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Lord Mackay of Drumadoon: I understand what lies behind the amendment. However, having reflected further on it, we remain of the view, as we expressed in another place, that it is not a sensible alteration to the clause.
Perhaps I should remind the Committee that before a hospital direction could be imposed, in terms of the new Section 59A(3)(b) as set out in Clause 5, medical practitioners will be required to,
- "describe the person as suffering from the same form of mental disorder, being mental illness or mental handicap, whether or not he is also described by either of them as suffering from the other form".
The proposal is that the medical practitioners should include someone who has special knowledge and experience of mental disorder and is approved for this purpose by the health board, while the other shall, if possible, be the patient's general practitioner or some other medical practitioner who has previous acquaintance with him. In other words, if it is possible to seek the assistance of the general practitioner, that requires to be done in preference to obtaining the assistance of another psychiatrist.
We are dealing here with mental illness, which, as we have discussed earlier today, is not always easy to diagnose and is certainly not always easy to treat. We believe that it would not be right to involve, to provide the second opinion, the accused's general practitioner or some other medical practitioner who did not have special experience of mental illness. The subsection that I read from Clause 5 stresses how both practitioners have to come to the same diagnosis of mental disorder. If we had a situation where general practitioners were becoming involved in this work, no matter how experienced they were in the work of general practice, where undoubtedly people with mental illness problems have to be treated from time to time, we believe that there would be more scope for disagreement, which would not be in the interests of the accused.
It is important to bear in mind that these orders concern people who are going to be admitted to hospital, where they are going to be treated not by general practitioners but by psychiatrists with special experience in the field. For that reason, we believe that both reports should come from those who have that experience. On that understanding, I hope the amendment will be withdrawn.
Lord Sewel: I clearly recognise the noble and learned Lord the Lord Advocate as having some power in his arguments on this occasion. On that basis, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Increase in maximum period of interim hospital orders]:
On Question, Whether Clause 10 shall stand part of the Bill?
Lord McCluskey: Clause 10 seeks to make an amendment to Section 53 of the 1995 Act, which provides or makes it competent for the court in certain circumstances to make an interim hospital order. That is an interim hospital order in respect of an offender--that is to say, a person convicted in the High Court or in the sheriff court; or charged in the latter court, but not convicted although the sheriff is satisfied that he committed the act or made the admission charged; or remitted to the sheriff court from the district court under broadly similar circumstances.
That is the offender. If he is suffering from a mental disorder within the meaning of Section 1(2) of the Mental Health (Scotland) Act 1984, an interim hospital order may be made. The provisions of subsection (6)
indicate that that order at the present time shall be for a period not exceeding 12 weeks and it may be renewed for periods of 28 days at a time, but no such order is allowed to continue in force for more than six months in all.That is the general background to this particular clause. What is now proposed is that these interim hospital orders should be able to be lengthened. I ask Members of the Committee to note the word "interim". We are talking about a relatively short-term thing. It is something which is contemplated and suggested in paragraphs 13.6 and 13.7 especially, of the White Paper. Paragraph 13.6 talks about a "hospital direction" to be attached to a sentence of imprisonment at the same time as imposing any sentence. Paragraph 13.7 states,
- "It is also proposed to extend the maximum duration of the interim hospital order from 6 to 12 months and to extend its use so that it might also be a precursor to the making of a hospital direction".
So we have the interim order being used as a precursor to the making of a hospital direction, but after the conviction of a person. So what is now contemplated is that a person is convicted and the court's decision on whether or not to sentence him may be postponed for 12 months. That is clear from the last few words of paragraph 13.7, which state that the making of such an order,
- "might result in a clearer picture and prognosis of the person's condition as a better basis for informing the court's ultimate decision on disposal".
My difficulty is to reconcile that with new Section 59A which is to be added as a result of Clause 5 of the present Bill. That relates to the making of a hospital order in addition to any sentence of imprisonment and to Section 53(4) of the 1995 Act, which states that, where a court makes an interim hospital order, it shall not make any other order for detention.
I find it slightly difficult to understand how the sections and new sections will work together. I am particularly concerned about the fact that at the moment there may be three renewals, each of 28 days, effectively taking the three months up to six months, but the new provision will permit a further six sets of 28 days, thus effectively raising the period to 12 months. I should like to know the justification for taking what is essentially an interim measure and turning it into a measure that might be effective for 12 months. I should like the Government to explain the justification for that before I consider my position further.
9.15 p.m.
Lord Mackay of Drumadoon: The justification for the proposal is to give further flexibility to the sentencing court in cases where the mental illness of the accused is an important factor.
As the noble and learned Lord pointed out, the proposal was discussed in the White Paper. That White Paper records the fact that in its current form the interim order is not extensively used at present prior to the making of a hospital order, but that greater use of the interim hospital order and the period of initial assessment and treatment which it permits might result
in a clearer picture and prognosis of the person's position as a better basis for informing the court's ultimate disposal.We consider that the extension is justified when dealing with particularly complex cases. It will give doctors and others involved more time to observe and report on the individual for the benefit of the court before any final decision is taken.
The consultation exercise did not result in anybody disagreeing with the proposal. Furthermore, the Mental Welfare Commission, which was consulted, was very definitely in favour of it.
The noble and learned Lord quite properly raised the point that the provisions would extend the period during which an accused person would be in hospital under an interim hospital order pending imposition of sentence. However, as I read the provisions of Clause 11, which will amend Section 210 of the 1995 Act, that period would be taken into account in assessing the period of any sentence of imprisonment if the ultimate disposal was to be imprisonment linked with a hospital direction. If, on the other hand, the ultimate disposal was to be a hospital order, the matter would be academic. If any question of imprisonment arises--whether in isolation or in tandem with a hospital direction--there would be no question of any double jeopardy in the sense of the accused person spending longer in custody than might otherwise be the case.
As I have said, the proposal has received support. The Mental Welfare Commission, which has a statutory duty to have regard to the mentally ill in Scotland, is firmly in favour of it. Therefore, I hope that with that explanation the noble and learned Lord will withdraw his opposition to the Question That Clause 10 shall stand part of the Bill.
Lord McCluskey: I am still concerned that, as a result of the amendment with effect to Section 53 of the 1995 Act, the period between conviction and the court perhaps ordering imprisonment may be as long as 12 months. As I understand it, because the purpose of the interim hospital order is partly to allow the court to assess the future prognosis, at the end of that period--perhaps 12 months later--the court may decide to impose a sentence of imprisonment. If the sentence of imprisonment turns out to be less than 12 months--and particularly if it is substantially less than 12 months--one ends up with the odd situation of a person who does not deserve a period of imprisonment of as much as 12 months (in the view of the court) in fact being required to stay in hospital for that period as a result of a succession of these orders.
Although I have outlined my concerns, at this hour of the night I do not wish to do any more. I shall read with interest in the report of today's proceedings what the noble and learned Lord has said. I am comforted by the fact that the bodies to which the noble and learned Lord referred have given support to the measure following consultation. Therefore, I shall not pursue the matter further tonight.
Clause 11 [Sentence calculation where remand spent in hospital]:
On Question, Whether Clause 11 shall stand part of the Bill?
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