House Of Commons
Friday, 24th July, 1959
The House met at Eleven o'clock
Prayers
[Mr. SPEAKER in the Chair]
Casement Diaries
11.5 a.m.
I should like, with your permission, Sir, and that of the House, to make a statement about an Answer I gave to Questions yesterday about the origin of the copies of some of the Casement Diaries which have been published in "The Black Diaries." I said that there had been copies in Dublin and that it was probably from there that the published material was obtained.
On further inquiry I find that one of the joint authors of "The Black Diaries" claims that in 1922 he was given the material on which the book was based by "a person of some authority in London." While the original diaries did not pass into the custody of the Home Office until 1925, and any disclosure was made without the authority of the then Home Secretary, I have no reason to dispute this account of how the joint author came by the copies. It appears, therefore, that the book is not based on any copies there may be in Dublin.Gaming
Bill to repeal previous gaming enactments, and to make fresh provision with regard to gaming in England and Wales, presented by Mr. Rees-Davies; read the First time; to be read a Second time upon Tuesday next and to be printed. [Bill 145.]
Ordes Of The Day
Mental Health Bill
Lords Amendments considered.
Clause 3—(Mental Health Review Tribunals)
Lords Amendment: In page 2, line 24, leave out "fees" and insert "remuneration."
11.8 a.m.
I beg to move, That this House doth agree with the Lords in the said Amendment.
This perhaps is a little more than a drafting Amendment. It has been inserted because it was doubtful whether the word "fees" would enable the regional chairmen of tribunals, who will, of course, have a considerable amount of administrative work to do in addition to dealing with particular cases, to be paid an annual inclusive salary for their services. The word "remuneration" clearly allows this, if it is found a suitable method when the amount of work falling on the tribunals is known. It is also wide enough to allow payment by fees when suitable.Question put and agreed to.—[ Special Entry.]
Clause 4—(Definitions And Classification Of Mental Disorders)
Lords Amendment: In page 2, line 46, after "life" insert
"or of guarding himself against serious exploitation."
I beg to move, That this House doth agree with the Lords in the said Amendment.
The Amendment makes clear that definitions of "severe subnormality" will cover people whose arrested or retarded development of mind is of such a degree or nature as to make them completely incapable of protecting themselves against serious exploitation. This is a matter which gave concern in the House as well as in another place. The intention is to make it abundantly clear that the more severely retarded of the patients at present classified as feeble-minded are intended to fall into the "severely subnormal" category.
That has always been our intention in the Bill, basing ourselves on paragraph 193 of the Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency, 1954–1957 which says:
"The broad dividing line between the patients whom we call severely sub-normal and those whom we call psychopathic"—
which in the Commission's terminology, of course, includes subnormals—
"comes in the middle ranges of what is now called feeble-mindedness … in some cases these patients … are incapable of living an independent life even if their intelligence quotient is, say, 60 or even higher, if they have other serious defects of personality in addition, resulting in a generally sub-normal personality which makes them incapable of managing their own lives or places them in serious danger of being taken advantage of by other people."
By this Amendment we have implemented the recommendations therein contained, and it should be a useful reinforcement of the phrase we have already in regard to incapability of living an independent life. Serious exploitation, as the House will appreciate, covers cases of the sexual exploitation of subnormal girls or women, and also, possibly, economic exploitation by an unscrupulous employer of a domestic servant or someone of that kind.
If a patient is incapable, as a child would be, of withstanding this kind of exploitation, he or she should come within the definition of "severely subnormal". But, before a severely subnormal patient can be detained for treatment in hospital, all the conditions of Clause 26 must be satisfied, and in particular the detention must be shown to be necessary in the interests of the patient's health or safety or for the protection of others.
I have every sympathy with the motive behind the Amendment, but I want to make two observations on the way in which it has been suggested. First, I should have thought that the original wording of the Bill included the danger of serious exploitation. In other words, if a severely subnormal person is in such danger it would be reasonable to show that he or she was incapable of leading an independent life.
My second point, briefly, is that the only purpose of the definitions is to provide for compulsory detention. I should have hoped that almost the entire range of severely subnormal patients in future will be informal patients. If somebody is in danger of serious exploitation of the kind described by the right hon. and learned Gentleman, that patient would obviously be better off under some kind of institutional or hospital care. In a way we are putting a penalty on the victim of the exploitation, whereas if such exploitation takes place, I should have thought that the person guilty of the exploiting was the one to whom society ought to direct its attention and who ought to pay the penalty. In other words, whilst I am not against these people being given hospital or institutional care, it seems to me that to render them liable to compulsory care on the ground that they are subject to exploitation, is rather placing the emphasis in the wrong place. However, I believe that the motive behind the Amendment is sound, and I do think that in practice it will not lead to much difficulty, but I would like the Minister's observations on these two points.With the consent of the House, Sir, I will make a short observation on the points raised by the hon. Member for St. Pancras, North (Mr. Robinson). On his first point, the position is that if what he said was true—and I am not dogmatic about this because we all know that none of us should ever be dogmatic about the legal effects of the words of a Statute—and if serious exploitation is included in the former wording, the Amendment will be valuable as a declaratory provision. If, on the other hand, it is not included, it is necessary as a substantive provision.
On his second point, I share the hon. Gentleman's hope that the majority of these people will be informal patients, but we must accept in this as in other cases that there is that residual category of case where we shall require the provisions of Part IV. I do not regard the provisions as penal, and I know the House does not: they are preventive in a sense but therapeutic in their main intention. What should be the attitude of society towards the exploiter is something which goes beyond the range of the Bill with which we are here concerned. I hope that explanation satisfies the hon. Gentleman.Question put and agreed to.
Lords Amendment: In page 3, line 7, leave out: "of personality" and insert "or disability of mind".
11.15 a.m.
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment improves the provision which gave us all a great deal of concern over a period of time in the Committee stage in this House, that is to say, the important provision regarding the definition of the psycopath. In the definition of "psychopathic" in subsection (4) of this Clause this Amendment would substitute the phrase "persistent disorder or disability of mind", which is of course an echo of the definition of mental disorder itself, for "persistent disorder of personality".
It was suggested in another place that the word "mental" or "mind" should be imported into the description of the underlying disorder to emphasise that psychopathic disorder is a form of mental disorder. Anxiety had been expressed that if this were not made clear a diagnosis might conceivably be made without any symptoms other than persistently anti-social behaviour not necessarily linked to mental disorder.
I certainly agree that psychopathic disorder is a form of mental disorder. It is true, as I told the House earlier, that the patient's behaviour may well provide the main symptoms on which that diagnosis is based, but anti-social behaviour of the kind described in the later words of the definition is not in itself enough to establish the diagnosis unless the pattern of behaviour shows other abnormal features which indicate that it is the result of underlying mental disorder. We think that the introduction of the term "mind" instead of "personality" will help to make this clear and that is why we commend the Amendment to the House.
I said in Committee that I would go on thinking about the definition of psychopathic disorder when we were discussing it at length. This Amendment does not make a major change but I hope it goes a long way towards meeting the anxieties then expressed.
If it would help the House and the Minister, I will tell him at this stage that this is the only Amendment about which I have serious misgivings, and it may be the only occasion on which I shall intervene during the passage of the Lords Amendments through this House.
I was surprised to hear the Minister say that he thinks the Amendment would be an improvement; indeed, he said that without any reservations. I would remind him of the Report of the Royal Commission on Mental Health, which gave the most serious consideration to the definition of a psychopath and psychopathic disorders. It is a matter which interests and concerns psychiatrists in all parts of the world, particularly the Western world, and it was precisely on this point that there was a difference of opinion. It was on this point that we had debates, and I would say with all due respect to the other place that we had at our disposal expertise of a kind that probably was not available to them because psychiatrists are busy men. They lent themselves on many occasions to the early discussions and they probably thought that this matter had been settled. My misgivings arise from the fact that it is considered that the psychopath is the product of his environment. The Minister said that the mind and the mental condition must be injected into this question, but we cannot be dogmatic about this. There are still psychiatrists, many eminent men, as I have said, who believe that the psychopath is the product of his environment, which results in a persistent disorder of personality It was said in another place that this Amendment simply shifted the emphasis. I regard that not only as a masterly under-statement but as much worse. The danger is that of affixing a label which the experts considered, but rejected in the interests of the psychopath. The Minister has suggested that this definition improves the Bill and is in the interests of the psychopath. But what all the psychiatrists, social workers and others concerned in the matter have tried not to do is to affix a label, which is what we are asked to do today. I do not like to call another place a "back door" but I feel that this has been rather brought in by the back door while those at the front have departed on other business. They thought the job had been done, and they have dispersed. I would ask the Minister to look at the House today. It is extremely difficult to marshal one's forces on a Friday morning for what I regard as a mere debating point. There is no party issue here. I believe that hon. Members opposite would agree with some of my hon. Friends that it is better in a matter of this important kind where we are still being tentative in our approach—we cannot be dogmatic—to be guilty of sins of omission rather than sins of commission. It could have been said in the early stages that the Royal Commission was very limited in its definition, and the definition in the Bill as it left this House was very limited precisely for that reason. It is a great mistake to say too much about something of which one knows very little. What the Minister has done today is to give his blessing to something which, I think, would have been better omitted. At any rate, no harm would have been done if it had been omitted, and I believe that it would have been better to have omitted it. As I said, I cannot marshal my forces on a Friday morning, and all I want to do is to voice my misgivings at this stage and hope that when the Bill comes to be administered those who are responsible for administration will recognise that there has been a division of opinion in the highest circles on this point. Having said that, in no circumstances would I ask the House to divide.I do not think that I can follow the right hon. Lady the Member for Warrington (Dr. Summerskill) in the arguments that she has put forward. Indeed, I agree to a very considerable extent with what my right hon. and learned Friend has said, that this is an improvement. In fact, it has to some extent settled a number of doubts which I expressed during the Committee stage. I think it is essential if we are to exercise compulsory powers in a Mental Health Bill that we should have some tie-up with mind and mental illness. Nonetheless, I have certain reservations which I should like to express very briefly and, I think, without diverging too much into scholastic arguments.
