HL Deb 10 May 1989 vol 507 cc718-42

7 p.m.

Lord Mottistone

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Mottistone.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AMPTHILL in the Chair.]

Clause 1 [Assessment of needs of persons discharged from hospital after treatment for schizophrenia]:

Lord Mottistone moved Amendment No. 1: Page 1, line 5, after ("be") insert ("formally").

The noble Lord said: I have several amendments, and I have endeavoured to group them, Most are concerned with improving the wording of the Bill, and I hope that the Committee will see them as technical. Some are to introduce amendments in response to people who have commented on the Bill since we had the Second Reading. I am most grateful to those noble Lords who are with us here, and I hope that they manage to stay.

In moving Amendment No. 1 I also speak to Amendment No. 6. The Royal College of Nursing has questioned what happens if the patient, being informed, takes his discharge in advance of the 14 days being completed. These amendments seek to clarify this point so as to enable the procedures to be followed in the case suggested. I beg to move.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 2: Page 2, line 25, after ("sent") insert ("and, where practicable and no request has been made under subsection (2) above, his nearest relative").

The noble Lord said: This amendment gives the nearest relative as well as the professionals some chance to suggest what the person's needs are. The relative may be the person who has by far the longest contact with the schizophrenic and the greatest knowledge of what has been tried, what has succeeded and what has failed in the past. He or she will know the person's interests and social contacts and the effects on the person's family, neighbours and friends. This of course does not apply if the provisions of subsection (2) have been invoked. I beg to move.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 3: Page 2, line 33, leave out ("as to the welfare benefits which he") and insert ("and, where practicable and no request in writing has been made under subsection (2), his nearest relative as to the welfare benefits which that person").

The noble Lord said: This amendment requires the health authority to brief the patient's nearest relative, as well as the patient, unless a request has been made under subsection (2), as to the welfare benefits that the patient can claim and as to his rights generally under the Act. This should help to ensure that the patient is properly provided for after his discharge from hospital. I beg to move.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 4: Page 2, line 37, at end insert— ("(4A) The Secretary of State shall make regulations which shall specify—

  1. (a) the appropriate type of housing and other services under subsection (4) above;
  2. (b) the persons by whom the necessary provision shall be made;
  3. (c) the amount of resources which shall be provided;
  4. (d) the authority or authorities by whom the services, including those under any of the welfare enactments, shall be administered.
(4B) Regulations under subsection (4A) above shall not be made unless a draft thereof has been laid before and approved by affirmative resolution of each House of Parliament.").

The noble Baroness said: I must apologise to the Committee for the fact that I could not be here at the Second Reading, and I wonder whether the Committee will permit me to make two points before I move this amendment. I would have made these points had I been here at Second Reading. First, I agree with the noble Lord, Lord Ennals, having read his speech at Second Reading, and I am sad that this Bill applies only to schizophrenics. It should apply to all mental patients coming out of mental hospitals and their after-care. My second point is that much of what I am going to have to say would not have been necessary had we had the Griffiths Report. But as we do not have it and the outcome of the report, I feel that I must make these points in moving this amendment.

Clause 117 of the Mental Health Act 1983 lays down that an after-care service must be carried out for all mental patients in the community. If that had been done, this Bill would not have been necessary. However, it is necessary because Clause 117 has not been carried out. I suggest that there are two reasons for this. One is that under the 1983 Act it is not clearly stated who is responsible for what service. At present after-care is a joint health and social service responsibility. It is also not clear from where the resources are to come. Because these two points have not been clear under the 1983 Act, we are grateful to the noble Lord, Lord Mottistone, for bringing forward the Bill.

This Bill recommends that health should be the lead authority in dealing with the after-care of schizophrenics, but that it should work in concert with the local authorities. That being so, which department is to be responsible for the practical implementation of after-care, and where are the resources to come from—health or social services? First, let us take housing. Is this to be the financial responsibility of housing associations, hostels and local authorities or health? Which is to be the lead authority?

We know that some money comes from the sale of big mental hospitals and that such money is being used partly to provide housing and hostels, but this will not cover all the needs. Not only will it not cover all the needs, but in time the money will run out. If health is to be the lead authority, who will supply the services and the resources for, for instance, meals on wheels, carers and home helps, which are now run by the social services? I repeat again, who will be responsible for the resources?

Daytime care and occupation is now run by the social services, particularly the industrial training centres. Again if health is to be the lead authority, who will be responsible for day-care work and who will give the resources? If there is to be after-care for all mental cases discharged from hospitals—and under this Bill of course it is schizophrenics—I submit that regulations must make clear which department is to be responsible for which sectors of after-care stated in the Bill, who is to pay and who is to administer the resources. The 1983 Act has not succeeded simply because, first, there has been no specific recommendation as to who is to be responsible for which sectors of after-care and, secondly, it does not state where the resources are to come from. It is for that reason that I move these amendments. I beg to move.

Lord Ennals

I should like to give my support to the amendment and to the terms in which it was moved by the noble Baroness. My own view would be that of the Griffiths Report—that the lead authority should not be the health authority but the local authority, of course in collaboration with the health authority but as the lead authority. However, it is no time to argue the central issue of Griffiths within the context of this Bill. The argument set forth by the noble Baroness is one with which I entirely agree, and thus I support the amendment that she has proposed.

Lord Mottistone

In a way I am surprised at this amendment, because I do not think that it is necessary. If the Bill were to take effect without this machinery to make sure it looks after the people who might fall through the net, so far as I can tell it would still be clear in the Isle of Wight to our social services department on the one hand and our district health authority on the other as to who does what. They discuss it between themselves all the time.

I am not against the amendment in broad principle and it may be as well to leave it in the Bill in order to emphasise the point which my noble friend skilfully made. However, I do not believe that the amendment is necessary; I certainly do not believe that the provision for affirmative resolution is necessary because I feel that the negative procedure is perfectly satisfactory here. On the other hand, I do not wish to enter into that argument and certain Members who would do so are not in the Chamber. I suggest that Members should agree to the amendment but should not be surprised if I return on Report with amendments to it.

