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The Earl of Mar and Kellie: Perhaps I can make a brief observation. We have been talking about the people who are transferred from prison to hospital under Section 79. In fact there will be even fewer who are eligible for a hospital direction because of the fact that they have to be psychiatrically ill at the point of conviction rather than developing a psychiatric illness during their sentence. Therefore, the numbers involved will probably be in single figures.
Lord Sewel: Perhaps I can say at the outset that on this side of the Chamber it is enormously consoling to know that the Secretary of State for Scotland has psychiatric advisers. Many of us thought that that was an omission and we are glad to see that it has been rectified. I rest more easily in my bed at night knowing that, as I am sure do most of the population of Scotland.
Lord Mackay of Drumadoon: Perhaps I can intervene to invite the noble Lord to convey to Mr. Robertson that it is my belief he will never need a psychiatric adviser.
Lord Sewel: I am sure that he will never need a psychiatric adviser. I have the benefit of being married to a clinical psychologist, who gives me all the advice I need.
The outstanding issue is that we have some assurance that when it comes to the point of transfer from a hospital to prison, the effect of that transfer on the mental health of the individual concerned will be adequately taken into account when the transfer is approved. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Remand of persons suffering from mental disorder to private hospital]:
On Question, Whether Clause 7 shall stand part of the Bill?
The Earl of Mar and Kellie: I seek the deletion of Clause 7. I have long held the constitutional view that citizens being detained by the state should be looked after by the state. The use of private contractors may be appropriate where the patient can give consent. But the situation in Clause 7 is far from that.
I shall be interested to hear from the noble and learned Lord the Lord Advocate how many private hospitals are ready to receive psychiatric patients from
custody. Also, can he say why the National Health Service in Scotland has been allowed to run down to the point where it cannot receive those few who are likely to be transferred on remand?
Lord Mackay of Drumadoon: Clause 7 is a short and simple clause. It is designed to remove an anomaly in the Mental Health (Scotland) Act 1984. At present Section 71 of the Act enables a sentenced prisoner to be transferred to either a National Health Service hospital or a private hospital registered under Part IV of the Act. That indicates that Parliament has approved private hospitals being used for that purpose. Section 70, however, prevents remand prisoners from being transferred to a private hospital. That seems an illogical and unduly restrictive distinction to make. Decisions on the appropriate hospital location for an individual should depend on his particular circumstances, including the level of security required, not on whether he is a remand or sentenced prisoner.
Indeed, there may well be an argument that it would be contrary to the interests of the prisoner for him to be detained in one hospital pending the trial and sentence and then to be moved to another to begin the sentence. If he is to be in hospital because he suffers from a mental illness which justifies such detention, there is force in the argument that he should remain in the same hospital throughout.
The noble Earl will be aware that any private hospital used under Section 71 of the Act requires to be registered in accordance with the conditions laid down by the Secretary of State. Those include conditions relating to the security appropriate for people being detained, the levels of medical and nursing staff, the standards of treatment and so forth.
My understanding is that there are no private hospitals currently registered under Part IV of the Act at the present time, nor are any applications under consideration. However, the view has been taken that the anomaly exists. For that reason I hope the noble Earl will be satisfied that it is sensible to amend the legislation to remove the inconsistency so that in a specific case, if private hospitals come on stream, it will be sensible to allow them to treat offenders from the moment they are arrested and awaiting trial through to the period when their detention in a hospital rather than prison is deemed to be no longer necessary.
Clause 8 [Power to specify hospital unit]:
Lord Macaulay of Bragar moved Amendment No. 101:
The noble Lord said: This is a fairly simple amendment which is self-explanatory and continues the theme which we hope we have managed to portray from this side of the Committee; that is, that we are looking to the protection of the individual and of the public and to put as few people at risk as possible. The amendment seeks to insert the words,
It may appear to be a fairly basic and perhaps unnecessary amendment. But the reasoning behind it is this. Before a potentially disruptive person is sent to a hospital, it should be cleared with the managers of the hospital, first, that that person is best in that hospital; secondly, that he or she can be accommodated in that hospital without disrupting the regime; thirdly, that the hospital is satisfied that it has the provision to keep the "patient" in the hospital for his own safety and also for the safety of the public.
