HL Deb 17 March 1986 vol 472 cc827-44

5.26 p.m.

Lord Lyell rose to move, That the draft order laid before the House on 28th January be approved.

The noble Lord said: My Lords, I beg to move that the Mental Health (Northern Ireland) Order 1986, a draft of which was laid before the House on 28th January this year, be approved.

The order, as your Lordships will see, deals with the status and legal position of the comparatively few people suffering from mental disorder who need special protection or control either in their own interests or in the interests of others. It replaces and amends the existing mental health legislation which is contained mainly in the Mental Health (Northern Ireland) Act 1961.

Although this Act has worked very well, there have been considerable changes in mental health service structures and practices in the 24 years since it came into force. These include such developments as the advent of the open door hospital, the shift to community care and the introduction of multidisciplinary team management. Public attitudes have also changed, as I think your Lordships would agree. There is a much greater emphasis on individual rights and an increased demand for legal safeguards to protect those rights. The new proposals are intended to bring the mental health legislation into line with these changes and to provide a statutory framework which will not frustrate future developments.

The order gives effect to the proposals of an interdepartmental working group. These proposals are largely based on the recommendations of the MacDermott Committee. This was an independent committee set up under the chairmanship of a distinguished member of the Northern Ireland Judiciary, Mr. Justice MacDermott, to review the mental health legislation there. We are deeply indebted to him and his committee for providing us with such a well-formulated blueprint for new legislation. Some of the proposals in the order reflect the changes made to the mental health legislation in Great Britain and will perhaps seem familiar to those of your Lordships who participated in the long and intensive debates on the English and Scottish amending Bills.

The main effects of the order are to improve safeguards for people compulsorily detained in hospital or placed under guardianship, to clarify the position of staff looking after them and to remove uncertainties in the law. However, the order is not a new statement or philosophy of the law. The 1961 Act established a number of important principles. Among them are those which require that where care and treatment in hospital are needed, they are given on a voluntary basis wherever that is possible and that, in those few cases where compulsion is necessary, it should be subject to very strict controls. I doubt whether any of your Lordships here today would challenge those principles. The order, although it introduces many new provisions, certainly does not seek to challenge them. On the contrary, it seeks to ensure that they are implemented in a better way.

Like the Mental Health Acts in England, Wales and Scotland, this is a very long and in parts complex piece of legislation. I am sure that your Lordships would not wish me to deal with each article individually, so perhaps I may direct your attention to the main provisions, especially to the ones which are new, and to those which vary significantly from the 1961 Act. If your Lordships wish to raise any points about the provisions contained in the Act, I shall do my very best to respond to them. If I am unable to do so this afternoon, I guarantee that we shall be in touch, expeditiously, in writing. I am sure that your Lordships appreciate that the measures are long and detailed. I shall do my best.

If we turn to Part I, we find that it deals with definitions. The first change here is the introduction of a definition of mental illness. This is the first time that mental illness has ever been defined in United Kingdom legislation, and the intention is to identify clearly, for the benefit of patients and staff alike, those characteristics of mental illness which justify the use of compulsory powers.

The second change is the replacement of the term "arrested or incomplete development of mind" by the term "mental handicap". Both terms refer to broadly the same group of people, but the latter reflects current medical perceptions of the nature of mental handicap by emphasising the importance of social functions, such as the ability to eat, control one's bodily functions, learn new skills, recognise hazards or exercise reasonable judgment and foresight.

The lack of these abilities is now considered to be as much a part of mental handicap as low intelligence, and their inclusion as essential elements in the definition is intended to make it clear that a person who is intellectually dull but otherwise normal is outside the scope of the order.

Another change is the disappearance of the expression, "person requiring special care" and the use of the synonymous term, "severe mental handicap" to identify those mentally handicapped people who may be placed under guardianship or who are protected against sexual abuse. The difference between "mental handicap" and "severe mental handicap" is one of degree. It is entirely a matter for clinical judgment as to whether a person exhibits "significant" or "severe" impairment of intelligence and social functioning.

A very important change is the introduction of "severe mental impairment" as a new sub-category of "mental handicap". This is defined in the same way as "severe mental handicap" but includes the additional element of abnormally aggressive or seriously irresponsible conduct. The effect of that is to make it impossible for mentally handicapped people to be compulsorily detained in hospital for treatment unless their handicap is severe and they present abnormally aggressive or seriously irresponsible behaviour. In that way, the new category distinguishes the small number of mentally handicapped people who need to be detained in hospital under long-term powers, from the majority who do not. It ensures that mental handicap, no matter how severe, can never constitute by itself a sufficient ground for long-term detention.

There is a body of opinion which continues to insist that compulsory powers are not needed for the mentally handicapped, and that they should therefore not be included in the legislation at all. I understand and appreciate the strength of the conviction with which that view is held. Most mentally handicapped people can and should receive the care and training that they need on a voluntary basis. Nevertheless, the weight of professional opinion is that there is a very small minority of mentally handicapped people, without any other mental disorder, for whom compulsory powers are needed, either in their own interests or for the protection of others.

