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Lord Mottistone: I shall speak only to my Amendment No. 107. As the Committee is aware, I am advised on mental health matters by the National Schizophrenia Fellowship. Before the Bill came to this House my noble friend Lady Blatch wrote me a long letter giving an explanation of Clause 43. My understanding of the views of psychiatrists on Clause 43 is that Home Office Ministers had responded definitely to the discussions last summer on their White Paper, Protecting the Public, which was published last year. The Government are to be congratulated upon listening to those discussions--they do not always do so--and for taking some resulting action in the preparation of Clause 43. However, there is an underlying worry among all psychiatrists that schizophrenia sufferers being in an ordinary prison for whatever reason and however justifiably is most unwelcome. I do not know whether the noble Lord, Lord Alderdice, would agree with that. That is because such sufferers are often treated badly by other prisoners, however much the prison staff wish to protect them.
The long letter to me from my noble friend the Minister explains at some length how limited the use of hospital direction as described in Clause 43 is expected to be. That letter is dated 21st January and a copy of it is in the Library. On reflection, I believe that the powers given to the courts by Clause 43 are necessary for certain intractable and dangerous cases of mental illness. I believe that there must be some ways of protecting the public--the strangers who are attacked and from time to time killed--from people who are shown to have a mental illness in a form which leads to that kind of conclusion. Accordingly, I have tabled Amendment No. 107 as a probing amendment in order to give my noble friend an opportunity to put before the Committee for the record the relevant parts of her letter to me. I trust that, in replying to my amendment and to those moved by the noble Lord, Lord Dubs, my noble friend will take such action.
The Lord Bishop of Chichester: I agree with what has been said by the previous speakers, but there is also a moral issue. If a person after trial has been found mentally unfit and committed for treatment at the end of which he is transferred to prison he is, in effect, receiving a double punishment because he is being treated as though he is not mentally unfit. I can follow
the argument that if after the treatment he is still a risk he should be detained, but I do not believe that prison is the right place to deal with that. I understand that there are great problems as regards sufficient accommodation, but that is another question. I believe that a real moral issue of double punishment needs to be addressed.8.30 p.m.
Baroness Blatch: The hospital direction power has been prepared to meet a difficulty which the courts sometimes face when sentencing mentally disordered offenders. The circumstances are unusual, but when they arise they create serious difficulties in dealing with some of the most dangerous offenders. They occur when a serious offence has been committed. The court has heard the evidence that the offender is mentally disordered, but is not satisfied that dealing with the mental disorder will prevent further serious offences after he is released. My noble friend Lord Mottistone was right to say that that issue has not been addressed by these amendments.
Under the existing terms of the Mental Health Act 1983, the court must choose between a hospital order or a prison sentence. A prison sentence cannot guarantee that an offender will receive the specialist treatment he needs for his disorder. A hospital order is likely to lead to his discharge as soon as medical treatment is completed. It may also lead to his discharge if his condition proves untreatable, regardless of the severity of his offence. At best he will take up a hospital bed even though doctors can do nothing further for him.
The new hospital direction would resolve that dilemma. It is a power for the higher courts to direct that an offender who has received a prison sentence be admitted at once to hospital for medical treatment. It combines the security of a custodial sentence with the immediate availability of medical treatment.
The offender made subject to a hospital direction will serve his sentence, securely detained. But as long as his doctor is satisfied that he is benefiting from treatment in hospital, he can remain there. At the end of sentence, he can be discharged from hospital or he can remain there under civil powers if he still requires treatment. Alternatively, if his doctor finds that he is not benefiting from treatment, he can recommend that the Home Secretary remit him to prison to serve the balance of his sentence. In that way he will not be occupying a valuable hospital bed to no avail.
I know that some professionals in the mental health services have concerns about the new hospital direction. They fear that this is a fundamental shift of emphasis in the treatment of mentally disordered offenders; that the courts will use it to punish mentally ill people whose offences resulted from their illness; that hospitals will somehow be required to act as gaols, detaining people who no longer need treatment. If I thought they were right, I should share their concern. But I do not.
The Government's position has not changed. Mentally disordered people who need treatment should receive it in hospital. The courts have a strong tradition of applying the existing hospital order in preference to a prison sentence where they are satisfied that medical
evidence justifies it. The new hospital direction will not affect the availability of the existing hospital order. Far from seeking to change existing court practice, the proposal seeks to reinforce it. Clause 43 requires the sentencing court to have considered making a hospital order and concluded that a prison sentence is necessary before it can consider attaching the new hospital direction. That is a positive obligation on the court.To provide further reassurance, Clause 43 has been drafted to enable introduction of the hospital direction in phases. Initially, it will be available only where the court has medical evidence that the offender is psychopathically disordered. Those are the offenders for whom the power is most likely to be appropriate. There are divisions of opinion among psychiatrists over the extent to which psychopathic disorder can be tackled by medical means. There is doubt about whether the risk that psychopaths will re-offend can be influenced through clinical treatment. So they are the category for whom the power is most likely to be used.
