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Mr. McFall: We debated amendment No. 142 in Committee and the Minister said that he would consider it. However, there are still glaring deficiencies in the measure. We have been contacted by the Convention of Scottish Local Authorities, Edinburgh Healthcare NHS trust, the consultant forensic psychiatrist, Derrick Chiswick, and by the Royal College of Psychiatrists. The comments by those people have to be taken seriously by the Minister.
The danger in the legislation is that the combination of prison and the hospital direction will be used not instead of a prison sentence but instead of a hospital order. People should not be punished for having mental disorder. Amendment No. 142 seeks to guard against the risk of transferring people to prison who would more appropriately continue to receive hospital treatment. The decision to transfer a person subject to a hospital direction from hospital to prison should rest with the court, which would be duly advised by consultant psychiatrists. The decision should not be the sole responsibility of doctors.
Dr. Chiswick was a member of the Reed committee in 1994 and says that the committee made proposals which in England and Wales distinguish between the different categories of mental disorder. However, for Scotland there is a hybrid proposal which will not serve our interests. In his letter, Dr. Chiswick states:
The royal college says that among the implications would be the need for more secure beds. The letter states:
Lord James Douglas-Hamilton:
Courts will act only on the basis of recommendations from psychiatrists and will take into account whether the accused's condition is treatable and therefore whether a hospital direction would be appropriate. I was asked whether the Mental Welfare Commission for Scotland would have a role. At the moment, it has no role when a court is deciding on a disposal that involves sending somebody to hospital. Statute spells out what evidence shall be given to the court and by whom and the same will apply under hospital directions.
The hon. Member for Dundee, East (Mr. McAllion) asked why an order was to be made available for all forms of mental disorder. I am aware that the equivalent English conditions enable hospital orders to be made where the mental disorder is psychopathic, but it has been decided that for the time being it should be so limited in England and Wales. Scottish courts can make such an order in any case in which that is thought appropriate and the Home Secretary has power to extend hospital directions to other categories of mental disorder by order.
I listened carefully to hon. Members who spoke to amendment No. 142 and the related amendments, but I am not attracted to proposals that seem to be based on the assumption that hospital doctors will recommend to a sheriff or the Secretary of State for Scotland a course of action that would run counter to a patient's best interests--a course that would be injurious to the patient's mental health.
Let us first be clear that the situation with which the amendments deal is not new, merely arising out of the introduction of a hospital direction. The situation arises already with prisoners who become ill in prison and are transferred to hospital under a transfer direction. While their sentence of imprisonment is running, the only exit
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The Secretary of State must be satisfied either that the person is not suffering from mental disorder of a nature or degree that makes it appropriate for that person to be liable to be detained in hospital for medical treatment, or that it is not necessary for the health or safety of the person or for the protection of other persons that that person should receive such treatment. In either case, the Secretary of State must be satisfied that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment.
The House will be interested to know that, each year, there are about 60 transfers of prisoners to hospital, but that fewer than 20 prisoners move in the opposite direction; thus, there are many more transfers from prison to hospital than prisoners returning to prison. Most prisoners remain detained in hospital and--when appropriate, on expiry of their sentence--are released directly into the community.
I am convinced and confident that the same rigorous attention to health will apply to persons who are in hospital under the authority of a hospital direction, and that is what the Bill so provides. What prompts and will prompt consideration of whether a patient should be transferred to prison will be either an appeal by the patient to the sheriff or the hospital doctors' view that it is appropriate to recommend a return to prison to the Secretary of State. Therefore, given those safeguards, there should be no question that doctors would argue for such a transfer or that the sheriff or Secretary of State would agree to one if the considered medical view was that the patient required continued hospital treatment for his or her mental illness.
Amendment agreed to.
"hospital direction would not apply to people with a mental illness or a mental handicap. It would only apply to those where the mental disorder is a persistent one manifested by abnormally aggressive or serious irresponsible conduct which is a near equivalent of the English Mental Health Act category of psychopathic disorder."
In summing up, he states:
"I am aware that the working of the law in relation to mentally disordered offenders is something of an arcane affair but I do urge you most strongly to try and prevent the passage of Clause 5 in its current form. It will do no good but may do much harm."
The Royal College of Psychiatrists has also written to us. I have a letter from Dr. McCreadie, who is the chairman of the Scottish division, saying that the mental health provisions have been adopted in clause 36 of the Crime (Sentences) Bill and that the Scottish Bill proposes the use of hospital direction for all categories of mentally disordered offenders. We take exception to that.
"While the Scottish Office expects that only a dozen or so such Hospital Directions would be made in the course of any one year, it is clear that there will be cumulative effects which will have major implications for the number of beds required in conditions of security for mentally disordered offenders. In particular, there will be a need for many more beds in the State Hospital, where such patients are likely to be treated, and if it is considered that return to prison would lead to a relapse in their mental condition. Length of stay in hospital will be directed by the length of sentence rather than by clinical need or public safety issues."
The Minister must treat those concerns seriously.
The Opposition do not want that, and nor do the professionals, and I hope that the Government do not want it either.
In the part of his letter dealing with the possibility of risk, Dr. McCreadie states:
"There may well be an increased risk to the public. Patients under Hospital Directions will not benefit from the indefinite follow-up which is provided by the current legislation relating to Restriction Orders."
The letter suggests a solution. It states:
"If the new Hospital Direction is to be introduced in Scotland then the Ministers should be urged to restrict it to those patients who would fall within the definition of Psychopathic Disorder in the English Mental Health Act."
That is the Act that flowed from the Reed committee. The letter goes on:
"While there is no exact category of Psychopathic Disorder in Scotland, it exists in terms of Section 17(1)(a)(i) in those cases where the 'mental disorder from which he suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition'."
Eminent psychiatrists and the Royal College of Psychiatrists have said that we are doing the wrong thing. I ask the Minister to take the issue seriously so that we may have appropriate legislation and not a defective measure which could increase the risk to the public.
Amendments made: No. 23, in page 11, line 43, after 'officer' insert
', an officer on the staff of the hospital specified in the direction'.
No. 24, in page 12, line 2, leave out '28' and insert '7'.
No. 254, in page 12, line 6, at end insert--
'(1A) Where the managers of a hospital specified in a hospital direction propose to admit the patient to a hospital unit in that hospital, they shall, if that unit was not so specified, notify the Secretary of State and the Mental Welfare Commission of the patient's proposed admission to and detention in that unit; and the patient shall not be so admitted unless the Secretary of State has consented to the proposed admission.'.
No. 25, in page 12, line 7, leave out '28' and insert '7'.--[Lord James Douglas-Hamilton.]
Amendment proposed: No. 142, in page 12, line 32, at end insert--
'(aa) A patient shall not be remitted to prison in accordance with sub-paragraph (a) above until and unless--
(i) the case has been referred back to the court that imposed the hospital direction; and
(ii) the court is satisfied that the remittance to prison would not be injurious to the patient's mental health.
(ab) In order to determine the impact of the remittance to prison on the patient's mental health, the court shall consider the written or oral evidence of two medical practitioners (complying with section 61 of this Act).
(ac) Where a court is satisfied under (aa)(ii) above that the remittance to prison would be injurious to the patient's mental health, the court may revoke the hospital direction and--
(i) impose a hospital order (with or without a restriction order); or
(ii) impose no further penalty.'.--[Mr. McFall.]
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