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Mr. Deputy Speaker: Order. I have allowed some leeway, but I cannot allow the hon. Lady to go so wide of the Bill and discuss polling facilities.
Mrs. McKenna: I was saying that everyone has the right to vote--
Mr. Deputy Speaker: Order. I cannot allow the hon. Lady to talk about the right to vote. She must restrict her comments to the contents of the Bill.
Mrs. McKenna: I appreciate that, Mr. Deputy Speaker. It is a matter that I can pursue elsewhere, and I certainly will.
The Parliamentary Under-Secretary of State for Scotland (Mr. Sam Galbraith): I appreciate the choice of Bill of my hon. Friend the Member for Midlothian (Mr. Clarke) and the elegant and persuasive way in which he spoke. He has received so many compliments today that I wonder whether he is the same person whom we know or his brother. I am happy to say that all the compliments were justified. As has been said, many hon. Members who have the chance of a private Member's Bill go for an approach that creates publicity and media attention and gives them a reputation. In keeping with his record in the Labour movement and the trade union movement, my hon. Friend has once again chosen an unspectacular route that will benefit a large number of people. He should be congratulated on that.
My hon. Friend the Member for Dumfries (Mr. Brown) said that my hon. Friend the Member for Midlothian was crabbit. That is probably true from time to time, but it is only because of his frustration at being unable to enact his good measures. We forgive him for his crabbit behaviour, but we congratulate him on the Bill, which is a significant step forward that will be regarded as a small but important measure for the people concerned.
Before I deal with some of the issues in the Bill, I should like to refer to some of the points that have been raised. I thank the hon. Member for Banbury (Mr. Baldry) for his support for the Bill and the kind words that he passed on to my hon. Friend the Member for Midlothian. He asked some important questions, including what happens if someone ceases to be incapacitated. As at present, the funds will be returned to the person from the control of hospital managers before or after discharge. He also asked about the meaning of benefit. There is no definition of the word in the Mental Health (Scotland) Act 1984, but courts would continue to look on the ordinary meaning of the word.
The hon. Gentleman was also concerned about expenditure and the right of redress. One or two other hon. Members have raised that. I may deal later with guidance on how those issues should be managed. There are no specific rights under the 1984 Act for an incapable patient to challenge expenditure by hospital managers. We shall consider that in the context of the incapable adults Bill to come forward under the new Scottish Parliament, but anyone who deals with a person's funds has an obligation to account for his actions. If he is negligent, that can be remedied under common law. I hope that I have answered the hon. Gentleman's queries on that, but if he has any other concerns I should be only too pleased to reassure him.
My right hon. Friend the Member for Edinburgh, East and Musselburgh (Dr. Strang) eloquently described the benefits of community care and the reason why we need the Bill. He has visited many former long-term hospital
patients, particularly from Gogarburn, and seen their terrific success in the community. I endorse everything that he said on that.
The hon. Member for Argyll and Bute (Mrs. Michie) welcomed and supported the Bill on behalf of her party. I am grateful to her for that. She raised several issues, including whether the hospital manager can hand over funds to someone else to be managed. The answer is no. That is why the Bill is necessary. Other arrangements, such as the appointment of a curator bonis, can be made, but they are very expensive and would not be appropriate for some of the amounts involved.
The hon. Lady was also worried about extra bureaucracy. We shall deal with that in the guidance that we shall issue if the Bill becomes law to ensure that there is no unnecessary bureaucracy. She asked whether the money would revert to the Crown following death. Normal laws of succession will apply, as they do to every patient--an incapable adult is no different. If the person has a will, it will be implemented; if not, the law of succession will apply. It is only if neither of those circumstances apply that the Crown would receive the funds under the doctrine of ultimus haeres. I hope that I have reassured her on that point.
My hon. Friend the Member for Paisley, North (Mrs. Adams) described extremely well the reasons for the Bill when she talked about John. What she outlined is exactly the problem that we face, and I am grateful to her for highlighting it. I am also grateful to my hon. Friend the Member for Inverness, East, Nairn and Lochaber (Mr. Stewart) for describing the reasons for the Bill and the reality behind it. I am sure that all of us would find someone who is involved in such matters in our constituencies.
My hon. Friend the Member for Aberdeen, South (Miss Begg) was right once again to mention that language is important. As a doctor, I always used to be upset when people were described as "a low back pain" or "a head injury". I used to try to inculcate my colleagues with the notion that such people were real people with dignities, realities and futures. We should always remember that. In my defence, I should say that such terms are legal ones--and my hon. Friend knows what lawyers are like. She is right that the medical profession must treat people with dignity. She also described some of the small activities from which we all benefit, and mentioned getting her hair done. That is not one of the benefits that I share, but I understand what she means.