I am grateful to my noble friend Lord Mottistone for giving me notice of his intentions in bringing forward his amendment. My noble friend's amendment would remove from this provision the section which would permit extension of the power to enable courts to make hospital directions for other mentally disordered persons such as the mentally ill and mentally impaired. I believe it is appropriate that courts should have that discretion, not to punish the mentally ill or mentally impaired person whose offence is entirely bound up with his disorder but to deal with the cases where that may not be so--where the person was not ill when he committed his offence; where his illness is incidental to his offence; where doctors are not clear about the diagnosis at the time of sentencing or subsequently change their opinion in the light of experience. There are those who argue that mentally ill people should never have a custodial sentence. But the courts can already pass such sentences, and they do so where they think it necessary to protect the public from further offending. This amendment would remove the prospect of their having power to direct immediate hospital treatment for mentally ill people who received a custodial sentence.
I do not believe that is an outcome which my noble friend sought in proposing this amendment. There is no intention to replace the existing hospital order disposal for the great majority of mentally disordered offenders. Nor is there any evidence that the new power would have that effect. I hope that for those reasons my noble friend will not press his amendment. Indeed, he said that it was a probing amendment.
I turn now to the amendment tabled by my noble friend Lord Hacking but moved by the noble Lord, Lord Dubs. Clause 43 provides that to make a hospital direction the court will need exactly the same evidence from doctors as it does to make a hospital order under the Mental Health Act 1983. The court will need assurance that medical treatment is more likely than not to be of benefit. Amendment No. 106 would change that. Under his proposal, there would need only to be a possibility that medical treatment could be of benefit. This would enable the court to direct offenders to hospital where there was any chance that medical treatment could help. Precious hospital beds could be
taken up by patients who did not need or refused to co-operate with treatment until arrangements could be made for their transfer to prison. In practice, those effects would be limited because doctors giving evidence would presumably be reluctant to offer beds in those circumstances.Although my noble friend Lord Hacking is not here, I assume that the noble Lord, Lord Dubs, has communicated with him over presenting this amendment. However, I believe that his purpose in proposing the amendment is to facilitate the admission to hospital of psychopathically disordered offenders. Such people may need lengthy professional assessment before it can be concluded with confidence whether they are likely to benefit from medical treatment. That is a purpose which we share. But for the reasons I have given, this is not the best way to achieve it. It can, however, be achieved by the use of interim hospital orders under Section 38 of the Mental Health Act 1983. Professional advice has been that the existing maximum duration of the interim hospital order, at six months, is inadequate for this purpose. So we are extending that maximum period to 12 months in Clause 46 of the Bill.
My noble friend's second amendment would undermine the whole purpose of the hospital direction power. As I have said, the power is intended to address those situations where the court has concluded that a hospital order does not meet the needs of the case.
Except in cases where the law demands a life sentence, the court will have reached that conclusion by careful deliberation. It will have heard evidence about the offender's mental condition. It will have considered the likely effects of a custodial sentence on that condition and will have concluded nonetheless that the case demands a custodial sentence. Only then will it be able to attach a hospital direction.
The right reverend Prelate was concerned that those who need hospital treatment should receive it. We now have greater flexibility. There is no longer any need to choose between hospital and prison. Although there is a facility to make a hospital order under the previous Act, we propose also a hybrid arrangement which recognises the culpability of committing crimes which must be established for the purpose of a conviction but which recognises also the medical needs of the individual.
As I said, the amendment would render the court's decision meaningless. A custodial sentence which can be converted to a hospital order at the doctor's discretion is no different in effect from the hospital order which the court has rejected as inappropriate. It would be quite wrong to allow the doctor to override the sentencing court's decision in that way. But again, I give the assurance that what is important is not only addressing the offence but also addressing the medical needs of the individual offender.
I do not imagine that my noble friend intended the effects which I have described when proposing his amendments and I hope that they will not be pressed.
I should like to bring home to the Committee what I believe to be a serious lacuna in the arrangements behind the amendments presented to the Committee by
the noble Lord, Lord Dubs. They would be a recipe for automatic release at any time. That automatic release may be at a time when a doctor has decided that he can do no more for the patient or when the patient has completed a session of treatment. Therefore, it is a recipe for automatic early release. In the case of some serious offenders, the medical treatment may have been found to be not beneficial or it may have been completed. It may be that a person is found to be untreatable. He would then be released and may re-offend without having served the sentence appropriate to the offence and without proper release arrangements being made. I do not believe that the Committee should be invited to accept that. The flexibility afforded by the Bill is very important.
My noble friend Lord Mottistone touched upon an important question. My noble friend has a very real concern for people who fall into the category of mentally ill but, nevertheless, he has always been realistic when referring to the public interest and the public safety interest. Where does the protection of the people and the protection of the public fit into the thinking behind the amendments? That seems to me to be a very real question which must be in the minds of those people who may feel an urge to support them.
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