We ought to try to be clear what we mean by "mind". One of the troubles of Measures dealing with this subject has been that a looseness of definition has crept in about "mind". "Mental illness" and "lunacy" were very clear terms at the time of the 1890 Act. Many of my correspondents in the last year or two have taken it upon themselves to quote Halsbury's Laws of England where, however imperfectly, there is some attempt to define lunacy, insanity and so forth. "Mind" was put into the 1890 Act with something of that kind in view. It was the same with the Mental Defectives Act. But we had a definition, which never came before Parliament but was entirely for psychiatric and psychological circles, that "defect of mind" was not necessarily "defect of intelligence". That is an entirely negative definition. On the other hand, we have no positive definition to circumscribe what is meant by "mind" and "mental illness", and in the present age we seem to have given up the attempt to define it clearly and in the Bill have given the psychiatrists and the medical profession as a whole carte blanche to define what they mean by "mind" and "mental illness". They have been given very wide powers of interpretation indeed. Those of us who are anxious about the question of individual liberty hope that these powers and the trust which has been placed in the medical profession and the specialists will be honoured, and it is in that spirit that we support the Bill and endow these powers. Nonetheless, in the light of experience, I think that it is something which we shall have to watch, and we shall watch it, and if there are certain abuses we may have to raise the matter again. With those few words, I give my support to the Lords Amendment.I do not think we have yet heard the last word about the definition of "psychopath" or "psychopathic disorder", but what we have to do in the Bill is to define the condition in terms which will be understood, not by a doctor or someone else skilled in the treatment of mental disease, but by those who are not doctors, by lawyers and other persons in the courts.
In my view—here I differ from my right hon. Friend the Member for Warrington (Dr. Summerskill)—the Lords Amendment is a very definite improvement. It appears to me to do two things. It changes "disorder" to "disorder or disability," and it changes "personality" to "mind." I think both of those changes are desirable. It seems to me that the condition which we are trying to define may be not only a disorder but a disability—either a disorder or a disability. Certain psychopaths have a disability in appreciating many social customs. They fail to appreciate what is theirs and what is other people's. They fail to appreciate the undesirability of setting fire to odds and ends, and so on. It is not only a disorder. It is a disability, a lack of comprehension or power in certain directions, and this should be included as well. The second change is also an advantage. When I think of "personality" I rather think of character—an unpleasant or disagreeable personality, or a lovable personality, and so on. The term "mind" seems to me to be much more all-embracing and to apply to much more of the individual. I believe the Amendment will make clearer, at any rate to the public, what I have in my mind in defining a psychopath or a psychopathic personality, and I am glad that the right hon. and learned Gentleman feels it desirable to accept the Lords Amendment.I am in the position—I do not know whether it is a happy or unhappy position—of disagreeing with the right hon. and learned Gentleman and at any rate the conclusions of my right hon. Friend the Member for Warrington (Dr. Summerskill), although I agree with very much of what my right hon. Friend said.
The Amendment is a tribute not so much to the good sense of the Minister and the Lord Chancellor and their advisers as to the persuasive eloquence of the noble Lady, Baroness Wootton of Abinger. Clearly, the arguments which she put forward very strongly in another place were directed towards narrowing the definition. Whatever this Amendment does, in my submission it does not narrow the definition. It adds the word "disability" to "disorder" and, unless "disability" and "disorder" are wholly tautologous, that must be an extension rather than a narrowing.
11.30 a.m.
It then substitutes the word "mind" for the word "personality", and here, I think, is where we get into the realms of semantics if not into metaphysics, if we try to say what a doctor is going to regard as the difference between mind and personality. My hon. Friend the Member for Barking (Mr. Hastings) prefers it. He said that he thought "mind" was all-embracing but that "personality" rather meant character. The word "character" is not one that has been used and not one that has been substituted; it is, in fact, the word "personality", and I think that, in the last analysis, this Amendment makes no difference and will have no effect whatever on the working of the Bill.
If we are to have patients with psychopathic disorders compulsorily detained other than through the courts, it will be because doctors recognise what they consider to be a psychopath—someone who comes within the ambit of all "three legs" of the definition about which the right hon. and learned Gentleman spoke so convincingly during the Committee stage. I think that it makes no difference at all. If I had a preference, it would be slightly for the old wording, but do not let anyone think that the Amendment makes any substantial difference to the Bill as it left this place.
By leave of the House, I should like to make a short reference to the very interesting and diverse contributions which we have had on this matter. We approach it from the common standpoint that we have all regarded this as something of very real importance, very considerable difficulty, and something on which none of us would say that we are at the end of the road.
This is an emerging matter, and we shall go on learning about these matters as we go along. At any rate, for the time being, I think we have now achieved the best definition we can. I am sorry that it does not commend itself to the right hon. Lady the Member for Warrington (Dr. Summerskill), nor, altogether, to the hon. Member for St. Pancras, North (Mr. K. Robinson). I certainly expected to have his support—I was not so sure about the right hon. Lady—because of the misgivings, so eloquently and persuasively expressed in Committee, that conduct might bring a person within this definition, irrespective of his mental state. One of the advantages of this definition is that it is a safeguard against that, and that is probably part of its main practical value. As the right hon. Lady said, this is certainly not a party matter, and I was very glad to have the support of the hon. Member for Barking (Mr. Hastings), with all his distinguished experience in this field. This Amendment, if my recollection serves, was moved in another place by a noble Lord, who not only sits on the Opposition benches but who, like the hon. Lady, has the advantage of medical qualifications. I also think that we are very much in line with the Royal Commission, although the right hon. Lady rather doubted it, because it says in paragraph 190:What we seek to do is to make it clear that this is within the ambit of mental disorder with which the Bill is trying to deal. If I understood the hon. Lady aright, there was some thought in her mind, and I respect it if it was, that one did not lightly want to classify people as having a mental disorder if, in fact, they might not have if their state was fully understood. I do not want to follow the hon. Member for St. Pancras, North into his semantics and metaphysics. One thing which we all hope will come out of this Bill—one particular piece of good, and we hope that much good will come from it—is that people will be able to be treated for mental or psychiatric disorder with no more sense of shame than attaches to treatment for a somatic disorder. That is the climate that we hope to achieve and which, we think, this Bill will create. I hope that the right hon. Lady will agree that we are being successful in doing that. I have had an impressive body of all-party support, and I hope that we may have the Amendment."Our second group comprises those patients suffering from a personality disorder which does not make them severely subnormal in the sense in which we apply this term to our third group, but which is recognised medically as a form of mental disorder resulting in abnormally aggressive or inadequate social behaviour."
Question put and agreed to.
Subsequent Lords Amendments agreed to.
Clause 10—(Welfare Of Certain Hospital Patients)
Lords Amendment: In page 6, line 42, leave out from "effect" to end of line 43.
I beg to move, That this House doth agree with the Lords in the said Amendment.
This is the first of a series of drafting Amendments which, perhaps, I should explain to the House. The series comprises no fewer than 36 Amendments, from which the House will see that, although we have a large number of Amendments on the Notice Paper, a lot of them go together. These Amendments spring from the extension of certain provisions of the Bill to Scotland and Ireland, and by these Amendments we achieve two improvements. First, we collect into two new Clauses for insertion after Clauses 48 and 49 the provisions now scattered in other various Clauses in regard to Scotland and Northern Ireland. Secondly, we rearrange the 7th and 8th Schedules, dividing each Schedule into two parts, Part I consisting of Amendments and repeals limited to England and Wales, and Part II consisting of other Amendments or repeals, that is to say, those which extend to Scotland and Northern Ireland, and those which, though they do not affect the law of Scotland or Northern Ireland, do not have to be confined to England and Wales because the Amendments and repeals are of provisions which themselves do not extend to Scotland or Northern Ireland. I am not sure, Mr. Speaker, what is the most convenient way of indicating the 36 Amendments which go with this one so as not to move each one, but there are the 36 Amendments which are all covered by the explanation which I have given.The right hon. and learned Gentleman merely says "consequential" or "drafting" when we come to them. Perhaps that will enable us to get through them more quickly.
