HL Deb 26 July 1983 vol 443 cc1485-92

7.10 p.m.

Lord Mottistone rose to move, That an Humble Address be presented to Her Majesty praying that the regulations be annulled.

The noble Lord said: My Lords, I beg to move the first Motion standing in my name on the Order Paper in relation to Statutory Instrument 893. In what I have to say I am advised by the National Schizophrenia Fellowship. What I wish to do is to draw the Government's attention to shortcomings which are mainly adding unnecessarily to form filling by general practitioners in regard to certain forms introduced under Regulation 4 in the statutory instrument to which I refer.

First, Forms 3 and 4. These forms relate to admissions for assessment and relate to Section 2 of the 1983 Mental Health Act. They are changed from equivalent forms required in the 1960 regulations. Both forms are for use when informal arrangements for admission for assessment have not been found to be practicable. Doctors, I suggest, will never need to resort to compulsory admission except when all attempts to achieve informal admission have failed. I am told that often attempts by several GPs in a group practice will be made in order to ensure an informal admission.

Thus I suggest that there seems little point in requiring doctors to spell out on the forms why informal arrangements were not practicable, which is what the forms require. This adds to the work of busy GPs and might indeed be thought by them to call their clinical judgment into question. There is already evidence that patients suffering from schizophrenia and similar severe mental disorders are not readily acceptable on GPs' lists, and it is therefore a matter of grave concern to the families of such patients that the doctors should not be hassled by unnecessary form filling, in order that they may give the attention that the families often request that they should give to these patients. I thus say that it is important that form filling be kept to a minimum, and with regard to these Forms 3 and 4 I conclude by saying to the Government, why do they require the extra information?

The second form to which I refer is Form 7. This relates to Section 4 of the 1983 Act, the emergency admission for assessment. On this form I am advised again by the National Schizophrenia Fellowship, and in this case their views are supported by the British Medical Association which has written to me, and by the Royal College of General Practitioners of which a representative has telephoned to me.

The arguments in relation to Forms 3 and 4 that I have been putting before your Lordships also apply in this case, only more so. Form 7 calls for a wealth of information. It includes factors such as an estimation of the delay time in obtaining a second doctor's opinion. I would suggest to your Lordships that that is rarely possible to be assessed accurately, and therefore it will he guessed, because under these circumstances of emergency admission doctors will be wanting to get on with it. If it is guessed, why have it there? That is just an example.

There is also a sort of sting in the tail of the form about possible extra information that may be required by hospital managers which the doctors are to indicate they would be prepared to give if asked to do so. This seems to me a very strange way of giving them extra work. I would have thought that that sort of information is of minor importance compared with the essential requirement of caring for the patient's health, and caring for the patient's health does not come through on any of these forms. It could be said that this is well mentioned within the Act—I am not sure it is in fact—hut it is really the emphasis which seems to be upside down.

The BMA and the Royal College of General Practitioners, in supporting these points, make strongly the further point that when the regulations were under discussion two example forms for fulfilling the requirements of Form 7 were circulated. One of these was called 5A, which was very similar to the new Form 4 which I mentioned earlier. The other was Form 5B. These two professional bodies, and indeed the National Schizophrenia Fellowship itself, firmly opted for 5A, the simpler form, but the Government have selected 5B as the basis for the new Form 7. I ask my noble friend the Minister why.

Finally, in relation to this statutory instrument there is Form 14. This form records, among other points, that the patient was given information in accordance with Section 132 of the 1983 Act, and that the patient's nearest relative has been informed of the patient's admission on a specific date. It is completed by the hospital management. Subsection (4) of Section 132 of the principal Act requires that the nearest relative also be given a copy of any information given to the patient under subsections (1) and (2) of Section 132. There does not appear to be any other form recording action taken under Section 132(4). Why is such provision not made on Form 14?

The point is that Form 14 merely records that the hospital has told the nearest relative about the patient's admission, but there is no record of their having given the patient the information which is referred to elsewhere on the form under Section 132. This would seem to be contrary to subsection (4) of that section. My Lords, I beg to move the first Motion standing in my name.

Moved, That an Humble Address be presented to Her Majesty praying that the regulations be annulled.—(Lord Mottistone.)