Part I also introduces the concept of a substantial likelihood of serious physical harm as one of the two criteria for compulsory admission to or detention in, hospital. The purpose of this is to ensure that all decisions to admit or to detain a patient are based on objective evidence that the patient is likely to be dangerous either to himself or to other people.

The new criterion is of course rather more restrictive than the one in the 1961 Act which it replaces—that detention should be in the interests of the patient's health or safety or for the protection of others. That is precisely why it is being introduced. Compulsory admission or detention is a very serious step involving deprivation of liberty and the restriction of individual rights and freedom of action, and it is clear from the responses received during the consultation period that the prevailing view in Northern Ireland is that it can be justified only in extreme circumstances.

Part II deals with compulsory admission to hospital and reception into guardianship. It makes a number of important changes to the existing provisions. A new system of admission is introduced by Article 4. Central to this is the period of assessment. All patients who are compulsorily admitted to hospital will be held initially for an assessment period of up to 14 days before a decision is taken as to whether they should be detained under the long-term powers. During that period there will be a precise diagnosis of the patient's mental state and a comprehensive assessment of the need for compulsory admission. This period is half that of the assessment period under the English Act, but it is generally accepted by professionals in Northern Ireland as long enough to enable a decision to be reached.

Article 12 of the order provides for the assessment period to be followed by detention for treatment. The use of the term "treatment" makes it clear that the purpose of such detention is therapeutic rather than custodial. The authority to detain a patient for treatment lasts for six months and then it must be renewed for a further six months, after which it must be renewed every year, thereby halving the period for which a patient may be detained under the 1961 Act without a renewal of authority.

The order authorises psychiatric and mental handicap nurses of certain classes, which will be specified in regulations, to restrain patients from leaving hospital for up to a maximum of six hours, until a doctor can be brought. That power is similar to that in the English Act and has been welcomed by the nursing profession because at the moment nurses have to rely on common law powers which, because of their uncertainty, they are reluctant to use.

Only very limited use has been made of the guardianship powers under the 1961 Act. To encourage greater use of that useful and less restrictive alternative to detention in hospital, the powers of the guardian are more clearly defined and restricted to those which are essential for ensuring that patients receive the medical treatment, social support and, above all, the training that they require.

In addition, it will no longer be possible for children under 16 to be received into guardianship. Instead, they will be dealt with under the children and young persons legislation or, if appropriate, by voluntary admission to hospital. In future, guardianship will have to be in the interests of the welfare of the patient rather than simply in his interests. That will clarify the purposes of guardianship and it further restricts the powers.

Finally, the authority for guardianship must be renewed at the same intervals as the authority for detention for treatment—at the end of the first six months, at the end of the second six months and subsequently, for one year at a time. We must obviously look at the objections of nearest relatives. The nearest relative continues to have the right to veto an admission or guardianship, but in an emergency the order now allows a patient to be admitted to hospital or to be received into guardianship against the nearest relative's wishes if the approved social worker making the application consults a second approved social worker.

Part III deals with the group of patients which is called offender patients. It deals with the admission to hospital of persons who are concerned in criminal proceedings or transferred to hospital from prison. It follows very closely Part III of the 1961 Act, but it introduces a number of changes which reflect amendments to the law in England.

In future, courts will be allowed to send accused persons to hospital for limited periods of time to be examined or treated for mental disorder before taking a final decision in their case. Courts will continue to have the power make a hospital order, regardless of the availability of a hospital place, but the health and social services board responsible for the administration of the admitting hospital will be given an opportunity to make representations to the court before an order is made.

Restrictions on discharge will only be imposed where it appears to be necessary, for the protection of the public from serious harm". Finally, restrictions on the discharge of patients who have been transferred to hospital from prison will end at the earliest date of release, had the patient stayed in prison and earned full remission, and not at the date his sentence ends, which is the present case.

Part IV is new and clarifies the circumstances in which treatment can be given without consent. The 1961 Act does not give any express authority to treat patients. It had been assumed that the authority to treat detained patients without their consent was implied, but this assumption is no longer valid. These new provisions are very similar to the corresponding provisions in the English and Scottish legislation and the issues involved were thoroughly debated during the passage of the amending Bills.

Part V of the order brings together the provisions relating to the Mental Health Review Tribunal and introduces a number of new measures designed to strengthen it and to increase the opportunities for patients to have their cases considered by it. The right to apply to the tribunal is extended to patients under 16 and to offender patients with restrictions on their discharge or who have been conditionally discharged. Any case which has not been considered for two years will be automatically referred to it for review and, if appropriate, a hearing by the responsible health and social services board.

The powers of the tribunal are widened. It will share with the Secretary of State the power to discharge restricted patients. To allow adequate time for appropriate after-care arrangements to be made, it will be able to direct a patient's discharge on a future date. It will also be able to recommend leave of absence, transfer to another hospital or transfer into guardianship to facilitate future discharge. In addition, the restrictions on the numbers of members who may be appointed to the tribunal are lifted to enable it to cope with the increased workload.

