COMMUNITY CARE ORDERS

HC Deb 26 October 1995 vol 264 cc1168-77

Mr. John McAllion (Dundee, East)

I beg to move amendment No. 2, in page 18, line 26, leave out from '35A.—(1)' to 'the' in line 28 and insert `Where a patient has attained the age of 16 years'.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No. 3, in page 18, line 39, at end insert 'and (c) a community care assessment under section 12A of the Social Work (Scotland) Act 1968 (in this Act referred to as a "community care assessment").'. No. 4, in page 19, line 2, after 'appropriate', insert 'to ensure that a patient receives such medical treatment, after-care services and a community care assessment'. No. 5, in page 19, line 22, after 'until', insert `a community care assessment of the patient has been carried out and'. No. 8, in page 21, line 7, at end add ';and (c) the community care assessment of the patient.'. No. 11, in page 22, line 14, after 'circumstances', insert `and his community care assessment'.

Mr. McAllion

The amendments were inspired by the Law Society of Scotland and cover a range of issues connected with the Bill's Scottish clauses.

Amendment No. 2 would ensure that only people over the age of 16 could be subject to community care orders. Let me explain why we consider that limitation necessary. The English and Welsh clauses limit supervised discharge to young people who have attained the age of 16, because it is felt that young people would be more appropriately dealt with under the Children Act 1989. If that is the Government's view in respect of young people in England and Wales, surely they should take the same attitude to young people in Scotland.

The Minister will know that a young person can be subject to compulsory detention under the Mental Health (Scotland) Act 1984, which does not set an age limit. Although it is fairly rare for a young person to be compulsorily detained in hospital, it does occasionally happen in Scotland. The amendment simply covers circumstances in which a young person is discharged from hospital to live in the community.

It is suggested that, if further powers are to be taken to control the young person's life in the community, doctors should involve the expertise of the reporter and the children's panel in Scotland, as they would more appropriately control and supervise the lives of such young people. They certainly have the experience and the procedures to consider young people's needs. Surely it is better to involve them than to use the sheriff court procedure.

As the Minister will know, the Children (Scotland) Act 1995 provides that those responsible for a young person's welfare may apply to the sheriff for a supervision order for a child in need of extra care. Among the conditions that can then be imposed are conditions relating to residence and medical treatment. Those are precisely the kind of matters that might be included in a community care order; however, it would be preferable to use a supervision order, because that too involves the expertise of the reporter and the children's panel.

On an allied matter, may I remind the Minister of an incident that took place in Glasgow in 1994 and led to the death of a police constable? Philip McFadden was subsequently committed to the State hospital in Carstairs. The Minister will be aware that the Mental Welfare Commission for Scotland had conducted an inquiry into the care and treatment of Philip McFadden before the incident took place. Has there been any progress with that inquiry?

Amendment No. 3 is intended to provide for a person who is subject to a community care order to have a full community care assessment under the National Health Service and Community.Care Act 1990. It would ensure that such a person received the benefits of the new community care system of assessment and care management under the care programme approach, and would make it clear that such an assessment should be carried out before the granting of the community care order. We believe that the sheriff should have the benefit of seeing the full assessment before granting such an order.

Amendment No. 4 attempts to ensure that the sheriff does not impose conditions on the community care order that are not relevant to the main aims of that order. The Minister will be aware that the provisions in clause 4 which apply to Scotland are very different from those that apply to the supervised discharge procedures proposed for England. Under the English procedures, the special medical officer has the power to say where the patient should reside, what day facilities he or she should use and whether access to medical and social work personnel will be necessary. Those procedures also include the controversial power to convey the patient to treatment, which was mentioned when we discussed the earlier group of amendments.

We cannot conceive that the sheriff would have it in mind to include in the order any additional powers, but we consider it essential for the legislation to make very clear what the Government have in mind. Is it proposed, for example, that the controversial power to convey could be introduced in Scotland under the sheriff court procedure? Could patients in Scotland be conveyed against their will to day-care and medical facilities? Those who work in the field in Scotland are interested to know exactly what the Government intend.

Amendment No. 5 is designed to ensure that the sheriff has the power to defer making an order until he is satisfied that the patient's community care needs have been assessed. Again, we believe that the sheriff should have the benefit of seeing a full community care assessment of the patient before making an order.