Lord Wallace of Coslany

My Lords, the noble Lord. Lord Mottistone, was extremely active, in the Committee stage particularly, of the Mental Health Act, as it now is, and he has raised certain points, some of which I agree with, some I do not. So far as Forms 4 and 3 are concerned, this really is based on the medical recommendations required before a patient can be detained under Section 2 of the Act for assessment. There are new features of this section, and they are that the patient is admitted for assessment—which includes, of course, the ability to impose treatment against the patient's will in accordance with part IV of the Act—and that the patient now has the right to apply to a mental health review tribunal, to be discharged if the tribunal thinks fit, in the first 14 days of his detention.

Form 3, of which we have heard a great deal, is a joint medical recommendation form for the two doctors to sign together, and Form 4 is where the two doctors sign separate recommendation forms. I do not think anyone could really disagree with that. At the foot of the form there is a requirement for the doctors to indicate why informal admission is inappropriate. Strictly, this is not required by the Act, but it is. I must frankly admit, a recognition of an underlying principle of the Act—the least restrictive alternative—that compulsory admission to hospital is the last resort. This particular sentence is a welcome example of the forms being used as a way of forcing practitioners to think about the fundamental criteria for admission; and that is vitally important.

There has been a great deal of argument about Form 7. I have a copy of it; it looks rather lengthy but it is not extremely so. I do not see quite how there can be objection to it on the part of doctors, but I will come to that in a moment. I will not go into detail about Form 7 except to say this. There is a point which we must bear in mind. Form 7 in its last two paragraphs deals with two things; first, to ensure that the medical recommendation indicates how much delay would result from waiting for a second medical opinion and who would he harmed by this delay. Secondly, it deals with when the doctor was first aware that a patient's condition was causing anxiety. Surely these requirements must be warmly welcomed and commended. I should add that information arising from them would enable the new Mental Health Act Commission, if it so decided, to monitor the use of this section more effectively.

I agree that the BMA and the doctors object to Form 7 mainly on the basis that it is complicated and that doctors are too busy to fill in such forms. On the other hand, I accept that Form 7 is a protection for the patient. When one recommends that a person be admitted, it is a vital and important question for the individual. Therefore, extreme care should be taken by the medical profession in satisfying the authorities that they have a bona fide case. Under the circumstances, I do not object to Form 7.

As regards Form 14, which the noble Lord, Lord Mottistone. mentioned, I accept that there is a possibility of exception to the form's requirement to record that the patient's right to information under Section 132 of the Mental Health Act has been complied with, not necessarily because objection is taken to this provision but because it should be given when the patient is ready—and I emphasise "ready"—to receive it. The information which has to be given both orally and in writing "as soon as is practicable" includes details under which the patient is detained, the new consent to treatment provisions, et cetera.

It may be argued that this information should not be given as a matter of priority. I must admit that I am concerned that there should be no watering down in the strict interpretation of this section. The words "as soon as is practicable" cover more than adequately those situations where the patient is in no condition to understand the information. Moreover, it can be said that the form does not record if the duty on hospital managers under Section 132, to inform the patient's nearest relative of details about the section under which the patient has been detained, has been complied with. Frankly, I agree with such criticism.

That is all I have to say, except that we understand that the noble Lord. Lord Mottistone, in moving that the regulations he annulled, is doing so in order to elicit information from the Government. There is no possibility that these orders will be taken to a vote and perhaps defeated. This is the usual democratic method in this House for eliciting information. Under those circumstances, I warmly welcome the fact that he has raised the issue.

Lord Winstanley

My Lords, I, too, am grateful to the noble Lord. Lord Mottistone, for giving us this brief opportunity to debate these important orders. In saying that, the noble Lord will perhaps not be surprised if I also say that I do not wholly agree with everything that he said. I, too, have had briefs from the National Schizophrenia Fellowship—an admirable organisation—and I have very carefully studied what they said. I must say—and I say this carefully—that I sometimes think that the National Schizophrenia Fellowship appears to be a little more concerned about the rights of relatives of patients who suffer from schizophrenia than the rights of the patients themselves. So I do not entirely go with the fellowship in the advice it has given to the noble Lord.

I entirely support the advice given by MIND to the noble Lord, Lord Wallace of Coslany, and since he read to your Lordships large sections of its brief there is no point in my reading out the same advice. I merely say that I agree with the points made by MIND to the noble Lord, and I am glad that he repeated them so clearly. I shall not weary the House by repeating them again.