Question put and agreed to.
Clause 15—(Special Provisions As To Registration Of Nursing Homes)
Lords Amendment: In page 9, line 40, after "home" insert:
"(excluding persons carrying on or employed in the home and their families)".
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment goes with the three Lords Amendments in page 13, lines 4 and 39 and in page 14, line 1.
The Amendment makes clear that if a mentally disordered person, a subnormal person, is employed as a member of the staff at a mental nursing home or residential home, that need not affect the number of patients who may be kept in the accommodation approved for patients. The Amendment in page 13, line 39, allows mental welfare officers to visit mental nursing homes and residential homes under Clause 22. This may be necessary, for instance, if there is reason to believe that an employee who is mentally subnormal is not in proper care.
Question put and agreed to.
Subsequent Lords Amendments agreed to.
Lords Amendment: In page 14, line 1, leave out subsection (2).
Motion made, and Question proposed, That this House doth agree with the Lords in the said Amendment.
So far as I can see, the elimination of Clause 22 (2) gives the mental welfare officer power to inspect both mental welfare homes and Part III accommodation. I rather understood from the explanation which the Parliamentary Secretary has just given that the whole purpose was to enable mental welfare officers to see members of the staffs at these places. It seems to me that the elimination of this subsection gives him much wider powers than that. Is my interpretation correct? It does not seem in any way to limit his powers of entry to seeing whether a member of the staff is mentally ill.
Question put and agreed to.
Subsequent Lords Amendments agreed to.
Clause 31—(Effect Of Application For Admission)
Lords Amendment: In page 20, line 13, at end insert:
(4A) Where a patient is admitted to a hospital in pursuance of an application for admission for treatment, any previous application under this Part of this Act by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect.
I beg to move, That this House doth agree with the Lords in the said Amendment.
This is the first of a series of related Amendments which are basically drafting. Their object is to clarify the position of the patient who, while liable to be detained under an application, order, or direction made under Part IV or Part V of the Bill, becomes the subject of a fresh application, order, or direction, or perhaps is sentenced to imprisonment. That can happen when a patient is absent from hospital with or without leave. In such circumstances, it is obviously important to know to what extent the original authority for detention in hospital or under guardianship is superseded. The principles which we follow and which are brought out in these Amendments are as follows. The first is that, normally, an existing authority for detention in the hospital should not be cancelled if a patient is in prison on remand or committal because that may be followed by an acquittal of the offence with which he is charged, if he is on remand, or by the imposition of a penalty which does not involve his detention elsewhere if he is convicted. In those cases, he should return to the hospital to continue his treatment. The second principle is that it should not be cancelled if he is detained in prison to serve a sentence which is too short for the fact that he is absent from hospital to become known to the authorities or for arrangements for his transfer back to the hospital to be made under Part V. If, on the other hand—and this brings me to the third principle—he is in prison for long enough for his mental condition and previous hospital to become known and he is not then transferred to hospital under Part V, it is likely to be because of a deliberate decision not to do so, and it is, therefore, right that authority for detention in hospital should lapse. All that is made clear by this and the related Amendments which, with your permission Mr. Speaker, I shall move as consequential when the time comes.Question put and agreed to.
Subsequent Lords Amendment agreed to.
Clause 35—(Regulations As To Guardianship)
Lords Amendment: In page 23, line 35, at beginning insert:
"Subject to the provisions of this section".
11.45 a.m.
I beg to move, That this House doth agree with the Lords in the said Amendment.
This and certain related Amendments deal with the Clauses which caused us a certain amount of worry in Standing Committee and on Report and which have been the subject of attention in another place, that is to say, Clause 36, dealing with the correspondence of detained patients and Clause 133. This Amendment goes with other Amendments in page 23, lines 37 and 41, and in page 24, lines 8 and 13. The first three are paving Amendments for the fourth and the fifth is a purely drafting Amendment. The fourth Amendment, page 24, line 8, makes two alterations of substance to the conditions under which Clause 36 allows detained patients' outgoing correspondence to be opened or withheld from the post. The same alterations which automatically apply to the power to control the correspondence of non-detained patients, that is to say, informal patients, come under Clause 133. The first alteration of substance is to give the Minister power to make regulations adding to the list of people from whom patients' letters may not be withheld in any circumstances. It was suggested in another place that a patient's solicitor should be an appropriate person to be added to the list and there were other suggestions such as people acting as agents of the patient, and ministers of religion. What I propose to do is to provide in the regulations for the Clauses not to be applied to letters addressed to any person whom the patient has informed the hospital authorities to be acting as his solicitor, or whom he would wish to act as his solicitor. Of course, the House will appreciate that if letters are to be forwarded unopened, it will be necessary for the hospital authorities to be notified, because the solicitor may not be identifiable from the address on the envelope. For that reason, it would not be practical simply to add the words, "The patient's solicitor" to the exceptions contained in the Clause. One noble Lord wanted the word "agents" to be added. That is rather at large if one simply added it as a phrase. "Ministers of religion "is another phrase which came under consideration. I do not think that we can write into the Bill an automatic provision to extend the exemption to Ministers of religion. Some hon. Members may recall that one of the examples which I gave in Committee of the sort of letters which should not be allowed to go referred to offensive letters to clergymen. Of course, I shall see what I can do in the regulations to help administratively to get over any practical problems which arise in that connection. The second alteration of substance is to introduce a new subsection (3) which will limit the powers to open and examine outgoing letters to cases where the responsible medical officer has reason to think that the patient is likely to send the type of letter which subsection (2) allows to be withheld. As hon. Members will recall, we had a good deal of discussion on this in Committee. By doing this I am making clear in the Statute what has always been my intention, that hospitals should not read patients' letters simply as a matter of routine. They should only do it where they know, or think, or have reason to think, that the patient is likely to send this type of letter.It would be churlish of me not to welcome the intention behind the Amendment, because it goes some way in the direction which I have been urging on the House and the Committee ever since the Second Reading of the Bill. Indeed, I believe that if there were six or seven more stages to the Bill we might achieve the object that I want, which is total elimination of interference with patients' correspondence.
Having said that, I must go on to say that I welcome the Amendment for a reason which will not be very acceptable to the Minister. Many times during our discussions on censorship I have made the point—and this is one of the few points which has never been squarely answered by the Minister—that these censorship provisions are administratively impossible and unworkable. I have made it clear that the object behind the Clause, and the subsequent Clause in the Bill dealing with informal patients, that of saving people distress through the receipt of letters from mental patients, cannot be achieved unless there is routine censorship of all patients' letters. The Minister has not dealt with the administrative difficulties and the possibility of evading censorship which all patients have open to them. He has merely said that it is not the intention that there should be a routine examination of out-going mail. The Minister now makes it impossible. He now says that, statutorily, there shall not be any routine inspection. This makes the whole thing administratively ridiculous and I suggest to medical superintendents and responsible medical officers that they remember that that these powers are merely permissive. They should say to themselves that as the Clause is in such a state as to make any form of censorship administratively impossible they will abolish any kind of censorship in their hospitals. I am sure that all progressive medical superintendents and psychiatrists will do this if they have not already done so. The Minister's regulation-making power which he has taken under the Amendment is another step in the right direction and I am only sorry that he is being hoist with his own clergymen.Question put and agreed to.
Subsequent Lords Amendments agreed to.
Clause 47—(Discharge Of Patients)
Lords Amendment: In page 33, leave out lines 32 and 33.
I beg to move, That this House doth agree with the Lords in the said Amendment.
The effect of the Amendment is to delete the requirement that members of a local authority who may be authorised to exercise the power of discharge shall be members of the health committee of that authority. Hon. Members who took part in the Committee stage will recall that the words to be deleted were included in the Bill following the recommendation of the Royal Commission on this point. What the Commission really had in mind was that the members should be those who had an interest in and knowledge of mental health by virtue of their membership of the health committee. The Commission's basic approach was very sensible and constructive. Since we parted with the Bill, representations have been made that it is unnecessary to make this a statutory requirement. Indeed, as part of the relaxation of Government control over local authority functions we have accepted that the statutory requirement to appoint certain committees, including health committees, should be abolished at some convenient date thus enabling local authorities to conduct their affairs through committees in the way which suits them best. It would, therefore, not be appropriate to require membership of the health committee for the purposes of the Clause. I think that local authorities can clearly be trusted to ensure that orders for the discharge of patients are made on their behalf by appropriate members. Both the Association of Municipal Corporations and the County Council's Association support the Amendment.Question put and agreed to.
