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Mr. Leigh: I am grateful for that intervention. The whole point of arbitration is to provide an inexpensive alternative to court procedures, which are cumbersome and long-winded, and to which it is difficult for ordinary members of the public to have access. Given the cases that we are talking about, where I doubt that large sums of money will be involved, where people may be of very modest means and mentally incapable, I do not think that people will go to common law.
I would much rather have a Bill that set out a safeguard in clear terms. What the Bill proposes is right. Of course, there should be a procedure by which the affairs of a patient who goes into the community can be managed properly, but the amendments propose that there should also be a safeguard for the family--some right of redress, some right of appeal, some written report to which they can refer. As I understand it--I may be wrong; perhaps the Minister can reassure me--there is none at present. That is not fair.
By requiring hospital managers to submit regular reports to the Mental Welfare Commission, by allowing the relatives, or guardians of patients to have access to those reports, and by providing the right of appeal against decisions of the managers, we will put those safeguards in place. They would strengthen the Bill, not weaken it. I hope that the Minister and the promoter of the Bill will accept the amendments.
The Parliamentary Under-Secretary of State for Scotland (Mr. Calum Macdonald):
I acknowledge the supportive nature of all the amendments to the general thrust of the Bill and the supportive nature of the comments made so far in the debate. I welcome the good wishes that have been extended to my hon. Friend the Member for Midlothian (Mr. Clarke), which I warmly endorse. I also welcome the role of my hon. Friend the Member for Paisley, North (Mrs. Adams), who is acting as the promoter of the Bill.
I appreciate the underlying sentiments of new clause 1. It deals with the welfare of the person concerned and the importance of avoiding any impropriety in handling his or her affairs.
Secondly, and in addition to the procedure that I have just mentioned, the commission has asked hospital managers to obtain its consent to any single or cumulative item or items of expenditure purchased from a patient's capital exceeding £500 in any one year. That figure is kept under regular review and was set at £500 on 1 April this year.
Thirdly, such expenditure on a person's behalf will be subject to scrutiny by the auditors. Any irregularity or improper use could also be detected in that way.
Fourthly, hospital managers already notify the commission of all cases in which they are managing the resources of patients in hospital under section 94. The commission, in turn, already examines in the course of its hospital visits whether the powers under section 94 are being properly exercised and whether the resources of the patients concerned are being managed to their satisfaction.
By way of reassurance to the hon. Member for Gainsborough (Mr. Leigh), the Scottish Executive has made it clear that it will ensure that in the administrative guidance that will follow the enactment of the Bill, hospital managers are asked to notify the commission of all cases in which they are managing the resources of persons who want to live in the community. The commission will also be invited to include those persons in the scrutiny that it already undertakes under section 94 arrangements.
Finally, as my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith), the then Minister, made clear on Second Reading, the new Administration in Scotland is about to issue new guidance on managing the resources of incapacitated patients who live in the community. That will provide clear guidance to hospital managers on the how the resources that they are managing can best be used to benefit the patient concerned. A number of safeguards are already in place and I understand that they operate to everyone's satisfaction. Those safeguards will be extended to all new cases that come within the scope of the Bill.
New clause 4 would introduce a right of appeal for persons who leave hospital to live in the community and continue to have their funds looked after by the managers of the hospital that they have left. The appeal, which could be raised by any person, could be against the continuing management of such a person's resources by the hospital or against the way in which their money and valuables have been managed. Currently, no formal right of appeal is available to patients in hospital under section 94 of the 1984 Act, but as hon. Members have acknowledged and as one might expect, hospital managers go about their task
with diligence, thoughtfulness and care. A range of safeguards is already in place, some of which I described in my reply to new clause 1.
If, however, there was evidence that hospital managers were continuing unnecessarily to manage the funds of a person or that they were expending his or her funds inappropriately, at common law that person could make an application for the return of those funds at any time. [Hon. Members: "Oh."] I ask hon. Members to contain their disappointment until I have finished this point.
Patients can apply for the return of their funds at any time if it is apparent that they have recovered the capacity to manage their own affairs. That is an important protection and should be acknowledged as such. If hospital managers refuse to accede to such an application, they will be open to judicial review.
Similarly, if it emerged that hospital managers were inappropriately disposing of a person's resources, redress could be sought in the courts. That facility would apply regardless of whether the person was in hospital or had left hospital to live in the community.