May I just add that I am a doctor, and until relatively recently was at the sharp end of medical practice. It is perhaps appropriate to say that I am not now exactly at the sharp end, except occasionally in your Lordships' House when someone requires treatment. In other words, I do not suffer personally from this immense burden of constantly filling in forms. If, as the noble Lord, Lord Mottistone, suggested, there is unnecessary bureaucracy creeping in to this area which is adding to the burden borne by general practitioners, then it is right that we should look at it extremely carefully. I have no doubt that the noble Lord who is to reply will tell us that the Government have had discussions with the General Medical Services Committee, which represents the general practitioners, and that the Government will have had the advice of the general practitioners with regard to these various forms.

I sympathise with my colleagues, the general practitioners, in their regret at having unnecessary forms, particular at a time (I do not believe I am seriously digressing) when we find the family practitioner committee services have overspent. This is hardly surprising since funding for the family practitioner committee services is, as it were, open-ended. Nor is it surprising that the Chancellor of the Exchequer has insisted that the overspend must be recouped from elsewhere in the National Health Service budget. As a result of' that overspend by the family practitioner committee services we have a cut of 1 per cent. in hospital services. That will inevitably mean lengthening waiting lists, deteroriating outpatient services and, as sure as night follows day, that next year there will he a further overspend by the family practitioner committee services. Presumably there will then be another 1 per cent. cut in hospital services, so that we go on taking 1 per cent. cuts until there are no hospital funds to take 1 per cent. from.

In short, I am saying that it is important that we should look at ways of limiting the expenditure under the family practitioner committee services which, at the moment as the noble Lord will know, have exceeded their budgeted amount and are likely to do so in the future.

Form filling, of course, is part of the work that family practitioners have to do. With regard to the specific forms, I am inclined to agree with the advice from MIND on Forms 3 and 4. MIND makes it utterly clear that it recognises the underlying principle of the Act; namely, that we should, wherever possible in regard to detaining patients, apply the least restrictive alternative. In other words, compulsory admission to hospital should be a last resort and never a first resort, or even an early resort. I believe the forms are not unnecessarily elaborate for the general practitioners.

With regard to Form 7, I think there is perhaps a greater case. Information is required which may be useful or necessary for statistical purposes later, so that the Mental Health Commission can monitor the way in which the Act is working; but there is possibly a case for looking again at the elaborate nature of Form 7.

With regard to Form 14, this arose in part as a result of an amendment which I had the honour of successfully proposing in your Lordships' House to an earlier Bill. It brought about the proceedings whereby patients and their relatives are given certain information and have a statutory right to certain information. I certainly should not like to see any watering down of that provision.

However, once again, if the forms which must be filled in are unnecessarily onerous, obviously they should be looked at again. But I should like to hear from the Minister what advice he has been given, not just by the BMA but by the General Medical Services Committee, which is. of course, the body that acts on behalf of all general practitioners irrespective of whether or not they are members of the BMA.

The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur)

My Lords. I have listened with interest to what my noble friend Lord Mottistone has said, and also to what the noble Lords, Lord Wallace of Coslany and Lord Winstanley, said. Those who took part in the debates on the Mental Health (Amendment) Act last year will have welcomed this opportunity to consider again the issues that pre-occupied them then. Both the Hospital, Guardianship and Consent to Treatment Regulations and the Mental Health Review Tribunal Rules, which we shall come to later, reflect the changes made, and generally welcomed, to mental health law by the Mental Health (Amendment) Act 1982; and also reflect a desire, which I am sure we all welcome, to make administrative procedures and forms as clear as possible. We consulted extremely widely, going not only to health and local authorities and professional organisations, but also to all the voluntary organisations in the field. We received many comments, and most of those consulted appreciated the changes that had been made.

The consultation process also provided the opportunity for those who disagreed with some of the changes brought about by the Act to express again their disagreement and to attempt to modify some of the effects of those changes. The National Schizophrenia Fellowship was one of the organisations we consulted, and I am glad to say that we were able to accept most of their helpful suggestions. But where it came to a choice between two different, equally valid, versions we had to take account of the views of other organisations also and decide which was the most favoured solution. While therefore I have listened again to the points made very eloquently by my noble friend on behalf of the National Schizophrenia Fellowship, it is my responsibility to make sure that other people's views are not forgotten.

So far as these particular regulations are concerned, perhaps I can preface my remarks by saying that we did accept some of the suggestions made by the National Schizophrenia Fellowship at consultation stage on the regulations. For example, we have, as they asked, removed the requirement for the nearest relative to certify his agreement to an application for admission being made by an approved social worker. The National Schizophrenia Fellowship wrote to us that many relatives would feel unhappy about being seen to "sign away" their relative in this way, and accordingly we scrapped that form.