Amendment No. 8 is linked to, and consequential on, amendment No. 2. It is simply an attempt to bring the proposed new system into line with community care procedures now current in Scotland. It would ensure that the person considering whether to make a community care order would consider the information about the patient's needs as set out in his formal community care assessment. Amendment No. 11 is simply consequential on amendment No. 2.

Mr. George Foulkes (Carrick, Cumnock and Doon Valley)

I am grateful for the opportunity to speak, particularly because the report mentioned by my hon. Friend the Member for Dundee, East (Mr. McAllion)— the report of the inquiry conducted by the Mental Welfare Commission for Scotland into the care and treatment of Philip McFadden—was published by the Scottish Office today. I am grateful to the Under-Secretary of State for sending me a copy of the report earlier this week: I have now had time to read it in some detail.

With the permission of the Scottish Office, I sent a copy of the report to the parents of the late Police Constable Lewis Fulton. Lewis and Gette Fulton, who are constituents of mine, bore their tragic and unnecessary loss with great fortitude and dignity. I am happy to place that on record.

As I am sure the Minister would admit, the report is quite worrying. I shall deal with two issues arising from it which relate to today's debate. First, there is the question of media coverage of such incidents. Section 7 of the report, on page 23, is very critical of the coverage by the Daily Record, which featured the headline Schizo can't be tried for cop killing", and an article that described Philip McFadden as a madman. The same issue contained the headline Teenage schizo can't face trial, but judge orders 'Keep this madman in Carstairs'". I entirely agree with the comment of the Mental Welfare Commission: Press coverage is very important, because it forms a basis for the public perception of events. The sort of pejorative language used by the Daily Record is deplorable and does not assist an intelligent debate about the problems of community care. We need, above all, an intelligent debate. This is a very difficult issue, and if newspapers—particularly tabloid newspapers—employ such expressions, we shall not have that intelligent debate.

I shall deal with another section of the report at slightly more length—although not in extenso, hon. Members will be pleased to hear. It relates to the position when Philip McFadden was discharged from the psychiatric hospital. When he was in the hospital, he had the support and help of a very experienced consultant psychiatrist, Dr. McCabe—who comes out of the report very well—and a range of specialist support. That support was expensive—rightly so—but it was immediately available, and provided excellent support for a very disturbed young man at a very difficult time. When Mr. McFadden moved out into the community—this point relates to community care—the general practitioner was his first line of support.

We all accept that GPs should be the first line of support. GPs are anxious to remind us that people cannot be referred to consultants, that people cannot get any other kind of medical treatment and that they must go to their GP. They demand the right to be the primary support in medical care, but in so being they have some responsibilities to society and, above all, to their patients.

When Philip McFadden's mother was in desperate need of urgent support and assistance she rightly called her GP. The Minister will confirm, however, that for a substantial period that distraught lady could not get past the GP's receptionist. I have heard of many instances where anxious and desperate patients or their relatives have been fobbed off by receptionists. That is what happened in this case.

Eventually, after persisting, and with the help of Rosemary Fitch—a psychiatric nurse who comes out very well in the report—she got through but found that not one GP was available in the practice. It is astonishing that this big, busy practice in Glasgow had not one GP available to deal with the mother of a psychiatric patient. By this time, Philip McFadden was wielding a knife and threatening people in the family.

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When Philip McFadden's mother eventually got through to the doctor some time later, he refused to attend. I know of incidents in Scotland where GPs have been assaulted, and we have to take account of that, but this was a difficult situation, and the report says that the doctor should have contacted the police and gone with them so that there was medical and police assistance simultaneously. That was not done in this case. Instead, a young police constable went along on his own and was stabbed to death. In my view, it happened because the system, under which GPs give immediate support to people like Philip McFadden's mother, broke down.

That is why I am asking the Minister to review the role and responsibilities of GPs. That is important. More young people will be discharged into the community, which is absolutely right in principle, but the necessary support must be available to ensure their protection and the safety of the general public—in this case, a young policeman.

I hope that the Minister will give an assurance that he will contact the Royal College of General Practitioners and the British Medical Association, both of which provided experts to give evidence to the commission. Dr. Jim Rodger of the Scottish Council of the Royal College of General Practitioners and Dr. John Gamer of the Scottish committee of the BMA suggested that there should be some improvements, that GPs need to be available 24 hours a day for such emergencies, for which they need clear rules such as how and when to bring in the police to work alongside them.

