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Lord Alderdice: Perhaps I may briefly respond to the matter raised by the Minister. With many of those who come forward who are mentally ill, the truth is that their mental illness may only be somewhat mitigated by the treatment that is available. But, of course, it is also the case that where people by the nature of their mental illness are deemed to be a danger to themselves or others, it is entirely possible to invoke mental health legislation and ensure that they stay in hospital as long as is necessary, even beyond the question of any particular term of imprisonment if there is a real question of them being at risk.
While listening at an earlier stage, I was interested to learn that noble and learned Lords who are senior judges feel that they would be forced as professionals to make decisions that they did not believe in professionally because certain requirements were being laid upon them. The dilemma that is now being created for other professionals--and I speak of course as a psychiatrist in respect of my colleagues in forensic psychiatry--is that they are being pressed in the direction of having to take decisions which they do not believe they should be taking.
It is not possible to decide at an early stage what will necessarily be the course of the illness, how things will work out or whether or not the treatment will be effective. Indeed, it is not always possible to make such a decision at an early stage. So far as concerns the protection of the community, one of the greatest concerns is that if we do not abide by the professional treatment of such patients, they will come out less well treated and, by dint of their illness and other matters, they will be more likely to offend; they will be more likely to get into difficulty and the public will be less well protected. Sometimes, by setting things in stone, you can be less flexible and responsive to changing
needs. In truth, in the long run, there will be less protection for the community than would appear to be the case on a more superficial reading.
Lord Hylton: I listened carefully to the Minister's reply, and I noted particularly what she said about extending interim hospital orders from six to 12 months. I am sure that that is a valuable extension and that it will give room and scope for better clinical judgments. However, I should like to invite the noble Baroness to consider the actual wording of Amendment No. 108 and, in particular, the combination of the words,
- "medical treatment has substantially alleviated the mental condition of a person",
in conjunction with the "restriction order" mentioned in the last line of the amendment. Can the noble Baroness tell the Committee whether, in her opinion, that combination of things is likely, at least in some cases, to be sufficient protection for the public at large?
Lord Dubs: I very much agree with the comments made by the noble Lords, Lord Hylton and Lord Alderdice. The Minister has posed a question. I appreciate that we are dealing with a difficult area; there are no simple answers as to how to deal with mentally disordered offenders. Indeed, I am conscious that, throughout the world of mental health, clinicians are having to make difficult decisions all the time as regards people who are mentally disordered and who are not offenders in terms of when it is safe to release them. That means "safe" both for the individuals being released and safe for the public. Such difficult decisions are the stuff of the day-to-day work in the mental health field. Therefore, I am under no illusions that we are dealing with a very difficult area and I do not pretend that the answers are straightforward.
However, perhaps I may put one or two further points to the Minister. The noble Baroness indicated that the court would have at its disposal much advice about the mental state of a particular offender and that the court would take such advice into account when determining disposal. That is absolutely fine, if such advice is available and, in many cases, I assume that that would be the case. But, as the noble Lord, Lord Alderdice, said, the point behind the amendments is that it is not just a case of what happens at the outset when a person is convicted of an offence; it is the fact that there might be a period of several years during which clinicians would oversee the treatment of an offender in a secure unit. After a period of several years of such treatment, those clinicians would, I believe, be in a better position to decide the best way forward for that individual as opposed to a decision made by the court at one point in time when the offender was convicted. Indeed, I believe that we would all have a little more confidence in a diagnosis and a prognosis made after several years of experience in a secure unit with a patient.
In my view, the amendments have merit. I put them forward because I believe that protecting the public is essential. After a period of time in a secure unit and after being returned to prison and subsequently released, an individual might be more dangerous to the public than if he had not had that period in prison but had been
released when the clinician in the secure unit thought it safe for the public that he should be released. I repeat, it is a very difficult decision to make. But, on balance, I still believe that the thrust of the amendments would make the public safer than would the current provisions in the Bill.8.45 p.m.
Viscount Colville of Culross: I should just like to add a few words to the debate. I have to deal with such cases, although, happily, not all that often. I listened with enormous interest to the contributions made by the noble Lords, Lord Dubs and Lord Alderdice, from their different disciplines and different backgrounds. They are both interested in the mental health field. I believe that the noble Lord, Lord Alderdice, said that the judiciary is being threatened by some parts of the Bill into making decisions that it might not want to make.
As a matter of fact, when you have a case of this kind and you have to decide between a hospital order, with or without a restriction under Section 41--and, if you are making such a restriction, you have to have oral evidence from at least one qualified doctor before you can do so because you have to decide how long it is--you have the choice between making a Section 37/41 order under the Mental Health Act, or passing a prison sentence. If you make an order under that Act, whether or not it is accompanied by a restriction order, that is the end of the court's involvement in the case.
Although it is a long time ago, I well remember a case of a psychopath where the courts had, I believe, wholly conscientiously made a hospital order. After a very short time indeed the doctors, on good advice, had all said, "We are very sorry, this man is not treatable". So he had to be released; and, indeed, he would have had to be released even more so now, because I am talking about the days before the current legislation and before the days of "X" in front of the court at Strasbourg since when the mental health review tribunals have been given absolute powers to discharge--or conditional powers to discharge.