Part VI provides for the establishment of the Mental Health Commission to protect the interests of the mentally disordered. The commission will be an independent multi-disciplinary body of not more than 12 part-time members, including the chairman and vice-chairman. Unlike its counterpart in England and Wales, the Mental Health Act Commission, the new body's role will not be restricted to detained patients. It will cover voluntary patients, people in guardianship, people in residential accommodation and, indeed, anyone suffering from mental disorder.

The commmission will monitor the working of the order, investigate complaints, visit patients, make reports to the appropriate authorities and, very importantly, it will have a discretionary power to require these authorities to provide it with information about the action they have taken as a result of any report. Other functions of the commission include the appointment of independent doctors and other persons to verify consent and to provide second opinions for the purposes of the consent of treatment provisions; the appointment of the doctors required for the admission, detention and guardianship procedures under Part II; and the review of decisions to withhold patients' mail. I am aware of the excellent work done by the Mental Health Act Commission for England and Wales, so ably led by my noble friend Lord Colville—I do not see him in his place—and by the Mental Welfare Commission in Scotland. Part VII deals with the registration of private hospitals which are the equivalent of mental homes in England and is a re-enactment of Part IV of the 1961 Act. Part VIII is concerned with the management of the property and affairs of mentally disordered patients and replaces the existing law on this subject, mostly contained in the Lunacy Regulations (Ireland) Act 1871, which was 115 years ago. So Part VIII brings everything up to date. These new provisions are based on the corresponding provisions in the English Act, but take into account the differences in Northern Ireland's legal system.

Part IX contains a code of practice and places a number of miscellaneous duties on the Department of Health and Social Services Board. Two of these reflect measures introduced in the 1983 Act. The first is the duty of the department in Article 111 to produce, publish and keep up to date a code of practice for the guidance of professional staff concerned in the treatment of mentally disordered patients. The second is the duty placed on health and social services boards by Article 115 to appoint approved social workers. Mental health has a social as well as medical and legal dimensions. The order acknowledges this by allocating social workers a new and distinctive professional role. At the same time, the order recognises that social workers need special training and experience to ensure high standards of professional practice in carrying out this role, and accordingly provides that no one shall be appointed until approved by a board.

5.45 p.m.

Part X deals with offences. These are very much the same as those in the 1961 Act, except that the provisions relating to sexual offences have been brought into line with the law in England and Wales. The final part of the order—Part XI—deals with a number of miscellaneous and supplementary matters which, in the main, are re-enactments of similar provisions in the 1961 Act. I will mention just one, Article 127, which reaffirms the fundamental principle that people who suffer from mental disorder should be able to receive treatment in hospital, without the need for any special formalities, in the same way as people suffering from physical disorders.

That concludes my outline—my notes say "brief outline", and your Lordships have been very patient and kind—of the main provisions of the order. It is a lengthy and detailed order, which is also very interesting and important. There are many other changes, but the basis of them all is the need to strengthen the rights to safeguard the liberties of the mentally disordered while retaining a proper regard for the rights and safety of the general public and staff who look after the mentally disordered with such care. Although it is perhaps not as revolutionary as the 1961 Act was in its time, I believe the order will be a landmark in the history of mental health care in Northern Ireland and that the changes which it introduces will significantly improve the quality of life for people suffering from mental disorder in the years ahead. With that, I commend the order to your Lordships. My Lords, I beg to move.

Moved, That the draft order laid before the House on 28th January be approved.—(Lord Lyell.)

Lord Prys-Davies

My Lords, this is not only a long and detailed order. I find it to be a complex order, but the failure may be mine. Although objections—and sometimes serious objections—have been raised by two or three of the bodies concerned to the provisions of the order, it has nevertheless been well received by the voluntary, the professional and the statutory bodies concerned and, as the Minister has explained, the order is seen as an important step forward which will be of value to the patients, to their relatives and to the staff involved in their care. I am sure that we shall not do justice to this order this afternoon.

It is an important order, because compulsory detention in a psychiatric hospital is one of the very few situations where the law permits a person to be held against his will without prior access to a court. The Minister has explained the provisions and the structure of the order and has emphasised its main effects. It will improve the safeguards for mentally disordered people who are compulsorily admitted or detained in hospital. It clarifies the position of the staff who are looking after them and makes provision for the management of the property and affairs of patients. Following the England and Wales and Scotland legislation, it establishes a Mental Health Commission for Northern Ireland to keep under review the care and treatment of patients.

I mentioned that there have been strong objections to some of the provisions and one ought to place the objections on record, though I do not believe that I can do justice to them. The National Schizophrenia Fellowship are concerned about the criteria in Article 4(2)(b) for formal admission of patients into hospital. They would much prefer the criteria contained in the Mental Health Act 1983, which applies in England and Wales, and in the relevant legislation for Scotland. Again, in fairness, the Minister has touched upon this. The bodies which have a special interest in the mentally handicapped are disappointed that mental handicap should be included in a mental health order.