This was a tragic death that should never have occurred. In my view, the system broke down. I am not pointing the finger at any individuals, although some are criticised in the report. I hope that the Minister will deal with those criticisms and say how he will respond to them. The Mental Welfare Commission has pointed the finger at certain individuals, but I am more concerned about the system and to ensure that, as far as is humanly possible—it can never be guaranteed—the kind of situation in which Lewis Fulton met his death does not occur again. I know that I am speaking on behalf of his parents and his widow when I say that they are anxious to ensure that such a situation does not occur again, and that no other young policeman has to face the same difficulties.

The Minister of State, Scottish Office (Lord James Douglas-Hamilton)

I share the sympathy of the hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) for the family of police officer Lewis Fulton, and I shall make a full statement on that in a moment.

I shall deal first with the amendments, which seek to achieve two things. First, they would have the effect of making available community care orders to patients who are over 16, whether detained or otherwise. Although the question of detaining a child under 16 in a psychiatric hospital is a disturbing thought—children can become mentally ill—the existing provision recognises that it may be necessary for a child to be detained in hospital. If there is a possibility of a person under 16 being detained in hospital, it is only fair that that person should have the same rehabilitation opportunities as all others so detained, including access to community care orders. For that reason, an age limit of 16 years, in our view, should not be imposed.

The amendments also seek to introduce a statutory requirement that the patient should receive a needs assessment, and propose an associated change to the Bill. We do not need to legislate to do that, as local authorities already have the duty, under section 12(a) of the Social Work (Scotland) Act 1968, to assess people's social care needs. We believe that the duties on authorities to provide aftercare, under section 8 of the 1984 Act, are quite clear, and include, through the Bill, duties to provide aftercare for persons subject to a community care order. We shall also underline in guidance the circumstances in which that duty applies to community care order patients. If there are problems in meeting these duties, they should be addressed administratively, not by primary legislation.

With that explanation, I hope that the hon. Member for Dundee, East (Mr. McAllion) will not press the amendments. If there are matters that require the Children Act provision to apply in a case, they can definitely be used, but it is still preferable to have the opportunity to use a community care order if that would help to support a young person on discharge from hospital.

The hon. Member for Carrick, Cumnock and Doon Valley raised the very tragic case of police officer Fulton and inquired into the care and treatment of Mr. Philip McFadden prior to the incident on 17 June 1994. I am grateful to the commission for the comprehensive way in which it has carried out its inquiry. Because of the possibility that Mr. McFadden may yet stand trial, if considered fit to do so in future, the inquiry has necessarily concentrated on the care and treatment that he received before the death of police officer Fulton, to whose family we extend our deepest sympathy.

The commission's report recommended: first, that the Secretary of State and the Royal College of General Practitioners and other appropriate GP organisations consider the need for further guidance for GPs in dealing with potentially violent, mentally disturbed patients in community care. Secondly, it recommended further discussions between the police and doctors to address the issue of collaboration in respect of crisis situations involving people with mental illness who are potentially violent. Local arrangements should be agreed between GPs, psychiatric services, mental health officers and the police to deal with such emergency situations. Thirdly, police training should be appraised to ensure that there is adequate preparation for recognising mental illness and dealing with members of the public who are mentally ill.

I am glad to confirm that the Government have accepted those recommendations. As a first step, we have written to the national general practitioner and police organisations, enclosing a copy of the commission's report and asking them to agree with us the action necessary to address the commission's recommendations. I shall also refer the report to the Greater Glasgow health board to consider whether any separate action, bearing on the board's responsibilities, is necessary to address the commission's comments and conclusions in relation either to primary care or hospital settings. As I mentioned to the hon. Gentleman, in relation to GPs' responsibilities, the report has been sent to the Royal College of General Practitioners and the BMA, and we will follow up with them how they can address the commission's recommendations.

I am also sympathetic to the point that it is undesirable for the press to leap to conclusions in cases of this nature. Indeed, the commission's report emphasised that Mr. McFadden received appropriate treatment from the adolescent psychiatry service in Glasgow and dispels any suggestion that he had been inappropriately discharged into the community. It also criticises misleading aspects of the press coverage given to the case, including the suggestion, which was irrelevant, that a shortage of psychiatric admission beds had contributed to the incident.