Baroness Cox

I should like to ask a question for clarification. Forgive me if it is obtuse. I am not sure which Secretary of State is involved. At the moment we are in a state of uncertainty as to the Government's response to the Griffiths recommendations. We are not sure whether the care of people who have been diagnosed and treated as schizophrenic and discharged from institutional care will go to social service departments, primary health authorities or another formulation. Therefore, I wonder whether it is desirable to leave the Secretary of State unspecified.

I agree that this is not the right time to enter into a debate about which of the outcomes of the Griffiths Report should be followed. However, I must place on record the fact that many people strongly believe that individuals who have suffered in such a way should have primary contact and be under the primary care and responsibility of health professionals. That is an argument for another day, however. I ask for that clarification of the amendment and of the fact that the provision will in no way pre-empt the Government's decision vis-à-vis Griffiths.

Lord Winstanley

I do not wish to go into the merits or otherwise of the amendment or the extent to which it is clear. However, I say to the noble Lord, Lord Mottistone, that I do not believe there is any harm in leaving the amendment in the Bill. It may be tidied up later, as he has said, and it could be overtaken by events. One never knows, but the time will come when we shall hear what the Government will do about community care. It appears that the very word "community" in the ears of a Minister must be like a red rag to a bull especially when one considers the troubles with community care and the community charge. We have a Prime Minister who has said that there is no such thing as a community. No, I beg your pardon, she has said that there is no such thing as society. There must be a community because we have a community charge. We do not yet have a society charge, although perhaps we may.

By its very existence and as a result of Second Reading the Bill demonstrates that one particular group of mentally ill patients—those suffering from schizophrenia—have special needs. They are not at present met but they must be met. I believe that if and when we receive a final response to the Griffiths Report the needs of this special group may not be covered. Nor do I believe that when implemented Section 7 of the disabled persons' Act will provide for the needs of patients suffering from schizophrenia. Many are in hospital for a very short time and therefore will not be covered by the section. I believe that in general it is no bad thing to have the noble Baroness's amendment in the Bill.

7.15 p.m.

Lord Henley

As this is a Private Member's Bill, and as I set out the Government's view on Second Reading, I had not intended to take a large part in the proceedings. However, I said that I would make another statement when we dealt with the Question, that Clause 1 shall stand part of the Bill, which is to be moved by the noble Lord, Lord Ennals. Perhaps it would be appropriate if I spoke at this point.

Lord Ennals

Please do.

Lord Henley

The Government cannot support the amendment, which runs directly against current policy. That is to allow local and health authorities to determine their own priorities within broad guidelines, bearing in mind their statutory powers and duties to provide services for mentally ill people as a whole.

I must reiterate what I said in the Second Reading debate last month. The Government have real sympathy with and, I believe a growing understanding of, the problems faced both by sufferers from schizophrenia and by their relatives. We do care what happens to those able to be treated in the community, and certainly wish to avoid the kind of tragedies to which the television programmes by Marjorie Wallace and Esther Rantzen, for example, have drawn attention.

However, I think that it is worth repeating, too, the Government's basic objection to the Bill we are considering tonight. We think that it is generally undesirable to give priority by statute to services for the mentally ill (and particularly those suffering from a particular mental illness) over those for people suffering from a mental handicap or a physical illness. Rather, within broad national policy guidelines, we believe that priorities between services should be settled locally by health authorities and local authority social services departments as they are the best placed to determine their own service requirements and expenditure priorities.

The Government certainly acknowledge the concern felt by many about the adequacy of services for mentally ill people in the community. We are looking at what needs to be done in the light of the Griffiths Report, to which we are actively considering our response, and in the light of work currently under way to give a clearer picture of service provision for mentally ill people across the country. It is important that policies on the care of mentally ill people should be set in the context of community care for all client groups. It would not be appropriate to pre-empt the Government's considered response to the Griffiths Report by supporting the Bill.

Nor, I think should we lose sight of the likelihood that the Bill would be very expensive to implement. The financial implications are considerable. Members may be interested to know that local authorities have estimated that the revenue consequences alone of implementing Section 7 of the Disabled Persons (Services, Consultation and Representation) Act 1986 could be in excess of £100 million a year. And of course, as several speakers pointed out in the Second Reading debate, Section 7 would only cover people discharged from hospital for a mental disorder of six months or more.

Finally, we find the whole approach of introducing legislation in the form of this Bill too centralised and prescriptive. We believe that there are practical steps which we can take that will deal more appropriately with problems than new legislation. To that end we have given an undertaking that we shall shortly issue additional guidance to health authorities on components of the care programmes for people with chronic mental illness discharged from hospital which they are required to draw up by 1991. We are currently consulting informally on these guidelines and we shall be consulting more formally before they are issued.

As a prelude to this work we held a working conference last year, organised jointly with the National Unit for Psychiatric Research and Development and attended by my noble friend Lord Skelmersdale, to bring together experts in the field of care for people with chronic mental illness. This conference built on the research funded by the department in Salford, Southampton and Hackney to investigate the use of computers in case management systems. A report of the conference was published by the National Unit last September and was widely circulated as a means of disseminating some of this accumulated expertise.

Also, with the encouragement of the department, the Royal College of Psychiatrists is drawing up guidelines on discharge and after-care of patients which will in effect amount to minimum acceptable standards of clinical practice. These should be available in the autumn. Previous Royal College guidelines have proved influential and effective in raising standards of clinical practice in other areas.

Perhaps I may say that the care and thought that has gone into my noble friend's Bill will undoubtedly be helpful in providing a model, but not the only model, of how we wish to see patients assessed and relevant authorities and carers notified and then contact being maintained with the patients. We shall be monitoring and evaluating how local district health authorities discharge their responsibilities for caring in the community for the mentally ill as all districts make progress to our 1991 goal of universal care plans. Our guidelines will help authorities to reach that goal and this Bill adds to that attainment.

However, I hope that I have said enough to make it clear why the Government feel that the Bill before the Committee today would be premature in the light of the range of the initiatives which are currently being actively pursued.

Lord Rea

The amendment stands in my name also and I support the noble Baroness, Lady Faithfull. The Minister said that he believed that the Bill would be taken as one of a number of models in drawing up recommendations and possibly legislation to include the care of the chronically mentally ill. I believe that if this amendment is incorporated in the Bill, that will make it an all the more useful a guide in the way he suggests, particularly when the Government are still considering their response to the Griffiths Report. I believe that the short and direct recommendations in this amendment would be very useful, and I certainly would like to support it.