My hon. Friend the Member for Ayr (Ms Osborne) talked about funding of community care. There is now more than £1 billion available for social work. We will increase that by £279 million over the next three years to address the very problem that she described.
My hon. Friend the Member for Greenock and Inverclyde (Dr. Godman) asked some very specific questions on people in long-term care; bridging care before moving into the community; and re-provision at Larkfield. The folk involved in that re-provisioning are very confident that the contract for the new Larkfield unit will be signed very soon. He mentioned the mental illness specific grant. We have made it very specific, and a permanent fixture. It used to be temporary and considered each year, but it has been analysed and found to be useful, so will become permanent.
My hon. Friend the Member for Greenock and Inverclyde also asked about guidance on managing the funds of incapacitated patients--not just in hospital but in the community--and mentioned the draft guidance that was published last year. We have received a number of responses to that, especially from the Law Society, the Mental Welfare Commission and local authorities. We are considering them, and hope to issue final guidance very shortly, which will go to all the usual statutory bodies, such as local authorities, health boards, and so on.
My hon. Friend the Member for Dumfries talked about Crichton Royal. I am pleased to hear that the principles of community care are firmly followed there, and that nobody leaves hospital for the community until the right facilities are provided for them. There are no time scales for such things; facilities must be right for the patient. That must be the most important criterion, and I am pleased that it has been adopted at that hospital.
My hon. Friend the Member for Cumbernauld and Kilsyth (Mrs. McKenna) mentioned the review of mental welfare legislation and described the benefits of community care. In doing so, she did not only talk of the person involved, although that is very important. Indeed, such matters are the most important to those people; that is what we are all about. She is right, however, that the community often benefits and is enriched, too. I am grateful to her for her contribution.
The Government unequivocally support the Bill. As my hon. Friend the Member for Midlothian said, it responds to a real and pressing difficulty caused by the inflexibility of section 94 of 1984 Act. As he so clearly described, the Act, which consolidated the Mental Health (Scotland) Act 1960, is of considerable antiquity and has not kept pace with changes in the way in which people are managed and treated in care. It was enacted when hospital care was seen as the right and proper way for society to look after people who were unable to care for themselves. Since then, developments have shown that individuals with mental disorders can, as my hon. Friend the Member for Paisley, North described, live much more fulfilled lives in the community, given appropriate support.
The Government recognise the case for new comprehensive mental health legislation consistent with current practice. I am glad of the welcome from all parties for the review that I announced in December to be conducted under the chairmanship of the right hon. Bruce Millan, a distinguished former Secretary of State for Scotland. The review is now into its stride and the first meeting was held last week. I am certain that we will get a report that will lay the basis for enlightened mental health legislation fit for the new millennium.
That legislation will take time to go through the new Scottish Parliament. The 1984 Act in its present form does not allow hospital managers to release the funds of incapable patients when they leave hospital to live in the community. That would be an unacceptable situation even if only one patient was affected, but when, as we have heard from my hon. Friend the Member for Midlothian, perhaps as many as 750 people could be in such a position by the end of the year, with more in the following years, we cannot allow the situation to continue. Action is needed, and that is why I am very grateful to my hon. Friend.
It might be helpful to the House if I say a little bit more about the management of the funds of people who, through mental disorder, are unable to look after their own
affairs. The 1984 Act recognised the problem and, within the prevailing wisdom at that time, provided a helpful framework designed to ensure that the interests of patients and their resources are fully safeguarded. For example, the legislation allows local authorities to apply for the appointment of a curator bonis to look after the funds of people incapable of doing so for themselves, whether in hospital or in the community.
The Mental Welfare Commission, a body set up under the 1984 Act to exercise protective functions with respect to the mentally disordered, can also arrange a similar appointment but, as numerous hon. Members have mentioned, such arrangements can be extremely expensive and in many cases they are totally disproportionate to the sums held in the hospital.
Section 94 was enacted to allow hospital managers to receive, hold and expend the resources of patients in the hospital. The provision was conceived with the best of intentions, and indeed it still provides a perfectly adequate solution for the management of patients' funds while they are in hospital, with hospital managers ensuring that they get the optimum benefit.