Mr. Foulkes

Before the Minister concludes, I should like to thank him. The Government have acted properly in all that they have done and I sincerely welcome the Minister's announcement. It shows that when dealing with such sensitive matters party politics need not play a part and that we can sometimes move forward with agreement. I am especially grateful to the Minister.

Lord James Douglas-Hamilton

I thank the hon. Gentleman for his welcome for these measures and our actions on the recommendations.

I can now respond specifically to a point made by the hon. Member for Dundee, East. Under the Bill, there is a much more specific provision than a power to convey in Scotland, which requires the return of the person to hospital for reassessment if his mental condition has deteriorated. That can be done by a member of the care team. The direction to attend hospital for reassessment in such cases constitutes sufficient authority to convey a person to hospital, and an additional power to convey as proposed in England and Wales is not considered necessary. In other words, the technicalities may be different but the purpose is the same, and I thought it necessary to mention that.

Of course, the decision to detain a person must be made on the basis of clinical diagnosis and has to be of a nature or degree that warrants detention. Detention can be for a period of six months and can then be renewed at 12-month intervals depending on the mental condition of the patient involved.

Mr. McAllion

I thank the Minister for his prior notification of the publication of the report by the Mental Welfare Commission for Scotland and I associate myself with the remarks made by my hon. Friend the Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) to the effect that the Government have handled the matter properly.

I should also like to add my support from the Front Bench to my hon. Friend's criticism of the tabloid coverage of the tragic incident. The use of words such as "schizo" and "madman" was disgraceful and wholly unacceptable. It strikes me that the tabloids in particular increasingly exercise considerable power in our society, but with power should go responsibility. In this case, they have shown no responsibility whatsoever.

I also accept to a certain extent the Minister's explanation about ensuring that people under 16 should have the same rehabilitation opportunities as everyone else. The point is not that they should be denied those rehabilitation opportunities but that their rehabilitation opportunities should be under the supervision of the reporter on the children's panel service. That is the most appropriate way to handle them, as opposed to the sheriff court system in Scotland.

I thank the Minister for his remarks about improvements that the Government are suggesting for better collaboration between the police and general practitioners and for police training, and for referring the report to the Greater Glasgow health board.

Finally, I hope that there is to be no scapegoating in this affair. If there are any lessons to be learnt about weaknesses in the system, I hope that we try to deal with them rather than hold an individual responsible. However, I am grateful to the Minister and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Lord James Douglas-Hamilton

I beg to move amendment No. 25, in page 19, line 45, after `(3)(a)' insert 'or (f) 'or (3A)'.

Mr. Deputy Speaker

With this, it will be convenient to discuss Government amendments Nos. 26 to 44.

Lord James Douglas-Hamilton

The amendments provide for communication with an intimation to informal carers and, in certain circumstances, the nearest relative. They are proposed in response to representations made in Committee.

The amendments provide that those who give informal care to the patient are informed of the various stages of the community care order—its making, renewal or revocation, variation of its conditions, a change of special medical officer or aftercare officer or a reassessment in hospital. That is a direct response to an amendment tabled by the hon. Member for Dundee, East.

The amendments also enable the responsible medical officer, the special medical officer or the aftercare officer, as appropriate, to consult at the various stages with the patient's nearest relative when a patient has a history of violence despite the patient's objections. The right to override the patient's wish would allow those caring for the patient to obtain information from the nearest relative, which might be essential to an assessment of the risk that the patient poses to himself or others. This is in the light of an amendment to the English provisions sponsored by the National Schizophrenia Fellowship and proposed by the hon. Member for Wakefield (Mr. Hinchliffe). I am glad to incorporate them in the Bill.

Mr. McAllion

I am grateful to the Minister for tabling the amendments-I wish only that he would be as responsive and flexible in dealing with other matters that we raise with him.

Amendment agreed to.

Amendments made: No. 26, in page 20, line 13, after '(3)(a)' insert 'or (3A)'

No. 27, in page 20, line 48, at end insert— '(3A) If the patient has a propensity to violent or dangerous behaviour the responsible medical officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (3)(a) above.'.—[Lord James Douglas-Hamilton.]

