Mental Health (Patients in the Community) Bill [H.L.]

HL Deb 04 April 1995 vol 563 cc97-167

3.3 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Cumberlege.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 1 [After-care under supervision]:

Earl Russell moved Amendment No. 1:

Page 1, line 6, after ("shall") insert ("subject to the provisions of section 7(2) below").

The noble Earl said: In moving this amendment I should like to speak to Amendment No. 135, which is consequential upon it. Before getting down to the matter of this amendment I should like to take the chance to thank the noble Baroness, Lady Cumberlege, and through her Mr. Bowis and the noble and learned Lord, Lord Fraser of Carmyllie, for the meeting which they so very kindly arranged to give us an explanation of the Bill and the issues arising from it. It was a very valuable meeting. It was gratefully received and I should like to thank the Ministers concerned for the time and trouble they have put into it. This is another in the list of suggestions of the noble Lord, Lord Rippon of Hexham, for improving the procedure of the House. I think it will work.

Amendment No. 1 is an amendment to the commencement clause of the Bill to provide that the Bill shall come into effect on a date to be agreed between the local authority associations and the Minister, or their successor bodies. The words "successor bodies" may possibly he redundant. They are an exercise in belt and braces. But with the local government review in progress we never know what is going to happen next, so I thought it best to draft the amendment with a certain amount of caution.

I am glad, for a change, to be able to say that on the whole I think this is not a had Bill. It is, of course, in a minor key, though not necessarily the worse for that. It seems to be tackling some difficult issues in a helpful way and in areas where it is often impossible for anyone ever to be right. In a lot of points it is as near as one can reasonably expect. However, I share the amazement expressed by my noble friend Lady Robson of Kiddington at the Financial Memorandum attached to the Bill. That is the one thing which causes me great surprise. It states: The Bill should give rise to no additional costs for Health Authorities (in England and Wales), Health Boards (in Scotland) or local authorities. The new provisions for supervision and community care orders provide a legislative framework for existing good practice". That may well be so but there is a very big difference between good practice and universal practice. That is true even in the best of our institutions. So to universalise good practice in any institution surely must carry additional costs. The National Schizophrenia Fellowship has expressed itself amazed at that statement in the Financial Memorandum. I cannot help sharing that amazement.

The purpose of this Bill is to lay new statutory obligations on local authorities. Local authorities are rapidly coming to feel about statutory obligations as Ministers have long felt about natural rights—they are more expensive than practical to implement. So, much though I might like a lot of the provisions of the Bill, if or when they can be had, I am reluctant to put into force a Bill which is to put, I fear, large numbers of local authorities in breach of the law. That does not seem to be a very good thing to do. I have always held to the 17th century legal maxim that the law does not compel people to do the impossible.

We know that the funding of care in the community was already under strain before the Bill was brought forward. I shall mention the judicial review case in Gloucestershire without needing to develop that theme. I am reluctant at the moment to add new burdens to what local authorities are already carrying. At the time of year when the local government financial settlement is announced a number of our constituency parties tend to be holding annual dinners. I am used to experiencing gloom about local authority financial settlements, but what I found this year was not the gloom, which to some degree I expect, but sheer rocketing hysteria. I have never found anything like it before. It caused me considerable alarm.

I believe that the Minister is aware that local authorities have some sense of misgiving about the funding available to implement the provisions of this Bill. She may say, "They would, wouldn't they?" But the same argument does not apply to the Law Society which, in the briefing it has supplied, expresses equally strong misgivings about the availability of funds. So has the Royal College of Psychiatrists who point out the burden on local authorities as being much the greater because of frequent premature discharge from hospital. The noble Baroness may say that that is not the case. I cannot help feeling that the Royal College of Psychiatrists is slightly nearer to the front line than she and therefore, in cases of conflict, possibly more likely to be right.

It is not my purpose to set up myself or this House as the judge of whether there is enough money. It is a difficult thing to judge in the course of a debate. The point I wish to make about this amendment is that this is an area in which coercion is not the appropriate weapon. If this Bill is to succeed, it must be undertaken on all hands with faith that it is possible to undertake the tasks which it lays on people. Without that faith it will be done badly and with fear; with an eye over the shoulder and, on occasion, with a heavy heart. In implementing provisions which are themselves good and which could do a lot of good, that is something about which I would feel very great regret.

Even in the greatest "Mission Impossible" stories, the faith of the person who carries out the mission is always a crucial ingredient in its success. The purpose of this amendment is that the Bill should not come into force until, by whatever means are necessary, that faith has been created. I beg to move.

Lord Carter

I am pleased to support these two amendments. Before I do so, perhaps I may comment on the words of the noble Earl, Lord Russell, in moving the amendment about the useful and informed meeting we had—which I am not going to quote—with the Minister and officials after Second Reading and before Committee stage. I believe that the Minister will be the first to agree that if these meetings are to be useful, we should receive a note of them a little more quickly than we received the note of this particular meeting. I received mine at half-past two this afternoon and I have not yet had a chance to read it. I believe that the draft was circulated at the end of last week. Then there is the weekend post and all the rest of it. We are anxious for this experiment to succeed. If it is to be helpful, then the note of the meeting, which I agree is informed, but it is not a transcript, should help us with the Committee stage. I have the note and I am here to deal with amendments; but I have not had a chance to read it because I received it only today. At the moment the reaction of this side of the Committee to the experiment is one of modified rapture. I am sure that we shall learn from it. The most important thing is that a note of the meeting should be circulated as quickly as possible after the meeting.

I believe that the noble Earl has made all the points that need to be made about the arguments for delay, including the possible changes in local authorities and health authorities. We can learn from the hospital part of the reforms of the National Health Service and from the way they were rushed in. The community care implementation was delayed because of the effect on the poll tax.

There are resource implications, as I read the financial memorandum to the Bill, and with more effective use of existing resources, presumably, that means that the patients affected by this Bill will, as it were, be moved up the queue, but the queue will stay the same length. They will simply get a different place in that queue if there are no more resources to be made available.

There is the point that if the community and mental health nurses become supervisors in the care package, they will need training and that cannot be done without cost. I ask the Minister to deal with the point about the Government's optimism that there will be no implications about costs. There is the additional training and all the costs associated with change. If we are to have the care packages and the help and supervision which we all agree are needed—and we support the ideas in the Bill—they will need time and careful resource planning. If these amendments were accepted by the Government, I believe they would improve the Bill.

3.15 p.m.

Lord Mottistone

I cannot disagree more with what the noble Lord has just said. If Amendment No. 135 is accepted by the Government, the delay would be impossible. We require something on the lines of this Bill a great deal sooner than we would get the agreement of everyone before we have the legislation. I very much hope that my noble friend will not be carried away by the otherwise splendid remarks of both the noble Earl and the noble Lord opposite.

I offer my thanks for the meeting beforehand. I have just had time to read the note which I received at ten past two. The note does not reflect what I remember of the meeting at all. The note might just as well have not been written. I hope that next time we have a note produced by someone other than a person trying to produce something which is totally anodyne. That might be a little more helpful for the future, but let that he. In the meantime, I hope that neither of these amendments is accepted.

The Earl of Mar and Kellie

I support my noble friend's amendments. I believe that the timing proposed by the Minister is inappropriate for Scotland for this reason. The House will be well aware that local authorities in Scotland are reorganising at this very moment. Indeed, we have elections to the shadow councils this coming Thursday. In Scotland we shall be moving from 13 to 32 social work authorities and from 55 to 32 housing authorities. Both these local authority departments are going to be much involved in the provisions of community care orders.

I suggest that by the autumn of this year senior local authority staff, and most local authority staff, will be preoccupied with moving jobs and also wondering whether they will be in jobs and with whom. They will be moving jobs to the new shadow authorities. I suggest that it is unlikely that they will be able to concentrate on the provision of new services. On these grounds, I certainly suggest a delay in Scotland until at least 1st July 1996 by which time the new local authorities will have been running for three months.