Lord Henley

I said that we could not support this amendment just as we do not oppose the Bill. We merely say that we do not support it. I would not oppose this amendment.

Lord Ennals

As the Minister is being so forthcoming, perhaps I may follow up on the statement he made, which I found of great interest but which puzzled me. Of course I welcome the fact that there will be additional guidance to go out to the health authorities which will be relevant, in the context of this Bill, to mental after-care services for the treatment of those who are suffering or have suffered from mental illness. I do not understand how the Government will be in a position to give those guidelines until they have responded to the very specific proposals made in the Griffiths Report. Perhaps I can have the timing of this from the Minister. I know that he cannot say when the Government will make a decision on Griffiths; but surely he can say that they will not publish guidelines without having done so. Surely they must take a decision on Griffiths, and in the light of that send out guidelines.

Lord Henley

All I can say about Griffiths is that the response will be soon.

Lord Ennals

That was not the point, with great respect. I know that the Minister cannot say when the Prime Minister and her sub-committee will have completed their work which they started about 12 months late. Of course he cannot say that. If he announces to the Committee that there will be additional guidelines for health authorities which will be relevant to the subject of this Bill, surely he can assure me that those guidelines will not be prepared until the Government have taken their decision, good or bad and right or wrong, on the recommendations made in the Griffiths Report?

Lord Henley

I do not see that that quite follows. The guidelines can go out before we make any response to Griffiths. These are guidelines to the health authorities.

Lord Winstanley

I should like to know precisely what we are doing. I was interested to hear that the noble Lord, Lord Rea, is entirely in favour of an amendment to a clause which he later intends to have removed from the Bill. That seems to me a rather anomalous position. It occurs to me that at the moment we are debating the later Motion that Clause 1 shall stand part of the Bill. Are we debating that or are we to have a further debate on that later?

Lord Henley

I believe that I owe the noble Lord, Lord Ennals, an apology. I was becoming rather confused. Griffiths will come first and then the guidelines. Griffiths will come soon.

Lord Mottistone

I am delighted to hear about the guidelines, and I am sorry to hear that Griffiths must come first. That is the whole point. I did not gather from my noble friend whether, when the guidelines are prepared, consultations will be made with the sort of people who will be involved in the whole issue—for example, the charities concerned with schizophrenics and so on—so that the Government really make sure that the guidelines meet the needs of the people rather than meet the needs of the people who write them.

Baroness Faithfull

Perhaps I may come back to my amendment. First, when my noble friend Lord Mottistone says that this amendment is not necessary, I should like to say that while everything may be going well in the Isle of Wight, I know of mental hospitals where patients have been discharged without any after-care plan whatever. In fact, one big mental hospital just outside London closed and the patients were discharged. They were given clothes and money and were dispersed along the South coast. There was no after-care plan for them whatever. Therefore, we are very grateful for this Bill, produced by my noble friend Lord Mottistone, because it is absolutely necessary. I only wish that it applied to all mental patients. However, the fact remains that the present situation is unsatisfactory despite Clause 117 of the Mental Health Act.

My noble friend Lady Cox asked which Ministry was involved. Well might she ask! It seems as though we are waiting for Godot, and we cannot tell which Ministry will be concerned, whether it will be the Department of Health or the Department of Social Services. I am not really concerned about which it is. Whichever is the lead authority, then I still believe it needs to be clearly laid down who is responsible for what areas and where the money is to come from. I am not pre-empting Griffiths and I am not saying that it should be the Department of Health or the Department of Social Services. I am saying that whichever it is, there will be a cross-fertilisation of services. If it is the Department of Health, then the Department of Social Services has specific responsibilities; and if it is the Department of Social Services, then the Department of Health has specific responsibilities.

The Minister gave his case away. He said that we need not talk about resources because the local authority must administer its own resources. That is my point: many of the resources do not come from social services; they come from the Department of Health. The Department of Social Services finds itself administering this Act, or not as the case may be, without the resources which should be coming from the Department of Health. There is confusion worse confounded for the practitioners in this field. It really does not matter which department administers this. I believe that by regulation it must be made clear whose responsibility it is. That is why I feel very strongly about moving this amendment.

I do not believe it is for me to answer the Minister's later comments because that is for my noble friend Lord Mottistone to answer. I moved my amendment; but in the light of what the Minister said at this point in time, I shall withdraw it and see what my noble friend Lord Mottistone comes up with at the next stage of the Bill.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 5: Page 2, line 45, leave out ("whether the notice in question was given") and insert ("where a notice was given whether").

The noble Lord said: This is a simple drafting amendment to bring the wording of subsection (5)(b) into line with subsection (5)(c). I beg to move.

On Question, amendment agreed to.

7.30 p.m.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord Ennals

I gave notice that I wish to oppose Clause 1, and I want to make it quite clear that I did not give notice that I wish to oppose the Bill nor do I intend to push this matter to a Division. I had to use this as a device to make clear a situation which I find disturbing.

It was my wish to insert the words "mental disorder" wherever the word "schizophrenia" appeared in the Bill. However, both the Short and the Long Title of the Bill specified that the Bill dealt only with schizophrenia. That meant that any broadening of the Bill was out of order. Therefore my amendments could not be tabled, and the apparent willingness of the noble Lord, Lord Mottistone, to accept them could not be tested. So my only device was to come forward and lay out the arguments about which, like the noble Baroness, I feel very strongly.

Perhaps I may argue the case. Certainly the general thrust of the Bill as set out in this clause is one which I warmly welcome. The concerns about the implementation of care in the community have been argued from all Benches, and very strongly by MIND and the National Schizophrenia Fellowship; and I believe that they are very widely shared. As the noble Baroness, Lady Faithfull, said, the failure of the Government to respond to the Griffiths Report and the Audit Commission's report on community care or to implement Section 7 of the disabled persons Act are indications of the importance or the lack of it which the Government attach to the problem raised by community care. In particular, the very broad definition given to after-care in the Bill (Clause 1(4)) to include housing, food, heating and so on, is very welcome. The Bill takes a broad view of the needs of people with schizophrenia. It recognises that the change from hospital care to the world outside is very great, that it is essential for it to be planned and for the person to be enabled to live in the community as an ordinary citizen. I shall come on to that a little later.