Many patients now have the opportunity to move into the community, whether returning to their own home or moving into supported or nursing home accommodation. For many, whether young or not so young, that offers the best opportunity for a better quality of life than is possible in hospital: a life with some decency and dignity. That is not because long-stay hospitals are unpleasant places, although some are, but simply because care in the community, by its very nature, can offer the necessary security, protection and comfort in a more domestic and acceptable setting. I am sure that we have all been to see patients who used to be in hospital and are now living in the community, with all the advances and improvements that have been made. I have no doubt whatever about the benefits.
Before any patient is discharged from hospital,the social work department will co-ordinate a multidisciplinary assessment of the care and support needed in the community. Services can be provided by a range of statutory and independent sector agencies, ensuring that there is a package of support for everyone.
That package, to be put in place before the patient returns to the community, should include planning to ensure that resources accruing to the patient when in the community will be properly managed on his or her behalf by whatever means are appropriate. The difficulty, as I have said, is that resources already accumulated by patients while in hospital cannot move with them when they move into the community. That is simply a lacuna in the 1984 Act, which our predecessors in the House could not have been expected to foresee. My hon. Friend's Bill plugs the gap. It will also allow hospital managers to receive and hold interest accruing on moneys already held in the hospital, a point which has been made by the Law Society of Scotland. The Bill will have a dramatic effect in liberating funds trapped in hospitals and help to ensure that the persons concerned, while in the community, will secure the maximum ability to obtain the small things that make the difference, as described by my hon. Friend the Member for Aberdeen, South.
Several hon. Members made the point that we need to ensure that reasonable and proper safeguards are in place to make sure that the resources are truly used in the patient's best interests when in the community.The hospital manager will retain responsibility for the funds, and will be responsible for authorising expenditure. There will need to be close co-operation between the new carer in the community and the hospital manager. I anticipate that the procedures, which will be put in place when the Bill becomes law, will enable the new carer to apply to the hospital manager for the release of funds, as the occasion arises, to be spent in the most appropriate way for the person's benefit.
I would expect each NHS trust, in such circumstances, to be satisfied that the proposed spend is appropriate and for the real personal benefit of the individual, and that consideration has been given to value for money in each case. I would emphasise that such spend will not replace expenditure on items or services that are the proper responsibility of the care facility, the NHS or the local authority. We must always remember that the moneys that we are speaking about today belong specifically to a particular patient and must be used for that person's individual benefit. To guarantee that, if the Bill is enacted, I undertake to ensure that further guidance is issued to those who will be required to operate the new provisions. The guidance will set out, for example, how money should be requested from hospital managers, and how hospital managers should consider such requests.
In his speech, my hon. Friend the Member for Midlothian said that he had no wish to see his Bill grow old in the same way as the 1984 Act has done, and he expressed the hope that wide-ranging, comprehensive legislation would be enacted in the Scottish Parliament that would modernise the arrangements for managing the affairs of incapable adults. Hon. Members will be glad to know that I share my hon Friend's views.
The report issued by the Scottish Law Commission on incapable adults as long ago as 1995 made proposals for a new legislative framework for managing the affairs of incapable adults. Following consideration of an extensive consultation on the commission's proposals, the Government made it clear last December that we fully accepted the need for reform of existing legislation in that important area, and set out the Government's views on the commission's proposals. It will be within the competence of the Scottish Parliament to legislate in that area and, while we cannot prejudge or pre-empt what the Parliament's legislative programme will be, it would certainly be my hope that legislative progress can be made in this deserving area at an early stage.
While legislation must await the new Parliament, we can take steps administratively to improve the current situation. That is why we consulted last year on draft guidance that seeks to address concerns about the arrangements for managing and protecting the finances, housing and other property of people who are incapable of managing their own affairs as a result of mental disorder. It provides guidance for health boards, local authorities and relevant independent sector agencies and seeks to clarify the existing legal options for the management and protection of incapable adults' resources. That point was raised by my hon. Friend the
Member for Greenock and Inverclyde. Many constructive responses have been received during the consultation, and we hope to be in a position shortly to issue the final guidance to the bodies that I have mentioned. The guidance will focus above all else on the needs of the individual. It will assert the primacy of private or family arrangements over institutional ones, with due regard to appropriate safeguards, and it will reaffirm opportunities to make best use of existing options for managing the financial affairs of incapable adults. This guidance, together with the Bill before the House today, will help to clarify current areas of doubt and ensure that people who suffer from mental disorders receive the best possible deal under the existing legislative framework.
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