Mental Health (Detention) (Scotland) Bill (Hansard, 1 July 1991)

§ Lord Mackie of Benshie
My Lords, I beg to move that this Bill be now read a second time.
This Bill was steered through the other place by my honourable friend Sir Russell Johnston, the Member of Parliament for Inverness, Nairn and Lochaber. He asked me whether I would introduce the Bill in this House with the assurance that the Government backed it, and that the legal luminaries in Scotland were all in favour of the Bill, although they might criticise small points.
The Bill makes a number of desirable amendments to the Mental Health (Scotland) Act 1984. It seeks to overcome a gap in the 1984 Act highlighted in an appeal case heard in this House. The Bill introduces provisions which permit a patient's further short detention in a mental hospital in certain circumstances until a full application for admission can be determined by the sheriff. The Bill further amends existing applications for admission procedures in the Act effectively to require the sheriff to deal with all applications promptly.
Before describing the provisions further, it might be helpful to your Lordships if I were to say something about the existing law and the appeal case which identified the gap, which I have already spoken about. Briefly, Sections 24 and 26 of the Mental Health (Scotland) Act 1984 provide for the detention of mentally disordered persons who are in urgent need of hospital treatment for their own health or the safety of other people. Detention under Sections 24 and 26 can last for three days and 28 days respectively, but to prevent any abuse of the system the Act stipulates that on expiry there can be no immediate reimposition of either Sections 24 or 26. Instead, in cases where it is necessary to detain a patient for a longer period, Section 18 has to be invoked.
An application for admission to hospital under Section 18—the person may already be in hospital if under Sections 24 and 26—has to be made by the person's nearest relative or a mental health officer. The application has to be accompanied by two medical recommendations in prescribed form and submitted to and approved by the sheriff. This procedure works satisfactorily in the vast majority of cases, but occasionally a patient detained under Section 26 may initially make good progress then suddenly and unexpectedly deteriorate towards the end of the 28-day period. This is what happened in the case of B v. Forsey. In such cases there may be insufficient time for the parties concerned to obtain a 863 Section 18 approval from the sheriff before the 28-day detention expires. This leaves the hospital with no authority to detain the patient in the interim, yet he may be very much in need of treatment in hospital and may be unwilling to remain a voluntary patient.
In the case of B v. Forsey, (B was a patient in the Argyll and Bute Hospital at Lochgilphead) the doctors involved took a deliberate decision to continue the patient's detention after the expiry of the 28-day period of Section 26. They made recommendations and reports which purported to authorise further the detention of the patient under Sections 24 and 26. However, this was contrary to the provision in the 1984 Act that there should be no immediate reimposition of Sections 24 and 26. They also prompted an application to the sheriff for B's admission under Section 18. This was not authorised until almost three weeks after the expiry of the original 28-day period. The subsequent appeal which B made to the Outer House of the Court of Session brought a finding that the doctors were covered by the common law. However, when B then appealed to the Inner House, all three judges found in his favour stating that his purported detention at the end of the original 28 days was illegal.
The health board next appealed to this House who upheld the decision of the Inner House but accepted that there was a gap in the legislation. This House expressed the hope that Parliament would make good that gap. This short Bill now seeks to do so and to make some minor associated amendments to the Mental Health (Scotland) Act 1984. It was included as a clause in a very similar form in the Government's Law Reform (Miscellaneous Provisions) (Scotland) Bill last year and as such was accepted by this House. However, it subsequently foundered in another place through lack of parliamentary time.
Clause 1 of the Bill inserts a new Section 26A into the Mental Health (Scotland) Act 1984 which will enable a medical practitioner to lodge with the sheriff clerk a report on the patient's condition, in the circumstances of a late relapse or no change, which I have described, indicating that in his opinion the patient requires to be further detained. Once lodged, such a report will have the effect of extending detention for a further three days from the date of lodging to enable a Section 18 application for admission to be made. There are a number of safeguards included in the clause including the provision that such a report should not be lodged unless where practicable the consent of the nearest relative or a mental health officer has been obtained. The patient also has a right of appeal against the continued detention.
The clause described is not, however, quite enough to cover the full potential gap. For example, it might have been possible for the parties to have lodged an application under Section 18 before the expiry of the 28 days allowed by Section 26, or before the three days allowed by Clause 1, that is the new Section 26A, but not for the sheriff to have determined the application before the end of the 28-day or three-day period. Clause 2 therefore makes certain minor amendments 864 and additions to the 1984 Act which will rectify this further potential gap and tighten up procedures in general. It specifies that all Section 18 applications for admission to hospital, whether or not the person is already in hospital, must be determined or heard by the sheriff within five days of being lodged. It also provides that where a patient is already detained under Section 26 or 26A the application will be sufficient authority to continue to detain him for the five days, and that where the sheriff adjourns a hearing the authority will be further continued until the application is finally determined.
Clause 3 makes a number of necessary consequential amendments to the 1984 Act as a result of new Section 26A and the further amendments that I have described.
This is a necessary and important measure. I hope that it will receive the support of the House. We all know of unfortunate instances of this kind. I commend the Bill to your Lordships.

