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House of Lords

Friday, 22nd October 1999.

The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers--Read by the Lord Bishop of Lichfield.

Mental Health (Amendment) (Scotland) Bill

11.5 a.m.

Lord Hogg of Cumbernauld: My Lords, I beg to move that this Bill be now read a second time.

It is a great pleasure for me to commend to your Lordships a Bill which has been piloted so efficiently through another place by my honourable friend Mr Eric Clarke, MP. The Bill has received thorough scrutiny in another place and comes to your Lordships' House with support across the political spectrum, as well as from organisations active in the mental health and welfare field in Scotland.

The Bill was described by my honourable friend in another place as a “wee" Bill. It is certainly that, amounting as it does to no more than two clauses. Nevertheless, the Bill neatly closes a gap in Section 94 of the Mental Health (Scotland) Act 1984. Section 94 currently allows hospital managers to manage the funds of patients who, because of mental disorder, cannot look after their own resources while in hospital. However, it does not allow the hospital manager to release the funds to the new carer when the patient leaves the hospital to live in the community. In a word, the funds become stuck in hospital accounts and the patient is deprived of the benefits that those resources could bring.

The Bill responds to that unhappy situation by enabling hospital managers to continue to hold and disburse the funds for the patient's use when he leaves hospital. The net effect is that those patients, once in the community, will continue to benefit from their own resources, with the potential for a better and more pleasurable quality of life.

Although a small Bill, it has the potential to benefit a substantial number of patients. By the end of this year it is estimated that some 750 patients could be denied access to their funds under Section 94 as it currently stands. Therefore, action is needed now. The Bill is the key to unlocking the door which will allow those patients to benefit from their own resources. I commend the Bill to the House.

Moved, That the Bill be now read a second time.--(Lord Hogg of Cumbernauld.)

11.8 a.m.

Lord Rowallan: My Lords, this is a very good Bill. I commend it and the noble Lord, Lord Hogg of Cumbernauld, who has introduced it. As the noble Lord said, the Bill affects 750 patients--a significant

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number of people. However, I am concerned about one or two aspects on which I hope the Minister will give a satisfactory reply.

First, I am concerned slightly about the devolution aspects in so far as mental health is a Scottish rather than a British matter. I hope that the Scottish Parliament is quite happy that the Bill is all right as far as it concerns Scotland. I understand that the Bill will probably not last very long because the Law Society of Scotland has informed me that it is keen and certain that the incapable adults Bill will shortly pass through the Scottish Parliament. Obviously that will supersede this Bill.

Section 94 of the Mental Health (Scotland) Act 1984 is a complicated part of the Act. It forms the central plank of that Act. It states, first, that all that is required for a hospital to take over the management of a patient's funds is for a responsible medical officer to state that the person is incapable, in his opinion, of looking after his own assets, property and affairs. That is an extremely dictatorial statement. It relies very much on the judgment of one person. Perhaps, therefore, it may be slightly unfair.

The section goes on to provide:


    “managers shall have regard to the sentimental value that any article may have for the patient, or would have but for his mental disorder".

Who is to say what is sentimental to anybody? What is sentimental to me may not be sentimental to somebody else. I am concerned about that.

The management of personal funds forms a vital part of the rehabilitation of any patient when he goes into the community. Therefore, we must safeguard the rights of those people. There must be a right of appeal. Patients must be able to question the medical officer's decision. Let us remember that it is one person who can declare a person incapable.

We must ensure that it is possible for a patient to regain control of his funds after discharge. It cannot be right that managers control the funds for ever just because once--maybe a very long time ago--they felt that the patient was irresponsible and incapable. We must ensure also that a patient can complain if he feels that his funds are being spent in the wrong way or that he is not getting full access to them. Who will make those decisions? It is a responsible and onerous job to manage someone's funds, property and affairs. It is also a very difficult job to say that someone is wrong.

We must ensure that the Bill goes far enough and does not allow the patient just to smell access to his money. He must be allowed to touch it and have control over it. At the moment he has no access to his funds whatever. The fact that the Bill will allow managers access to funds if the patient is allowed back into the community is extremely good. I am keen on the Bill from that aspect, but other matters worry me. I am concerned that the Bill does not go far enough and does not have safeguards for the patient. I applaud the motives and if I receive satisfactory answers from the noble Baroness, that will be the end of my concerns. If I do not receive satisfactory answers, I shall raise further questions in Committee.

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We must remember that it is proposed that such people are to be given the vote before we are too much older. If they are capable of being given the vote, we must ensure that they have proper access to the managers and indeed to everything to make certain that their funds--they are their funds, not the hospital's funds or anybody else's funds--are looked after in the way they want.

Meanwhile, as I am sure that this will be the last Scottish Bill ever to pass through the House, I am delighted that I am able to speak on it, especially as it is a subject close to my heart. I hope that the Bill has a speedy passage and I commend it to the House. I hope that the noble Baroness will give me the answers that I require.

