HL Deb 26 July 1983 vol 443 cc1493-500

7.37 p.m.

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

The noble Lord said: My Lords, I beg to move the second Motion standing in my name on the Order Paper relating to Statutory Instrument No. 942. Once again I am advised by the National Schizophrenia Fellowship. Generally on these rules we would make the following points.

Under the 1960 regulations specific help was given to nearest relatives to understand their rights under the 1959 Act. Rules 7 and 25 of those earlier regulations are examples of that. Although by wading through these rules a nearest relative can discover that he will receive notice of a hearing and may attend and may make representations, and that he may be represented, this information is not put together simply and clearly for him, as I understand it was in the 1960 rules. I am sure that your Lordships will agree that in all these circumstances of dealing with mentally disturbed relations, nearest relatives are anyhow in a difficult position. They are perhaps alarmed, particularly when it happens for the first time. They are not experts at reading Government rules and regulations. Even if they can read them, the rules are difficult to interpret.

I wonder therefore whether my noble friend would agree that the Government might produce a simple aide-mémoire for nearest relatives, written from the point of view of nearest relatives. Ideally it should be in these rules for all to see. Although it could be considered that such an aide-mémoire might be produced by bodies such as the National Schizophrenia Fellowship, it would be doing so only for its own members, and its membership is not comprehensive. At any one time people may have the misfortune to have a mentally ill nearest relative without previously having joined such an organisation. So that is why it would be helpful if the information was contained in a more public document.

Perhaps the leaflets to which my noble friend referred in answering my previous point might be suitable here. Perhaps a special leaflet could be produced for use by nearest relatives. This could be added to the other leaflets and circulated to all the appropriate individuals and bodies, such as GPs, mental hospitals, and so on. That is the general point on these rules.

The second point refers to Rule 8(2), which relates to inviting people to serve as tribunal members. I am sure that the Government are aware of the need to avoid inviting people with extreme views on mental health to serve as tribunal members. I am advised that in this area there are many people who have quite extreme views and some rather strange ones. It would be helpful if my noble friend could tell me whether the Government will be giving advice to tribunal chairmen, who carry out the selection of their members, in order to emphasise this point.

Next I turn to Rule 9. I am told that the meanings behind this rule and some of its details are obscure, whereas the equivalent 1960 rule was not so obscure. I am told, for example, that paragraph (1)(b), and paragraphs (2) and (4) of the 1983 Rule 9 are particularly difficult to interpret.

I now turn to Schedule 1 of the rules and Part B, which concerns, Reports relating to patients (other than conditionally discharged patients)". This comes under the general heading in the schedule of, Statements by the responsible authority and the Secretary of State". It is suggested that it would he helpful if the social circumstances report (which comes under Part B) could include reports on the following matters: first whether the patient is likely to avail himself of any out-patient support facilities; and, secondly, whether, with all the support which may or may not be available, the patient is likely to be able to care for himself, to obtain the care that he needs, or to guard himself against serious exploitation. This question of guarding against serious exploitation is a reference to the end part of Section 20(4) of the 1983 Act.

My noble friend the Minister will be aware from my recent Questions for Written Answer that there is concern at the lack of provision for effective community care. There is a likelihood that when, or if, this care is provided, some patients, in particular, as I understand it, those with schizophrenia, will not be prepared to make use of any of the community care facilities simply because of the nature of their illness, and the purpose of these additional provisions in Part B of Schedule 1 is to cover that point. I should be grateful for the views of my noble friend the Minister on this matter, since, if we spend lots of money in providing community care so as to enable us to shut down elderly mental hospitals—which we should all like to happen in due course—it is terribly frustrating to think that there will be some patients who, just because of the nature of their illness, will, if they have the freedom that the drift or the movement towards civil liberty tends to give them, will not take advantage of what is being provided. It creats a conundrum of a very difficult kind. Hence the suggestion that Part B could be expanded. I beg to move the second Motion standing in my name.

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

7.45 p.m.

Lord Wallace of Coslany

My Lords, I should like very briefly to comment on these tribunal rules. One thing worries me. In the previous debate, the noble Lord, Lord Mottistone, referred to a question of balance, and I rather thought that he inferred that I was unbalanced. I hope that he does not really think so. I would very much support the noble Lord about the need to give simple, easily understood, advice to nearest relatives. That is vitally important.

The proposals regarding the trubunal itself must be very welcome indeed, though there are the points which the noble Lord has mentioned. One of the welcome features is that quite a number of categories of patients will be automatically referred to a tribunal. Under the old Act only about 2 per cent. of eligible patients took up their right to apply. Medication and illness—another word that I have in mind will come to mind later, when my teeth will allow—affect patients and they are not in a position to appeal to a tribunal. Now they can be automatically referred to it, and I think that, generally speaking, one would welcome that.

