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1.30 pm
If we are to have such legislation on the statute book, and if Parliament is to pass this amending Bill--I hope that we shall do so, and I do not intend to prevent that from happening even if the Minister rejects my amendments and new clauses--it is beholden on hon. Members to make sure that they build in all the safeguards they can.
On the selection list, this group of amendments and new clauses has been entitled "Safeguards". I did not choose that title; perhaps it was chosen by you, Mr. Deputy Speaker, or your office. That is what they are--safeguards for human beings. We are dealing with important legislation this morning and it has been a privilege to discuss provisions that I think may improve it. However, I am willing to be persuaded that the amendments are not necessary or that these matters can be dealt with in the other place. This time, that other place is 300 miles up the road.
Mr. Peter Brooke (Cities of London and Westminster):
I shall be very brief. This group of amendments and new clauses stands in the names of my right hon. Friends the Members for Bromley and Chislehurst (Mr. Forth) and for Penrith and The Border (Mr. Maclean). I pay genuine tribute to their assiduity--not only today, but on previous Fridays--to the cause of private Members' legislation. They have been subjected to some criticism outside the House, which I think has been wholly misplaced. Some might say that that is a charitable view, because one of the victims of their stern and unbending approach has been a Bill of mine which commends itself to many people inside and outside my constituency and which would correct an offence that literally lingers disagreeably in the nostrils of mankind.
My right hon. Friends' emphasis is on legislation receiving proper scrutiny. It is a truism that we pass too much legislation and that it is insufficiently scrutinised by the House. The Home Secretary had to come to the House recently to confess to a massive omission from the Prevention of Terrorism (Temporary Provisions) Act 1989. Had that omission been exposed by a major terrorist offence between the passing of the Act and the discovery
of the omission, it might have occasioned his resignation. It would also have reflected on Parliament as a whole. If that would have been a major setback in the context of terrorism, how much more so are omissions in the context of mental health?
I shall not dwell on the Bill that we debated earlier this morning because you would rule me out of order, Mr. Deputy Speaker, but it was also occasioned by an omission from previous legislation. Relevant to that legislation were the Mental Health Act 1961 (Northern Ireland), the Mental Health (Northern Ireland) Order 1986 and the Criminal Justice (Northern Ireland) Order 1998. I strongly support the assiduity of my right hon. Friends, who have brought this group of new clauses and amendments to the attention of the House, discussed the cause of mental health and highlighted the interest in the proposals, which has been severally represented to them, of organisations outside the House. That is a riposte to those outside the House who have criticised them for their diligence in respect of legislation of this sort.
Mr. Edward Leigh (Gainsborough):
It is an honour to follow my right hon. Friend the Member for Cities of London and Westminster (Mr. Brooke) and I agree with his remarks about the need to give adequate scrutiny to such Bills, which are so important to people. I emphasise the word "people" and I am glad that we are undertaking that scrutiny. My right hon. Friend the Member for Penrith and The Border (Mr. Maclean) has been so assiduous and so comprehensive in his remarks that it is not necessary for me to detain the House for long, except to highlight one or two of the points that I believe need to be made. I support the new clause because it would add to the efficacy of the Bill.
Our debate has concerned the nature of the Mental Welfare Commission for Scotland and its role. No doubt we will be reassured be the fact that it must
My right hon. Friend the Member for Penrith and The Border quoted from a report stating that hospital management provides
Only one medical certificate is required for a patient's funds to be controlled by hospital management, and there is no opportunity for the certificate to be challenged.
There can be no consideration of the evidence in a hearing. Management by a hospital's central managers may be regarded as remote and impersonal. No individual is to be appointed with specific responsibility for the funds of particular patients. It is not clear whether the duty to receive money extends to withdrawing money from a patient's bank or building society account so that it can be spent on the patient's welfare. The current limit of £50,000--which seems to give considerable latitude to those controlling the funds--could appear excessive, given that curators would almost certainly be appointed for mentally incapable people with estates of that size living outside hospital.
Although the powers vested in hospital management in regard to incapable patients are clearly very wide, there is no right of appeal. No one is suggesting that hospitals will set out to mismanage funds; all that my right hon. Friends are suggesting in the new clauses and amendments is that the Bill should allow patients some guarantee, and some right of redress against hospital managers who fail to administer their finances in their best interests. Such cases may be rare, but it should be borne in mind that we are not necessarily thinking in terms of purely financial mismanagement. Sentimental value may well attach especially to articles, but perhaps even to funds of some sort, and hospitals may take insufficient account of that.
Section 94(3) of the Mental Health (Scotland) Act 1984 allows managers to
There are a number of concerns about the Bill, which are made even more pertinent by the extension of the powers of hospital management for which it provides. We need a precise definition of "benefit to the patient"; no doubt the Minister will be able to help us in that regard. If a manager spends money for the benefit of the patient, what rights will the patient's family have if they disagree with the expenditure, or with any part of it? Perhaps the Minister will be able to reassure us about this. At present, hospital management and the Mental Welfare Commission can work with the family, but what rights will the family have? It seems that, under existing legislation and under the Bill as proposed, they have few rights.
In the event of such a disagreement, what provision is there for arbitration? As an associate member of the Chartered Institute of Arbitrators, I take an interest in arbitration. I hope, if all goes well with various exams, to become a fellow of the institute. There is no mention of arbitration in the Bill. After all, in virtually every other dispute, people can either take the matter to a court of
law, or it is laid down in a contract, or in agreements within the business that disputes will be referred to arbitration.
Mr. Forth:
My hon. Friend may recall that, earlier in the debate, someone--I forget who--pointed out that the Minister had said, and I find it almost beyond belief, that people should not worry because, if anything went wrong, they could resort to the common law, to the courts, to put it right. With his obvious expertise in and commitment to the principle of arbitration, does my hon. Friend agree that the amendments are far preferable to forcing people, especially those who are perhaps vulnerable, to resort to the courts for a fair hearing?
"enquire into any case where it appears to them that such a person's property"--
that is, the property of someone covered by the relevant Acts of Parliament--
"may be exposed to loss or damage. It must also notify any hospital or local authority when it considers that they should exercise their functions in order to prevent or redress loss or damage to property. In addition, the MWC has various duties to visit patients who are detained in hospital."
I am absolutely sure that the MWC carries out its duties assiduously, but we are considering conferring extremely wide powers. I think that we should inquire carefully into the extent of those powers, and ensure that the interests of patients--albeit patients who may be very sick, and who may be incapable of running their own affairs--are properly observed.
"a relatively quick and inexpensive method of administering funds and possessions of a modest value. It avoids the cumbersomeness of accounting to, and supervision by, the Accountant of the Court."
No doubt the House will agree that that is a good way of managing the interests of patients, but it must be said that the powers vested in hospital management in regard to patients' funds are extremely wide. The new clauses and amendments contain safeguards to deal with that.
"expend that money or dispose of those valuables for the benefit of that person and in the exercise of the powers conferred by this subsection the managers shall have regard to the sentimental value that any article may have for the patient, or would have but for his mental disorder."
We all know that it might be extremely difficult for hospital managers, given their wide powers, to reach a definite conclusion that was fair in terms of the sentimental value of any given article. I see no harm in providing for an annual report of the kind envisaged in new clause 1, enabling the way in which hospital management runs a patient's affairs to be laid down in print, and enabling the patient's family to be reassured about what is going on.
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