An increase in funding must be provided under Section 8 of the Mental Health (Scotland) Act 1984, especially if there are to be any more community care orders made other than for the 100 or so patients currently on their second or subsequent year of leave of absence who form the preferred target group. Even for those patients the level of provision needs to be raised if the community care order is to be a worthwhile and helpful measure.

Baroness Cumberlege

I thank the noble Earl, Lord Russell, for his very kind words in general about the Bill. The noble Earl has raised some general principles which were comprehensively debated at Second Reading. I listened with interest as he described some of his Liberal colleagues being in sheer, rocketing hysteria. That may be because it is the first time some of them now have power with responsibility and are beginning to realise that it is easy to act as a Greek chorus when one is a member of a local authority, but that it is much more difficult when one actually has responsibility and has to make budgets balance.

Perhaps I may refer very briefly to the meeting which took place. I am glad that noble Lords found it useful. As regards the note of the meeting, after the meeting took place it was agreed with the Opposition Benches that we should have an agreed minute so that there was no wrangling about its wording. It was delivered by hand on Thursday to the Whips' Office. It was very much my hope that it would have been agreed and dispatched by us on Friday.

Baroness Jay of Paddington

It will be pointless to discuss with the Minister the vagaries of the internal and external post, but I agree with her understanding that a joint minute or note had been agreed upon. I believe that I was one of the first to see it. I saw it at about eight o'clock yesterday evening, at which point there was no chance to make further comment on it. I echo what the noble Lord, Lord Mottistone, said, which is that I thought it a rather anodyne account of the proceedings. It is difficult for me to understand where there was a hiccup in the proceedings, but I was in our Whips' Office on Friday and I am surprised that I did not receive it by hand then.

Baroness Cumberlege

I have been given absolute assurances that it was delivered to the Whips' Office on Thursday morning.

Perhaps I may deal with the amendments. The most significant effect of the amendments would be to make the commencement date of the Bill the subject of negotiation between my right honourable friend the Secretary of State and the local authority associations. That would be a most unusual arrangement and we can see no justification for it. The proposals embodied in the Bill have already been the subject of wide consultation. The Bill places no new duties on local authorities or others. It underpins and may give some direction to their existing obligations under Section 117 of the 1983 Act for providing aftercare services for patients who have been discharged.

The Committee will be aware that the increase in resources provided by the Government is £10 million in mental illness support grant for this year alone. Apart from the delay which was highlighted by my noble friend Lord Mottistone, we believe that when Parliament passes legislation which has been subject to the proper processes of consultation, it is for Parliament itself to say when it should come into force. Having heard that explanation, I hope that the noble Earl will not wish to press his amendment.

Earl Russell

I listened with interest to the Minister's remarks about our councillors, and I deduce that it is quite a long time since she had any conversation with any of her party's councilors—

Baroness Cumberlege

Perhaps I may assure the noble Earl that I did so on Friday.

Earl Russell

In that case, the Minister must have a very short memory because that mood about local authority finances is common to all three parties. I suggest that if the noble Baroness talks to her party's councillors in Warwickshire and to her honourable friend Mr. Howarth, she might find that that mood extends rather wider than she supposes. At the moment, Conservative councillors are an endangered species, and because I believe wholeheartedly in political pluralism I think that they deserve a little bit of help before they are extinguished. Paying some attention to the amendment might provide that.

I agree with what the Minister said about the mental illness support grant. I must apologise for not having made the point myself, but I caught sight of the time. We are grateful for that increase. It is welcome. The difficulty arises from the need for local authorities to make a 30 per cent. matching grant in order for that support grant to come into effect. I should be grateful if the Minister could undertake to consult her right honourable friend the Secretary of State for the Environment about how those difficulties in making the matching grant arise because, if the matching grant cannot be made, the increase in the mental illness support grant will be useless because the money will not be received.

My noble friend Lord Mar and Kellie made an extremely important point about Scotland. We all know that reorganisation leads to disorganisation—and two reorganisations at once might be a bit much for anybody.

The noble Lord, Lord Mottistone, is both a pessimist and an optimist at the same time. He said that the provisions would lead to impossible delays. So they would, if nothing were done, but what needs to be done could be done extremely quickly if the political will were there. Therefore, if there were to be a response from the Government Front Bench, the delay could be nugatory. In that way, the noble Lord is a pessimist. He is an optimist in that he thinks that, if the Bill goes ahead without any additional funding behind it, the improvement, which I agree with him is urgent, would follow. It will not follow unless the bricks and mortar are there, and you cannot make bricks without straw. This is a vital issue for the success of the whole Bill and I should like to ask the opinion of the Committee.

3.25 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 89; Not-Contents, 152.

Division No. 1
CONTENTS
Addington, L.	Jay of Paddington, B.
Airedale, L.	Jenkins of Hillhead, L.
Archer of Sandwell, L.	Jenkins of Putney, L.
Ashley of Stoke, L.	Kilbracken, L.
Barnett, L.	Kinloss, Ly.
Birk, B.	Lockwood, B.
Blackstone, B.	Longford, E.
Bottomley, L.	McCarthy, L.
Bridges, L.	McGregor of Durris, L.
Brooks of Tremorfa, L.	McNair, L.
Bruce of Donington, L.	Mar and Kellie, E.
Callaghan of Cardiff, L.	Masham of Ilton, B.
Carmichael of Kelvingrove, L.	Mason of Barnsley, L.
Carter, L.	Merlyn-Rees, L.
Chapple, L.	Monkswell, L.
Clinton-Davis, L.	Morris of Castle Morris, L.
Cocks of Hartcliffe, L.	Nicol, B.
David, B.	Palmer, L.
Dean of Beswick, L. [Teller.]	Raglan, L.
Dean of Thornton-le-Fylde, B.	Redesdale, L.
Desai, L.	Richard, L.
Donaldson of Kingsbridge, L.	Rochester, L.
Ezra, L.	Russell, E. [Teller.]
Falkland, V.	Sainsbury, L.
Farrington of Ribbleton, B.	Seear, B.
Fisher of Rednal, B.	Sefton of Garston, L.
Gallacher, L.	Serota, B.
Geraint, L.	Shannon, E.
Gladwin of Clee, L.	Shaughnessy, L.
Gladwyn, L.	Simon, V.
Glenamara, L.	Stallard, L.
Graham of Edmonton, L.	Stoddart of Swindon, L.
Granville of Eye, L.	Taylor of Gryfe, L.
Gregson, L.	Thomson of Monifieth, L.
Grey, E.	Tordoff, L.
Halsbury, E.	Turner of Camden, B.
Harris of Greenwich, L.	Warnock, B.
Haskel, L.	Whaddon, L.
Headfort, M.	White, B.
Hilton of Eggardon, B.	Wigoder, L.
Hollis of Heigham, B.	Williams of Crosby, B.
Holme of Cheltenham, L.	Williams of Elvel, L.
Hooson, L.	Wilson of Tillyorn, L.
Howie of Troon, L.	Winchilsea and Nottingham, E.
Hutchinson of Lullington, L.

NOT-CONTENTS
Aberdare, L.	Butterworth, L.
Acton, L.	Cadman, L.
Addison, V.	Campbell of Alloway, L.
Ailesbury, M.	Campbell of Croy, L.
Aldington, L.	Carnegy of Lour, B.
Alexander of Weedon, L.	Cayzer, L.
Allenby of Megiddo, V.	Charteris of Amisfield, L.
Alport, L.	Chesham, L.
Ampthill, L.	Clanwilliam, E.
Annaly, L.	Clark of Kempston, L.
Archer of Weston-Super-Mare, L.	Cochrane of Cults, L.
	Cockfield, L.
Astor, V.	Constantine of Stanmore, L.
Balfour, E.	Cornwallis, L.
Belhaven and Stenton, L.	Courtown, E.
Bethell, L.	Crawshaw, L.
Blaker, L.	Cross, V.
Blatch, B.	Cullen of Ashbourne, L.
Boardman, L.	Cumberlege, B.
Borthwick, L.	Dacre of Glanton, L.
Boyd-Carpenter, L.	Davidson, V.
Brahazon of Tara, L.	Dean of Harptree, L.
Braine of Wheatley, L.	Downshire, M.
Brookes, L.	Eccles, V.
Brougham and Vaux, L.	Ely, M.
Bruntisfield, L.	Fanshawe of Richmond, L.