§ Lord Macaulay of Bragar
My Lords, the House is grateful to the noble Lord, Lord Mackie of Benshie, for reintroducing this provision which, as I think he indicated, was a casualty of the negotiated settlement in another place of the provisions of the ill-fated Law Reform (Miscellaneous Provisions) (Scotland) Bill.
There never has been any dispute about the need for this reform. It came from the other place with only one amendment, which related to the timescale for dealing with applications under the new clause. The Bill has the effect of legitimising further detention of a patient who may require to be kept in hospital due to relapse or deterioration in his or her condition close to the time of release. We all recognise that mental illness is a volatile area of life which causes great strain and stress to all persons involved—patients, families, doctors and carers —and one in which compassion and protection are the two key ingredients. The protection is what one might call a two-way street, involving the individual patient on the one hand and the public on the other.
We all accept as a matter of principle that unwarranted detention of any individual in any place, whether in prison or hospital, is not to be condoned. This short and valuable measure achieves the purpose of having the issues judicially determined with, wherever possible, the involvement of relatives of the patient. It will eliminate the premature release of patients, as in the case to which the noble Lord, Lord Mackie, referred, who may be a danger not only to themselves but to their families and in the wider aspect to any member of the public with whom they may come into contact after release.
As the case referred to demonstrated, doctors faced with the responsibility of dealing with such a situation may be placed in what was described in another place as moral, legal and ethical dilemmas and may take decisions in the public interest which in law they are not allowed to take. These dilemmas should in the main be removed and resolved by the use of this 865 clause. It is welcomed from this side of the House as a progressive measure which will no doubt be found to be a useful process for those involved in this difficult area of medical practice. The provisions provide for interaction between the patient, the doctor, the local authority, relatives and the courts in an effort to create a balance of the interests, private and public, involved in determining a patient's future in this area of medicine.
Mental illness has acquired the reputation in the public mind of being the poor relation of the medical family. It is locked away from the public gaze. It is a subject which not many of us, fortunately, have to face up to. It has none of the so-called glamour or magic of the heroic surgery and advances in other medical fields. To be brutal, while it is away from the public gaze, not many people care. This Bill will give the patient who is suffering mental illness or disease a medical, legal and social status which perhaps, unfortunately, he or she has not enjoyed to date. It has all-party support and from this side of the House we wish it well in its progress.

§ Lard Morton of Shuna
My Lords, I welcome the Bill and I congratulate the noble Lord, Lord Mackie of Benshie, on introducing it. I tabled an amendment to the Law Reform (Miscellaneous Provisions) (Scotland) Bill. Thereafter the noble and learned Lord the Lord Advocate took it over, redrafted it to suit the parliamentary draftsman and it was approved by this House. The only reason that I can see for it eventually being dropped from the Bill is that no one was against it and that therefore it did not fit with the rest of the Bill. It was a pity that it was dropped and it is good that a provision is now to be put through.
My only regret about this Bill is that it does not include the other amendment which I moved to the Mental Health (Scotland) Act and which the Government accepted. It would have dealt with the problem of the function of the nearest relative being carried out by someone else when the nearest relative of the person suffering from mental disease is unsuitable to act, as, for example, where he is implicated in the abuse of the patient. That amendment was included in the Bill as it left this House.. It was then dropped along with a good many other non-contentious and useful measures. It is unfortunate that, because of the procedures of the House, it is not possible to add the provision to this Bill without killing it off. With that regret, I support the Bill.

§ Lord Fraser of Carmyllie
My Lords, we are grateful to the noble Lord, Lord Mackie of Benshie, for his willingness to take the Bill through your Lordships' House after its progress through another place. I congratulate him on the skilful way in which he handled this small, important and really quite complex measure. He has provided the House with a full and lucid explanation of the background to the Bill and of its provisions. It is clear that there is a gap in the law which ought to be rectified. As the noble 866 and learned Lord, Lord Morton, pointed out, your Lordships indicated support for the measure on a previous occasion. It is a pity that the provision has not yet reached the statute book.
With those antecedents, the noble Lord, Lord Mackie, will not be surprised to hear that the Government support all the provisions which he seeks to introduce and would welcome the Bill's enactment. I thank him for bringing the Bill before the House and I, too, commend it to your Lordships.

§ Lord Mackie of Benshie
My Lords, I thank those who have spoken in this Second Reading debate. In some of the material that I read I picked up the point to which the noble and learned Lord, Lord Morton, referred of the nearest relative perhaps being unstable himself. The Bill as it stands has been supported by three of the noblest legal eagles in Scotland as well as by the medical profession. I am sure that your Lordships will wish to give it a Second Reading.