Mr. Luff:
The Minister is raising one of the precise issues that I raised in my speech. The remedies that he is suggesting are very expensive, but would affect only small sums. Judicial review in such cases would, frankly, be preposterous.
Mr. Macdonald:
The point that I was about to make is that there are other forms of protection. Nevertheless, it is important to note that common law protection is available--as is the possibility of judicial review, which is an important but not the only safeguard. It would also be open to the person, or to someone on his or her behalf, to ask the Mental Welfare Commission to investigate any suggestion of impropriety, or other shortcomings, in the handling of the person's property.
I assure hon. Members that the commission has wide-ranging powers to investigate complaints, which can come from any person--including, of course, relatives. I therefore do not think that new clause 4 is necessary. There are already sufficient powers, both at common law and--in the 1984 Act--in the Mental Welfare Commission's powers, to ensure that a person's property being managed by the hospital is adequately protected. With that assurance, I hope that hon. Members will not press new clause 4 to a Division.
We believe that amendment No. 2 is also unnecessary. As has been made clear in the Scottish Parliament--and mentioned in this debate by the hon. Member for New Forest, West (Mr. Swayne)--it is proposed to introduce, in the autumn, an incapable adults Bill that will provide for a comprehensive new system for dealing with the finances of incapable adults. It is envisaged that the Bill--subject, of course, to the wishes of the Scottish Parliament--would be enacted and operational well within five years. In that case, hospital managers' responsibility for persons who leave hospital to live in the community should essentially cease--so that amendment No. 2 would have no practical effect. I therefore hope that hon. Members will also be persuaded not to press that amendment.
As for amendment No. 1, section 94 of the 1984 Act already requires the medical officer responsible for the patient's treatment to state that that person is incapable of
managing his affairs. The section also makes it clear that, when a curator bonis is appointed, hospital managers' responsibility ceases. In the course of the regular medical assessments that a patient in hospital will receive, the doctor will normally determine whether the patient remains incapable of managing his or her affairs. When capacity has been regained, clearly, the responsibility of the hospital manager will terminate. The same applies to patients living in the community.
I recognise, however, the importance of regular medical reviews--which is perhaps the underlying point of the amendment. It is therefore proposed that--in a guidance circular to hospital managers and other interested parties that will follow the Bill's enactment--stress will be placed on the importance of conducting regular assessments of the person's condition, whether in hospital or the community, to determine the person's capacity or otherwise to manage his or her own affairs.
It would also be open to any person at any time--as the amendment envisages--to request that a patient's condition be reviewed. That point will be covered in the proposed circular, to ensure that hospital managers are clear that, when an approach is made on behalf of a person in that regard, it is duly honoured in exactly the way intended by the amendment.
In addition, good practice guidance, which the Scottish Executive plans to issue in the near future on the management of incapacitated patients' funds, will stress the importance of regular checks on patients' capacity, whether in hospital or in the community. With that assurance that the point will be incorporated in circulars and guidance, I hope that hon. Members will not press that amendment to a vote, either.
I do not think that amendment No. 5 would be helpful. The right hon. Member for Penrith and The Border (Mr. Maclean) said that it was intended as a probing amendment to discover the meaning of the terminology. One of the chief merits of the Bill is its simplicity and the neat solution that it proposes to a pressing problem: the current legal impediment that prevents hospital managers from releasing funds when a patient leaves hospital. We need to retain the general thrust of section 94 of the 1984 Act, which this Bill amends. Section 94 refers specifically to money and valuables. For the time being, there is no need to depart from that simple terminology, which allows hospital managers to adopt a flexible, common-sense approach to their responsibilities for the resources of persons in their care.
The Bill is already designed to deal with money and valuables held by hospital managers, or interest accruing on those. It is not envisaged that, after a patient goes back into the community, new money, for example from pensions, will be managed by the hospital manager. Arrangements for the new money will be made in the normal way. For example, the new carer or a Department of Social Security appointee will manage moneys received after the patient is discharged from hospital.
Before a patient goes back into the community, the hospital and social workers plan that discharge and make arrangements for the patient's welfare. Planning for management of the patient's income is part of that task. Arrangements are often made for pensions and similar regular payments to be paid to someone on the patient's behalf--generally a DSS appointee or some other appointed person.
Obviously, one would expect that, where a patient had a large financial portfolio, a curator bonis would be appointed, or other arrangements made, to look after such assets. There is, however, flexibility in the provisions for hospital managers to exercise discretion on the approach to those matters. It is important that that flexibility be allowed to continue.
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