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Mr. Swayne: With the greatest respect to my right hon. Friend, that is fatuous nonsense. Many people are inadequate at managing their financial affairs, but they do not require a medical officer's certificate saying so.
Mr. Maclean: My hon. Friend is missing the point. He is, of course, right to say that many people who are not detained in mental hospitals under the mental health legislation make a mess of managing their finances. Many
people's financial affairs are not as good as they should be. My wife says as much to me every month when the bank statement arrives. Perhaps I should not visit Scotland, but neither there nor in England have I been detained under the mental health legislation--much to the consternation, sometimes, of hon. Members on both sides of the House. My point is that the treatment of a person detained under the mental health legislation must be left to the judgment of doctors. I am sure that my hon. Friend accepts that.
A doctor judges whether a person with chronic schizophrenia, dementia or some other disability is capable of leading a safe life in the community, or whether he or she must be detained in a mental hospital. Surely the doctor, therefore, is also the only one who can decide whether that person--given that he or she is unable to live an ordinary life without support from the medical services in hospital--is capable of managing his or her finances. I cannot think of anyone else able to make a judgment of the mental ability of another human being. I do not want to elaborate further on that point but, having dealt with it now, I may be able to speak more briefly about one of the other amendments.
The powers available to hospital managers under section 94 of the 1984 Act, which the Bill would amend, are limited to receiving and holding money and valuables and expending them for the patient's benefit. As I understand it, hospital managers must have regard to any sentimental value that an article may have or would have had to the patient, but for his mental disorder which results in him no longer being able to make a judgment on such sentimental value. However, no further statutory guidance on how those powers can be exercised is given.
There have been concerns that staff feel that to spend money on certain patients would be to waste it and that, consequently, no great effort should be made to ensure that all income available to the patient is claimed or that any money received should be preserved instead of being used to enhance the patient's quality of life. On the other hand, it appears that, in some cases, the money was being used to purchase goods or services that would normally be provided by the national health service. I will not go back to the Crosby report 1985, but that made various recommendations on how to deal with that problem. The new clauses and amendments that I and my right hon. Friend the Member for Bromley and Chislehurst have tabled deal with such worries and concerns.
If we grant under new clause 4 the right of "any person" to appeal to the Mental Welfare Commission against decisions, it would give the detained person such a right, as it would family, friends or other relatives. The terminology "any person" would also give concerned bodies and individuals, boards of visitors and organisations such as MIND the right to take up cases that they think appropriate. I accept the downside that, theoretically, some nosey parkers with no right whatever--they may have a caring interest in the patient but no familial or financial interest--could be given the right to interfere and appeal to the Mental Welfare Commission. I have had to make a judgment on how grave is that risk. I think that it would be very slight.
I am not suggesting that the commission must take action in every case and is bound by the person who appeals to it to do so. It must of course consider the case, but if it concludes that the person who is appealing has no locus or ground and that the appeal is a load of
nonsense, it is not bound to proceed. Indeed, there may be the odd occasion when, no doubt, a nosey parker with no other right raises a good point in caring about someone's mental welfare which has not been previously considered.
When I used the terminology "any person" in new clause 4 and elsewhere, it was deliberate because I was afraid that if I tried to define who might have a specific and good reason for such an appeal, I would limit the range of those who would be able to appeal and miss some who had a perfect right to do so.
I would be happy if the Minister said that the terminology was too wide and that there is a list or schedule already in some Act that I could not find of people who may have that right and that it covered everybody. I would accept that and amend my amendments accordingly. The right of appeal is on the expenditure of money or disposal of valuables. That would deal with the concerns of staff and others that sometimes inappropriate judgments have been made on spending patients' money or getting rid of their valuables.
I thought that I would address new clause 4 first in order to try to reassure my hon. Friends who are hostile to its intent. In new clause 1, I suggest that hospital managers must make regular reports in writing to the Mental Welfare Commission. I do not need to explain any further why the commission is the best body to which the report should be made, suffice it to say that it already exists and clearly plays a valuable role in Scotland.
Such a requirement would not impose a heavy burden on financial managers who would have to exercise the responsibility. They have to keep accounts and records in any case. They need not call a case study group to discuss the patient. They already have to keep records of how much is spent and on what it is spent. I am suggesting that all that be combined into a short report to the Mental Welfare Commission, showing what judgments have been made. I do not envisage that that would be a heavy burden on financial managers. It is not a burden on medical staff or doctors; they are not the ones who do it.
New clause 1 states:
There is another important point that none of my hon. Friends has dealt with. New clause 1 says that reports shall be submitted until either the patient is considered to be capable of adequately administering his property and affairs or
A curator bonis can be appointed to manage the assets and affairs of a person over 16 who lacks the capacity to manage his own financial affairs. It is highly relevant--which is why I have put it in new clause 1--because it is the most widely used general legal procedure for managing the funds of a mentally incapacitated person. As I said in introducing my remarks, Scotland has a wealth of means of managing the affairs of people in hospital, or of people generally who may be incapacitated. I have discussed the hospital management system; the curator bonis is the most widely used alternative.
The curatory--that is, the appointment of a curator--can often be the default mechanism. A local authority must apply to the court to appoint a curator if no one else is doing so, and a curator should then be appointed. A curator is a specific type of judicial factor, which is a general term for a person appointed by the court to do something on behalf of another person. Applications to appoint a curator bonis are to the Court of Session or the sheriff court in Scotland, and must be supported by two medical certificates saying that the person is of unsound mind. The incapacitated person or his relatives are entitled to oppose the petition. I hope that two medical certificates saying that a person is of unsound mind would be satisfactory to my hon. Friend the Member for New Forest, West, and that he will not criticise that aspect of new clause 1.
Curators bonis are under the supervision of the accountant of the court, to whom they must submit annual accounts for audit. Without trying to be arrogant, I believe that this is where my new clause is quite clever, in that, by picking a curator bonis and saying that managers must submit annual reports, I am trying to impose on the managers of hospitals a burden similar to that which curators bonis currently have. That is also why I put curators bonis in my new clause. Curators bonis are remunerated for their efforts and are usually professional people, such as solicitors. I shall return to that.
On appointment, a curator automatically supersedes hospital management, any Department of Social Security appointees and most other managers under specific statutory provisions. However, a curator is, in turn, superseded by the appointment of a tutor-at-law, if that happens. It is relevant for me to explain briefly to the House about curators bonis because, even if we have the hospital management system, if a curator bonis is appointed he automatically outranks the hospital management and takes over from it.
"(2) A report under subsection (1) shall be submitted no later than 18 months after the discharge from hospital of the patient concerned, and thereafter on an annual basis, until such time as either--
That is eminently sensible. I shall not try to persuade my hon. Friend the Member for New Forest, West that the medical officer is the appropriate person. If he wishes to tell me of someone better, I might be persuaded.
(a) the patient is considered by the medical officer in charge of his case to be capable of adequately managing and administering his property and affairs".
"(b) a curator bonis is appointed in respect of that person."
My hon. Friends will ask why I have picked a curator bonis instead of any other system. "Curator bonis" is wonderful Scottish terminology. It is one of those examples where Scots law, based on Roman Dutch law, has something to give the United Kingdom, if only we
were wise enough to take some parts of it and if only Scotland were wise enough not to go its own way. However, that is another route, which we shall not take today.
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