Subsequent Lords Amendments agreed to.
Clause 50—(Children And Young Persons In Care Of Local Authority)
Lords Amendment: In page 35, line 47, leave out from "shall" to end of line 48 and insert:
"be deemed to be the nearest relative of the patient in preference to any person except the patient's husband or wife (if any) and except, in a case where the said rights and powers are vested in a local authority by virtue of subsection (2) of the said section three, any parent of the patient not being the person on whose account the resolution mentioned in that subsection was passed."
I beg to move, That this House doth agree with the Lords in the said Amendment.
As Clause 50 originally stood, it provided that the rights and powers of a parent of a child or young person were vested in the local authority. The local authority was deemed to be the nearest relative of the child or young person to the exclusion of everyone else. It was pointed out by the County Councils' Association that local authorities may, and quite often do, assume parental rights under Sections 2 and 3 of the Children Act, 1948, in respect of one parent only, the other parent's parental rights not being affected. The main purpose of the Amendment is to provide that in such cases the parent who has not been displaced will have precedence over the local authority as the nearest relative for the purposes of the Bill.Question put and agreed to.
Subsequent Lords Amendment agreed to.
Clause 56—(Regulations For Purposes Of Part Iv)
Lords Amendment: In page 40, line 13, leave out paragraph ( d) and insert:
(d) for requiring local health authorities to consult such bodies or persons as may be prescribed by or determined under the regulations in connection with the approval of medical practitioners for the purposes of section twenty-eight of this Act, and for confining approval to such practitioners as may be agreed upon between these authorities and any bodies or persons required to be consulted by them respectively.
I beg to move, That this House doth agree with the Lords in the said Amendment.
Subsection (2, d) of Clause 56 was inserted on the Report stage on 5th May to allow the Minister to provide by regulation for the constitution of committees to advise local health authorities on the approval of doctors, for the purpose of giving medical recommendations under Part IV of the Bill. Hon. Members will recall that this was my method of giving effect to an undertaking which I had given in Committee to achieve a purpose on which we were all agreed. The intention was to require the local health authorities to appoint a small committee consisting entirely of doctors, some of whom would be nominated by the regional hospital boards or boards of governors of teaching hospitals, and some by the local authority itself. We had in mind that local authority representatives would usually include at least one of their own medical officers. This was the method which I evolved for ensuring that there was the degree of consultation which, in Committee, we decided was necessary. 12 noon The intention was, and remains, good, and the object is one to be achieved, but I did not get the mechanism quite right at the time. The County Councils' Association has pointed out the practical difficulties which would arise if such a body were constituted as a committee of the local authority. We were envisaging a doctors' committee—a professional committee—but if it were constituted in this way it would have to have on it a proportion of members who were themselves members of the local authority—almost inevitably lay members. As a further complication, it would be contrary to the normal practice for the committee to include members of the local authority's own staff, so that we should be in difficulties in regard to the medical officer of health. Also, we should make the whole procedure rather more formalised than we had in mind. I accept the force of all those considerations which the Association was good enough to bring to my notice, and we have, therefore, made this improvement in the Bill. The Amendment rewords paragraph (d) so as to allow nominees of the hospital authorities to meet informally with the medical officer of health to present agreed advice to the local health authority. In this way we shall achieve our object, the desirability of which both sides of the Committee shared, without introducing the unnecessary constitutional and procedural difficulties which appeared to flow from the original mechanism I had in mind.Question put and agreed to.—[ Special Entry.]
Subsequent Lords Amendments agreed to.
Clause 70—(Appeals From Magistrates' Courts)
Lords Amendment: In page 52, line 30, at end insert:
(3A) Section two of the Summary Jurisdiction (Appeals) Act, 1933 (which relates to legal aid) shall with the necessary modifications apply in relation to an appeal against a hospital order or guardianship order made by a magistrates' court (whether or not brought under this section) as it applies in relation to an appeal against sentence.
I beg to move, That this House doth agree with the Lords in the said Amendment.
The object of the Amendment is to make it clear that the provisions relating to legal aid for persons who appeal to quarter sessions against a sentence imposed by a magistrates' court apply to those who appeal against a hospital order or guardianship order in just the same way as they do to any other kind of appeal from petty sessions to quarter sessions.Question put and agreed to.—[ Special Entry.]
Clause 71—(Persons Ordered To Be Kept In Custody During Her Majesty's Pleasure)
Lords Amendment: In page 52, line 31, at beginning insert:
(A1) Where under any enactment to which this subsection applies any person is ordered to be kept in custody during Her Majesty's pleasure, that person shall, until detained in pursuance of any directions under subsection (1) of this section, be detained in such place of safety as the court may order, and the order shall be sufficient authority for his conveyance to that place.
I beg to move, That this House doth agree with the Lords in the said Amendment.
The Amendment covers a fairly short but important point. The Clause deals with the Secretary of State's power to make a direction authorising removal to and detention in a hospital in a case in which a person has been ordered by the court to be detained during Her Majesty's pleasure, the accused having been found unfit to plead on arraignment, or guilty but insane. The noble and learned Lord Denning, in correspondence with my noble and learned Friend the Lord Chancellor, called attention to a case of a man who was a patient on licence from an institution for mental defectives, who was charged with an offence and subsequently found by the court to be not fit to plead. It was extremely likely that the Secretary of State would order the defective to be sent back to the hospital in which he had previously been a patient and to which he had been recalled to await trial. The court considered it unfortunate that, as a result of the man being found unfit to plead and being ordered to be detained during Her Majesty's pleasure, he should then have to await the Secretary of State's decision in prison instead of being returned by the court direct to hospital.
The Amendment will enable the court to send such a man direct to hospital if it feels that that is the best thing to be done. I hope that the Amendment will commend itself to the House.
Question put and agreed to.
Subsequent Lords Amendments agreed to.
Clause 103—(Particular Powers As To Patient's Property And Affairs)
Lords Amendment: In page 74, line 33, after "made" insert:
"or that there has been any substantial change in circumstances".
I beg to move, That this House doth agree with the Lords in the said Amendment.
This is the only Amendment arising out of Part VIII, which deals with the management of property and affairs of patients and which some of us find not the least difficult part of the Bill. The Amendment is designed to ensure that the court's power to vary a settlement shall continue to be as wide as it now is under Section 171 of the Law of Property Act, 1925. A settlement made under that Section may be varied where the court is satisfied that any material factor was not disclosed at the time the settlement was made, and also on account of any substantial change in circumstance. By the Eighth Schedule to the Bill, Section 171 of the Law of Property Act is repealed in toto. When the Bill was prepared we thought that the power to vary settlements should be kept as narrow as possible, and that view is reflected in the drafting of subsection (4) of the Clause. It limits the power to vary to cases where there has been non-disclosure of material facts, and this extends it to the other ground under the Law of Property Act which was on account of any substantial change in circumstances. What was then thought was that the court would write into the settlement the appropriate procedure for variation, if any were likely to be needed. It now appears that a number of settlements made by the Judge in Lunacy under Section 171 of the Law of Property Act have contained no express power to vary, because reliance was placed on the court's statutory power. In any case, we should have had to introduce a transitional provision to prevent hardship arising in that type of case. That being so, it seems better in the interests of simplicity, to maintain the court's existing powers under Section 171 (7) of the Law of Property Act unimpaired.Question put and agreed to.
Subsequent Lords Amendment agreed to.
Clause 124—(Rules As To Procedure)
Lords Amendment: In page 84, line 21, at end insert:
(bb) for enabling a tribunal to dispose of an application without a formal hearing where such a hearing is not requested by the applicant or it appears to the tribunal that such a hearing would be detrimental to the health of the patient;
I beg to move, That this House doth agree with the Lords in the said Amendment.
This is an Amendment to Clause 124, which empowers the Lord Chancellor to make rules as to the procedure of mental health review tribunals. When we discussed this matter in Committee, I pointed out that our intention is that a formal hearing should be arranged only when the applicant so desires and requests, and that, otherwise, where he does not so desire and request, the proceedings should be quite informal. The object and effect of this Amendment is to remove any possible doubt that this can be appropriately provided for in the rules. I should make it clear that where the applicant requests a formal hearing, it is the intention of the Lord Chancellor that the tribunal shall normally arrange one. We have sought to give the tribunal a discretion in cases where a formal hearing would be detrimental to the patient's health where, for example, the strain of such a formal procedure might seriously aggravate his condition. In such a case the interests of the patient would be better served by an informal procedure than by a formal one.Question put and agreed to.