They also disagree over the definitions employed in the order. The Minister has quoted some of those definitions. They disagree with the definitions and they regret that the order should depart from the legislation for England and Wales in its general treatment of mental handicap. My only point is that the criteria for compulsory admission to hospital and the definitions of categories of mental handicap are not political issues and it is therefore surprising to this layman that different criteria, different definitions, should apply within this small jurisdiction of England, Wales, Scotland and Northern Ireland. Should not the criteria and the categories be consistent and unified throughout the different parts of the United Kingdom, or will the Minister say that the common sense of the layman is flawed in supporting this plea?

I return to the broad area of agreement. All the comments which I have read welcome the proposed Mental Health Commission. This is seen by all the bodies concerned—without exception—as a notable innovation, but it would be even more welcome had it been given more powers and more resources. Although the department has stuck to its view—it may be a sound view as far as I know—that the commission should not be an enforcement agency, there is in general satisfaction that the original draft of the order has been amended to enable the commission to publish on its own initiative such reports on its functions as it thinks fit and that the original draft order has also been amended to impose a duty on the various authorities to reply to an inquiry emanating from the commission. These are two important amendments and they go some way to strengthening the role and authority of the commission.

Drawing on the goodwill of all the bodies concerned with mental disorder, the commission could bring a new impetus to this complex field. Yet many people fear that the commission will not work as well as it is hoped because it will have inadequate resources. How does the Minister propose to allay the fear that it has inadequate resources to do a proper job? In any event, can the Minister give an indication of what the additional expenditure which is envisaged will amount to? How will it be found? It is anticipated that the order will lead to a greater access to the mental health review tribunals, but few applicants to mental health review tribunals are able to meet the costs of legal assistance and representation. Can the Minister assure the House that applicants will be eligible for legal aid to meet the costs of representation before the tribunal? Can he also assure the House that lawyers appearing before the tribunal will be drawn from an approved panel of lawyers with specialist knowledge of the order?

I note that there is no reference in the order or in the Minister's speech to a secure regional unit in the Province for mentally disordered prisoners or accused persons. Does the department have any plans to establish such a unit in the Province? If not, is the department satisfied that the health authorities have adequate facilities for the treatment of prisoners suffering from mental disorder? It is an important issue which has been before the House on a number of occasions. We should like to be assured either that the department has the regional unit in mind for the Province or that the facilities are adequate.

The issues which are dealt with in this order are not simply legal ones. The Minister has made the point that they are psychiatric and also psychiatric and social. If one is to understand the order and to implement this order, one must not only know the law but have an appreciation of medical concepts. I can certainly sympathise with the people who have asked the department to produce a well written, easily understood guide to the order. That would be helpful for patients, their relatives and staff. We hope that the department will put this in hand. With those comments, we support and approve the order.

Lord Donaldson of Kingsbridge

My Lords, I will not keep your Lordships very long. I want simply to say that this is a marvellous example of the inefficiency of our system of direct rule in the discussion of what happens. It is perfectly inadequate to deal with a matter as important as this without a Committee stage, without amendments and without three or four meetings in this House. I am not going to attempt that. The noble Lord, Lord Prys-Davies, made a jolly good shot, and I agree with most of what he said.

I want to know how much is different from what exists in English law or what is going to exist in English law by the end of the year. For example, if in Northern Ireland certain innovations are being brought in now which will follow in the British Acts, that is all right. If they are entirely different, they ought to be listed separately and we ought to see them. It is too late to do it now and I certainly shall not oppose the order, but I should like the noble Lord to ask his staff to send a short statement saying what is unique and is going to go on being unique to Northern Ireland in this measure and what is simply bringing it up to date with England. If it is simply bringing it up to date with Great Britain, I am prepared to wave it through perfectly happily. I know the abilities and the care taken by the departments in Northern Ireland, and I do not want to do more than have a brief glance at it. If it is bringing in a lot of new stuff, it should be properly debated and at length. I should be very grateful to have an answer to that point. In any case, I shall give the order this rather modified blessing.

Lord Fitt

My Lords, perhaps I may say at the outset that I realise that this is a serious debate. I am indebted once again to my noble friend Lord Donaldson. The noble Lord has talked about the uniqueness of the situation in Northern Ireland and about the innovations that have been brought out in Northern Ireland. It has ever been so. Northern Ireland is unique. Innovation after innovation has been tried in Northern Ireland. Perhaps I may say to the noble Lord who is to reply that this is St. Patrick's Day.

The noble Lord, Lord Prys-Davies, has obviously gone into this order in great detail, which I have not. It is a mental health order and I think it would be generally accepted that the mental health of Northern Ireland in particular and of Ireland in general has been seriously disturbed by the advent of the Anglo-Irish agreement. I wonder whether that has been taken into consideration and whether the effects of this agreement will be contagious to the mental aberrations of this Government and other Governments. I realise that this may not be terribly serious, but it may have a consequence to which we shall have to look in the future.

Lord Broxbourne

My Lords, perhaps I may very respectfully endorse the plea from the noble Lord opposite for a statement of comparison between the law existing in England and Wales and the law embodied in this document. It is no doubt true that if noble Lords will peruse the whole of the order and then peruse the mental health Acts which in operation on the statute book, then they might arrive at the answer. However, I believe that the House will agree that some assistance should be accorded to it in that respect.

6 p.m.