11.13 a.m.

Lord Thomson of Monifieth: My Lords, on these Benches we strongly support the Bill so ably moved by the noble Lord, Lord Hogg of Cumbernauld. In many ways it is the very model of a Private Member's Bill. It is uncontroversial; it has all-party support; it has government support; it removes a very real anomaly and it does not cost a penny. One cannot hope for a better Private Member's Bill than that.

As the noble Lord said, it deals with a real anomaly in the existing mental health legislation created by the fact that the world has changed since the previous Act to which the Bill relates was passed. I join with the noble Lord, Lord Rowallan, in one sense: it will be important for good guidance to be given to the hospital authorities and to carers in this respect to ensure that the money of those who are incapable of looking after it for themselves is properly safeguarded and looked after. I hope for some words of reassurance from the noble Baroness.

The noble Lord, Lord Rowallan, is absolutely right. This is a little bit of history. The Minister who looked after this Bill in another place has moved geographically to another place and is the Minister dealing with it in the new Parliament in Edinburgh. Therefore, this will be the very last piece of Scottish health legislation that your Lordships will deal with.

11.15 a.m.

The Earl of Courtown: My Lords, I join with other noble Lords in congratulating the noble Lord, Lord Hogg of Cumbernauld, on introducing the Bill. His explanation was thorough and clear. In many ways, I feel proud to be part of this historical event, although politically it is another matter.

As the noble Lord said, the Bill seeks to amend Section 94 of the Mental Health (Scotland) Act 1984. I understand that the 1984 Act does not enable managers to release funds to the patient or anyone else when the patient ceases to receive treatment and returns to live in the community. That means that the funds can become trapped and patients can be prevented from obtaining access to their assets.

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I understand that the Bill will enable managers to continue to hold money and valuables and enable them also to spend money or dispose of valuables for the benefit of the patient, even though the patient is no longer in hospital but is still deemed to be unable to manage his or her own affairs.

I am told that the Law Society of Scotland and ENABLE both support the Bill. Concerns have been raised by ENABLE over the long-term management of the funds and their need for comprehensive legislation to cover other matters in this area. I hope that the Minister can give the House some further news on this matter such as whether there are any further plans for legislation, although I know that the matter is to be dealt with by Edinburgh.

A number of queries have been raised by other noble Lords. One is the definition of “benefit" in Section 94(3) of the 1984 Act. Clarity of definition is so important. In these situations patients and their families need to be aware of what is happening.

I also join with my noble friend Lord Rowallan in asking whether the patient's family have any rights if they should disagree with expenditure. If there is disagreement, are there provisions for arbitration? If a discharged patient is deemed able to manage his or her own affairs does the Bill give an automatic right for an individual concerned to assume control of his or her assets? My noble friend Lord Rowallan also asked--I associate myself with the question--whether there is any provision for an independent body to oversee the actions of managers.

I know that some of these points have been raised in another place, but I believe that they require further clarification. On these Benches we support the Bill. I look forward to hearing from the Minister and the noble Lord, Lord Hogg of Cumbernauld, at the end of the debate.

11.17 a.m.

Baroness Ramsay of Cartvale: My Lords, it gives me great pleasure to congratulate my noble friend Lord Hogg of Cumbernauld on his excellent speech in support of a Bill which has already successfully passed through another place. I echo his tributes to our honourable friend Mr Eric Clarke who has had the compassion and wisdom to promote such a measure, which will bring tangible benefits to a deserving and disadvantaged group of people within our society.

As the noble Lords, Lord Rowallan and Lord Thomson, and the noble Earl, Lord Courtown, have said, this Bill is something of an historic landmark. The Clarke Act, as doubtless, if enacted, it will come to be known, could well take its place in history as the last piece of exclusively Scottish legislation within the competence of the Scottish Parliament to pass through your Lordships' House.

This is a worthy measure, which has the full support of the Government and of organisations in the mental health field in Scotland. Noble Lords may also have received a letter from the Law Society of Scotland asking them to give their support to this Bill. It

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addresses a lacuna in Section 94 of the Mental Health (Scotland) Act 1984 which is causing increasing difficulty and distress among those caught by it. My noble friend Lord Hogg succinctly described the problem. Essentially, the 1984 Act, itself a consolidation measure going back to 1960, is now of considerable age and has fallen behind advances in treatment and care. In particular, it does not reflect the measured move to care in the community, which is now a well established principle in the care of the mentally ill for whom hospitalisation is no longer needed or desirable.

The Bill now before your Lordships' House is a small but welcome component of a comprehensive drive to modernise the legislation dealing with adults who are incapable of looking after their own affairs. It might be helpful to your Lordships for me to describe some of the initiatives being taken to help ensure that the well-being of this important group of people reflects the high standards we seek for a just and fair society. It might also go some way to answering some of the points raised by noble Lords in this debate.