There are a couple of points that I should like to raise. The first concerns Rule 6 (1)(c). This rule provides for the information to be supplied by the responsible authority to the tribunal when the patient applies to a tribunal. The rule indicates that the social circumstances report should include details of the patient's home and family circumstances, including the attitude of the patient's nearest relative; the opportunities for employment or occupation, and housing; the availabiltiy of community support and relevant medical facilities; and the financial circumstances. These details are to be provided, in so far as it is reasonably practicable to provide them". Those words were not included in the consultation document about these rules, and I suspect that they may have been inserted as a result of representations of certain social service departments. More often than not the difficulties faced by tribunals in discharging detained patients centre around the social circumstances of the patient outside hospital. I am very concerned that this proviso to the requirement to provide information may be used to avoid providing such reports. Perhaps when he replies the noble Lord will explain the position and give me more reassuring information on it.

I turn now to Rule 21 (4), which deals with the privacy of proceedings. This rule replaces Rule 21 (3) of the Mental Health Review Trubunal Rules 1960, which was almost exactly the same, save that it concluded with the words, if in their opinion it would be undesirable in the interests of the patient or for other special reasons for the patient or such other person to be present". I am very concerned that the exclusion of those words may be taken as indicating that Parliament agreed that a wider range of reasons for such exclusion is permissible than was provided for under the 1960 rules. I should like to have reassurance on that from the Minister. However, generally speaking, I am on this occasion more in balance with the noble Lord, Lord Mottistone, and once again I very warmly and strongly support his appeal for more information to be made available to relatives.

Lord Winstanley

My Lords, like the noble Lord, Lord Wallace, on this occasion I, too, am perhaps more in agreement with the noble Lord, Lord Mottistone. I hope that that will not make the noble Lord think that perhaps he is wrong this time. I should also like to make clear that my earlier remarks with regard to the National Schizophrenia Fellowship were not intended in any way to denigrate the work of that very valuable body. I believe that work on behalf of the relatives of patients who suffer from schizophrenia is absolutely essential. These people are extremely vulnerable and are often in grave difficulties and in desperate need of help of the kind which, I would like to say publicly, the National Schizophrenia Fellowship provides on a continuing basis to a large number of people. In doing so, it performs invaluable work. I also believe that its advice to the noble Lord in regard to these rules is perhaps more soundly based. I should like to support the noble Lord. What the fellowship has said to the noble Lord and what the noble Lord has said to this House with regard to the rights of nearest relatives to information and advice, seems a matter of great importance. I look forward with interest to hearing what the noble Lord the Minister will say in reply.

I take the point that the fellowship makes about the composition of tribunals. I do not necessarily agree that we do not want people who hold extreme views. I am not entirely sure what "extreme views" are. I might say that I am personally an extremist for moderation. It is difficult to know precisely where to place people. I agree also with the points made about the immense importance of social services reports.

The noble Lord, Lord Mottistone, opened up another can of peas, if that is not being too colloquial, when he mentioned community care. Here, we are really embarking upon a subject of immense importance not wholly covered in the rules. It is nevertheless the fact that since 1960 we have seen the gradual demolition of the big mental hospitals. During the same period, we have not seen a matching increase in the community care that is necessary for the people who can no longer be cared for in the hospitals which no longer exist. I support the noble Lord, Lord Mottistone, on some of the points that he has made. I look forward with interest to hearing what the noble Lord the Minister will say.

In particular, my reason for speaking is my concern about the point made by the noble Lord, Lord Wallace of Coslany, about Rules 21(4) and 22(4) in so far as they relate to the rights of the patient in mental health tribunal proceedings. It appears to me that under the Act, as it now is, and under the new rules, we have virtually abolished the old distinction between the formal procedure and the informal procedure. We now have just one procedure with the rules laid down in Rules 21(4) and 22(4). The noble Lord, Lord Wallace, is right to remind the House that the rule that they replace—Rule 24(3) of the 1960 Mental Health Review Tribunal Rules—included the words that he quoted. I shall quote them again because they are important. They are: if in their opinion it would be undesirable in the interests of the patient or for other special reasons for the patient or such other person to be present". In other words, the previous rules laid down clear criteria under which a tribunal could decide to exclude the patient.

It seems to me that the criteria are not laid down under the new rules with the same clarity. The importance of the old rules was perhaps illustrated in the case of Royston before Mr. Justice Woolf earlier this month. This demonstrated the value of the old rule. In that case, I understand, a judgment was given showing the value of the particular rule that laid down criteria that had to be fulfilled before the patient could be excluded. I should like to know from the noble Lord whether the omission of those words was due to inadvertence, whether they were not thought necessary, or whether this represents a change in policy and outlook.