Ferrers, E.	Montgomery of Alamein, V.
Fraser of Kilmorack, L.	Morris, L.
Gainford, L.	Mottiscone, L.
Gainsborough, E.	Mountevans, L.
Gardner of Parkes, B.	Mowbray and Stourton, L.
Geddes, L.	Moyne, L.
Gisborough, L.	Munster, E.
Glenarthur, L.	Nelson, E.
Grantchester, L.	Newall, L.
Gray of Contin, L.	Noel-Buxton, L.
Gridley, L.	Northbrook, L.
Haig, E.	Onslow, E.
Hailsham of Saint Marylebone, L.	Oppenheim-Barnes, B.
	Orr-Ewing, L.
Harding of Petherton, L.	Oxfuird, V.
Harmar-Nicholls, L.	Peel, E.
Harmsworth, L.	Pender, L.
Hayter, L.	Peyton of Yeovil, L.
Henley, L.	Pike, B.
Hogg, B.	Pym, L.
HolmPatrick, L.
Hood, V.	Rankeillour, L.
Howe, E.	Rawlings, B.
Inglewood, L. [Teller.]	Reay, L.
Ironside, L.	Renwick, L.
Jenkin of Roding, L.	Rodger of Earlsferry, L.
Johnston of Rockport, L.	Saint Albans, D.
Killearn, L.	St. Davids, V.
Kinnoul, E.	Saltoun of Abernethy, Ly.
Kitchener, E.	Sandford, L.
Knollys, V.	Savile, L.
Lane of Horsell, L.	Seccombe, B.
Lauderdale, E.	Selborne, E.
Lindsay, E.	Sharples, B.
Lloyd-George of Dwyfor, E.	Shaw of Northstead, L.
Long, V.	Simon of Glaisdale, L.
Lucas, L.	Skelmersdale, L.
Lucas of Chilworth, L.	Skidelsky, L.
McColl of Dulwich, L.	Strathclyde, L. [Teller]
Mackay of Ardbrecknish, L.	Sudeley, L.
Mackay of Clashfern, L. [Lord Chancellor.]	Swansea, L.
	Swinton, E.
Macleod of Borve, B.	Tebbit, L.
Malmesbury, E.	Terrington, L.
Mancroft, L.	Teviot, L.
Manton, L.	Thomas of Gwydir, L.
Marlesford, L.	Trumpington, B.
Merrivale, L.	Ullswater, V.
Mersey, V.	Vaux of Harrowden, L.
Middleton, L.	Vivian, L.
Miller of Hendon, B.	Whitelaw, V.
Milverton, L.	Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.37 p.m.

Baroness Jay of Paddington moved Amendment No. 2:

Page 2, line 5, leave out from ("from") to end of line 7 and insert ("severe chronic mental illness; and").

The noble Baroness said: In moving Amendment No. 2, I shall speak also to Amendment No. 3. The purpose of both amendments is to define more precisely and narrowly those patients who should be subject to supervised aftercare. In our view, these should be the so-called revolving door patients whose severity of illness makes it difficult for them to comply with care plans outside hospital. They tend to suffer relapse in the community and need to be readmitted to hospital.

The definition, as it is presently drawn in the Bill, appears to suggest a wider group than that which was included in the internal review by the Department of Health of the legal powers for the care of mentally ill people in the community. That was published by the department in August 1993. The review expressed concern about a small group of so-called revolving door patients who needed constant supervision. Without such supervision they would have had to be admitted to hospital. The report identified two groups of patients as being specially prone to this pattern: those with schizophrenia and those with manic depressive psychosis, both forms of severe chronic mental illness. No mention is made in the report of categories of people suffering from mental impairment or any other form of mental disorder who are included in the Bill as it now stands and who are unlikely to present precisely the same problems as revolving door patients. The amendments attempt to limit the number of people who will be subject to this form of aftercare and thereby address some of the problems raised in the previous amendments in relation to the over-burdening of resources.

The second amendment refers to the need to define such patients in terms of their clinical state and the fact that they have been admitted to hospital more than once. As the Bill stands it appears that someone may be subject to a supervised discharge order simply on the basis of one admission to hospital. We have been advised for example by the Law Society that the use of such coercive powers is unjustified unless it has been demonstrated that compulsion is required to avoid repeated admissions to hospital, which may occur because of severe mental illness. It may be that the department's clinical advisers will suggest a slightly different form of words to encompass this group. However, our assertion is that if the group who can be appropriately dealt with in this way in the community is to be as narrowly defined, it should be precisely and narrowly confined to those who have chronic severe mental illness and not to the broader group which includes mental impairment. I beg to move.

Lord Mottistone

The National Schizophrenia Fellowship is appalled by, and opposes strongly, the amendments to limit the numbers. We should forget for the moment whether the resources are available. That is not the point of the Bill. Narrowing the provision down could have all sorts of adverse effects upon the people who need treatment within the terms of the Bill. Account has to be taken of the patient's history. That implies that he must have one. That may mean repeated admissions to hospital. However, it could mean that he has a history of violence to others and of repeated suicide attempts which do not equate with three hospital admissions in the preceding two years.

It would be madness to prevent the patient being subject to aftercare under supervision if he attacked people repeatedly but not within the two years just before the RMO wanted to make the application for supervision or if he had not built up a record of three hospital admissions within that period. The patient may have been in prison. The narrowness introduced by the amendments is not helpful. I hope that noble Lords opposite will not press them.

Baroness Cumberlege

In proposing the grounds for making an application for supervision in the community, we have chosen the current definition of mental disorder with great care. To have been detained in hospital for treatment in the first place, the patient must have been diagnosed as suffering from one of the disorders described in the Mental Health Act, and that disorder must be of the nature or degree justifying his detention for treatment. To satisfy the criteria for supervised discharge, we believe that the RMO should be satisfied that the patient still falls within one of those legal categories. So we resist the first amendment.

We also find Amendment No. 3 too restrictive. It is true that Clause I is directed primarily at revolving door patients—that is, those with a history of admission, discharge, deterioration and readmission. Trying to define that group exactly risks excluding many patients who might be discharged successfully with the safeguards of the new provisions. The Bill requires that the RMO must consider the patient's history, as my noble friend said, before making an application. We believe that that is sufficient to ensure that the issue is considered. I hope that in the light of that explanation the noble Baroness will agree to withdraw the amendment.

Baroness Jay of Paddington

I am grateful to the Minister for that reply. I understand what she says about the definition of "mental disorder" but I wonder whether she could help me further on the question of mental impairment.

Baroness Cumberlege

I am not sure of the aspect on which the noble Baroness seeks further help. Severe mental impairment is a psychopathic disorder which I believe is clear in the Act.

Baroness Jay of Paddington

I am afraid that I do not understand it in that way. It seems to me that severe mental impairment does not suggest the type of clinical psychosis—obviously I am not an expert in the psychiatric field—and I should have thought that it had a much broader definition than the one the Minister has given of the type of condition which was supposed to be included in this group of, as she rightly said, revolving door patients.

The problem relates to the broadness of the definitions in the Bill as it now stands. There may be a drain on resources. The noble Lord, Lord Mottistone, says that that is irrelevant to the Bill. However, many of us, when considering the terms of the Bill and the broad financial agreements which accompany it, have been concerned that there should not be over-optimistic assumptions about the range of people who would be thought to be subject to the order. So that point is not as irrelevant as he made out.