Lords Amendment: In page 84, lines 26, at end insert:
(cc) for regulating the circumstances in which, and the persons by whom, applicants and patients in respect of whom applications are made to a tribunal may, if not desiring to conduct their own case, be represented for the purposes of those applications;
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment makes it clear that the Lord Chancellor has power under these rules to provide for the representation of patients or other applicants at the tribunal. We discussed this during the Committee stage, and indeed, it was one of the points dealt with in an Amendment moved by my hon. Friend the Member for Carlisle (Dr. Johnson). We have met this point in an appropriately flexible way by this provision which I now commend to the House.
The Amendment allows provision to be made for formal representation only if the applicant does not wish to conduct his own case. It will still be possible for the rules to provide for the patient who does prefer to conduct his own case to be assisted informally by a friend, but the rules can now provide for representation when the case is disposed of informally, as well as when the formal procedure is invoked.
Question put and agreed to.
Lords Amendment: In page 84, line 27, at beginning insert:
"for regulating the methods by which information relevant to an application may be obtained by or furnished to the tribunal, and in particular".
I beg to move, That this House doth agree with the Lords in the said Amendment.
The object of this Amendment is to remove any possible doubt that might otherwise exist as to the Lord Chancellor's powers to make suitable rules to enable the tribunal to obtain all the information which it requires by suitable methods. I referred to this during the Committee stage, and told the Committee that we envisaged that the tribunals will not only receive written reports, but will arrange formal hearings if requested by the applicants. They will also be able to visit hospitals and interview patients, and indeed, any other person whom they wish to see in making any other inquiries which they think are necessary. The hon. Member for St. Pancras, North (Mr. K. Robinson) has had in mind a point about the position of relatives giving evidence, with the very proper object of preventing the possibility of tribunals discharging patients to the care of relatives when, in fact, for one reason or another, it is not appropriate or possible. It will, of course, be open to the relatives, and indeed, to any others who have any material information to give, to give their evidence in a formal procedure, or in some other way to bring their evidence and knowledge to the assistance of the tribunal.Question put and agreed to.
Subsequent Lords Amendment agreed to.
Lords Amendment: In page 84, line 30, at end, insert:
(dd) for making available to any applicant, and to any patient in respect of whom an application is made to a tribunal, copies of any documents obtained by or furnished to the tribunal in connection with the application, and a statement of the substance of any oral information so obtained or furnished except where the tribunal considers it undesirable in the interests of the patient or for other special reasons;
12.15 p.m.
I beg to move, That this House doth agree with the Lords in the said Amendment.
The first paragraph of the Amendment, dealing with documents, makes it clear that the rules may provide for patients and other applicants to receive documents and any other information, including the substance of oral information obtained by or furnished to the tribunal. At the same time, it gives the tribunal the necessary discretion to withhold documents if it considers it desirable to do so in the interests of the patient, or for other special reasons. The point of discretion derives from paragraph 448 of the Report of the Royal Commission, to which I drew attention at an earlier stage of the Bill. There is a precedent, in that a similar discretion, to withhold medical reports in cases where the tribunal considers it desirable in the interests of the applicant, is already enacted in the Pensions Appeals Tribunals Act, 1943. The Amendment, in effect, ensures that the Lord Chancellor can, in framing the rules, meet the substance of the point raised during the Committee stage about documents, while following the general principles which I then outlined to the Committee. The other matter dealt with here in the second paragraph of the Amendment is the giving of reasons for the decision. This Amendment makes clear that the rules can require tribunals to furnish on request a statement of the reasons for their decision, while allowing such statements to be withheld from patients or other persons if it would be undesirable in the interests of the patient, his health, and so on, or for any other special reasons, such as possible embarrassment to the relatives or something similar.I should like to welcome this Amendment, and to express to my right hon. and learned Friend my appreciation of the consideration which he has given to the various arguments that have been advanced. The terms of the Amendment are almost identical with those of an Amendment which I put forward myself, with certain reservations. I see the necessity for them, and one only hopes that these reservations will not be abused and cannot be made excuses for hearings that might be unpleasant and inconvenient to the powers that be in these matters.
However, it is a very great advantage indeed to have the procedures written into the Bill. It will be a great comfort to the complaining patients to know their rights under the Bill, and also to those of us who may still, possibly, receive letters—I hope we shall not—from complaining patients. It will be a great advantage to be able to point to the fact that these procedures are there and that the patients have these rights. There is only one very small point that I should like to make and that is in regard to what the Minister himself said in Committee and what the noble Viscount also said in another place. It is obviously the intention to make this as informal as possible. I do not quarrel with that, though I would point out that there are certain dangers in these informalities. In the first place, the tribunals visit the hospitals and see the patients there. One hopes that these visits will not become the type of cursory visits of which we had so many complaints under previous legislation concerning those whose duty it was to visit the hospitals. We feel satisfied, I think, that we are making a new start with this legislation and with the new procedures. We are satisfied that we have got something which is workable and something on which we can reassure the complaining patients. I wish once again to express my appreciation to my right hon. and learned Friend for the consideration that he has given to our wishes.Question put and agreed to.
Subsequent Lords Amendments agreed to.
New Clause "C"—(Notification Of Hospitals Having Arrangements For Reception Of Urgent Cases)
Lords Amendment: In page 88, line 38, at end insert:
"It shall be the duty of every Regional Hospital Board to give notice to every local health authority for an area wholly or partly comprised within the area of the Board specifying the hospital or hospitals administered by the Board in which arrangements are from time to time in force for the reception, in case of special urgency, of patients requiring treatment for mental disorder."
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment is designed to, and does, I think, in fact, meet some points that were raised by hon. Friends of mine in Committee and, indeed, have also been raised in another place. The effect of this new Clause will be to ensure that local health authorities know which hospitals in their area are prepared to accept patients at short notice, or even without notice, in cases of acute emergency, a matter which I know was in the minds of hon. Members who participated in our debates in Committee.
It will do that in this way. It will, in effect, require regional hospital boards to notify the local health authorities which hospitals have what one might call—I do not think it is an actual term of art—psychiatric beds ready to admit patients in a real emergency. The information, of course, will also be given to general practitioners who might arrange an emergency admission with the agreement of the relatives but without having to call in a mental welfare officer. This we can arrange administratively.
The discussions which we had about this matter took place in the context of Part IV of the Bill, and one of the difficulties about the Amendments which we then discussed was that they were linked to the compulsory procedures in that part of the Bill and therefore raised the possible difficulty that they might be used as a means of getting priority of admission.
We have overcome that difficulty, as the House will see, by the place which we have given the Clause in the Bill. It is in Part IX and not in Part IV, so that the arrangements made by this Clause will apply to any patient who needs admission in specially urgent circumstances whether he is admitted as a compulsory patient under Part IV or whether he is admitted in the ordinary way as an informal patient.
This new Clause meets substantially a point which I raised on Second Reading. I was answered then by the right hon. and learned Gentleman the Solicitor-General who argued very convincingly that this power was not needed in statutory form and that the object, which he agreed was desirable, could be met by Ministerial circular. The right hon. and learned Gentleman convinced me that that was the best way of dealing with the matter, and, consequently, I did not return to the attack at any subsequent stage of the Bill. But one of my noble Friends in another place was not so satisfied and pressed the matter further. The Lord Chancellor, in his usual accommodating way, has met my noble Friend by producing this new Clause. I think that I am reconvinced that this is now the best way of dealing with the matter.
The wording of the Clause gives rise to one possible difficulty. It is a rather narrow point. I imagine that the Minister envisages, at any rate for the present, that regional hospital boards will maintain for convenience, though not in any statutory form, catchment areas of their existing hospitals. This Clause says:In London, certain regional hospital boards have to receive patients from local health authority areas in their region in hospitals in another region which they do not administer. I see certain slight difficulties arising out of this if a regional hospital board cannot say anything to a medical officer of health whose area consists of part of that board's region because the hospital that has been taking patients in that region is administered by another board and is in another part of the Metropolitan Area. I would suggest to the Minister a very simple way out of the difficulty. It is to see that such hospitals are in future administered extra-territorially, so to speak, by the regional hospital board from whose region the patients are supplied."It shall be the duty of every Regional Hospital Board to give notice to every local health authority for an area wholly or partly comprised within the area of the Board specifying the hospital or hospitals administered by the Board in which arrangements are from time to time in force for the reception, in case of special urgency, of patients requiring treatment for mental disorder."
With the leave of the House, I will answer the hon. Gentleman in one sentence. I am grateful for his suggestion, but I do not think that it would be necessary to enter into such a comprehensive or sweeping revision in order to deal with the difficulty, if there be one, under this procedure. After all, it would be quite possible to get one regional hospital board to transmit the information at the behest of another, and I do not think that any mechanical difficulties should arise.
Question put and agreed to.
Subsequent Lords Amendment agreed to.
Clause 133—(Correspondence Of Patients Not Subject To Detention)
Lords Amendment: In page 89, line 15, leave out from "shall" to "apply" in line 16.
12.30 p.m.
I beg to move, That this House doth agree with the Lords in the said Amendment.