However, in that case, there was absolutely nothing that could be done because the court had had to take the view--and, indeed, it was a psychopath and these are very difficult cases--that the only option was to make a hospital order. That man walked out of the hospital. It was a very worrying case and there was a great deal of danger, especially to children. It was a very worrying matter that there was not the flexibility either for the Home Office at that time or, indeed, for the courts to establish a system whereby you combined the two.
I do not think that the right reverend Prelate need worry that someone who falls under this jurisdiction will get a double dose of treatment; that will certainly not be the case. If a determinate sentence is passed, whether that is served in hospital or in prison, it will be the same sentence. We shall come to that in due course. If it is an indeterminate sentence, the ordinary rules will apply, and the noble Lord, Lord Belstead, and his colleagues will deal with it.
I believe there is a gap at the moment in the powers that the courts have. They have to make an irrevocable decision, if they think it is a case for a hospital order,
and that cannot be reversed. However, it does not work the other way round. If a prison sentence is passed, it can be converted by the Home Office into a transfer to a mental hospital, and then the same rules apply. But, if a court is confronted with a case where it appears that a hospital order is the proper thing to impose, and it imposes that, there is no way of converting that into a prison sentence. I think that is what this matter is about.This is a proper amendment and it is not a provision that will be undertaken lightly by the courts. These decisions are extremely difficult and they are taken on learned advice from people such as the noble Lord, Lord Alderdice, and his colleagues. They are not taken without a great deal of care. As I say, at the moment there is the one obstacle that, if a hospital order is decided upon, that is it; it cannot be converted.
Baroness Blatch: The one thing that unites all of us in this Chamber is the difficulty of this issue. The noble Lord, Lord Alderdice, mentioned placing judges and doctors--particularly medical professionals--in difficult situations where they almost require the wisdom of Solomon to make decisions. However, I think it was the noble Lord, Lord Dubs, who said that that is the stuff of the life of a judge and of medical people, who make difficult decisions on an almost daily basis. I do not make that remark flippantly. We all appreciate just how difficult those decisions are.
I am grateful to the noble Viscount for what he has said. It was, in effect, another way of asking what the noble Lord, Lord Alderdice, had asked; namely, what do you do when the courts impose a hospital order? There is nothing in the amendments that refers to a timescale. Under the existing provisions, a person could have committed a serious offence and have been directed to hospital under a hospital order for something which otherwise could have attracted a long prison sentence. After a relatively short time, the medical professionals may reach the view that the person is either untreatable or the treatment he has received has not worked. In that case, the doctor may block a bed and turn the hospital into a secure unit for that person. However, I do not think he would have any right in law to do that. The doctor would simply have to allow that person to walk out of the hospital. That is the dilemma that we have grappled with.
First of all, culpability would have to have been established by the courts in coming to a view about a sentence. The courts have the problem of imposing a sentence that fits the crime; in other words, taking into account the seriousness of the offence and reflecting that in the period of time it would have attracted had the person involved not been mentally disordered. If the person concerned requires treatment or assessment, he will be sent to hospital under a hospital direction. As I say, if a doctor found that he could not give that person further treatment or that the treatment was having no effect, there is the problem of whether to send that person to prison. That is possible under our flexible arrangements. If somebody is sent to prison it will be possible to return him to the hospital at some stage for further treatment if it is felt that he would benefit from
treatment. I argue that the flexibility that exists under this Bill meets many of the concerns that the Committee has expressed.The noble Lord, Lord Alderdice, referred to an offender being detained under existing mental health legislation and to doctors being placed in a difficult position. The problem with relying on the 1983 mental health legislation--which has been mentioned by the noble Viscount--to protect the public is that, in the more difficult cases that we are discussing, offenders cannot be detained under the legislation. The noble Lord, Lord Dubs, appeared to be talking about the more serious offenders, as he referred to many years of medical treatment. Therefore one has to assume that the original offence was serious.
A hospital direction is a possibility for an offender who has received a prison sentence. A doctor's dilemma in sending such an offender to prison is no different from that which arises if a prisoner has been transferred to hospital under the existing legislation. The noble Lord, Lord Hylton, asked about the restriction order. I believe that the noble Viscount mentioned that in passing. The court will already have decided that a hospital order and a restriction order do not provide sufficient protection in the few cases where a hospital direction is made. Therefore that matter will have been considered. A hybrid order will be put in place if that is considered more appropriate.
The noble Lord, Lord Dubs, said that the doctor knows best what the future of the patient should be. If treatment continues to be needed and can be provided by medical professionals, that person will stay in hospital, or even be returned to hospital if that becomes necessary. If that person is ill in prison, he can always be returned to hospital for further treatment.
I do not want this debate to be seen as me, on behalf of the Government, versus the rest. I end where I began. What unites us all is the dilemma involved in this matter. However, we believe that the flexibility that has been provided in the Bill will allow the courts greater opportunities to address the varying needs of mentally disordered offenders.
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