The definition of the group of patients who would make themselves most readily available for help in this way should be as precise as possible. The Minister says that Amendment No. 3 is too narrow. I heard what the noble Lord, Lord Mottistone, said about someone having been in prison. But the question may be whether it is possible—again, perhaps the Minster can help—that someone who had been admitted to hospital once only would be subject to a supervised discharge order.

Baroness Cumberlege

It is a matter of judgment. Provided the patient complies with the criteria set out in the Bill, it would be for the RMO to decide whether the patient should be under supervised discharge.

3.45 p.m.

Earl Russell

It is very, very difficult in this area to achieve any terminology which is precisely right. It is an imprecise area. It matters a great deal more, whatever terminology we use, that it should be used with a great deal of care than that we spend a long time trying to draw up words which will have one set of meanings in medical circles and perhaps another in legal circles. A great deal depends also upon what we think is the purpose of the supervision orders. The impulse to draw the supervision orders, and the group subject to them, more narrowly probably goes back to the original publicity impetus behind the Bill, which was to concentrate upon violent offenders.

In fact, by far the more common problem, especially in schizophrenia, is suicide or depression. If we think about these orders being applied to people who are unable to cope, then the wider definition may have something to be said for it. These are the type of people we see sleeping in doorways as we go down the Strand in the evening, as I often have occasion to do. Many of them might benefit from a supervision order when they do not quite come within the terms of Amendment No. 3. I ask the Minister whether advice has been taken in the drafting of the clause from the groups which deal with homelessness. I imagine that they might well support the wording, but I should be interested to know whether they have done so.

Baroness Cumberlege

I do not have with me the list of people who were consulted, but I know that there was wide consultation in drawing up the Bill. If the noble Earl would like examples of the organisations which were approached, I am very happy to give them to him in writing. Perhaps I may reiterate that the definitions are in the Act. I believe that their limits are well understood by mental health workers. I agree with the noble Earl. Having defined the terms in the 1983 Act, it would be a great mistake to try to redefine them in the Bill.

Baroness Jay of Paddington

As regards definition, I accept entirely what the noble Earl, Lord Russell, says about the different forms of interpretation, but the difficulty with the order is that it imposes a degree of compulsion on patients, which is not included in the 1983 Act. That is why we seek to define the provision narrowly. However, I shall read carefully what the Minister said, and for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Earl Russell moved Amendment No. 4:

Page 2, line 10, leave out from ("persons") to ("if") in line 11.

The noble Earl said: The amendment seeks to omit the words in lines 10 and 11, or of the patient being seriously exploited. Those words are capable of many interpretations. Anyone who was in the House yesterday would think first and foremost about economic exploitation, but that I imagine was not the intention behind the debate. I admit that we cannot be too precise with words, but I am reluctant to put into the Bill words whose interpretation is so very, very doubtful and which could so very easily bear a meaning completely wide of the Bill's purposes.

If the Minister could explain more clearly what the words are intended to do, it is possible that we might arrive at an agreed wording, but it is probably not perfect yet. I beg to move.

Baroness Cumberlege

These amendments seek to alter one of the three conditions which must be satisfied if aftercare under supervision is to be imposed or renewed. The criteria for the new power were considered in considerable depth in out internal review, which looked at legal powers on the care of mentally ill people in the community. The team concluded that the grounds for receiving aftercare under supervision should include the risk of being seriously exploited. This was set out in the report of the review, which we published in August 1993, and was the subject of widespread consultation. These proposals form the basis of the Bill now before the Committee.

The condition that a patient might be at risk of exploitation does not stand alone but is inseparable from the other conditions for imposing or renewing aftercare under supervision, listed at new Sections 25A(4) and 25G(4) respectively. Chief among these is that the patient must be suffering from one of the four forms of mental disorder defined in the 1983 Act. We are trying to identify a small group of mentally disordered patients whose care in the community is less effective than it should be because of a repeating pattern in which they fail to comply with their treatment plan and then have to be readmitted to hospital. There will be mentally disordered patients who are at risk of exploitation who will fall into this group. Such risks might be that they could be lured into prostitution or that they are exposed to the risks of drug abuse.

Furthermore, the concept of risk of exploitation is not new; it is in the 1983 Act already. It is one of the grounds on which detention may be renewed in Section 20(4). If the risk of serious exploitation may be a valid ground for continuing someone's detention, we believe that it must follow that in different circumstances it will be a valid ground for requiring their aftercare to be supervised.

I hope that with that explanation we can reach an agreement on the wording, as the noble Earl suggested.

Earl Russell

I am sure that we can do so. I find the Minister's explanation reasonable, persuasive and compelling. The only problem is that the conditions which the Minister mentioned —the risks of being led, say, into prostitution or drug abuse—extend beyond the range of those who suffer from mental illness. I have heard the noble Baroness, Lady Faithfull, speak on the subject in this Chamber several times. How would the Minister respond to a form of words referring to patients at risk of exploitation by reason of their mental condition? That might tic the matter down in a way that I hope is within the Minister's original purposes.

Baroness Cumberlege

I believe that drugs are closely related to mental illness; in fact, we find a close correlation. I am open to discuss the matter further with the noble Earl. Perhaps we can reach an agreement.

Earl Russell

I thank the Minister warmly for her reply. It is a matter not to be continued inside the Chamber, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees (Lord Boston of Faversham)

I should point out to the Committee that if Amendment No. 5 is agreed to I cannot call Amendment No. 6.

Baroness Jay of Paddington moved Amendment No. 5:

Page 2, leave out lines 14 to 16 and insert: ("(c) he would be unlikely to accept the after-care services to be so provided if he were not subject to after-care under supervision,").

The noble Baroness said: The amendment is designed to make explicit, and to emphasise, the fact that patients subject to supervised discharge should be only those whose level of severe mental illness makes it unlikely that they would accept aftercare services if there were no order. It may appear to the Minister that the proposal is slightly over-egging the pudding in the sense that it is an implicit understanding in the Bill. However, it appears that many of those who work with people who have the kind of mental illness that makes it difficult for them to accept care agreements are concerned that only in the most extreme circumstances should an order be imposed which may undermine the principles of the so-called therapeutic alliance and non-coercive relationships on which so much effective work in the community is based. The Royal College of Physicians, for example, has stated that a negative effect of the Bill may be the loss of trust in the doctor-patient relationship among patients who could be most likely to be subject to the provisions. Risk could be justified only if the benefit were great enough. At present, the college does not believe that the benefit will be as great as the Government predict.

The problem is that there exists a Catch-22 situation and that precisely those patients most likely to benefit from the kind of supervised aftercare that the Bill describes will be those who, in principle, are most likely to resist it. The amendment would underline and make explicit in the Bill the fact that it is an extreme measure to be employed only in circumstances where people believe that a non-coercive and more co-operative arrangement would fail. I beg to move.

Baroness Cumberlege

In its present form, the new Section 25A requires the responsible medical officer to he satisfied that the patient's being subject to aftercare under supervision is "likely to help secure" that he receives the services he needs. The amendment would require the RMO to answer a negative question about whether the patient was unlikely to accept the services if they were not supervised. We believe that this would be more difficult to interpret than the grounds that the Bill gives at present and would inhibit the sensible use of the new power. We do not believe that it would add anything to the rights of the patient, which the Bill already safeguards very fully. The noble Baroness said that perhaps the amendment over-eggs the pudding and that is our view too. I hope that she will not press the amendment.

Baroness Jay of Paddington

I am grateful for the Minister's reply. The issue is about words, as referred to by the noble Earl, Lord Russell. The phrase which the Minister picked out—that the agreement should be "likely to help secure" aftercare services—is not meaningful as it stands. It does not sound like a particular guarantee of aftercare.