5.15 pm

Mr. McAllion

I beg to move amendment No. 12, in page 22, line 21, after 'force;', insert— '(iv) the views of the patient and his or her carers as to such matters, as disclosed to the person making the application for the community care order during consultation;'. The amendment would ensure that the person making the report under an application for a community care order must inform the sheriff about the discussions that he or she has had with the patient and with his or her carers. We believe that it is important that the sheriff should understand any problems with the community care order that either the patient or his carers may have. The responsible medical officer will have consulted both before making the application, and the amendment requires him merely to report on those discussions.

Although the patient has the right to attend the hearing, there is a real possibility that in many cases he or she may be too ill to attend or may be intimidated by the process. The amendment would be an additional safeguard to ensure that his or her views are taken into account.

Lord James Douglas-Hamilton

The amendment would introduce a requirement that the aftercare officer's report accompanying the application should include the views of the patient and his carers about the proposed order. As drafted, it would be the patient's views, as disclosed to the responsible medical officer.

I must point out that the Bill requires that patient and carers are consulted by the responsible medical officer before the application is made. The application should reflect the views of those consulted, and guidance will be issued by us. As I am sure the House is also aware, the proposed new clause 35A(2) attracts the provision of section 113 of the Mental Health (Scotland) Act 1984 to the application of a community care order. That means that the patient must be given the opportunity to be heard by the sheriff, either in person or through a representative.

I hope that the House will agree that an interested and vociferous patient probably will wish to attend the hearing, and that is the best safeguard. We take the view that a patient who is so ill as to be unable to attend the court hearing should probably not be considered for a community care order. In such circumstances, the patient should be cared for in hospital.

I accept that a patient may choose not to attend the hearing, and we shall use guidance to underline the importance to the application of the views of those consulted and to make it clear to the various professionals involved that patients should be encouraged to attend or be represented at such hearings. Given those assurances, I ask the hon. Gentleman to withdraw the amendment.

Mr. McAllion

In view of the Minister's assurances about guidance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Amendments made: No. 28, in page 22, line 33, at end insert 'or (3A)'

No. 29, in page 23, line 18, at end insert— '(3A) If the patient has a propensity to violent or dangerous behaviour the responsible medical officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (3)(b)(i) above.'

No. 30, in page 23, line 20, after 'above' insert 'and any consultation under subsection (3A) above'

No. 31, in page 23, line 29, after '(3)(b)(i)' insert 'or (iv) or (3A)'

No. 32, in page 23, line 36, leave out from 'of' to 'of in line 38 and insert `references to subsections (3)(b)(i) and (3A) of this section for the references to subsections (3)(a) and (3A)'

No. 33, in page 24, line 7, at end insert— '(1A) If the patient has a propensity to violent or dangerous behaviour the special medical officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (1)(a) above.'.

No. 34, in page 24, line 13, after '(1)(a)' insert 'or (1A)'.

No. 35, in page 24, line 31, after '(1)(a)' insert 'or (e) or (1A)'.

No. 36, in page 24, line 37, leave out from 'of to 'of in line 39 and insert 'references to subsections (1)(a) and (1A) of this section for the references to subsections (3)(a) and (3A)'.

No. 37, in page 25, line 43, at end insert— '(4A) If the patient has a propensity to violent or dangerous behaviour the special medical officer or, as the case may be, the after-care officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (3)(a) or, as the case may be, (4)(a) above.'.

No. 38, in page 25, line 51, after '(a)' insert 'or (e)'.

No. 39, in page 25, line 52, at end insert 'or subsection (4A) above'.

No. 40, in page 27, line 16, at end insert— '(2A) If the patient has a propensity to violent or dangerous behaviour the special medical officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (2)(a) above.'.

No. 41, in page 27, line 45, after '(2)(a)' insert 'or (e) or (2A)'.

No. 42, in page 29, line 28, after 'officer' insert ',any person falling within subsection (2)(e) below'.

No. 43, in page 29, line 43, at end insert— '(2A) If the patient has a propensity to violent or dangerous behaviour the special medical officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (2)(a) above.'.

No. 44, in page 30, line 4, leave out from second 'the' to end of line 6 and insert `persons mentioned in subsection (4) below of the revocation. (4) The persons to be notified under subsection (3) above are—

1. (a) the patient and (if practicable) his nearest relative;
2. (b) the patient's special medical officer;
3. (c) the patient's after-care officer; and
4. (d) any person who the Mental Welfare Commission believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services provided for the patient under section 8 of this Act.'.—[Lord James Douglas-Hamilton.]