other institutions to hospitals of prisoners who are found to be suffering from mental disorder. The amendment will substitute for the present reference a reference to persons detained under the Immigration Act 1971. I beg to move.

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Repeals]:

The Earl of Mansfield moved Amendment No. 114: Page 48, line 34, column 3, leave out lines 34 to 36 and insert ("In Schedule 8, paragraph 50.")

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

House resumed: Bill reported with the amendments.