The first strand of the approach is the review of mental health legislation--in particular the 1984 Act-- being undertaken by an expert committee, ably led by the right honourable Bruce Millan, a distinguished former Secretary of State for Scotland. The Millan Committee is expected to report next summer, on the basis of which the Scottish Executive will move forward to legislation in the Scottish Parliament.

The second strand is a Bill which was introduced earlier this month in the Scottish Parliament. That Bill--the Adults with Incapacity (Scotland) Bill--is based on a report by the Scottish Law Commission and has been the product of extensive consultation. Of special relevance to our proceedings today are the arrangements which the Bill sets out for managing the finances of incapable adults, including those who are mentally disordered. That Bill will eventually, and subject to the will of the Scottish Parliament, supersede the measure which is now before your Lordships' House. It will be clear therefore that the Scottish Executive are resolved to ensure that the arrangements for the treatment and care of the mentally ill and incapable are fit for the purpose and worthy of a new millennium.

It might well be asked, with the Millan review and the Bill now before the Scottish Parliament, whether it is necessary for this measure before us today to proceed. The answer is yes, and in essence two-fold. First, the Adults with Incapacity Bill has still to pass through all its stages in the Scottish Parliament. That Bill ranges much more widely than the management of the funds of incapable adults and will attract the detailed consideration such an important and worthwhile measure deserves. Even with the best will in the world, therefore, it would be rash to anticipate that the Bill would reach the statute book without months of deliberation.

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Secondly--and this is, in effect, the corollary of the first--it is absolutely necessary that we act now, albeit in an interim way, to plug the gap in Section 94 of the 1984 Act to remove the unacceptable constraints which it imposes on patients who have left, and are leaving, hospital to live in the community. I hope those comments answer the points raised by the noble Lords, Lord Rowallan and Lord Thomson, and the noble Earl, Lord Courtown.

Perhaps I can spend a moment dealing with one or two of the specific points raised. In relation to the question of the right of appeal, in fact the Scottish Executive will issue guidance to hospital managers, making clear that the patients must be regularly assessed to ensure that either they remain incapable of managing their own affairs, or that they are now capable of managing their own affairs and circumstances have changed.

The management of the funds will be carried out in an appropriate manner in consideration of the patient's welfare and circumstances and will take account of all known factors. The Scottish Executive guidance will stress the need for care in all those matters. But it is in the Scottish Parliament that the legislation will take place, and the Scottish Parliament is well aware that this Bill is proceeding in the United Kingdom Parliament. The Bill is a temporary measure and will in due course be superseded by the Adults with Incapacity Bill.

This is not a matter affecting just a few people. As my noble friend Lord Hogg informed the House, by the end of this year around 750 patients could be denied access to their personal--often hard won--resources because the 1984 Act does not allow it. More will come up against the same barrier in subsequent years. This Bill therefore provides a straightforward but effective remedy to a growing problem. It will allow hospital managers to continue to hold and disburse money and valuables on behalf of patients who leave hospital to live in the community. The solution is simple, but its effects will be substantial.

During proceedings in another place, various undertakings were given by Ministers on matters which were raised by honourable Members in a constructive and helpful way. I am glad to be able to reassure your Lordships that the Scottish Executive will honour the undertakings already given. I need not, I think, detain the House by reiterating every undertaking given in another place, although I have the details with me. But your Lordships can be assured that the Scottish Executive will take all appropriate steps to ensure that the interests of the patient are paramount.

I reiterate the Government's support for this Bill. Short though it may be, it will go a long way to improving the lot of a growing number of patients who, through no fault of their own, find themselves denied access to their own resources. My noble friend Lord Hogg is to be congratulated on taking forward this Bill. It is an interim Bill, but a very important one, and, without any hesitation whatever, I commend it whole-heartedly to your Lordships for support in giving it a speedy passage through this House.

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11.26 a.m.

Lord Hogg of Cumbernauld: My Lords, I was asked last year when I was Lord High Commissioner to the General Assembly of the Church of Scotland what my definition of a good sermon was. I said one that was five minutes less than the congregation expected. We have had a brief debate today, but a good and interesting one. I am grateful to the noble Lords, Lord Thomson of Monifieth and Lord Rowallan, for their constructive contributions, as well as the characteristically competent wind-up from the Government Front Bench.

What is abundantly clear is that there is unanimity in your Lordships' House for this Bill which, aside from its worthy purpose, will itself make a little bit of history, as we have already commented. This is indeed the last occasion when your Lordships will have a Second Reading debate on a topic within the legislative competence of the Scottish Parliament. That being the case, it is entirely fitting that a Bill which has as its objective the improvement of the quality of life of a disadvantaged group in our society should have this historic place.

This Bill, little though it may be, is a worthwhile and important measure and I urge your Lordships' House to give it a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.


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