I am bound to say that I am probably a little rusty on mental health law. I see the noble Lord on the Woolsack who took such a prominent part in the proceedings leading to the 1959 parent Act, all those years ago, and who has these matters within his recollection. It was of course a very long and detailed Act and it has since been added to and improved by recent legislation on this subject. If it were possible to relate the large corpus of law in England and Wales to the not inconsiderable document that we are now discussing, then that would be helpful. I am glad to see the noble Lord on the Front Bench opposite nodding his acquiescence. Such would be helpful not only to your Lordships but also to considerable numbers of people interested in this subject from outside.

Having made that general point, I shall take up two specific points made by the noble Lord, Lord Prys-Davies, in his interesting dissertation. If I understood him aright—and if I did not do so then I hasten to say that it is solely my fault—then the noble Lord queried the propriety or wisdom of incorporating a definition of mental handicap within the overall definition of mental disorder and related expressions contained in Article 3 of the order. But again, if my recollection is not too rusty, surely that was the course followed in the parent Act, where we included mental handicap in the overall definition of mental disorder. The noble Lord and the House as a whole will appreciate that the insertion of a comprehensive definition including mental handicap in no way confuses the differences between mental handicap and certain other forms of mental disorder. In fact, it is clearly defined. It means: a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning". That is followed by the definition of severe mental handicap, meaning, a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning". Those are definitions bringing it within the scope of the legislation, but it is of course accepted that they raise very different aspects. I do not know whether the noble Lord can tell the House whether he has received any representations, for example from MENCAP. I regret, for this reason only, that the noble Lord on the Woolsack is on the Woolsack at the present time—because he is the distinguished president of MENCAP. If MENCAP had any reservations or any objections to the proposed course being taken, then no doubt it would have communicated them to ministers. In the absence of a contribution from the noble Lord on the Woolsack, perhaps we may hear more of that matter from my noble friend the Minister when he replies.

One other point arises out of the speech of the noble Lord, Lord Prys-Davies, in regard to proceedings before the tribunal. He queried whether there was any provision within the order for—again, if I understood him aright—the granting of legal aid to assist with costs. That would be a very proper provision. As I read the order, it does not expressly confer such a right. The procedures of the tribunal are dealt with in Article 83 of the order, and are fairly lengthy. Article 83(6) states: The Review Tribunal may pay allowances in respect of travelling expenses, subsistence and loss of earnings to any person attending the tribunal as an applicant or witness, to the patient who is the subject of the proceedings if he attends otherwise than as the applicant or a witness". So far, clearly, there is no provision made in regard to the award of legal aid to a person so appearing. There then follows a surprising exception, in the bracketed part of that provision: (other than counsel or a solicitor) who attends as the representative of an applicant". One is dealing here with very important cases that in a sense affect the liberty of the subject in regard to proceedings for detention and the like. What is the reason for excluding from the provisions of that article counsel or a solicitor? Is it intended to deprive any applicant or any patient of professional assistance, from which some of the complex matters involved might benefit, or what is the reason? I go perhaps a little further than the noble Lord, Lord Prys-Davies, with whose general observations I venture to record my respectful agreement, and ask why it is that such a provision has been inserted.

Again, it is the sort of provision that reinforces the suggestion made by the noble Lord opposite in regard to the desirability of further examination of this complex order and his comment that it would have better followed the procedure of a Committee stage and a detailed examination. Meanwhile, I am sure that the House will be grateful if my noble friend the Minister will deal with the points raised by the noble Lord, Lord Prys-Davies, and by others in this debate.

Lord Prys-Davies

My Lords, perhaps I may be allowed to respond to the noble Lord's questioning. The Assembly consulted widely on the terms of the order. I read the evidence that MENCAP submitted to the Assembly, and I read also their oral evidence in support of the written evidence. It appeared to me that they were saying basically three things. First, they were saying that the mentally handicapped ought not to be considered in an order that deals with mental illness. Secondly, it seemed to me that they were objecting to the definition of mental handicap and to Article 3 of the order. My comments are based on the evidence of MENCAP to the Assembly as I understood it.

Thirdly, it seems to me that the order makes no provision for the availability of legal aid to an applicant who wants to be represented before the tribunal. It appears that Article 83 provides for the expenses which could be paid by the review tribunal. Of course, there is no reference to the expenses incurred in instructing a solicitor or counsel. Therefore, I am anxious to know from the Minister whether the legal aid regulations in Northern Ireland make it possible for applicants to be represented.

Lord Broxbourne

My Lords, with the leave of the House, may I comment further, as the noble Lord, Lord Prys-Davies, has been good enough to refer expressly to what I said in my observations? On the second part of what he said in regard to Article 83 we are, I think, wholly ad idem. Indeed, I went a little further than he, so there is no need to comment further on that.

In regard to Article 3, I was most interested to hear what he said about MENCAP, but I remind the noble Lord and the House that the inclusion of mental handicap in the general definition has this very respectable parentage from the Mental Health Act 1959 and it is not equated with mental illness. Indeed, the provisions of Article 3(1) list them quite separately. Mental disorder means: mental illness, mental handicap and any other disorder or disability of mind". That is merely intended to be a comprehensive definition to govern all forms of mental disorder.