On the face of it, it may appear to be an unnecessary amendment. However, if the Lord Advocate and his advisers give it a little thought, they will see that it adds to the protective shelter we are trying to give to the patient and the public. With that introduction, I beg to move.
Lord Mackay of Drumadoon: I appreciate what lies behind this amendment. We had occasion to look at the point it raises before when the Bill was in another place. It is essential that before making an order committing a person to hospital the court is assured of the availability of a bed in conditions which match the patient's medical requirements. Where either a hospital order or direction has been made under Sections 57, 58 or 59A of the 1995 Act, the court will require to be satisfied that a bed will be available in the hospital concerned. The period is currently within 28 days of the making of the order, but in the future, in the light of the point I mentioned a few moments ago about the seven-day period, that period will be shortened from 28 to seven days.
Before a court makes an order it is clearly appropriate that it should be assured of this availability. That is what happens at the moment. The current practice will be reinforced in the future by virtue of the provisions of Clause 9 of the Bill which require that one of the medical practitioners whose evidence is to be taken into account under Sections 53, 54, 57, 58 and 59 of the 1995 Act must be employed at the hospital concerned--the hospital to which it is proposed to admit the offender. Such a medical practitioner is therefore uniquely placed to give the court any assurance it may seek. My right honourable friend the Secretary of State would never make such a transfer under the existing provisions of the 1984 Act unless he was so assured.
This issue is addressed in codes of practice which are currently being revised in terms of the procedure laid down in Section 119 of the 1984 Act. Therefore I am in a position to give an assurance to the Committee that the importance of bed availability is already addressed in the Bill and in the legislation in the ways I have indicated. It is addressed in the code of practice. It is certainly not being ignored. In my experience it is a matter which is always touched on when mental health orders are made, whether in the civil or the criminal courts. With those assurances, I hope the noble Lord will be satisfied that he can withdraw his amendment.
Lord Macaulay of Bragar: I am grateful to the Lord Advocate for his full explanation of the position in
Amendment, by leave, withdrawn.
Clause 9 [Medical evidence in relation to mentally disordered offenders]:
Lord Sewel moved Amendment No. 102:
The noble Lord said: The effect of the amendment is to ensure that one of the doctors recommending hospital admission will be a qualified psychiatrist and that the other, if possible, should be the accused's GP or another doctor who is familiar with the individual concerned. The reasoning behind the amendment is obvious. In making such an order the court needs the best possible information before deciding whether or not to make a hospital direction. A properly qualified psychiatrist is the kind of person to whom one would turn for advice and to inform the court.
The amendment ensures that the doctor giving the advice to the court in such circumstances is someone who is properly qualified. I would accept wholeheartedly that in the normal course of events that would be the case, but we want to make it clear in the Bill that appropriate qualification is a requirement for someone who is giving such fundamentally important advice to the court in this delicate and difficult area. In addition, the patient's own doctor is the person best placed to have knowledge of how the individual has behaved in the past and indeed whether hospital would be the most appropriate place for the individual to be treated.
The amendment mirrors the requirement for medical reports before a patient can be admitted under the civil detention proceedings of the Mental Health (Scotland) Act 1984. It is appropriate that those requirements under civil detention are recognised as we move into the area of criminal law. The amendment seeks to ensure that the court is in a position to receive the best, most helpful and most appropriate advice in making what I think we all freely recognise is often an extremely difficult and sensitive decision. I beg to move.
Page 18, line 15, after first ("unit") insert ("provided that the hospital managers have confirmed to the court that they will admit the person to such unit").
"provided that the hospital managers have confirmed to the court that they will admit the person to such unit".
9 p.m.
Page 19, line 5, at end insert ("and shall be approved for the purposes of this section by a Health Board as having special experience in the diagnosis or treatment of mental disorder; and the other recommendation shall, if possible, be given by the patient's general practitioner or another medical practitioner who has previous acquaintance with him.";").
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