The amendment is an attempt to underline the need to see the new order as an extreme measure rather than something that might become a more customary approach by responsible medical officers and people in the community. I heard what the Minister said, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 6:

Page 2, line 14, leave out from ("supervision") to ("that") in line 15 and insert ("for the purpose of ensuring").

The noble Lord said: In moving the amendment I shall speak also to Amendment No. 57. Some of my comments will be similar to those made by the noble Baroness, Lady Jay, in speaking to Amendment No. 5. My amendments are designed to clarify and make more positive one of the reasons why patients can be subject to aftercare under supervision. I believe that replacing the words "is likely to help" with the words "for the purpose of ensuring" is more positive and more in line with other uses of those phrases in new Sections 25B(8) (b) and 25D(1). Both new sections use more positive words to describe what is needed. I hope that this minor change to the phraseology will be acceptable to my noble friend. I beg to move.

Baroness Cumberlege

I believe that I understand my noble friend's intentions in proposing these amendments but we doubt whether they will achieve the effect he seeks. His point, as I understand it, is that the new power should be used only when those concerned believe that it will ensure the patient's receipt of the aftercare services. We are afraid that this will be an unrealistically high threshold. The purpose of the new Section 25A(4) (c) is to ensure that the patient receives the aftercare services that he needs by supervising him in the community. But there can be no absolute certainty in advance that this is going to succeed and if the amendment were passed there would be a risk that responsible medical officers and others would feel reluctant to use supervision because they did not feel sure that it would succeed. That could lead to patients who need to be supervised being discharged without any supervision at all. I ask my noble friend to reconsider and to withdraw his amendment.

Lord Mottistone

I thank my noble friend for those remarks. I shall read them with care and perhaps return to the matter at a later stage with something better. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4 p.m.

Baroness Jay of Paddington moved Amendment No. 7:

Page 2, line 18, at end insert ("who has previous acquaintance with the patient and who is approved under section 12(2) of the Mental Health Act 1983").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 8 and 28. All three amendments address the question of the qualifications of those medical officers who will be responsible both in relation to the discharge and the community care of a person who is subject to a supervised discharge order.

Amendment No. 7 aims to ensure that the person who is about to discharge a patient has the necessary acquaintanceship with the case and is approved under Section 12(2) of the Mental Health Act. That brings the new Bill into line with the previous Mental Health Acts.

The other two amendments refer to the organisation and care of the person under the supervised discharge order living in the community. They use the words which are in the Scottish provisions which, in this instance, as I think in some others, are more precise and phrased more clearly than those for England and Wales. The words: who shall be a practitioner having special experience in the diagnosis or treatment of mental disorder", enable those who are caring for the patient, those who are related to the patient and, indeed, the patient himself to be clear about the substantial post-graduate specialism of the person looking after the patient. That is necessary to ensure that if, as was explained on Second Reading, the new procedure is to be health-driven in the sense that that is something which is based within the health services rather than the community or social services, it must be done on a specialised basis. At every stage, there must be a clear understanding that the medical officer in charge has the necessary post-graduate training to enable a detailed understanding both of the diagnosis and the treatment involved in caring for what will be, as we have already discussed this afternoon, a very small but probably very difficult group of people.

Anxiety has also been expressed about the casualness of some of the references to medical practitioners. For example, on page 3 at line 44 of the Bill, where it is discussing whose written comments shall accompany a supervision application, at the end it refers merely to "any registered medical practitioner". I understand that that is not somebody who will be in a position of responsibility vis-à-vis any patient; but these amendments aim to make it very clear and very specific that those persons who have responsibility shall he clinical specialists at a post-graduate level and have the necessary qualifications.

As the Royal College of Psychiatrists pointed out, that is particularly important in relation to the community responsible medical officer. That is a new term which it feels is inadequately defined in the Bill. I hope that the Minister will listen to that detailed, clinical approach of those who arc most involved with the care of patients. I beg to move.

Lord Mottistone

Unfortunately Amendment No. 136 is not grouped with these amendments but it falls naturally into a grouping with Amendment No. 28. Both of those amendments refer to the community responsible medical officer. If the Committee agrees, I shall speak now to Amendment No. 136.

I have great sympathy for what the noble Baroness, Lady Jay, said about all four amendments. I merely suggest that Amendment No. 136 is rather fuller and more definite in dealing with the problem which arises in relation to Amendment No. 28. I should have thought that my amendment provides a better line of approach for that particular need. Schedule I provides the definitions for the new post of community responsible medical officer. It may be that that is the right place for it. At this stage, I shall go no further than that.

The Earl of Longford

I shall speak to Amendment No. 9, which is on the same general issue. I go a little further than my noble friend Lady Jay because I submit to the Committee that the person who takes the crucial decisions should he a registered psychiatrist. It is the same argument but it goes rather further. The decisions arc crucial. We are talking about mentally sick people. The only people who can make a decision, which will he imperfect in this wicked world but which is the best we can provide, are registered psychiatrists.

Earl Haig

I support the amendment. It is extremely important because it concerns crucial moments in the lives of patients. If medical decisions are made without proper knowledge, patients may regress, and that may have very serious consequences. Whoever is responsible must have the right knowledge and qualifications. If that is so, he will be able to instil the necessary confidence in his patients, which is of great importance.

Baroness Cumberlege

There seems to be some informal grouping going on here and if I over-egg my arguments, I hope that the Committee will forgive me.

The term "responsible medical officer" is clearly defined in Section 34 of the 1983 Act. For those patients liable to be detained in hospital this is the registered medical practitioner in charge of the treatment for which they have been detained. Under our proposals, that is the practitioner who would make the application for aftercare under supervision. It is hard to envisage a situation in which this would not be a consultant psychiatrist.

The community responsible medical officer appears for the first time in the present Bill and is defined in paragraph 4 of Schedule I, as my noble friend said, as the registered medical practitioner in charge of the medical treatment provided for a patient subject to aftercare under supervision.

These amendments seek to require that only certain categories of people may act as the responsible medical officer. With regard to the hospital RMO, I am afraid that does not make sense because, as I have said, the RMO is already defined in the 1983 Act. If he did not meet the requirements, it would mean that there would he no one in a position to make a supervision application in respect of the patient.

As regards the community RMO, the amendment identifies a principle of good practice. We agree that it is desirable that a doctor who is to act in this role should have special experience in the diagnosis or treatment of mental disorder. Doctors approved under Section 12 of the Mental Health Act 1983 have a special knowledge of how the legislation works and an expertise in dealing with the kinds of patients to whom it may apply. We propose to emphasise in guidance that it would be desirable that the community RMO should be Section 12 approved.

I recognise that the provision for Scottish community care orders, in Clause 4 of the Bill, includes a requirement that the special medical officer—the Scottish equivalent of the community responsible medical officer—should be approved by a health board under Section 20 of the Scottish Act. But that is consistent with the existing provisions of that Act under which the responsible medical officer in a hospital is required to be approved under Section 20. Here, as in other areas, the difference reflects differences in the way practice has developed in the two jurisdictions and we think it is quite reasonable for that difference to be carried through into the present Bill. Given that explanation, I hope that the noble Baroness will withdraw the amendment.

Lord Mottistone

As I understand it from my noble friend, the detailed description of the community RMO will be in guidance. I do not see why it cannot be included in Schedule I. What is so magic about guidance? To me, guidance does not mean as much. My noble friend was able to tell us about the responsible medical officer because there is a definition in the 1983 Act. I do not see why a similar sort of definition of the community RMO should not be included in Schedule I of this Bill.

Baroness Cumberlege

I am sorry if I have not made that plain to my noble friend. To a large extent, the health service tries to work through guidance because it provides a degree of flexibility which may be extremely important, especially in relation to dealing with situations in the community.