Fourteen days' notice to the relevant authorities indicates that discharge should be a planned process not—as it still too often is—an event that occurs with no notice at all. To that extent the Bill is much to be welcomed. Discharge, as the Mental Health Act Commission said, should be a process not an event. That statement comes from its First Biennial Report for 1985. For all these reasons the general thrust of the legislation is broadly welcomed and I am most grateful to the noble Lord, Lord Mottistone, for bringing forward the Bill.

However, I must now put forward, as I did but perhaps without the same clarity on Second Reading, reservations about the Bill as at present drafted. The qualifying criterion for benefit under the Bill is the receipt of in-hospital medical treatment for schizophrenia. Schizophrenia is nowhere defined in the Bill. That is not surprising as it should not be forgotten that the same applies to "mental illness" in the Mental Health Act 1983 which the noble Lord, Lord Mottistone, and others, will recall did not include a definition, probably because it would have been very difficult to obtain agreement about a definition. Moreover, that is one of the reasons why schizophrenia is difficult to define and why doctors are often reluctant to define it in that same sense.

Qualification for benefit under the Bill will therefore depend on a professional decision: is a person schizophrenic or not schizophrenic? If the professional concerned is not certain, does that person receive or not receive the benefit? I suppose a little encouragement for a doctor to diagnose a person as schizophrenic is that the person will receive the benefits. That might happen, but it is not a happy situation to contemplate. Therefore, I ask: is it right that the provision of the Bill should be confined to this particular group of people, bearing in mind their great needs, their families, and so on?

The underlying intention of the Bill's promoters is to ensure adequate assessment and provision for those with serious mental health problems who will be socially vulnerable (as indicated in Clause 1(4)) on their discharge from hospital. Such serious mental health problems and social vulnerabilities are not confined to those labelled as schizophrenic. Those with severe organic based disorders (severe mental handicap, as referred to earlier, toxic confusion, brain damage and dementia), severe neuroses and other types of psychosis—for example, effective psychosis such as depression or mania—may well have exactly the same degree of vulnerability but under this Bill will not have the same rights to assessment and after-care as are provided for schizophrenics in the Bill.

I believe that it is wrong to draw distinctions in this way. There are certain categories of mental disorder which entitle one or one's family to certain types of benefit and if the diagnosis has gone another way, or there is no diagnosis, there is a denial of those benefits. It seems to me that those who suffer from schizophrenia, especially the more severe or chronic manifestations of it, fall within this group of people who are the proper target of this legislation. The group can be broadly defined as those who are discharged from hospital and are socially vulnerable.

The Housing Act 1985, especially in relation to those who are defined as having priority need for re-housing, may be helpful here. That Act refers to people vulnerable, as a result of mental illness or handicap". Vulnerability means, less able to fend for oneself so that injury and detriment will result where a less vulnerable man will be able to cope without harmful effects". I am not arguing that exactly these definitions should be deployed. When talking about the general principles of the Bill, however, it seems to me that this is a legitimate target.

As I said, I should have liked to have sought to amend the Bill but I am unable to do so and therefore I only put forward the arguments. Among part of the definiton is having been in hospital and about to be discharged. That also has some problems. Some may argue that, in itself, that indicates a degree of seriousness of condition that sets those people apart from the mass of people with mental health problems. Many people with serious mental health problems and social vulnerability, however, never actually get admitted to hospital. Indeed, some with severe schizophrenia are treated outside the confines of a hospital. That is another form of discrimination which I find difficult to accept. Is it right that those people who have not actually been into hospital but who have been treated in other ways in the community should be denied the benefit we are debating? Indeed, if community care is going to work is it not essential to have legislation that gives a similar right to a similar level of assessment and provision to those with mental health problems before they reach the stage of needing hospital treatment?

In broad terms, therefore, it seems to me that the Bill is discriminatory in so far as it is seeking to provide enhanced assessment and service rights to a particular group of people with mental health problems when there are many others with similar problems and similar vulnerabilities who will not benefit as a result of this legislation.

There are perhaps more immediate practical difficulties with using a clinical term such as "schizophrenia". Psychiatry is centred upon a diagnostic system that is well documented for not being reliable. That is not the fault of the psychiatrists. Diagnosis is extremely difficult and a diagnosis given by one doctor at one moment might, two or three weeks later, be given by another doctor in a totally different sense. That I understand and I cannot necessarily criticise practitioners for that. It is one of the reasons why other mental health legislation uses terms such as "mental disorder" or "mental illness" rather than including a definition.

Frequently, people are given a tentative diagnosis of schizophrenia which turns out to be something different. What exactly is their status under this Bill? They will have received in-patient treatment for schizophrenia, or tentative schizophrenia, and then for something else. Would they benefit under this Bill? These difficulties all point to the undesirability of using clinical diagnosis as the basis for the provision fo granting rights. In my view it is preferable to use existing categories, however vague they may be, and legal categories.

For the reasons given I cannot table an amendment and I do not intend to press this matter to a Division; nor would I think of doing so. However, I believe that the Bill, since we cannot amend it, will on present evidence proceed through this House in a way that I believe is counter to public interest and damaging to the interests of some patients who will be excluded. What the consequences will be, I do not know, but I felt that I had almost a responsibility to this Chamber to set out the reasons why I argued this case in a simple way on Second Reading.

Baroness Elliot of Harwood

I should like to make one or two brief comments. First, I am delighted to hear that the noble Lord, Lord Ennals, does not intend to push this matter to a Division because I believe that would be great mistake. This is a pioneering Bill. It is a Bill that is badly needed not only for schizophrenics but for other kinds of mental illness where after-care is vital. We all know that that is so.

I have for years been chairman of a social work committee and also a health committee. I do not know whether my noble friend Lady Faithfull will agree, but I believe that the best department to deal with after-care or mental illness, and so on, should be the social work department. It has the trained personnel and access to various ways in which to help and would be the most appropriate department.