Viscount Colville of Culross

My Lords, I apologise to the House and particularly to my noble friend the Minister and the noble Lord, Lord Prys-Davies, for being detained and therefore unable to hear their speeches. The points that I wish briefly to make are, I think, well known to my noble friend Lord Lyell and will not come as a surprise to him.

I should like to start by welcoming the new Mental Health Commission for Northern Ireland. There have been discussions among the various departments concerned, including, I am glad to say, that of Scotland. It is with great pleasure that we shall be welcoming at the Mental Health Commission conference this week the chairman and the secretary of the Northern Ireland commission so that they may see the English equivalent body in operation. It is not quite an equivalent body, as the powers and duties are slightly different, but there will be enough common ground for that to be useful for all of us. In the English commission we have always consorted with our Scottish colleagues, and I hope that there will now be a tripartite operation which will enlighten us all.

The point has already been made about the definition in Article 3. I do not wish to enter into the merits of it because they have evidently already been widely discussed. In any event, I made some of those points a while ago and the Government have not seen fit to alter the definition in Article 3. I see what they are doing. They are using the "mental handicap" definition for the purposes of assessment but not detention. They are also using it for purposes of guardianship. My impression is that they have seen the result of legislation in other parts of the United Kingdom and have decided that they will make minor variations.

Originally I had some concern about this because there has been a fairly substantial alteration in the definitions as between the 1959 and 1983 Acts in England and Wales, not least as a result of the activities of MENCAP and others interested in this respect. Certainly mental handicap as such, as defined in this order, is not even grounds for compulsory detention for assessment any more in England and Wales. However, it occurred to me when I was looking at the draft of this order that those who have to interpret the meaning in the English and Welsh Act of "mental impairment", which is the term now used, might be confused if Westminster subsequently passed this order, which has the effect of primary legislation, containing different definitions but all touching on very much the same area. I suspect, however, on reflection that the context of these definitions in the Northern Ireland order is sufficiently different for there not to be any confusion.

6.15 p.m.

However, I would just say to my noble friend Lord Lyell that in respect of the changes of definitions, my understanding of what happened in relation to people detained for what is effectively mental handicap under the 1959 Act in England and Wales, and who very likely might not have been so detainable under the equivalent provisions in 1983, has been a fairly slow but nevertheless enlightened process. It is not so much that because of the change of definition patients who were previously detained have been instantly set free, but rather that the mental health review tribunals, in reviewing these cases on the regular basis that they do, have taken account of these definitions, with the medical and other evidence available, and probably for this reason, among others, have been discharging people who were previously detained under the 1959 Act.

I hope that the tribunal in Northern Ireland will similarly be astute and will look at these definitions to make sure—I know that the number of patients is very much smaller—that, if any patient is affected by the change in definition so that under this order he or she is no longer within the criteria for detention, that will be reflected in its decisions. That would seem to be a thorough and proper way of doing it; by some organ which has all the information before it.

However, a second point arises on this definition. We now have added yet another variation to the battery of definitions of criteria by virtue of which people may be detained. Your Lordships should do what I did recently and look at the legislation applying in Scotland, the Isle of Man, Jersey, Guernsey, England, Wales and now in Northern Ireland. There is almost no common thread running through the criteria for detention. Each of the jurisdictions has passed its own legislation. In some of the Acts concerned they are comparatively ancient. This means that, no doubt for good reason, we are adding yet another set of criteria to what is already a very confused picture. That may be all very well in Northern Ireland, because the authorities there will, I am sure, be well equipped to deal with it, but there are rare occasions when patients are transferred between the jurisdictions. Indeed, in this order there is a provision for it in Article 134. Similarly, in the English and Welsh legislation there are equivalent provisions which are sometimes used for the transfer of patients from Scotland, Northern Ireland and the islands to hospitals in England and Wales.

What this order contains—which I should have thought is wholly right and ought to be copied elsewhere—is a provision for re-assessment upon receipt of a patient in Northern Ireland from any other jurisdiction. That is clearly sensible from the point of view of the hospital and those who are to look after the patients, but it is also a paramount method of taking account of these differences in detainability. My noble friend Lord Lyell, neither in this nor the consequential provisions order, can do anything about the other jurisdictions, but I ask him to suggest to his right honourable friends the Secretaries of State for England, Wales and Scotland—we cannot do anything about the islands because that is not a direct responsibility—that on the list of items for revision in due course, when the primary legislation in England and Wales is looked at again, they should include a provision for re-assessment upon the transfer of a patient.

There is one more archaic reason why this should be done. That is because in the English and Welsh legislation, as in this, when a patient is transferred the detention he is under is deemed to start again in the new country as from the date of the transfer. As a rule, this means that the date for an appearance before a tribunal is postponed for a year however near he may have been to that date in the country from which he came. In turn this means that the opportunity for an independent body to assess the criteria for detention is equally postponed. That will not happen in Northern Ireland under this order because the order deals with it. But it will continue to happen in the other jurisdictions. I hope that my noble friend will be good enough to pass on this message to his colleagues, because I suggest that it is time that was changed to take advantage of this excellent example in the order.