Baroness Jay of Paddington

I agree with the noble Lord, Lord Mottistone, that the provision would be much more certain if such words were included on the face of the Bill. I heard what the noble Lord said about putting the wording he described into Schedule I rather than further on in the Bill as I proposed. However, it seems to me that it does not matter where it is placed as long as it is on the face of the Bill. I believe that the words that we have both used are very similar indeed.

I am afraid that I cannot agree with my noble friend Lord Longford on the requirement for such a person to be "a registered psychiatrist". As far as I understand it, that would mean that he or she would need to be a consultant psychiatrist. From talking to people who organise such care, I believe that that would perhaps inhibit and slow down the procedures and the day-to-day care of people in that category.

There does not seem to me to be any legitimate argument for not using the words which are almost identical in the two amendments. As I said before, both sets of words come directly from the provisions in the Scottish clauses of the Bill. Although I entirely understand what the Minister said about the Scottish arrangements deriving from a different and original mental health Act, it does not seem to me that we need to be very much on our dignity at this stage about using such wording, which seems to be rather good.

Baroness Cumberlege

In respect of the proposed provisions, we believe that there may be cases in the future where it is justifiable for someone not approved under Section 12 to be the community RMO if in all other respects the care package is in the best interests of the patient. We are trying to build in that degree of flexibility by way of guidance rather than putting such provisions on the face of the Bill.

Baroness Jay of Paddington

I am afraid that I remain unconvinced by the force of guidance in the health service. However, at this stage of the proceedings, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

The Earl of Longford had given notice of his intention to move Amendment No. 9:

Page 2, line 18, at end insert ("who must be a registered psychiatrist.").

The noble Earl said: I cannot pretend to be utterly extinguished by the arguments of my most revered leader or to be particularly impressed by anything that was said against such a provision. But in the circumstances I see that I have no option other than to refrain from moving my amendment.

[Amendment No. 9 not moved.]

Lord Carter moved Amendment No. 10:

Page 2, line 22, at end insert: ("( ) The Health Authority and Social Services Authority shall in providing after-care services indicate how they propose to deal with the matters listed in section 117 and Schedule I below.").

The noble Lord said: In moving Amendment No. 10 I shall, with the leave of the Committee, speak also to Amendments Nos. 11 to 13, 16 and 21. The group is tabled in my name and that of my noble friends Lady Jay and Lady Farrington of Ribbleton and deals with aftercare.

Amendment No. 10 seeks to insert a new subsection into the legislation which states: The Health Authority and Social Services Authority shall in providing after-care services indicate how they propose to deal with the matters listed in section 117 and Schedule 1", to the Bill. The point here is that subsection (6) of Clause 1 places a duty on the health authority to provide aftercare services, We understand that, but we feel that it is important that there should be some means of asking the two authorities concerned to indicate exactly how they propose to deal with the matters listed in Section 117. I remind the Committee that that is the section of the Mental Health Act 1983 which deals with aftercare.

I turn now to the other amendments which seek to improve the wording of Clause 1(7). It would be helpful if the Minister could deal with our concerns in this respect because we are somewhat puzzled. As the Bill is worded, we wonder whether in fact the health authority has the right to refuse an application. It is given a duty to provide aftercare services but, if it feels that it does not have the resources or if it does not agree with the supervision order, we believe that the legislation does not make it clear that the health authority can actually refuse.

It is important to probe the Government's mind on the matter. That is why we have tabled Amendment No. 11 which links into Amendment No. 16, which states: A Health Authority or a Social Services authority shall have the right to refuse a supervision order". The final amendment in the group is Amendment No. 21. Its purpose is, so to speak, to round up the arguments and to ensure that, the services are available to make effective the care programme as set out in the Care Programme Approach forms required for the discharge of all patients".

We believe that the Committee will understand that the amendments are intended to probe the whole area of aftercare to see whether the Bill has the intention that it should have; in other words, whether the health authority, the local authority or the social services authority have the power to refuse an application. We seek to discuss around the whole area whether the duty that the health authority will have under Section 117 of the 1983 Act requires it to state in terms how it proposes to deal with such a duty. I beg to move.

4.15 p.m.

Earl Russell

I have one question to ask. I see the case very clearly for the health authority or the social services authority to be able to refuse a supervision order. However, I should like to ask both the noble Lord, Lord Carter, and the Minister what happens next if an authority does so.

Baroness Farrington of Ribbleton

In speaking to the group of amendments now before the Committee, I should like to speak especially to Amendment No. 13 which is tabled in my name. I listened most carefully at the informal meeting at which we had an opportunity to discuss some of the issues behind the proposed legislation; indeed, I found it to be extremely valuable.

However, from my experience as a member of a local authority responsible for social services, I remain concerned, especially in the light of the Minister's understanding that the provision will apply to a comparatively small number of people for whom particularly sensitive care has to be provided, that in such circumstances the duty to "consult with" may be inadequate. If we look at some of the recent tragic cases which have contributed to an understanding of the need for the legislation, it will be seen that "consultation with" fell down. The requirement to "reach agreement with" is much firmer, stronger and, therefore, more secure and reliable. I ask the Minister to consider the following. If all parties reach agreement upon the care package and the supervision that will ensue, then the patients' interests and those of the community will be most secure.

I turn now to Amendment No. 16. The circumstances in which a supervision order could be refused are obviously hypothetical. But I assume that such a refusal would carry with it the right of appeal at some stage for the patient. However, it is critically important that all those professional partners who are part of producing such a care package must be confident that all the needs of the patient and those of the community have been met. I support the amendment.

Earl Russell

Amendment No. 13 seems to me to be extremely good. I shall give the Committee just one more reason for it. A number of people suffering from mental illness of various sorts tend to be manipulative. As a symptom of some of the illnesses from which they may suffer, they tend to try to divide the authority which is dealing with them. If we do not insert such a provision into the Bill, we shall give them a wide open opportunity to do that, and that may well impede treatment. I hope that the amendment will be accepted.

Lord Carter

Before the Minister replies, I must apologise to the Committee for not speaking to Amendment No. 12. Perhaps I may do so now so that the Minister can include it in her response. Amendment No. 12 seeks to ensure that the patient is heard by the health authority before any decision is reached. In other words, because the decision that the health authority is required to make is a judicial one which will affect the rights of the patient, such a decision should not be made without giving the patient a hearing. I should have addressed the amendment when moving Amendment No. 10. I apologise to the Committee for failing to do so. I hope that the Minister will be able to deal with the whole group in her reply.

Baroness Cumberlege

I thank the noble Lord for those comments. As the Committee will be aware, there is already a requirement to specify what services are to be provided under Section 117. New section 25B(8) states that a statement of the aftercare services to be provided for the patient under Section 117 must be submitted with or attached to the supervision application. This will be the detailed care plan drawn up by the multi-disciplinary team, which will outline the services to be provided to the patient following consultation with the appropriate parties—that is dealt with in new Section 25B(2)—and consideration of the appropriate matters as laid down in new Section 25B(2) and new Section 25B(3). We believe there is little point in requiring the authorities to reiterate what will anyhow be in the care plan.

I wish to pick up the earlier question of the noble Lord, Lord Carter. Given that the supervision application will only take effect when it is accepted by the health authority, we do not think it is necessary to spell out that the application may also be refused, since this is clearly so. Nor do we think that the health authority needs to be specifically required to reach agreement with the local authority. As the Committee will remember, the responsible medical officer before he or she makes an application, has to consult those who will be concerned in the patient's care after he or she leaves hospital. In practice the statement of services to be provided, which has to be submitted with the supervision application, will need to have been agreed with the local authority's representatives so far as the social services element is concerned. I think that takes care of the points made by the noble Baroness, Lady Farrington. This is reinforced by the requirement on the health authority to consult the local authority before it accepts the application, and we do not think it necessary therefore to add to that a specific requirement that the two authorities must reach agreement.