The important point is that something must be done. This situation has existed for years and years. I have preached care and prevention in every town that I have been able to visit. I have succeeded in doing some things in my own area which are both caring and preventive. But the Government always say, "We must wait and everything must be covered". It cannot be done in one covering; but one has to start somewhere. I believe that this Bill is a very good start and we should give it all the support that we possibly can.

Lord Rea

In my speech at Second Reading I also pointed out the view of a practising GP of how difficult it was sometimes to define precisely when a schizophrenic is schizophrenic or suffering from some other mental disorder. I follow the reasoning of my noble friend in supporting his opposition to this clause. I can explain to the noble Lord, Lord Winstanley, why I supported an amendment in a clause which I apparently wished to abolish. That is not the case. It simply provides an opportunity to speak about this matter. I believe that we would run into a good deal of trouble if we were simply to look at the problems of those with the label of schizophrenia and leave out of account all the other people with many other serious mental disorders who are in equal difficulty.

I believe that many Members of the Committee who spoke at Second Reading will have received a letter from the Law Society of Scotland which has recently established a mental health working party. The law society feels, that what is required is a review of the law as it relates to all aspects of mental incapacity". I wish to quote a couple of sentences from the final paragraph of the letter regarding Lord Mottistone's Bill. The letter states: We admire the ends which it seeks to secure for the specific group in Society [schizophrenics] but those ends should be available to everyone suffering from any form of mental incapacity who has been detained in hospital for less than 6 months. The need for after care is not limited to schizophrenics although we accept that their need is great but not necessarily greater than or different to the needs of others". The letter concludes by saying: We believe that the Bill should be replaced with appropriate legislation dealing with the needs of all mentally incapacitated people". That is the reason why I have put my name down to support my noble friend's opposition to this clause. It is not that I feel that the clause of itself is in any way faulty, but with the amendment of the noble Baroness I believe it might have been a little better. However, we shall be thinking about that at Report stage.

7.45 p.m.

Lord Winstanley

I seldom disagree at all with the noble Lord, Lord Rea; and I very frequently agree with the noble Lord, Lord Ennals. I put a slight difference between the two there. I am glad to hear that the noble Lord is not going to press to a Division his opposition to Clause 1 standing part of the Bill. I do not wholly accept the arguments that he has advanced, and before we leave this matter I believe it will be no bad thing to put some differing arguments on the record. What is the exercise on which we are engaged? We are all well aware that before this Bill arrives on the statute book (if it ever does) or before it gets very far in its proceedings in another place, without a shadow of a doubt many other things will have happened. I am much encouraged by what we have heard from the noble Lord at the Dispatch Box about the fact that we are to hear something concerning whose responsibility it is to provide community care. I am very glad of that news, and the sooner we get it the better.

As the noble Baroness, Lady Faithfull, has said, the present situation is entirely unsatisfactory. The noble Lord, Lord Henley, said that the Government's view is that these matters should be left to the two authorities—namely, the social services department and the health authority—to sort out the issues between themselves. The plain fact is that because neither department is responsible, neither accepts responsibility. Apart from perhaps the Isle of Wight (which seems to be singularly privileged in this regard) in many areas nobody takes responsibility. The noble Baroness, Lady Faithfull, is absolutely right, and this fact must be stressed.

The noble Lord, Lord Ennals, said that this Bill is discriminatory. I am opposed to discrimination of any kind, and I have fought hard against it. I have to accept that it is unfortunate that unhappily certain illnesses discriminate in that they strike some people and not others. Illnesses also differ in their precise nature. The one thing that this Bill is doing at the moment is drawing attention to the very special needs of a very special group of people suffering from schizophrenia. The noble Lord, Lord Ennals, said that this was difficult to diagnose. I do not wish to make light of certain of the difficulties. Undoubtedly it is true that in many cases it is difficult to arrive at a precise diagnosis of schizophenia when one is confronted with someone who may be suffering from a manic depression or a psychosis with obsessional features.

Nevertheless, I believe that sometimes a doctor or doctors responsible for a patient are perfectly aware of the diagnosis and they know that the patient is suffering from schizophrenia. They have made that diagnosis. However, they do not necessarily make it known publicly but to the patient and the relatives. As the noble Lord, Lord Ennals, said, if certain special facilities are available for those patients, it may be that that diagnosis would be arrived at in certain cases in which it has not been arrived at. The noble Lord knows that there are cases where there have been disastrous consequences because that diagnosis has not been arrived at by people who should have arrived at that conclusion.

Lord Ennals

I am grateful to the noble Lord for giving way. Does the noble Lord not recognise that this also happens the other way? I have a very close connection with a situation in which someone diagnosed as being schizophrenic was in no way a schizophrenic. It was later determined that his condition was something quite different which required quite different treatment. Therefore the confusion must be very substantial among doctors who really are not sure from what condition a patient is suffering.

Lord Winstanley

I do not dispute that; but I do not believe that this is the time or place at which to go into the question of diagnostic difficulties at great length. I accept what the noble Lord has said. However, it does not in any way take away from my general position regarding this Bill. I believe it is serving a very useful purpose. As I said, it will undoubtedly be overtaken by events. At the moment when those events take place and we hear precisely what are the government proposals concerning community care, I do not believe that those proposals will provide adequately for the group of patients with which this Bill is particularly concerned. As I said before, I believe that when Section 7 of the Disabled Persons (Services, Consultation and Representation) Act 1986, is implemented, that certainly will not provide for these patients because very many of them are in hospital for only very short periods. Of course the real needs of the patient must be assessed before his discharge. As the noble Baroness, Lady Faithfull, rightly said, when he has been assessed, those needs have to be provided for; and sooner or later someone has to say who will do the providing.

At the moment I believe that we should leave this Bill alone because it has served a very useful purpose. It may very well influence further measures that are to come forward from the Government. The fact that we have discussed it, and it has its various stages in your Lordships' House, will have done a great deal to increase our understanding of a problem which is of a very acute and disturbing nature. It has a very damaging effect on the individuals who suffer from this disease, on their families and very often on the communities in which they live. I am very glad that the noble Lord is not going to persist in removing Clause 7. I merely wished to put a contrary view on the record.