Other points relating to making sure that the nearest relative knows all his rights were more suitable to be put in the leaflets, and the covering letters to these, that we have prepared. We consulted the National Schizophrenia Fellowship on those leaflets. My noble friend, I think, is saying that it is already too difficult to have someone compulsorily admitted to hospital and that no more safeguards are needed. I can only say that this was not the view taken by either your Lordships' House or another place during the passage of the Mental Health (Amendment) Act last year. Indeed, the pressure was, as I think your Lordships will recall, quite the other way.

Of course, we are all very deeply sympathetic with people who have to suffer the distress of having a schizophrenic relative, and I am aware of the anguish this causes in families. But, on the other hand, depriving someone of their liberty and subjecting them to compulsory treatment because they are considered to be mentally disordered, when they have not broken the law, is a very serious matter indeed, and it is not something that a caring society can do lightly.

Parliament clearly felt that no one should be deprived of his liberty without very serious consideration, and there was a good deal of debate in another place about the use or misuse of the emergency powers of Section 29 in the 1959 Act. This at present allows someone to be compulsorily detained in a mental hospital on an application by any relative and on the recommendation of only one doctor. I think parliament was right to be concerned about the implications of this for the rights of the individual.

It is for that reason that what is now Form 7, the medical recommendation for emergency admission, requires the doctor to specify how many hours delay would be involved in obtaining a second medical recommendation and who would suffer as a result. This form will not stop an admission being made in a genuine emergency: it will take only a few minutes to fill in, and is very clearly set out. Nor will it be a major burden to the medical profession. Most GPs fill in one of these forms only once a year or less.

It is right, as my noble friend has said, that we specifically asked those consulted to say whether they preferred this form or a slightly shorter one. Views are fairly evenly divided, with the medical profession generally preferring, perhaps understandably, a shorter form; but in view of the division of opinion, Ministers decided that this form was more in keeping with what Parliament had wished. And it will enable the Mental Health Act Commission to monitor the use of this emergency power and see whether there is any cause for concern or not.

The ordinary admission for assessment form has also been strengthened a little so that the doctor has to say why informal admission is not appropriate—as he has done in the past for an admission for treatment. It seems to me perfectly reasonable, and again, totally in accord with Parliament's wishes, to make the forms consistent in this way, and I may say that the medical bodies consulted raised no objection when they were formally consulted on the regulations.

My noble friend has also asked why Form 14, which is the form on which managers record the compulsory admission of a patient, does not require the managers to certify that the nearest relative has been given the same information as the patient. We have tried to keep these forms as simple as possible, and there are several other instances where we have not required people to certify that every statutory duty has been performed. Forms cannot be complete aide-mémoires in this way without becoming extremely lengthy. But I can assure my noble friend that we are shortly going to issue a circular to all health and local authorities in which we shall not only remind hospital managers of the requirement to copy information to the nearest relative, but also provide draft covering letters to the nearest relative which hospitals may find it helpful to use. And, as a matter of fact, the National Schizophrenia Fellowship have been very helpful in drafting these letters, as well as the leaflets giving information to patients.

With what I have said I hope I have satisfied my noble friend and the noble Lords, Lord Wallace of Coslany and Lord Winstanley, that we have drafted these regulations in the spirit of the debates we had on the Mental Health (Amendment) Act. I believe that the regulations are generally welcomed and felt to be clear and workable.

Lord Mottistone

My Lords, I am deeply thankful to my noble friend the Minister, and indeed to the noble Lords, Lord Wallace of Coslany and Lord Winstanley, for their contributions. I do not, of course, agree with the theme of the main argument of the noble Lord, Lord Wallace of Coslany. It is all a balance of opinion, and I think that he has balanced it the wrong way and differently from me. Of course, I liked the view of the noble Lord, Lord Winstanley, better. In a good Liberal way he came in between us. I am very pleased indeed to have a full explanation from my noble friend the Minister on the earlier forms, 3, 4 and 7. It is sad about Form 7. I am also grateful to him for saying that, although there is a reason for not including all the information that perhaps should have been on Form 14, guidance from his department will cover this point and deal with what is omitted. I beg leave to withdraw the first Motion standing in my name on the Order Paper.

Motion, by leave, withdrawn.