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Mr. Maclean: I merely wish to answer the point that my right hon. Friend has raised. I have not received such a letter--not because one has not been sent, but because I have been tardy in collecting my mail this morning--and I did not receive a letter from the Scottish Association for Mental Health. I suggest that, for the millennium, he connect his computer to the internet and then surf cyberspace; he will find all the representations there, as I did.
Mr. Forth: My right hon. Friend well knows that vile expressions such as "cyberspace" are alien to me. I have never yet surfed the internet and I hope to survive for some considerable time without surfing it. I know that, for him, the internet is the source of a considerable amount of information, and I wish him well in that, but I prefer my mind to remain relatively uncluttered in these matters. I also prefer to receive my information from the written word on the page. I am old-fashioned that way and I find it reassuring to hold a document in my hand, as I am now--
Mr. Deputy Speaker: Order. None of those matters have anything to do with the new clause.
Mr. Forth: Indeed, Mr. Deputy Speaker. I am making the mistake of being led astray by my right hon. Friend the Member for Penrith and The Border.
Mr. Patrick McLoughlin (West Derbyshire) rose--
Mr. Forth: I hope that my hon. Friend is not about to do the same.
Mr. McLoughlin: Can my right hon. Friend assist me? The Bill applies only to Scotland. This is the United
Kingdom Parliament and, although these matters may now be for consideration by the Scottish Parliament, can he explain the position in respect of England? We need to know that all citizens of the United Kingdom are being treated equally.
Mr. Deputy Speaker: Order. We will worry about the amendment that is being discussed.
Mr. Forth: Yes, Mr. Deputy Speaker--and it must be said, in fairness, that my hon. Friend will have an opportunity, within the rules of order, to explore that point later. Indeed, I hope to do so myself, but I will not be misled at this stage.
Mr. Forth: I hope that my hon. Friend is not going to try to mislead me.
Mr. Swayne: No; I want to refer precisely to the amendment, and the arbitrary choice of five years. What does my right hon. Friend propose should happen at the end of that period? He should remember that the Bill is designed to remedy the weakness whereby, at present, a person must engage in an expensive process in order to obtain control of the funds. By introducing a five-year limit, my right hon. Friend may undermine the Bill's purpose.
Mr. Forth: I hope not. I am not going to disagree violently with my hon. Friend; I merely say that our aim was to introduce a long stop, as it were, forcing the matter to be reviewed after five years. That is why we chose a longer rather than a shorter period. I accept that any measure of this kind is fraught with certain difficulties: I do not dissent from that at all. The amendment was intended to provide a beneficial long stop.
Mr. Swayne: I have another question, which refers specifically to the amendment, but also refers generally to it and the new clauses and amendments grouped with it. My understanding is that the Bill is very much a temporary measure pending a much wider review of the law in respect of these matters.
Mr. Deputy Speaker: Order. The hon. Gentleman keeps talking about the Bill. We are discussing a specific amendment--or rather, several specific amendments. The hon. Gentleman cannot talk about the Bill at this stage.
Mr. Forth: Indeed, Mr. Deputy Speaker. It may well be that on Third Reading we shall be allowed just a little latitude to discuss the point raised by my hon. Friend.
Mr. Swayne: May I say something, on the question of the amendments?
Mr. Forth: Only on the amendments, please.
Mr. Swayne: Is not the force of the new clauses and amendments reduced by the fact that the Bill is a temporary measure? Is there any reason for introducing arbitrary limits such as the five-year limit, given the time limit that applies to the Bill as a whole?
Mr. Forth: I do not say this very often, but I will say it to my hon. Friend now, in a spirit of friendship. I have
been in the House for 16 years, and had the privilege of serving in government for nearly nine years. I know that very few things in this place are temporary. We are all aware that procedures relating to a measure that may well appear now to be subject to review are likely to continue for rather a long time. I do not want to rest my case on the assumption that the Bill is only a temporary measure, and that everything will be sorted out soon. As you know even better than I, Mr. Deputy Speaker, that is a pretty risky approach, and I do not accept what my hon. Friend has said in this instance.
I want to press on. I want to give others a chance to explore these matters, and I do not want to jeopardise the passage of the Bill. Let me say something about amendments Nos. 1 and 5. What we are trying to do is consistent with our aim in, particularly, the new clauses. I shall skip the preamble, but amendment No. 1 provides, in essence, that
That is why the amendment seeks to go in a little detail into the sort of assets that would be covered. It talks not only about money in the obvious sense. We believe that it is important to bring other assets within the definition in the Bill to allow their management to the advantage of the patient. The amendment covers
That is the thrust of what my right hon. Friend the Member for Penrith and The Border is getting at, but he will explain his position, I hope, in a moment. I wanted simply to lend support to what I understood to be the purpose of the Bill, and to ensure that the patient's interests are fully looked after.