This is, in fact, a paving Amendment for the next two Amendments which follow. It implements an undertaking which I gave on Report, when I said:This is, of course, dealing with the correspondence of informal patients."In the course of my reconsideration I felt that the power which this Clause takes in respect of the local authority homes is rather different from that in respect of in-patients in the hospital."
These are the Amendments which effect that purpose."Residents in the local authority homes are not likely to be suffering from the same severity of mental disorder as would make this sort of correspondence so likely to upset them, if it was incoming, or to be offensive to others if it was outgoing. I therefore propose to have Amendments tabled in another place to delete references to residents in local homes …"—[OFFICIAL REPORT, 5th May. 1959; Vol. 605, c. 338.]
Question put and agreed to.
Clause 134—(Warrant To Search For And Remove Patients)
Lords Amendment: In page 90, line 26, at end insert:
"and in the execution of a warrant issued under subsection (2) of this section the constable to whom it is addressed may be accompanied—(a) by a medical practitioner; (b) by any person authorised by or under this Act to take or retake the patient."
I beg to move, That this House doth agree with the Lords in the said Amendment.
The Amendment here is for the avoidance of doubt. It deals with Clause 134 which makes provision for warrants where it is necessary to search for or remove patients. Subsection (2) provides for the issue to a constable of a justice's warrant authorising entry into premises in order to obtain access to patients who already under the Bill are liable to be taken to some place. That is to say, to be taken to hospital, for example, under Clause 31, or to be retaken under the provisions of Clauses 40 or 139.
This Amendment removes any doubt about the power of the constable to take with him a doctor, or the person who has applied for the warrant. Perhaps I should indicate that I appreciate the difference between the wording of this Clause as it will appear with the Amendment, and the wording of subsection (1), in that this is permissive and subsection (1) is mandatory. There the constable must be accompanied by a mental welfare officer or a doctor. The reason for the difference is that under subsection (2) it is only a question of retaking or taking a known patient who is already liable to be detained. That is the reason the difference is made, and in this case the power is only permissive.
Question put and agreed to.
Subsequent Lords Amendments agreed to.
Clause 139—(Retaking Of Patients Escaping From Custody)
Lords Amendment: In page 93, line 33, at end insert:
(2A) A person who escapes while being taken to or detained in a place of safety under section one hundred and thirty-four or section one hundred and thirty-five of this Act shall not be retaken under this section after the expiration of the period of seventy-two hours beginning with the time when he escapes or the period during which he is liable to be so detained, whichever expires first.
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Clause confers power to retake patients described in Clause 138 (1) if they escape, and these people include people being taken to or detained in a place of safety under the provisions of Clause 134 (1) or Clause 135. Clauses 134 and 135 place a limit of 72 hours on the period for which such people may be detained in a place of safety. But Clause 139, as it left this House, placed no time limit on the period during which they can be retaken after escape.
The Amendment removes this omission by providing in effect that such people may not be retaken after the end of the 72 hours during which they can be detained in a place of safety, or if they escape while being taken there, and before reaching it, after 72 hours from the time of escape. The broad effect is to bring the various procedures into a common line.
Question put and agreed to.
Subsequent Lords Amendments agreed to.
Second Schedule—(Sections Substituted For Education Act, 1944, S 57)
Lords Amendment: In page 101, line 3, leave out from beginning to "for" in line 8 and insert:
"It shall be the duty of every local education authority to ascertain what children in their area are suffering from a disability of mind of such a nature or to such an extent as to make them unsuitable for education at school; and for the purpose of fulfilling that duty any officer of a local education authority authorised in that behalf by the authority may by notice in writing served upon the parent of any child who has attained the age of two years require him to submit the child."
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment meets the point raised by the hon. Member for St. Pancras, North (Mr. K. Robinson) at the seventeenth sitting of the Standing Committee which dealt with this Bill. It makes it possible for an officer of the local education authority who is authorised to do so, to take the steps necessary to arrange for a child to be examined for the purposes of deciding whether he is suitable for education at school. It shortens the procedure originally drafted and it is in accordance with the suggestion of the hon. Member. I hope the Amendment will commend itself to the House.
Question put and agreed to.—[ Special Entry.]
Lords Amendment: In page 101, line 32, leave out "fourteen" and insert "twenty-one."
I beg to move, That this House doth agree with the Lords in the said Amendment.
This new Section 57 (5) provides that before reaching its decision that a child is unsuitable for education at school, a local authority must give fourteen days for the parent of the child to appeal to the Minister of Education. This Amendment extends that period from fourteen days to twenty-one days. While I agree that the present limit has not caused serious inconvenience in practice, I think it a rather short period in the case of a parent wishing to obtain medical or other advice before deciding to lodge an appeal.Question put and agreed to.
Remaining Lords Amendments agreed to.
Town And Country Planning (Scotland) Bill Lords
Order for Second Reading read.
12.38 p.m.
I beg to move, That the Bill be now read a Second time.
This Bill re-enacts for Scotland the Town and Country Planning Act, 1959, which received the Royal Assent on 16th July. This House assented to the use of this procedure when it concurred on 3rd July with the Resolution passed in another place on 2nd July. There was a precedent for the use of this procedure in the Acquisition of Land (Authorisation Procedure) (Scotland) Act, 1947. In accordance with the procedure the Bill was examined on 15th July by the Joint Committee on Consolidation Bills, which reported that there was no point to which it thought the attention of Parliament ought to be directed. The Joint Committee made one Amendment only, namely, to Clause 56 (3), the effect of which was simply to substitute the actual date on which the Bill comes into operation, namely, 16th August, 1959, for a reference in general terms to the coming into operation of the Town and Country Planning Act, 1959, to which the Royal Assent has already been given. I think it is generally accepted that there is a need to re-enact the Town and Country Planning Act, 1959, in Scottish form without delay for the convenience of those in Scotland who will have occasion to make reference to this piece of legislation in the course of the next few months. Representations have been received from many quarters that that should be done including the associations of local authorities and the Law Society. The hon. Member for Edinburgh, East (Mr. Willis) drew the attention of this House to a memorandum prepared by the Faculty of Advocates and circulated to Members of Parliament. In deference to these representations I gave an undertaking in this House on 23rd March that we would proceed to re-enact the Bill, as it then was, in Scottish form without delay. I concluded by saying that we hoped to get the re-enacting Bill on the Statute Book at the earliest possible stage. When that Bill was given a Second Reading in the House the Secretary of State made a reference to the possibility of using this procedure and proceeding in this way. We are honouring that undertaking now, and I am sure the House, and Scottish Members in particular, will welcome the efforts we have made to do so, despite considerable difficulties, and will give us every assistance in getting the Bill through.12.40 p.m.
The hon. Gentleman will not be surprised if I inform him that we do not propose to oppose this Second Reading. As a matter of fact, we could not do so if we wanted to because, as he has just announced to the House, this is re-enactment of a Bill on which the House has already decided. Consequently, there is very little to be said. It will, however, bring general satisfaction to Scotland.
We can regard it as a victory for the Opposition, because at every stage of the former Bill we pressed for a separate Bill for Scotland and the pressure was to some extent rather resisted. One feels that in recent years shudders have run through the corps of Scottish Ministers at the prospect of a major Scottish Bill going to the Scottish Grand Committee. They seem to visualise long processions of days in that Committee while my colleagues examine every line and word and comma, not only with the closest and most expert scrutiny, but with a skill in dialectics and debate which is, I think, unsurpassed in the long history of committee analysis of legislative minutiae. I think Ministers would often feel they would go to almost any lengths to avoid this ordeal. However, although the original recoil from the advocacy for a separate Scottish Bill was almost a reflex action, the hue and cry for such a Bill was very powerfully reinforced by the impressive and stentorian group of voices from Scotland which the hon. Gentleman mentioned; advocacy in thunders from Parliament House and the columns of the Scotsman and local Government officials swelled the chorus, and the Government yielded gracefully and the case was conceded, and that is justified by the Bill before us, a Bill of 56 Clauses, nine Schedules and 90 pages. We are glad to welcome it, although we disagree, of course, with many of its contents. But we have fought that battle. That battle has been decided in the United Kingdom Bill. It will be a very great facility to officials and members of the profession and to the general public in Scotland in the operating of the legislation and in its interpretation to find that they do not have to look up so many Scottish references and Scottish applications. I hope that the House will not only now give the Bill a Second Reading but will speed its passage through all its stages before the House rises for the Summer Recess.Question put and agreed to.
Bill accordingly read a Second time.
Bill committed to a Committee of the whole House.—[ Mr. E. Wakefield.]
Committee upon Monday next.
Statute Law Revision Bill Lords
Considered in Committee; reported, without Amendment.
12.45 p.m.
I beg to move, That the Bill be now read the Third time.