Baroness Faithfull

Perhaps I may make two points. The first is that I am grateful to my noble friend Lord Mottistone, supported by my noble friend Lady Elliot, in bringing to our attention the situation regarding schizophrenics. I regard this Bill perhaps as a forerunner to something else. The second point I wish to make in supporting the noble Lord, Lord Ennals, concerns the families of the patients. There are some families who are so stable and skilled that they are able to deal with their own schizophrenics. There are other families who are less able and more vulnerable, and they cannot deal with a much less serious condition. It is for that reason that I support the noble Lord, Lord Ennals. I also agree with all his other arguments. But it is very difficult to assess the situations of families that can cope and those that cannot. One is not going to help the patient unless one helps the families. Some families need more help than others even if the patient is less ill. Therefore I support the noble Lord, Lord Ennals.

Earl Haig

Clause 1 is vital to the Bill since it recommends a set of procedures for assessment before a patient leaves hospital. It seems sensible to me that a psychiatrist, or whoever has been responsible for looking after the patient in hospital, should have the chance to point out to the health authority making the assessment the kind of requirements which may be needed for some considerable time after discharge. It may well be that the degree of supervision required will not be great or there may be no need at all for any after-care treatment. If so, there should be immediate release so that the long delay of a lengthy assessment will be avoided. In opposing the Motion that Clause 1 stand part of the Bill, the noble Lord, Lord Ennals, is in danger of losing the crucial part of the Bill; that is the point when plans for assessment will be made. Any shilly-shallying over Clause 1 must help to bolster the doubt already expressed by my noble friend Lord Henley.

The noble Lord, Lord Ennals, is aware of the slowness of the Government in this matter. Indeed at Second Reading he welcomed the opportunity provided by my noble friend Lord Mottistone through this Bill. Now, with some justification, he seeks to widen the Bill so as to include more categories of the mentally ill. He does not try to amend the Bill with a widening proposal. Instead he argues to remove the more limited recommendations in Clause 1, and in doing so he weakens the chances of achieving a modest first step towards the wider goal which most of us share. Most of us agree that there should be basic after-care for all mentally ill patients.

I support Clause 1 because it provides for sufferers from schizophrenia the bridge between hospital treatment and the world outside. It is only after they cross this bridge that schizophrenia patients will be given the chance of assessment and of treatment. Many of them will go on suffering from their disability and will go on having to go back to hospital because of lack of after-care treatment. My noble friend Lord Henley in a caring speech spoke about the costs of implementing the Bill. Surely the process of regression and rehospitalisation must also be costly. The present situation is chaotic and urgently needs a solution. I therefore hope that the procedures set out in Clause 1 are followed.

Lord Mottistone

I am grateful to the noble Lord, Lord Ennals, for saying that he is not gunning for Clause 1 and is in fact gunning for the other factors. However, I would put forward this point in favour of why the Bill is in its present form. I said at Second Reading that it was important to us to tackle the problem for one group of people. Perhaps I may quote what the right reverend Prelate the Bishop of Sheffield said during that debate: I earnestly hope that we do not allow ourselves to be deflected from the course which this Bill represents. It is so tempting to believe that because we cannot help everyone, we must help no one".—[Official Report, 12/4/89; col. 333.] Though I understand the sense behind what the noble Lords, Lord Ennals and Lord Rea, said, if one argues that one should not help just this one group, the next argument will be that we should cover not only the mentally ill but also the mentally handicapped, and then that we should cover not only the mentally ill and the mentally handicapped but also all the handicapped. This process will go on and on and the Government will see in their minds the cash register ringing up each time a new group is added. They will be much more cautious about doing anything if they feel that they have to do everything.

I said at Second Reading and I say again now that this Bill could usefully be a trial to see what such provision will cost. My noble friend the Minister quoted some figures and said that one of the factors that puts the Government off is the high cost. I do not believe that that will necessarily be the case. As my noble friend Lady Faithfull and the noble Lord, Lord Ennals, said, some families can cope better than others. The families that cope well will be able to deal with their own schizophrenics and so the cost will be lower. However, the two groups will offset each other. The ones who are lost because they are not assessed under the Bill will cost a great deal more. They will probably end up in prison, which is terribly expensive, as we know.

Government departments tend to see things in parcels and not take an overall view. For all I know, the Treasury probably encourages them not to take the overall view. The overall balance of cost is probably nothing like as great as the Government fear. If they try it on a narrow front for a deserving group of people they will be able to see how the Bill works. I put this point to the Minister. However, he obviously did not pick it up or we would have heard a much brighter response from the Front Bench. That is why it is probably more worth while having a narrow Bill at this stage than a wider one.

I do not disagree that it needs to cover the wider issue in the long run, but in the short run we can have this Bill, we can see how it works and then we can widen it. I know of the technical problems of schizophrenia being identified and not being identified. However, one has to accept that point because if one always puts forward that argument one will end up, as the right reverend Prelate pointed out, helping nobody.

I am grateful to the noble Lord for not wishing to remove Clause 1, and I hope that the Committee will agree that it should remain in the Bill.

Lord Ennals

I am grateful to the noble Lord for recognising that I said at the beginning of my remarks that I had no intention of seeking to remove the clause from the Bill. I then congratulated the noble Lord and said that I hoped that the Bill would go through. I felt that the noble Earl, Lord Haig, was a little unfair to me. I made it absolutely clear in my introduction that I had wished to propose amendments but that they were not in order. Therefore my only way of stating what is a perfectly reasonable argument was by opposing the Motion that Clause 1 stand part of the Bill.

Clause 1, as amended, agreed to.

Clause 2 [After-care of persons discharged from hospital after treatment for schizophrenia]:

Lord Mottistone moved Amendment No. 6: Page 3, line 27, after first ("of) insert ("formal").

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 7: Page 3, line 33, leave out ("relevant").

The noble Lord said: In moving this amendment, I should like to speak to Amendments Nos. 8, 10 and 13. These amendments are designed to make it absolutely clear that no voluntary organisation need participate in the provision of after-care services unless it wishes so to do. It will presumably act only if it has the necessary resources. If it ceases to wish to participate, it need not do so and the responsibility for providing the services hitherto provided by the voluntary organisation will revert to the health and local authorities. Some voluntary organisations have expressed concern about the wording of the Sharon Campbell Report. They fear that duties which they cannot fulfil will be imposed on them by any legislation implementing that report. These amendments are designed to make the matter clear in relation to the Bill. I beg to move.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 8: Page 3, line 33, after ("organisation") insert ("which is prepared to participate").