So far as consultation with the patient is concerned, as the Committee is aware, the RMO must consult him or her before the application is made in the first place, and we do not think a further requirement to consult the patient is needed at the point when it is being considered by the health authority. Finally, a person who is subject to aftercare under supervision is no longer liable to be detained. A patient may well have ceased to be so liable in what should usually be the short period after the application is made and before it is accepted.

In the light of those remarks that I have brought to the Committee's attention, I hope very much that the movers of these various amendments will not press them.

Baroness Farrington of Ribbleton

I hope I may press the Minister on the specific use of the term "to consult". In her answer, which I look forward to reading in detail, I understood her to imply that that consultation would lead to an agreed package which would be presented as part of the order. My understanding, following the informal meeting, is that the role played by the responsible medical officer in the case of England and Wales is the equivalent role to that played by the sheriff in the different legal framework in Scotland. Is the Minister saying that it is only in the event of an agreed package being explicitly written down, which has been agreed and consented to by all parties, that consultation will be deemed to have been carried out, or would it be possible for one of the parties to take a unilateral decision in the absence of such consensus?

Baroness Cumberlege

I think it would be very unwise for any single party to take unilateral decisions because the whole purpose behind this Bill is that the different parties have to co-operate in order to meet the total needs of the patient. I should reiterate that the responsible medical officer, before he or she makes an application, has to consult those who will be concerned in the patient's care after he or she leaves hospital. I think it is in no one's interest not to have a care plan to which everybody has signed up; otherwise, it will, I think, be impossible to supervise effectively the discharge of the patient in the community.

Lord Carter

I am grateful to all Members of the Committee who have spoken to this group of amendments. It is helpful that the Minister has now made clear that the health authority has the right to refuse an application. That leads, on to the question which was put by the noble Earl, Lord Russell. If there is this ability to refuse, what happens next? We tabled the amendments to find out what happens next. I am not quite sure that the Minister has explained what happens if a health authority refuses an application.

Baroness Cumberlege

I would imagine it is a point of detail concerning the health authority. I would very much doubt that it is a matter of principle because there would have been a lot of consultation taking place with the responsible medical officer prior to any proposals being made for the discharge of the patient supervised in the community. I think the noble Lord perhaps has a point that is really not very worthwhile pursuing, because if all parties are not agreed, then, clearly, the scheme cannot go ahead. If it is a point of detail, then it is up to the health authority to put forward—I would have thought—some alternatives and to work around the problem. My experience is that professionals, both in social services and in the health service, are very caring, responsible people and they actually try to find solutions to sometimes almost intractable problems.

Earl Russell

I think this is slightly more complicated than the noble Baroness suggests. I agree with what she says about the attitudes of professionals, but refusal may happen for a number of reasons. Suppose, for example, a social services authority says, "If we do one more of these, we shall be capped", then it has to refuse. We really need to know what will happen to the patient next. This is not an imaginary question.

Baroness Cumberlege

I fully agree with the noble Earl. In fact, I have been in that position as the chairman of a health authority. We had an extremely difficult patient who needed not this sort of care but care in an institution and the only supplier of that was a private hospital and it cost a great deal of money. As anyone knows who is in charge of a budget, it is a question of having to be realistic. Sometimes it is a question of ensuring that priorities are reassessed; and sometimes it is a question of having to wait a month or two before one can activate a plan.

Lord Carter

The Minister has been extremely helpful. We may need to come back to this matter on Report because I think there is a danger as regards an absolute right to refuse without any criteria attached to that. The Minister says optimistically this would be a point of detail. If it is not a point of detail, it is still not clear what will happen next. However, we shall not go into that now. We shall read what has been said, perhaps take advice and return in due course. Finally, as regards consultation with the patient, of course there will be consultation with the patient before the package is designed. However, I should have thought it would make sense to have a consultation procedure—and for this to be written into the Bill—after that process. After all, the patient is at the receiving end of all this. Obviously the RMO will have to discuss this matter with the patient at the beginning of the process. However, not to discuss this matter with the patient when the package has been designed seems a little odd. However, for the moment we have said enough. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11, 12 and 13 not moved.]

Baroness Jay of Paddington moved Amendment No. 14:

Page 2, line 25, at end insert ("and that consultation shall include a consideration of using the procedure for guardianship established by section 7 above.").

The noble Baroness said: Amendment No. 14 is designed to probe the possibility that guardianship, which is already available in the 1983 Mental Health Act, could be used to achieve much the same results as the new rather cumbersome supervised aftercare provision which is the main element of this part of the Bill we are discussing. Members of the Committee who were present at Second Reading will recall that I briefly discussed guardianship then. I wish to return to it in a little more detail today. At Second Reading the noble and learned Lord, Lord Fraser of Carmyllie, who replied to the debate for the Government, said, Guardianship is essentially an arrangement which is oriented to social care"—[Official Report, 16/03/95; col. 979.] and that this new arrangement is differently centred from the health service.

I am advised that there is nothing which precludes guardianship from being used through health rather than social services. All that would be necessary would be for the order of discharge and guardianship to be dealt with by the health services rather than social services, as is suggested by Amendment No. 14.

Since Second Reading, my attention has been drawn to the detailed report on the case of Andrew Robinson, a severely mentally ill patient who in 1993 fatally wounded a care worker. Andrew Robinson had been looked after by mental health services both as an in-patient and in the community for the previous 15 years. South Devon Health Care Trust, which was responsible for him at the time of the fatal incident, instituted a public inquiry into Robinson's case, which was chaired by Sir Louis Blom-Cooper. The results were published earlier this year.

The report noted that one of the relatively successful periods of Robinson's care in the community was when he was subject to a guardianship order between 1989 and 1992. That order was initiated by the consultant psychiatrist in charge of Mr. Robinson, and through it the health team and the social services negotiated a care plan with which Andrew Robinson complied in general. He achieved a period of comparative stability, largely because the guardianship order allowed a sustained relationship with his key worker and other members of the community care team. He voluntarily and regularly accepted medication during that period, although there is nothing in the guardianship order to compel that, any more than there is in the proposed new supervised discharge order.

In that particular case, after three years the guardianship order was lifted and the consultant psychiatrist and key worker both left the district. But as the public inquiry report concludes: If the guardianship order had been continued…it is at least probable that the subsequent tragic events would have been avoided".

It seems to me that Mr. Robinson would have been a clear candidate for the kind of supervised discharge order that we are now discussing. The general points about the Robinson case are: first, the guardianship order to which he was subject was initiated and driven by a health team; secondly, it achieved a structured framework for a severely ill patient to live in the community; but, thirdly, because guardianship has commonly been used as a short-term measure, the order was lifted after three years without any clear or definite reason being given. However, as I understand it, there is nothing in the existing legislation to suggest that guardianship need be an exclusively short-term arrangement. As the Robinson report states, guardianship orders remain "woefully underused" and they appear to be used more often for older patients with dementia and those with learning difficulties.

I remind the Committee that the powers of guardianship include the power to require the patient to reside at a place specified by the authority or person named as guardian; the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education and training; and the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved social worker or other person so specified.

The code of practice on the Mental Health Act 1983 on which guardianship is based states in paragraph 13.1 that: The purpose of guardianship is to enable patients to receive community care where it cannot be provided without the use of compulsory powers. It enables the establishment of an authoritative framework for working with a patient with a minimum of constraint to achieve as independent a life as possible within the community. Where it is used, it must be part of the patient's overall care and treatment plan".

It seems to me that that describes precisely the supervised discharge order, and it is almost identical to the proposals before us in the new legislation. If the Government's argument for not using guardianship more widely is simply that it has commonly been used by social services rather than health authorities for people other than those who are severely mentally ill, then the case of Andrew Robinson proves that that need not necessarily be the case. Robinson was indeed unusual but not unique. If the argument is that the procedure is rarely used because it is cumbersome and requires the commitment of many resources to be successful, then surely that same argument will apply to the supervised discharge orders in the future.