The disappearance of the criteria that existed in the former rules and their replacement with general guidance raises the question of whether Rule 22(4) as modified by Rule 21(4) is intro vires when one looks carefully at Section 78 of the Mental Health Act as it now is. I have no doubt that if it is ultra vires that information would come through to the noble Lord by other routes in due course. I should like the noble Lord to consider whether the new rule, as it now is, is in accordance with the spirit of Section 78 of the Mental Health Act as it now is. It seems to me that it departs marginally from it.

7.54 p.m.

Lord Glenarthur

I am grateful to my noble friend, to the noble Lord, Lord Wallace, and to the noble Lord, Lord Winstanley, for their views and comments. The new Mental Health Review Tribunal Rules are the result of a thorough review of the Mental Health Review Tribunal Rules 1960 which apply at present. The new rules also reflect recent legislative changes made in the Mental Health (Amendment) Act 1982 now consolidated in the Mental Health Act 1983.

In 1977 a committee of experts and officials was set up to review the procedures of the mental health review tribunals in the context of a general review of the Mental Health Act 1959 which was then taking place. This committee, which included among its members two experienced regional chairmen of mental health review tribunals, was working towards its final conclusions as the Mental Health (Amendment) Act 1982 was being passed. That Act made a number of changes in the law affecting mental health review tribunals, all of which had to be taken into account by the Procedure Committee in the course of its task of revising the rules.

In March 1983 the Lord Chancellor's Department circulated a draft of the proposed new rules to many interested bodies including the National Schizophrenia Fellowship. The final draft of the rules was prepared in the light of those comments and, after it had been exhaustively discussed by the Procedure Committee, was submitted to my noble and learned friend the Lord Chancellor for signature.

I understand that my noble friend Lord Mottistone's concern tonight is not so much with the rights accorded to a mental patient by the new tribunal rules but the way in which their procedures affect the relatives of a mental patient whose case is coming before a tribunal. In view of this, it may be of some assistance if I outline briefly the provision in the rules which will enable the tribunal to know the views of the relatives in order that it may decide what is in the best interests of the patient.

After an application to a tribunal by a patient, Rule 7 provides for the nearest relative to be given a notice of the proceedings. Thereafter, that relative becomes a party to the proceedings as defined in Rule 2 and, as such, has all the rights of a party under the rules. These rights include the right to be represented under Rule 10, the right to receive notices relating to the proceedings and the right to appear at the hearing under Rule 22 and to take such part in the proceedings as the tribunal thinks proper. He is also entitled, under Rule 24, to receive a copy of the decision.

Furthermore, under Rule 7, the tribunal may give notice of the proceedings to any person who it considers should have the opportunity of being heard. This would extend to other friends and relatives of the patient. Anyone given notice in this way also becomes a party to the proceedings with all the rights that I have mentioned.

My noble friend Lord Mottistone was kind enough to provide me with a copy of a notice sent to him by the National Schizophrenia Fellowship. Before taking, in turn, the points he made, I can perhaps answer briefly the points raised by noble Lords opposite. The noble Lord, Lord Wallace, referred in particular to Rule 6(1)(c). I hope that it is sufficient if I say that it will be for the tribunal to decide whether an omission is reasonable. If that is not a sufficient answer, I can perhaps follow it up later. The noble Lord, Lord Winstanley, referred to Rule 21(4). This rightly leaves exclusion of persons from a hearing to the total discretion of the tribunal, taking all factors into account. It must give reasons and record them. I hope that that is sufficient, but if the noble Lord wishes to intervene—

Lord Winstanley

My Lords, does the noble Lord agree that the case of Royston, brought successfully before Mr. Justice Woolf earlier this month, was brought under the old rules and could not now be brought under the new rules? To that extent, we are extinguishing a right that has hitherto existed.

Lord Glenarthur

My Lords, I can perhaps come back to the noble Lord's question when I have a reply. I do not know it off the top of my head. I was saying that my noble friend Lord Mottistone gave me warning of what the National Schizophrenia Fellowship had briefed him on. I shall take, in turn, the points made in the note which are the source of my noble friend's concern. The first is that there is no longer a form prescribed for giving notice of proceedings to the patient's nearest relative and other interested parties. It is also suggested that the nearest relative should be encouraged to indicate whether any written representations he makes are confidential.

No forms are prescribed by the rules. This is because past experience has shown that statutory forms are cumbersome to change when an improvement is proposed. However, non-statutory forms for the tribunals are in preparation. They will include a form similar to the old notice of proceedings to which I have already referred. It will contain broadly the same information about the rights of the relative as the old form, and will also invite anyone making written representations to alert the tribunal to any of his remarks which he feels should not be shown to the patient. We are preparing forms for use by the tribunals and it is intended to give a number of interested bodies, including the National Schizophrenia Fellowship, an opportunity to comment on the drafts.

