Mental Health Act: Release of Prisoners (Hansard, 22 January 1987)

§ Lord Boyd-Carpenter
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

The Minister of State, Home Office (The Earl of Caithness)
My Lords, we have decided in the light of responses to the document we issued not to proceed with any amendment to the Mental Health Act 1983.

§ Lord Boyd-Carpenter
My Lords, I condole with my noble friend on the fact that his department lost its battle with the Department of Health and Social Security. But is he aware of the fact that a number of persons who were sent to a mental hospital on a criminal charge and released by a mental health tribunal against the advice of his department have committed serious offences against British citizens? Is he prepared to resume the battle with the DHSS, in which case he will certainly have my full support?

The Earl of Caithness
My Lords, there is no battle. It was precisely for the reasons given by my noble friend that we sent out this consultation document. We received over 150 replies and the great majority of those were against any change.

§ Lord Donaldson of Kingsbridge
My Lords, does the Minister agree that it will almost certainly be salutary for the people who have to make these very difficult decisions to know that if anything goes wrong the courteous ruthlessness of the noble Lord, Lord Boyd-Carpenter, will be on to them in no time? In spite of that, does he agree that what is important is the fact that it is often non-violent cases which go wrong and there should be no confusion in the mind of the public that it is only the violent cases which deserve the comments that are frequently made?

The Earl of Caithness
My Lords, I am sure that all noble Lords in the House will wish to pay tribute to the considerable work that is undertaken by the mental health tribunals, and indeed, my right honourable friend the Home Secretary. When it comes to such cases, whether it concerns a major or minor incident, considerable thought is given to it.

§ Lord Broxbourne
My Lords, does my noble friend appreciate—I am sure that he does, but convention obliges me to put the question in this form—that the 1028 powers of mental health tribunals to discharge patients from detention (which arise under Section 72 of the Mental Health Act 1983, re-enacting the words of Section 123 of the parent Act of 1959) depend on their being satisfied that the patient is not at that time suffering from mental illness or psychopathic disorder? This is a clear and statutory requirement, is it not? However much we may deplore the errors which result in the consequences that are so rightly deplored by my noble friend Lord Boyd-Carpenter, will my noble friend confirm that there is no intention to remove the jurisdiction of the mental health tribunals? Is it not perhaps a case rather for guidance to the tribunals than for amendment of legislation?

The Earl of Caithness
My Lords, we are considering procedural matters and deepening our thoughts on this. We hope to reach a decision shortly.

§ Lord Allen of Abbeydale
My Lords, is the Minister aware that those of us who have had some concern with these matters even in the Home Office think that the conclusion which has been reached by the Government is absolutely right? He has just referred to a review of procedural matters—that is, changes which can be made without amending the law—and I should like to ask him further whether he will undertake to make public in some way or another whatever decisions the Government finally come to?

The Earl of Caithness
My Lords, I am grateful to the noble Lord for his support for my right honourable friend and the Secretary of State for Social Services in reaching what he also believes to be the correct decision. With regard to the noble Lord's question about publicising any alterations in the procedure, of course I shall draw this matter to the attention of my right honourable friend.

§ Lord Mishcon
My Lords, following the very pertinent question from the noble Lord, Lord Allen of Abbeydale, and so that there is no confusion on this matter, is it not a fact that not only is there now no battle over this issue between the Minister's department and the Department of Health and Social Security, but indeed it is the decision of the Home Office and the Home Secretary that the wise course is to leave matters where they are under the Mental Health Act?

The Earl of Caithness
My Lords, I disagree with the noble Lord on one point. I think I am right in quoting him as saying that there is now no battle. There never was a battle. It was agreed between the two departments that this matter should go out to consultation. I am grateful to the noble Lord for his support.

§ Lord Boyd-Carpenter
My Lords, is my noble friend aware that the decision of his department as he describes it was taken under force majeure? Is there not a great deal to be said where the safety of the public is involved—as it has been in a number of cases when the advice of his department has been ignored—for the ultimate decision to be taken by a Minister responsible to Parliament and not by a body which in a technical sense is irresponsible?

The Earl of Caithness
My Lords, my noble friend is absolutely right in bringing to the attention of the House the important point about safeguarding the public. The argument I put to him, which is probably the main argument that convinced us to leave the situation as it is, is that where there is a dangerous psychopath who has committed only a relatively minor offence he could be released very much earlier if there were a change such as that which my noble friend suggests than if the law is left as it is at the moment.

§ Lord Mishcon
My Lords, does the Minister agree that no reasonable person would ever define force majeure as being a decision reached after full consultation and quite voluntarily?

The Earl of Caithness
My Lords, we are stepping into legal territory and I fear I must decline to answer. However, as a layman I think I agree with the noble Lord.

§ Lord Boyd-Carpenter
My Lords, is my noble friend aware that decisions of that kind were taken so frequently by the government supported by the noble Lord, Lord Mishcon, that one must bow to his expertise on that highly technical aspect?