I am sorry to have come in so late. Those are the observations that I wish to make upon this matter.

Lord Lyell

My Lords, I apologise to your Lordships for taking so long to go through the order but, as your Lordships will be aware, it is a very complicated matter. The debate we have had since I sat down shows that there were many points that interested your Lordships and that I am afraid I was not able to cover first time round the course. I hope that I shall have more luck than some of the great jockeys at the steeplechases when I come round the second time, but I shall hang on.

Perhaps I may start with the observations of the noble Lord, Lord Prys-Davies. We were very grateful for his thoughts and his support for the order and the provisions. The noble Lord raised a number of points. First, he mentioned, so far as I recall, the substantial likelihood of serious physical harm, and compulsory admission or detention. As the noble Lord and your Lordships will appreciate, compulsory admission or detention is a very serious step which involves the deprivation of liberty and the restriction of individual rights and personal freedom. That is what I stressed in my opening comments. It can also carry with it a stigma and can generate feelings, which are not altogether helpful, of self-deprecation in the patient. It is therefore right that such powers should be used only where they are absolutely necessary.

The purpose of the new criterion is to provide a clear and objective test for admission or detention. This is based on recent overt behaviour, as I understand it is called. This represents the minimum possible interference with the rights of individuals who suffer from mental disorder. It is still consistent with the need to protect both them and members of the public from serious physical harm.

It is more restrictive than the health safety in the protection criterion. It does not permit the compulsory admission or the detention of patients who, although not a danger to themselves or anyone else, would benefit from treatment but do not have any insight into their condition and refuse to accept any treatment. I appreciate the concern that doctors feel for these people and the distress which is experienced by their relatives. However, the prospect of benefit from treatment is not considered to be sufficient justification by itself for exercising compulsory powers of admission or detention in order (if we can put it so strongly) to impose treatment.

The noble Lord and others of your Lordships—I think most notably my noble friend Lord Broxbourne—were particularly worried about the definitions of the two new terms which do not appear in the English Mental Health Act of "mental handicap" and "severe mental handicap". The first term, "mental handicap", refers to one of the three categories of mental disorder as defined in the draft order. It covers everyone who has a mental handicap. We hope that the inclusion will ensure that all mentally handicapped people will have access to the help and the protection which will be available under the order. We take one example: the help of the office of care and protection in looking after their property; and above all the protection of the Mental Health Commission.

"Severe mental handicap" is a sub-category of mental handicap. It is included in the draft order to ensure that the most vulnerable group of mentally handicapped people are protected against such things as sexual abuse: or, if they require a limited amount of supervision to enable them to remain in the community, they can be placed under the care of a guardian.

The noble Lord, Lord Prys-Davies, quite rightly raised the question of resources. The changes which were introduced by the provisions of the order will involve the deployment of additional resources in the mental health field. For most of the changes, however, the additional resources required will be—and I say it advisedly—marginal, and they will be contained within existing resources. The major source of additional expenditure will be the Mental Health Commission, which will be funded by the Department of Health and Social Security. I understand that the figure of £200,000 has been made available in 1986–87 for this purpose to cover the commission's costs. Perhaps I should have spelt that out: it is not in the financial year which is about to come to an end.

The noble Lord, Lord Prys-Davies, raised two other points about the separate definitions in England, Wales and Northern Ireland. I am sure that he would agree with me that there is nothing political about these definitions. The noble Lord and my noble friend Lord Colville will certainly know that Scotland also has its separate legislations and views in this field. Certainly the Northern Ireland position was reviewed. It was discussed by the MacDermott Committee and by the local bodies.

The noble Lord, Lord Prys-Davies, had one query which I may be able to cover for him about a medium secure unit. The department has been considering the question of a medium secure unit. At one stage, provision was made for the unit in the department's capital development programme. However, I have to tell your Lordships that the constraints of finance prevented an allocation of resources being made for this purpose. But I am sure that the noble Lord will be interested to know that the report of the review committee on the services for the mentally ill, which was set up by the Department of Health and Social Security in April 1980, expressed doubts as to whether containment in a medium secure unit is the best and most efficacious way of treating and rehabilitating severely disturbed patients. The committee favoured the different course of providing appropriate care in high-intensive nursing care units such as are already in various stages of planning in two of the health and social services boards.

As the high-intensive nursing care units are brought into use the department will be in a stronger position, in the face of competing priorities and demands upon the financial resources, to take into account the effectiveness of these units and the priority which should attach to the provision of a hypothetical medium secure unit. We therefore hope that we are going along, as we might call it, parallel paths to that which the noble Lord is seeking. But we hope that this is the most effective way of carrying out this provision certainly in the current financial climate.

6.30 p.m.