The Bill cuts out a lot of dead wood from the Statute Book, including some rather interesting Acts which are entirely obsolete, one being called the Stealing of Vegetables Act, 1772, whose Preamble says:That is no longer necessary. There are legislative provisions requiring check strings in taxicabs and presenting penalties for railway companies for knowingly letting on hire special trains for the purpose of conveying parties to a prize fight. These provisions are no longer necessary."Whereas the Cultivation of Turnips, Potatoes, Cabbages, Parsnips, Pease and Carrots is of great consequence to this Kingdom …"
Question put and agreed to.
Bill accordingly read the Third time and passed, without Amendment.
Wages Councils Bill Lords
Considered in Committee; reported, without Amendment; read the Third time and passed, without Amendment.
Colonial Development And Welfare Bill Lords
Read a Second time.
Bill committed to a Committee of the whole House.—[ Mr. E. Wakefield.]
Committee upon Monday next.
Postal Draft (Encashment)
Motion made, and Question proposed, That this House do now adjourn.—[ Mr. E. Wakefield.]
12.47 p.m.
The case I want to bring to the attention of the House is one relating to a constituent of mine named R. J. Bethell, who was issued a postal draft for £5 6s. 8d. for sickness benefit. He failed to read the notice which appears on the draft to the effect that if it is not cashed within a certain time it will not be payable.
There are two warnings on the front of the draft and there is also one on the back, which it says:"You may find." It does not say definitely, "You will lose it unless you cash it within six months". My constituent, who is an old man, living alone and recovering from sickness, no doubt put this postal draft on a shelf and forgot it and failed to discover it again until it was one month out of date. In other words, instead of trying to cash it within six months he made an attempt to get it cashed within seven months. The local officer decided that the nonpayment would stand and refused to recognise that it was due to this man. An appeal was made to the local tribunal and, unfortunately, my constituent did not appear; nor was he represented. Unfortunately, also, he did not write to me in the first place to give me a chance of taking some action, or giving him advice about what he should do before the local tribunal. The case, therefore, was dismissed. It was then sent to a commissioner in London, who issued a very lengthy document. I do not know how much of that was really necessary if it is a fact that a payment order cannot be cashed when not presented within six months. I should have thought that was sufficient without going to the expense of a commissioner writing something more than a foolscap page giving his decision. The facts are these. The National Insurance Advisory Committee was appointed towards the end of 1951 to give advice and assistance to the Minister and a Report was issued in March, 1952. In the course of that Report, apparently, the Committee replied to representations which had been made calling attention to the fact that a time limit of six months might involve hardship. So, at that time apparently, there were cases in which some of these old people were failing to get paid sickness benefit because they had not cashed their payment orders in time. The Committee would not recognise the representations and gave the following reasons:"If you delay in obtaining payment you may find that your right to money has ceased and that you may lose it."
I do not understand that paragraph in the Report one little bit. It has no reference whatsoever to the case I am putting before the House now. There was no question of the validity of the declaration contained in any benefit orders and no necessity to check the facts. That had already been done, otherwise this payment order would not have been made. Therefore, the reasons given in that paragraph do not apply to the case of my constituent. In this case the facts had been agreed and the order issued. The Ministry admitted the claim and the issue of the payment order is in the form of an I.O.U. If the facts are as stated by the Ministry and payments are not possible after six months, why was it necessary to have two appeals and to go through all this rigmarole, which must have cost considerably more than the value of this payment order? I have not the slightest doubt that there are many recipients of payment orders who do not read those orders. We must clear our minds of the thought that if we had received an order of this sort and failed to cash it in the necessary time we should have no reason for objection. Let us put ourselves in the place of these old people, recovering from sickness, not very bright, who receive this I.O.U. and look upon it—as no doubt many people would—as equal to a £1 note, cashable at any time. Therefore, they fail to read that document. I have not the slightest doubt that there are thousands of recipients who fail to read the document but do not suffer because they want the money and cash it forthwith. I suggested to my hon. Friend that when these drafts were checked in the Ministry's books and it was found that one of these payment orders had not been cashed, a notice should be sent to the recipient warning him and letting him have, say, a further month in which to cash the document. My hon. Friend called attention to the fact that there were many millions of these orders in existence at the same time and that checking is not possible. That may be. All I can say is that if the checking of these documents does not take place, I wonder how any fraudulent alteration of an order can be found out. I cannot conceive that with the many local district officers it would not be possible to check these payment orders just as a business person has to check the counterfoils of a cheque book with the bank statement when he receives it from his bank. If that is not possible, I suggest something further. I asked my hon. Friend how much money accrued to the Ministry through failure of recipients to cash these orders. In the course of her reply, my hon. Friend said:"We recognise that many insured persons consider that they should be entitled to obtain payment of a benefit draft or order which they have received, after almost any lapse of time. There are, however, substantial objections to this since any extension of the existing time limit would necessarily throw doubt on the validity of the declaration contained in many benefit orders, regarding satisfaction of the benefit conditions relating to the earnings, maintenance of dependants, etc., for it is doubtful whether claimants could accurately recall the necesary facts after a longer period than six months, and it would often be impossible for the Ministry to check the facts. An extension would also give rise to serious difficulties in the Ministry's accounting system."
I emphasise that cases are very rare. If they are very rare, it would not entail much work on the part of the Ministry to deal with them when they are brought to its attention. Why not do what any person would—alter the date of the order and return them? If necessary, a notice could be enclosed with the document when it is returned to the effect that if the recipient did not cash it within one month he would lose the benefit. I could not bring any excuse forward if a person did not comply with that condition. I suggest that my hon. Friend should draw the attention of the Ministry to this, to see whether any alteration can be made. I must not suggest legislation when raising a matter on the Adjournment, as that would be out of order, but I make that point. It is something which any reasonable person would do. There are many cases in which cheques are issued and not presented to the bank until they are out-of-date. One does not then say, "Ah, we caught you out", but one alters the date and returns the cheque to the payee. That is what should be done in this case. This man is owed money by the Ministry and should be paid. Why should a Government Department, of all people, take advantage of an old-age pensioner, living alone and recovering from sickness? I apologise to my hon. Friend for having rather spoiled her week-end by keeping her in this House after a very hard-working Session, in which she has done very valuable work and when she is justly entitled to enjoyment of the week-end. I wish that it were possible for her to have delegated this job to the Minister himself. Then I could have said a little more of what I think about the matter. I have asked many questions about this case and have had many letters from my hon. Friend about it. She has taken a great deal of trouble in giving me all the facts and all the help she could. I should not have taken up the time of the House and of my hon. Friend had the Minister himself been a little more forthcoming. Had he agreed, as I feel sure that, in his mind, he must agree that this person who is owed the money should be paid it, and would see what steps could be taken to ensure payment, or had he undertaken that if no steps could at present be taken he would see whether the conditions could be altered, I should not have ventilated this case here. As it is, I have felt compelled to call attention to it, and I am sorry to say that I think that the whole matter brings a great deal of discredit on the Ministry."' cases in which such failure is brought to notice are very rare."—[OFFICIAL REPORT, 13th July, 1959; Vol. 609, c. 5.]
1.0 p.m.
My hon. Friend the Member for Leominster (Sir A. Baldwin) has concluded by saying that he wished that my right hon. Friend the Minister had been present to listen to this Adjournment debate. As my hon. Friend is well aware, it is customary for the junior Minister to answer these debates, and that is one reason why I have to be available on Fridays. But, much more important, no discourtesy is intended to my hon. Friend by my right hon. Friend not being present. Indeed, the Minister and I have discussed both this case and the principle behind it, and what I have to say represents the views of us both.
My hon. Friend has told the House that he has had considerable correspondence with me on this subject. I sympathise with my hon. Friend—I know how he feels. His constituent ought to be very grateful to him for his persistence in pursuing this matter as he has done. My hon. Friend has written to me a number of times, he has asked Parliamentary Questions, and has now taken advantage of the facilities available to back benchers to raise the case on the Adjournment. I will not cover the details of the case—my hon. Friend has already set them out. Briefly, the case is that his constituent failed to cash a postal draft which had been issued by my Ministry for sickness benefit. His constituent exercised his rights of appeal, first to the local tribunal and, when that failed, to the Commissioner. Here, perhaps, I may be allowed to answer a point made by my hon. Friend. He thought that the expense of going to the highest level of appeal in this case was not justified, but surely this is part of the pattern of National Insurance as we now know it. The person who contributes to, and has rights under the scheme, is protected also by rights of appeal when his claim is disallowed. There are three levels of review: first, the insurance officer; secondly, the local tribunal; and thirdly, and the highest of these independent statutory authorities, the Commissioner. I think it very proper that my hon. Friend's constituent should have those rights and should have exercised them, even though, in the event, the Commissioner disallowed the appeal and held that the right to payment had been extinguished under the Regulations. Since there are independent statutory authorities, and as this case has gone through the whole machinery of appeal, it would not be proper for me to comment further on it, but I will say something about the principle behind this rule. Section 46 (2) of the National Insurance Act, 1946, says:"Regulations made under this section as to the time of payment of benefit may provide …
It was under the powers conferred by the 1946 Act that the National Insurance (Claims and Payments) Regulations, as amended, provide, under Regulation 12, that the right to any sum payable by way of benefit is extinguished if the payment is not obtained within six months, but that in calculating the six months certain specific periods are to be disregarded. The periods that may be disregarded are:(b) for extinguishing the right to any sum payable by way of benefit where payment thereof is not obtained within six months or such shorter period as may be prescribed from the time at which that sum is receivable in accordance with the regulations."