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 9: Page 3, line 41, after ("concerned") insert ("after consultation with the co-operating local authority and with any voluntary organisation concerned with the case").

The noble Lord said: This amendment requires the health authority to consult the co-operating local authority and any voluntary organisation concerned with the case before the complete termination of after-care services. Under the Bill the health authority has the last word, but it is less likely to have good reason for terminating the services, as the Bill calls on it to do, if the local authority and any voluntary organisation are against it. The amendment also brings subsection (2)(a) into line with subsection (2)(b). I beg to move.

On Question, amendment agreed to.

8 p.m.

Lord Mottistone moved Amendment No. 10: Page 4, line 12, after ("basis") insert ("and in co-operation with any voluntary organisation which is prepared to participate").

The noble Lord said: I beg to move.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 11: Page 4, line 14, at end insert ("or ended in accordance with subsection (2)").

The noble Lord said: Subsection (2) of Clause 2 clearly applies where the health authority wishing to discontinue the services was the authority making the arrangements. If there is a change in health authority responsibility, there could be some doubt in the context of subsections (3), (5) and (7) as to whether the successor health authority could discontinue the services entirely. The amendments make it clear that it can.

I should add that in moving this amendment I am speaking also to Amendments Nos. 14 and 17. I beg to move.

On Question, amendment agreed to.

Lord Ennals moved Amendment No. 12: Page 4, line 15, leave out subsection (4).

The noble Lord said: I hope that no one will accuse me of being negative this evening, although this is a move to strike out a subsection. Indeed, I might well have concentrated my argument on several amendments which would have applied to Clause 2. I have a substantial reservation about what I may perhaps call the tracking provisions contained in Clause 2, in particular in subsection (4), and it is the latter upon which I have concentrated.

As I understand it, in the first instance the patient or the nearest relative can request that arrangements for assessment—under Clause 1(6)—are not made. There is a problem here, because that apparently means that the nearest relative can cause no assessment to be carried out even though the patient would wish for such an assessment. In my view the decision should rest with the patient and the patient alone.

Once an assessment is made, the relevant authorities have a duty to provide after-care as assessed. Presumably, although it is not specifically stated, if the patient says after an assessment has been made that he or she does not wish to receive the after-care proposed or being provided, he or she cannot be compelled to accept it. I am certain that the assumption would be that we cannot compel treatment under such circumstances.

Once an individual who has been provided with services can no longer be traced, the health authority is under a duty to try to find them—I am sure that that is right. In pursuit of that obligation any person who knows of the individual's whereabouts would if this provision is carried through be obliged to tell the authority if asked. While I understand the motive for this provision, I think that it poses major civil liberty problems which must be raised and discussed. For instance, it may be that an individual has told his or her GP confidentially that he or she is moving and that no one should be told. Indeed, I can well understand a set of personal circumstances in which an individual said just that to his or her GP.

It is difficult to see what the public interest is in knowing where the person is, although presumably it is to be able to provide them with after-care services, which almost by definition the move indicates that the person no longer wishes to receive. I do not see that that public interest is sufficient to override the obligations of confidentiality owed by the doctor to the patient. I hope that on this occasion I may carry the noble Lord, Lord Winstanley, with me.

If an individual moves without telling the after-care providers, that in most cases will indicate that he or she no longer wishes to receive after-care. Of course there may be an alternative scenario where the individual moves when extremely ill—I am certain that those are the sort of circumstances which the noble Lord, Lord Mottistone, had in mind—and when he or she was in need of treatment and help. Few could argue that those who care for the patient should not try to find that patient in order to provide such help. I am not arguing that we should not try to find patients who need help. In theory the services available in the areas to which they move should be able to provide assistance if such individuals come to their attention.

An attractive feature of subsection (5) is that the duty to provide after-care travels with the person. Again, however, I doubt whether the social objective of being able to provide care justifies imposing a duty upon others, who could be friends or relatives, to reveal a person's whereabouts. Underlying this issue is a clash between the in many ways understandable welfare objectives of continuing to provide care and the civil liberties argument concerning the right of an individual in the community to be left alone and to be free of social controls. I think that that right is one which should be paramount, despite the fact that a person may be suffering from some illness or condition. I am much concerned about this issue, and that is why I decided to table an amendment in this connection.

I do not think that the civil rights of patients should be undermined by particular forms of legislation or forms of treatment. Indeed, that is an issue which I argued in the debate on the Mental Health Act 1983 when we dealt with a certain number of cases where compulsory treatment was involved. No one would disagree that in certain circumstances it is proper for those providing care to try to trace a patient who has disappeared; but a duty to disclose—and it is not clear what are the penalties, if any, for failure to do so—is, in my view, not justified. It seems to me that the general disclosure requirement should apply, for instance, to escaped criminals but should not apply in other circumstances. I do not think that the public would wish to impose such an obligation; that is, a requirement to report someone's whereabouts. It is possible that they would wish to do so in relation to escaped criminals but certainly not in respect of mental cases.

In conclusion, there is the incremental argument in relation to civil liberties. If the duty to disclose is established, what happens next? Will a patient in receipt of after-care be obliged to report a change of address, or even have to seek permission for such a move? Once again, many questions precede the main issue substantially. I believe that the best way to deal with this clash is not to remove the whole clause but simply to remove subsection (4). I beg to move.

Lord Young of Dartington

I rise to support what has just been said about this amendment. I hope that it will be the case that the noble Lord, Lord Mottistone, will feel able to accept it. I thought the arguments presented were cogent. All I wish to do now is to instance one other circumstance which I think the noble Lord, Lord Ennals, passed over; in any event, he certainly did not dwell upon it.

Let us consider someone suffering from schizophrenia who is undergoing a remission and who is perhaps again living, at least for the time being, with the family. In those circumstances no one will know—that is, neither a member of the family nor certainly the former patient—how long that remission will last. Indeed, it could last a long time in which case it would not be necessary, at least during the relatively happy period through which the person might be living, for him to undergo treatment or be a special concern of the health authority.