The noble Lord and my noble friend Lord Broxbourne also raised the question of solicitors and counsel. I think that the noble Lord, Lord Prys-Davies, put it more succinctly. He called it legal aid. The extension of legal aid to cover representation at the Mental Health Review Tribunals was made in 1983 to include legal representation for all applications to the tribunal under the attractively named acronym of ABWORS—Assistance by Way of Representation Scheme. Previously, of course, legal assistance was available under the green form scheme, and in deference to the noble Lord, Lord Fitt, this is no crack at St. Patrick's Day but was to help patients and other applicants of limited means to prepare their cases. This scheme covered all work carried out by a lawyer, short of instituting proceedings and legal representation at the tribunal hearings. The green form scheme continues but is extended now by ABWORS to assistance given by a lawyer to an applicant in instituting and conducting proceedings, including the representation of the patients. I hope that will go some way, if not all the way, to help my noble friend Lord Broxbourne, and will help the noble Lord, Lord Prys-Davies.

The noble Lord, Lord Prys-Davies, also had a question about the panel of solicitors for the purposes of the Mental Health Tribunal. I understand that the Law Society of Northern Ireland may be looking at this question. I am sure that the noble Lord's comments and my reply will be brought to their attention. I shall certainly see that they are passed on.

The noble Lord, Lord Broxbourne, asked about MENCAP. I see the noble Lord who is now sitting upon the Woolsack and know of his great interest in this particular aspect. The noble Lord, Lord Prys-Davies, also raised a question on MENCAP. There was quite vivid talk, over my head. I was interested to note it but your Lordships will be aware that there were representations from MENCAP which criticised the categories of mental handicap during the consultation period. This followed the publication of the draft order as a proposal in April of last year. I assure your Lordships, I assure my noble friend and I assure the noble Lord, Lord Prys-Davies, that these were taken into account along with all the other comments which we received on that order.

I was very grateful to my noble friend Lord Colville for his kind comments and very grateful for his thoughts as far as this particular order is concerned. We know of his great expertise in this field. My noble friend will be aware that Scotland has a provision to allow the reassessment of patients when they are transferred from another country within the United Kingdom. I do not know quite whether the Isle of Man, Jersey, Guernsey and all the points mentioned by my noble friend were covered, but I am advised that Scotland possibly alone has such a provision. I understand it is Section 88, paragraph 1, of the Scottish Act. I hope that will be of partial consolation to my noble friend Lord Colville. I am very grateful to him for what I call his let-out about the Northern Ireland context of these definitions, and indeed some of the aspects of reassessment. We shall make sure that the Mental Health Tribunals are aware of my friend's points. I shall certainly bring my noble friend's points to the attention of my honourable friend as far as the Mental Health Tribunal is concerned. That is as far as I can go this evening.

No doubt one or two points of a more detailed nature have been missed, but I hope I have been able to satisfy your Lordships with the answers I have been able to give. As I warned when I stood up for the second time, this was something akin to a ride round a major steeplechase course. I think I have negotiated it.

Lord Donaldson of Kingsbridge

My Lords, could the noble Lord indicate whether he can answer my request to let us have a statement in due course—not to hold up this order—showing us the difference between legislation in England and Wales, which is the basic legislation, and the new legislation in Northern Ireland?

Lord Lyell

My Lords, I do apologise; I should have taken that up. That point was also mentioned by my noble friend Lord Broxbourne. I am not able to say definitely whether I can get what might be called a simplified Minister's guide to this. May I look into this and see if there is a chance of having a guide, or if indeed we can find simplified notes of sorts so that what we call the layman might have some idea of the provisions of the order. Of course, noble Lords will be aware that many of the provisions in the order will be in the field of my noble friend Lord Broxbourne and, indeed, my noble friend Lord Colville. It will be much more of a lawyer's field, and I have covered the point of legal aid. If I may look into his query and see if it is feasible to provide some simplified guidance or notes, would that satisfy the noble Lord tonight?

Lord Donaldson of Kingsbridge

Yes, my Lords. My difficulty about this is that I think it is absolutely wrong that we should pass legislation of this kind, which is extremely complicated, without the proper attention which we should give to it if it were English, Welsh or even Scottish legislation. For that reason, as I said, I think the system by which we deal with this sort of thing here is inadequate without further preparation. I know that the noble Lord, Lord Broxbourne, and the noble Lord, Lord Renton, know all about this. I happen not to. I know about some things that they do not. As this has nothing to do with it, it seems to be absolutely wrong that legislation as complicated as this should be carried without a direct comparison with what is going on in England and Wales.

Lord Lyell

My Lords, if I may finally reply, I have two points. Certainly my noble friend Lord Colville stressed that this order had an input—and certainly I had stressed this—from all round the United Kingdom. Secondly, I do not know if the noble Lord took on board all the points made by the noble Viscount, Lord Colville, but I found that my noble friend did explain these aspects very clearly.

As for the other aspects raised by the noble Lord, Lord Donaldson, they are in the generality of all legislation that we take in this way in your Lordships' House, and I am sure that he will accept that this is an imperfect situation in which perhaps tonight's order is not the best example. However, I take his points and I hope that he will accept that I will see if there is anything that I can do. I find it very interesting, and it was made even more interesting by my noble friend Lord Colville. I should like to thank him for his kind words of support for what we are trying to do.

With that, I hope the House will accede to our giving this order a fair wind.

On Question, Motion agreed to.