Hon. Members can see the thrust of what we are doing. The new clauses and amendments are designed to enhance the Bill, to protect the incapable person as far as possible,
and to ensure as far as we reasonably can--without, I hope, being too bureaucratic--that, when the patient, or friends or relatives of the patient think that there is a risk of the patient's interest not being fully looked after, mechanisms are provided in the Bill to guard against that.
That is the thrust of the new clauses and amendments. I hope that they will be looked on kindly by the hon. Member for Paisley, North, on behalf of the promoter of the Bill, and by the Minister. However, if, for some reason that I could not possibly understand, they were minded to ask the House not to accept the amendments, at the very least I would want full assurances that the concerns that lie behind the new clauses and amendments could be fully covered within the existing terms of the Bill, without any further amendment. That is the very least that we would expect.
I am sure that the Law Society of Scotland is hovering somewhere, listening to the proceedings. I cannot speak for it, but I am sure that it would have the same worries. If the hon. Member for Paisley, North and the Minister are not going to satisfy me, they of all people will have to answer to the Law Society of Scotland if they do not get it absolutely right.
Mr. Luff:
It is in the nature of these Fridays that a Bill that first looks totally uncontroversial and unproblematic acquires a new character as we listen to the arguments that are expounded by hon. Members. I was particularly struck by the group of amendments and new clauses that we are discussing following the comments by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) in Committee. He said that the Bill
I am delighted to see that the hon. Member for Paisley, North (Mrs. Adams) is here to take the Bill through, in the place of the hon. Member for Midlothian (Mr. Clarke), who, sadly, is unable to do so. I join my right hon. Friend the Member for Bromley and Chislehurst in wishing him a speedy recovery.
I genuinely believe that the amendments and new clauses deserve at least to be answered by the Government, or the hon. Member for Paisley, North, because they raise genuinely important issues. As I understand it, by the end of the year, the safeguards in the amendments and new clauses could apply to some 750 people and to assets totalling about £3 million, so it is not an inconsequential issue for the House to consider.
I am grateful to the Library for its helpful briefing note on the Bill. I realised that the safeguards that are alluded to in the amendments and new clauses were of great importance when I read the extent of the concern in Scotland about the current position. It is not simply a matter of there being no power to move the funds from the hospital when the patient moves on; there are deeper-seated concerns. That is why it is so important to have safeguards.
I have some reservations about one of my right hon. Friend's amendments, which has some vagueness in its drafting and I shall turn to that later. However, the Government and the promoter of the Bill would do well to take the amendments seriously.
According to the Library, all that is required for the hospital to take over the management of a patient's funds is for a responsible medical officer to state that, in his opinion, the patient is incapable of managing and administering his property and affairs by reason of mental disorder. That is quite a simple test and there are probably clear-cut cases, nevertheless safeguards must be appropriate.
I am aware that there have been changes in the monitoring of expenditure by hospitals and that is welcome, but if the Bill is to proceed, as I am sure it will, we need to be confident that the right safeguards are in place.
The Scottish Law Commission's discussion paper on managing the welfare and finances of incapable adults made a number of telling criticisms of the absence of safeguards in the system: only one medical certificate is required; there is no opportunity to challenge a certificate; central management by hospitals may be regarded as remote and impersonal; no individual is appointed with specific responsibility and it is not clear how far the duty to receive money extends. It is right that the House should consider those worrying points when extending the scope of legislation.
I am particularly concerned about section 94 of the Mental Health (Scotland) Act 1984, which states:
"any person may at any time request that the patient's ability to manage and administer his property and affairs be reviewed by the medical officer in charge of the case."
We want to build in the opportunity for a review to take place, in the interests of the patient, and to allow those who may also have the patient's interests at heart--in addition to hospital managers and others--to have an input. This is a protective mechanism, and I think that it is at one with the purposes of the new clauses.
"other financial assets and investments"
and, importantly, says that those include stocks, shares, Government bonds, personal equity plans and so on. We are not attempting to be exhaustive--not to say exhausting--but we want to try to ensure that, in the fulfilment of the purpose of the Bill, we encompass all possible assets, particularly those that are interest bearing, so that there is no danger that the proper interests of patients are neglected, or minimised by an over-restrictive Bill.
"is the model private Member's Bill. It is short, it is non-controversial, it has the Government's blessing and the hon. Gentleman introduced it in good style. I wish it God speed."--[Official Report, Second Scottish Standing Committee, 19 May 1999; c. 3.]
Any Bill that my right hon. Friend wishes God speed must indeed be a good Bill.
"managers shall have regard to the sentimental value that any article may have for the patient".
That seems to be a difficult judgment to make, as the provision recognises when it continues,
"or would have but for his mental disorder".
It is tremendously difficult to judge what may be of sentimental value to an individual. My wife had the invidious task of emptying my mother's house on her death and she made judgments as to which items in the house were of sentimental value to me. On the whole, she did a remarkable job, but one or two things that I would have liked still went into the skip.
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