I accept that such circumstances would not often apply; but it seems to me that they could. In that situation, not only would there be some threat to the civil liberty of the schizophrenic person, but in a sense there could also be a threat to the civil liberties of the members of the family, who could be placed in an extremely awkward position of conflict. That would arise if they were trying to do the best for the person concerned, believing quite firmly that it would be better if they tried to do it informally, without the support of the health services in their formal character; and yet they could be, if it was so decided, brought to book if this subsection is retained. It seems to me that that would be most unfortunate.

Beyond that argument, I fear that this subsection is the kind of thing which could be bandied about by people who would be against the Bill on quite different grounds. However, they could refer to the subsection and say, "Here is, on behalf of a very good cause, a tiny finger"—even though a very tiny finger—"of a kind of police state". I am sure that none of us would wish for such a state. Unless he has equally cogent arguments in favour of the subsection, I hope that the noble Lord will feel able to accept the amendment.

Lord Mottistone

I am most grateful to the noble Lords, Lord Ennals and Lord Young, for their contributions. I guessed that that was why the noble Lord, Lord Ennals, sought to remove subsection (4). My advisers and I have been looking at the point. It is a good idea to have the provision in the Bill provided that it is qualified so as to get over the points that have just been raised, and with which I entirely agree. If the noble Lord agrees, I suggest that we leave the subsection in the Bill and that I come back on Report with an amendment which I shall now try to describe to the Committee and which I believe gets over the problem. If on Report my amendment does not do that, we can take the matter a step further.

The subsection provides that: A person who has information as to the whereabouts of a person—

  1. (a) for whom services were being provided…and
  2. (b) who cannot be traced…shall be under a duty",
without any qualification. If the subsection provided the first part: for whom services were being provided…and who cannot be traced", and then went on to provide that such a person considers that the disclosure of that information would be in the best interests of the person mentioned in paragraph (a), one would be under a duty only if the circumstances are as provided in the Bill and also if the person with the information believes that it is in the best interests of the person receiving the services to disclose the information. That would be an essential qualification.

Perhaps we may leave the subsection in the Bill at the moment and seek to amend it along the lines that I have suggested. It would be helpful to have it, if only as a checkpoint, where the situation is not difficult and it is not important to keep the information away from other people. There will be such circumstances. I should be grateful if the noble Lord, Lord Ennals, would tell me whether he agrees in principle at any rate with the line that I am pursuing.

Lord Swinfen

Before my noble friend sits down, and purely as a point of clarification, is the subsection in the Bill merely so that a patient who needs medical help can be traced and given that help?

Lord Mottistone

Yes. The object of the subsection is merely so that the patient who cannot be traced, for whatever reason, shall be given the utmost help to be traced so as to receive the after-care which the Bill is all about. It is entirely in the patient's interests. If for some reason the person who has the special knowledge does not think that disclosure is in the interests of the patient, the amendment that I shall table on Report would take care of that position.

Lord Winstanley

When moving the amendment, the noble Lord, Lord Ennals, was kind enough to suggest that he would value my support. In those circumstances it would be churlish not to respond. I agree with him. I believe that his anxieties and those of the noble Lord, Lord Young, are soundly based. Nevertheless, I believe, as he said, that subsection (5) substantially covers the point. I believe that the ideal solution is for the noble Lord, Lord Mottistone, to try to arrive at a form of words which are acceptable to the noble Lord, Lord Ennals, and which remove the aspects of the subsection about which he is anxious. That would be the right course to pursue, and I hope it can be done.

Lord Ennals

In view of what the noble Lord, Lord Mottistone, has said, I shall not press the amendment to a Division. I am not certain whether he has gone far enough to meet my concerns. He referred to the best interests of the patient. When he does that, he has to refer also to the judgment of a person who may have some information, and consider the quality of his judgment as to the patient's best interests.

It is possible to have two antagonists. A brother may be concerned with the outcome of the will of a dying father. He may say, "My God, I have got to get hold of this chap. He is escaping. He has gone somewhere. I have to get hold of him. I know that the doctor knows. I know that his friend over the other side of the road knows. I am going to put the law on them. They must tell the authorities where my brother has gone so that I can track him down ruthlessly". That would be an exception; but when we legislate we must legislate for such circumstances.

I welcome the intervention of the noble Lord, Lord Winstanley. The noble Lord, Lord Mottistone, should try out his proposed amendment on me and the noble Lord, Lord Winstanley, and make it a trio. If we can reach agreement, let us do so. I have a genuine fear. If it were just a case of ensuring the best interests of the patient by someone qualified to judge those best interests, I would have no worry. I am worried about those who may say that they are concerned about the best interests of the patient but who have a totally different motivation.

Lord Young of Dartington

Perhaps I may add yet another point in support of the stand of the noble Lord, Lord Ennals. If words such as those suggested by the noble Lord, Lord Mottistone, were added, which would provide that a person should be under a duty where he thinks that it is in the best interests of the person concerned to give information and so forth, and the person in question thinks that way, that person would give the information in any case. The reasoning seems straightforward. If that were the case, it would look as though the subsection was unnecessary because it would be adding something which in practice would make no difference to what happened.

Lord Ennals

In the light of the debate, I shall withdraw the amendment. We shall want to come back to the matter in one form or another later in the Bill's progress.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 13: Page 4, line 28, after ("basis") insert ("and in co-operation with any voluntary organisation which is prepared to participate").

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 14: Page 4, line 30, at end insert ("or ended in accordance with subsection (2)").

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 15: Page 4, line 36, leave out ("relevant voluntary organisation") and insert ("voluntary organisation concerned with his case").

The noble Lord said: The amendment provides more precise wording. A voluntary organisation will need to be consulted if it is providing services itself and also if its concern is shown by providing moral support to the case. The amendment also reflects the theme of Amendments Nos. 7, 8, 10 and 13. I beg to move.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 16: Page 4, line 40, after ("basis") insert ("and in co-operation with any voluntary organisation hitherto providing services (if it wishes to continue their provision and they are still required)").

The noble Lord said: The amendment provides for a voluntary organisation to continue to provide services if it so wishes and the services are still required after the review. I beg to move.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 17: Page 5, line 4, at end insert ("or ended in accordance with subsection (2)").

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with amendments.