"(a) any period when the draft is in the possession of the Minister, or an employment exchange or any post office at which it is payable;
(b) any period during which the Minister has under consideration any representation that the order or draft has not been received or has been lost, mislaid or stolen;
(c) any period (not exceeding one year) during which the person concerned is for the time being unable to act by reason of any mental incapacity;
The National Insurance Commissioner, in deciding the case, specifically considered whether any of these provisions for disregard were applicable, and came to the conclusion that they were not. I know that my hon. Friend has a copy of the Commissioner's decision, because he has referred to it. This extinguishment rule was reviewed by the National Insurance Advisory Committee, as my hon. Friend has said, as part of a general review of time limits for claiming benefits under the National Insurance Act, and that Committee reported in 1952. I had intended to quote paragraph 51, but as my hon. Friend has forestalled me in that I will not take up the time of the House except to say that the Committee, at the time of the review, made two recommendations about the time limits for claiming payment. The Committee said that the position which then existed—in 1952--whereby the six months period applied only where good cause for delay had been established—that is, in cases in which the independent authorities had conceded that good cause had been shown—whereas the normal period for obtaining payment was three months, was unnecessarily complicated, and recommended that it should be six months in all cases, but not further extensible for good cause. This is effected by the amending Claims and Payments Regulations of 1952, which also introduced the four disregard concessions applicable in calculating the period of six months to which I have just referred. The second recommendation of the Committee was that the warning notice on benefit drafts and in order books about loss of benefit if payment was not obtained in time should be clarified and strengthened. That recommendation did not need Regulations, and was implemented by my Ministry. In the letter that I wrote to my hon. Friend on 3rd July, I gave full details of the three clear warnings that are contained in the postal draft, a copy of which I have in my hand. My hon. Friend, in fact, quoted from a copy of a postal draft that I sent to him, but only quoted from the third of the three warnings. I should like to stress, because it is important, that the warnings are in simple language. I concede my hon. Friend's point that old people sometimes have difficulty in understanding and filling in forms, but we are not talking about old people all the time. It is true that my hon. Friend's constituent is an old person, but what I have to say applies to everyone drawing benefit from my Ministry, and we have tried to make the warning as simple as possible. The postal draft is headed:(d) any period during which the determination of any question as to extinguishment is pending."
That, I think, is quite clear, and much more specific than the part that my hon. Friend quoted from the third warning, which says, in effect, that "You may find that you lose benefit." Similarly, on the face of the Order, the second warning says, in heavy type:"Not payable unless presented for payment at a post office within three months of the date of issue …".
I therefore hope that I have made the point that we have tried to show quite clearly on these drafts that if the order is not cashed in time there is a risk of losing payment. In the same letter that I wrote to my hon. Friend enclosing a specimen draft, I told him about the general publicity we give to remind people of their duties in this matter. Statements are included in the leaflets we issue about sickness benefit. They are included in order books, where recipients are paid by order book. They are all designed to make it clear that drafts and orders are valid for only three months. If they are not cashed, the recipient should immediately contact the local office of my Ministry. If at any time within the overall period of six months, as I have explained to my hon. Friend, a claimant presents a postal draft to the local office—this is assuming that he has overrun the three months, but finds out before the end of six months—he will receive a new draft. That six months is extensible if any of the disregard provisions apply. In its 1952 Report the National Insurance Advisory Committee referred to some of the reasons which have always proved conclusive in favour of applying a time limit, and they were included in the quotation my hon. Friend gave to the House. Perhaps I can amplify them a little. Benefit orders and drafts do not represent an unconditional right to payment. In many instances the receipt given on the order to acknowledge the payment includes a declaration that certain conditions have been fulfilled. Examples are that recipients are still incapacitated, still continue to be sick and that either they have had no earnings within the period or their earnings are limited. It may contain a statement about their dependants. I am talking about the broad picture, not the specific case about which my hon. Friend is concerned. This declaration must be given within a reasonable time of the period to which it relates if claimants are accurately to recall the facts in their own particular cases or if we in the Ministry, where necessary, are to check any of those facts. Benefits under the National Insurance scheme are designed primarily to meet current needs. To allow arrears of benefit to accumulate against the Fund, often possibly to become payable to someone unconnected or unrelated to the beneficiary because the beneficiary failed to obtain payment in his lifetime, would be inconsistent with this principle. It is necessary to protect the Fund, which is contributed to by everyone liable to comprehensive insurance, against the accumulation of liabilities simply on account of dilatoriness in cashing instruments of payment. Such liability would, moreover, give rise to accounting and other practical difficulties, because the instrument of payment is the evidence that the benefit has been paid. If speed and economy of administration are to be preserved, some time limit must clearly be maintained. To give an example of the size of the job which we have to do, about 3,000 claimants a month express some doubt whether they have been paid. Half of these specifically deny that they have ever received an instrument of payment from us. If the extinguishment provisions were relaxed, it would be impossible to check such claims, except by retaining for a longer period than the present eleven months all cashed drafts and orders. Eleven months is the period for which we retain orders at present. There is nothing sacrosanct about eleven months. It is simply that that is the longest period for which we have storage space to keep the postal drafts and orders which have been paid. There would be a very practical problem involved for us if we were to try to keep them for a longer period, because we should need so much more storage space. My hon. Friend suggested that we should warn beneficiaries that they run the risk of having the benefit extinguished if they fail to cash the order. I am afraid that that is impracticable, again because of the size of the job. the systems of checks on payments applied for various purposes from time to time do not admit of such a procedure being generally introduced. About 7 million postal drafts and pension orders are payable at 20,000 post offices all over the country each week. The sub-division of that is about 6 million pension orders and about 1 million postal drafts. The total is 350 million a year, excluding family allowances, which also have a time limit. All the benefits are subject to a time limit on encashment. My hon. Friend's suggestion would mean that some time before the end of six months after the issue of every single postal draft, or after the issue date of every pension order, a special check would have to be made to find whether the instrument had been cashed and, if not, a reminder would have to be sent. It would not be possible with pension orders, because they are made up in books sent to pensioners and held by them. They are normally current for twelve months, so we would not have that six months' interval. The system of checks which it is practicable to impose on these payments would not permit of a reminder procedure. Even if it were possible with postal drafts to identify in time the cases where reminders would be required, there would still be formidable administrative difficulties arising from the fact that paid drafts are not returned to the offices which issue them, but to the Central Office of our Ministry at Newcastle, and the drafts do not show the addresses of the payees. Therefore, the extra work involved would be very substantial. We take all reasonable precautions to safeguard beneficiaries against dilatoriness in presenting drafts for payment, and only a tiny proportion are not cashed within the time limits allowed. Even if the system of checks could be adjusted to make a procedure possible—it would not be possible with pensioners, who make up the majority of beneficiaries—it would be unfair to the great majority of contributors, who deal with payments promptly, that they should bear the administrative cost of a procedure which would be cumbersome and expensive to operate and of advantage only to the few. I have stressed that drafts and orders are not unconditional payments. The recipient must satisfy the conditions. The benefit is intended for current needs. I hope that I have shown that some limits are necessary. To alter the present six months would need legislation, and it would not be proper for me to comment on that. I think that the present system works. Furthermore, it has the support of the National Insurance Advisory Committee, which is an important and high-powered body having the duty of advising my right hon. Friend. We go to considerable trouble to make the limits known and understood. This system works, and we must abide by the fact that we need a time limit on payments."Warning. See Note 7 overleaf, regarding encashment within three months of this date."
Before my hon. Friend sits down, will she answer my second suggestion, which was a much more simple one? I appreciate that, if checks of these postal drafts are not made, it would be impossible to give a month's notice. My second suggestion was much more easy than that and would involve practically no expense. When these payment orders are issued they are a promise to pay; they admit that they are due. My hon. Friend told me that there were only rare cases when they were not cashed in time. Why is it not possible to adopt this procedure, which could have been adopted in the case of my constituent? He sent the payment order back to the Ministry. The Ministry has not got to check anything except the order itself, alter the date on that order and give him one month's further time in which to cash the order.
We are bound by the Regulations made under the Act not to extend the period of six months within which orders may be cashed.
Question put and agreed to.
Adjourned accordingly at eighteen minutes past One o'clock.