Next, my noble friend and the fellowship complain briefly that the rules do not give an opportunity to a relative to address the tribunal. But this is, in fact, provided for in Rule 22(4). The third point was also made by the National Schizophrenia Fellowship in their comments on the earlier draft of the rules. They proposed an amendment to Rule 8 designed to guard against the danger of persons with extreme views being appointed to sit on mental health review tribunals. The Act gives to my noble and learned friend the Lord Chancellor the responsibility of appointing members to the tribunals in the first place. The rules merely determine which of those members shall hear a particular case. My noble and learned friend can, I am sure, be trusted to act with his customary sense of responsibility in making these important appointments.

The fourth comment is that Rule 9, which concerns the tribunals' power to postpone consideration of an application, is difficult to understand. It may perhaps be of assistance if I explained the situation in which this rule might come into play. The right to apply to a mental health review tribunal arises only once in each of the fixed periods during which a patient is authorised to be detained. Let us suppose, therefore, that a patient applies to a tribunal towards the end of a period of detention and is unsuccessful. He starts a new period of detention and immediately exercises his fresh right to apply to the tribunal in respect of that period of detention. After making proper inquiries, the tribunal may conclude that it would be in the patient's own interest for his case to be considered rather later in the current period of detention when he will have had a chance to make more progress. This rule allows the tribunal to postpone consideration of his case under those circumstances. It thus enables the tribunal to ensure that a patient does not waste his application by making it so soon after an earlier unsuccessful hearing that his circumstances have had no time to change.

My noble friend has referred to three paragraphs in Rule 9. Paragraph (1)(b) protects the patient by providing that postponement of a hearing must not be to a date later than the end of the current period for which detention is authorised. Paragraph (2) makes it clear that the patient's interests are to be paramount. Paragraph (4) entitles all the parties, including the patient and nearest relative, to know the tribunal's reasons for a postponement. This is, of necessity, a fairly technical rule. I think, however, that the importance of setting out in strict detail the circumstances in which the power to defer consideration of a patient's case may be exercised will readily be appreciated by your Lordships.

The final point concerns the reports which are required to be supplied to the tribunal by the responsible authority. These are set out in Part B of Schedule 1 to the rules. It is suggested by my noble friend that those making these reports should be required to state specifically whether the patient is likely to avail himself of any outpatient facilities there may be, and whether he will be able to look after himself if discharged. The schedule is very exacting as to the information reports that are to be prepared by doctors, social workers and hospital authorities. It is certainly wide enough to enable the tribunal to elicit all the information it may require from those responsible in a particular case. Furthermore, the tribunal is not limited to the information set out in the schedule; it has wide powers to call for further information under Rule 15 and even to summon witnesses, should that prove necessary, under Rule 14.

The rules thus enable the tribunal to demand and obtain all the information it may consider that it needs in making an impartial judicial determination under Section 72 of the Act as to whether the patient should be discharged. That determination—which it is for the tribunal and not for a social worker or hospital authority to make—includes, in the case of a patient suffering from mental illness, having regard to the likelihood of the patient (if that patient is discharged) being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation. The scheduled information does, we believe, give the tribunal the means and basis for making the determination.

In conclusion, let me say that I do not wish to adopt an adversarial approach to my noble friend, nor to appear to be unhelpful. I understand his concern and I am as anxious as he is that those who need help should receive it and that the needs of the nearest relative should never be forgotten. But I do not accept that these regulations, generally acceptable as they have been to professional bodies in the field, will conflict with these aims.

I hope that I have answered all the points that have been raised. However, I am conscious of the fact that I have not answered the noble Lord, Lord Winstanley, on a specific matter which he raised, and I hope he will be happy if I write to him and answer the specific point in due course. But in the light of what I have said, I hope that my noble friend will be able to withdraw his opposition to these rules.

Lord Mottistone

My Lords, once again I am deeply grateful to my noble friend the Minister and to the noble Lord, Lord Wallace, and the noble Lord, Lord Winstanley, for their support of the general theme of my comments on this particular set of rules. I am heartened by the extent to which my noble friend the Minister has explained the background to the points that I raised, and why things are the way they are. I am also heartened by the thought that there will be, as I understand it, explanatory leaflets for the benefit of relatives, and indeed others, in interpreting these rules and that they will be made available to the appropriate people. I am also grateful to my noble friend for spelling out the rights of the nearest relative, and for carefully taking us through the rules showing us all the things to which they are entitled. That could well form the basis for the type of further information that I sought. With those thanks, I beg leave to withdraw the second Motion standing in my name on the Order Paper.

Motion, by leave, withdrawn.