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Mr. Forth: I think that I am right in saying that one would not have been allowed to do what my hon. Friend suggests by reason of the long title of the Bill. The Bill authorises
- "hospital managers to . . . hold . . . the property of persons to whom section 94(1) of the Mental Health (Scotland) Act 1984 no longer applies."
Mr. Swayne: I did not suggest for one moment that the Bill was amendable in that way. It is precisely because it is not that the force of the amendments is undermined. Precisely because of the defect in the procedure to which
my right hon. Friend has drawn attention and our inability to remedy it here, we shall be introducing a different set of procedures for patients who remain in hospital.
I shall be brief because I wish to speak on a different matter this morning.
Mr. Maclean:
Is my hon. Friend saying that he sees some merit in the amendment, but does not like it because it does not amend another Bill in tandem, or is he suggesting that the amendment has no merit and he would accept it only if all the relevant legislation were amended in a similar fashion?
Mr. Swayne:
I hope that the force of what I am saying will become clear as I deal with each new clause and amendment.
New clause 1 would require hospital managers to submit regular reports. I entirely understand the motive behind the requirement and I followed the arguments of my right hon. Friend the Member for Bromley and Chislehurst, who made proper reference to the anxieties of outsiders, friends and relatives, but I fear that a bureaucratic burden would be imposed with regard to one particular category of patients and no other. Pending the wider reform of the law governing the assets of people with a poor record of mental health, which we have been promised, it would be unwise for us to complicate the Bill by introducing that distinction.
Mr. Maclean:
I disagree profoundly. Adrian Ward, an expert in the matter, in his book "The Power to Act", said that hospital management provides
I wonder whether the requirement in subsection (2)(a) of new clause 1 is a proper one to place on the medical officer. I refer to my own experience in a constituency case in which there is a profound disagreement between the parents of a mentally ill individual and his medical carers. The latter take the view that he is capable of administering his affairs, and the former that he is not. I wonder whether the medical officer is capable of taking decisions on issues that govern the protection of standing orders, assets and other items.
To an extent, my concern about subsection (2)(a) is ameliorated by amendment No. 1. I would not want the new clause to be added without the amendment, but for larger reasons I would prefer that neither of them be added.
New clause 4 is entirely understandable, but its force is undermined by the fact that the right of appeal would apply only to those patients who have been discharged, whereas those who remain in the hospital, who might equally have a grievance, would not benefit. There is an
argument that says that simply because some people cannot benefit from a remedy, we ought not to allow no one to benefit from it.
Mr. Swayne:
As the relevant law is shortly to be reviewed in its entirety--quite properly, that will happen in the Scottish Parliament, not this Parliament--such matters should be left for the Scottish Parliament to deal with; it is not for us to sort them out.
The motives that lie behind the amendments and new clauses are proper and understandable, but I fear that they would place a bureaucratic burden on hospitals, because of the administration required of them in the preparation of reports. More fundamentally, the amendments and new clauses would also introduce a different way of dealing with the property and assets of two categories of patients, and I believe that that is not currently justified.
Mr. Maclean:
I shall speak to the amendments and new clauses tabled in my name, most of which also bear the name of my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth). In view of the thrust of the argument advanced by my hon. Friend the Member for New Forest, West (Mr. Swayne)--that we should not make the amendments now, although he seemed to say that they had some merit, merely because, by the nature of the Bill, they cannot cover everyone--I may now have to elaborate slightly more than I intended if I am to persuade him of my case.
Many amendments have been tabled, and there is little time available to debate them, but this first group goes to the heart of the Bill; it is the most important group.
Both new clauses mention the Mental Welfare Commission, so I must explain why I chose that. New clause 4 says
I picked the Mental Welfare Commission for Scotland because it plays a major role in protecting the persons and interests of mentally incapable adults, whether they are in hospital, other institutions or the community. In financial affairs, it must inquire into any case in which it appears to it that such a person's property may be exposed to loss or damage. It must also notify any hospital or local authority when it considers that it should exercise its functions to prevent or redress loss of or damage to property. In addition, I understand that it has various duties to visit patients detained in hospital.
In 1997, it was estimated that in our population up to 100,000 people were incapax at any one time. This number is likely to grow rather than decline, as life expectancy outstrips medical science's ability to prevent or cure the various forms of age-related mental deterioration.
The Mental Welfare Commission plays a vital role and seems a relatively cheap and efficient mechanism for reviewing how mental patients are treated in hospital. I suggest to the Minister that that is a better mechanism. Giving people a right of appeal to the commission is far better than resorting to common law.
My hon. Friend the Member for New Forest, West criticised our suggestion on the ground that it would place an awful bureaucratic burden on hospitals. That is wrong. I do not think that he understands how funds are managed now. New clause 1 states:
The management of a mentally incapacitated person's affairs is usually separate from the management of his personal welfare. Different types of managers have powers to take care of each of those aspects, and financial managers are appointed to deal with patients' financial affairs. My hon. Friend the Member for New Forest, West should therefore not try to state that giving people in hospital a right to appeal and requiring a report to be made not later than 18 months after their discharge from hospital would place a bureaucratic burden on hospital management, affect patients' treatment or bog down the health service.
"a relatively quick and inexpensive method of administrating funds and possessions of a modest value. It avoids the cumbersomeness of accounting to, and supervision by, the . . . Court. It does not impair any existing legal capacity."
Mr. Swayne:
Precisely. Is there any need, in that case, to add the bureaucratic burden of regular reports from which patients who remained in the hospital would not benefit?
"Any person shall have the right to appeal to the Mental Welfare Commission against . . . the holding by the managers of a hospital of money or valuables . . . or . . . the expenditure of money or disposal of valuables"
and so on.
"Where the managers of a hospital exercise their powers under subsection (3A) . . . they shall submit regular reports in writing".
I hope that I shall be able to prove that that is not a bureaucratic burden. There is already a variety of ways in which the finances of a mentally incapable adult can be managed in Scotland. Indeed, it is probably the fragmented and archaic nature of those mechanisms, and the fact that they can fail to provide an adequate remedy in many common situations, that have prompted that widespread call for wholesale reform of the law governing them to which my hon. Friend referred. However, I shall not go down that route.
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