It is worth noting that the use of guardianship has been slowly growing in the past few years. There were only 66 such orders in 1983–84; in 1993–94, there were 326.

This probing amendment is designed to discover why the Government feel it necessary to bring in a new order of aftercare under supervision which must run in parallel with the guardianship order. Indeed, the new order could he totally redundant if the use of guardianship was expanded to cover more patients with severe mental illness. I beg to move.

4.30 p.m.

Baroness Cumberlege

I agree with the noble Baroness that it is right and proper to consider what power is in the patient's best interests. That consideration should surely come before the application to supervised discharge has been made. Essentially, it is a clinical decision about what is best for the patient.

Before a supervision application is made by the responsible medical officer there will have had to have been full multi-disciplinary consultation and a package of services drawn up and agreed between the health authority and the social services. It will surely be the case that before that process is under way, and long before the application reaches the health authority, consideration will have been given as to whether this is really the right power for the patient. Guardianship is available and will be considered as an alternative.

That is the Government's case for resisting the amendment, and I hope that the noble Baroness will not seek to press the amendment.

Baroness Jay of Paddington

I thank the Minister for saying that guardianship will be included. If it is to he included, and if it is regarded by the Government as a possible and realistic alternative to the supervised discharge order, the question still remains why the new order is needed.

Baroness Cumberlege

There is a distinction between the social services driving the guardianship order and, in this case, the health authority driving the supervised discharge order. As I said, what is best for the patient is essentially a clinical decision. If it is felt that perhaps a less onerous order should be made, then it is up to the social services department, in consultation with the health authority, to seek guardianship. However, if the guardianship order is felt not to be strong enough, then this is an alternative.

Baroness Jay of Paddington

I am sorry to press the Minister on this point; but can she tell the Committee precisely where guardianship, as I described it, under the provisions of the 1983 Act and the code of practice is less onerous than the supervised discharge order? Can she comment on the case of Mr. Andrew Robinson? I agree that it was a specific case; but I understand that it is not unique. In that case the guardianship order was indeed driven by the health authority and not by social services.

Earl Russell

Perhaps I may interject one more question before the Minister replies. The Law Society has made some interesting observations on the subject of guardianship. It suggests that the reluctance of local authorities in the past has been because: they are unwilling or unable to devote sufficient resources to the care and supervision of people subject to guardianship". In fact, the obstacle to the spread of guardianship is one of resources. That of course is the one obstacle which this Bill does not address.

Baroness Cumberlege

It is a different power. The power of guardianship ensures that the guardian has the power to require the patient to live in a specified place and to attend specified places for the purposes of medical treatment, occupation, education or training and to require access to the patient to be given to any registered practitioner, approved social worker or other specified person. However, there is no power to convey. The supervised discharge gives that power to convey. It gives the initiative to the responsible medical officer to activate this new power.

Baroness Jay of Paddington

We shall need to return to this subject on Report. I recall mentioning at Second Reading one of the suggestions for an amendment proposed by the Law Commission to the Mental Health Act 1983, which is to add the power to convey to the guardianship order.

I am still unclear where the guardianship order is less onerous than the supervised discharge order. However, at this point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 15:

Page 2, line 25, at end insert: ("( ) The Health Authority shall defer the acceptance of a supervision application until such arrangements as appear to the Authority to be necessary for the provision of medical treatment and after-care services to the patient following the acceptance of the application have been made to the satisfaction of the Authority. ( ) If, on the date when a patient ceases to be liable to be detained in a hospital under this Part of this Act, a supervision application has been made in respect of him but the Health Authority have not yet accepted the application, his liability to be so detained shall continue until the Authority either accept or refuse it.").

The noble Lord said: My Amendment No. 15 introduces two new subsections to Clause 1. The aim is to ensure that the supervision application accepted by the health authority is not a piece of paper full of pious hopes for patient care on discharge from hospital. The application should identify specific arrangements which have been made for patients' medical treatment, housing and other appropriate social services. The amendment provides that they cannot be accepted by the health authority until those arrangements are in place.

The second subsection aims to ensure that if patients are considered to need aftercare under supervision and an application for that has been made but has not yet been accepted or rejected by the health authority, they should continue to be detained in hospital until a decision is made one way or another. If the application is accepted, the specific arrangements needed for appropriate aftercare must be in place. Patients would then receive the services they require immediately after discharge.

The extra subsections proposed in this part of the Bill reflect exactly what is proposed for Scotland in the new Section 35A (5), (6) and (7), which seem to me to be most sensible and which we discussed at the informal meeting. They are given but scant attention in the piece of paper telling us what went on at the meeting. I hope that this time my noble friend will not think that because the Mental Health (Scotland) Act 1984 is triggered by other legislation, this rather sensible arrangement to ensure that people are not discharged under those circumstances unless the services that they require are to hand, should not equally well apply in England and Wales, just as the Scots seem to think that the provisions apply in Scotland. I beg to move.

The Earl of Mar and Kellie

The noble Lord, Lord Mottistone, is correct. The provision of effective aftercare services is essential to the success of aftercare supervision orders. Health authorities and local authorities must not agree to something which they cannot deliver.

Baroness Cumberlege

As my noble friend explained, the provisions which the amendment would insert are based on those already included in Clause 4 of the Bill which introduces community care orders for Scotland. Our view, however, is that such a provision is not needed in the England and Wales context—I am sorry to disappoint my noble friend—because of the different way in which the two powers are framed.

The corresponding Scottish provisions would allow the sheriff to defer making a community care order until the necessary medical treatment and aftercare services had been arranged. If this process had not been completed by the time the patient's liability to be detained ran out, the Scottish clause would extend the liability to allow this to be done.

The procedure reflects the different Scottish legal framework and in particular the position occupied by the sheriff. In England and Wales, under the provisions of Clause I the application for aftercare under supervision is made to the health authority. That authority is responsible for providing one element of the aftercare services, and before it accepts the application it must consult the local authority. It is, of course, the local authority which will be responsible for the social care element of the services. As the Committee is aware, those two bodies have a statutory responsibility for providing services under Section 117 of the 1983 Act. Given the way in which the bodies will be directly involved in the application process, there should be no question of the application being accepted before the necessary arrangements have been made. On that basis, I do not believe that this is something for which the Bill needs to provide. I therefore ask my noble friend to withdraw his amendment.

Baroness Farrington of Ribbleton

Perhaps I may press the Minister on the situation in the event of there being difficulty. I fully understand the description that the Minister gave in her reply about what would happen if everything was working smoothly and everyone was in agreement. The difficulty is in cases of tragedies which have occurred so far and which we seek to prevent in the future. With them, there is a difference, not about whether there should be a range of aftercare provision, but the level and quality of the aftercare that is necessary to secure the safety of both the patient and other people in the community.

Were the health authority to feel that adequate provision was capable of being made and the social services or the housing authorities were of the view that the services available at that time were inadequate in the interests of the patient, what would be the position?

Baroness Cumberlege

Before and during the course of the drafting of the Bill, we had consultations with many people. We received some interesting correspondence from parents and relatives of those who had come to a tragic end due to their mental illness and lack of supervision in the community. I could cite cases where we have been given the permission of relatives to discuss their sons and daughters. However, perhaps this is not the appropriate time for that. I am prepared informally to discuss them with the noble Baroness to persuade her that the power is necessary.

The whole purpose, ethos and direction of the Bill will only succeed if there is consultation and agreement and if both parties work closely together. Through the care plan and various other mechanisms that we have not only built into this Bill but also considered prior to the Bill coming before your Lordships' House, we have tried to engage all the different agencies and individuals involved. I accept that we cannot legislate for a perfect world. There will be occasions when things do not work quite as we would wish. But in the end one returns to the professionalism of those involved. With negotiation and reason it is possible to overcome some of the problems.

Lord Mottistone

I thank my noble friend for her explanation and the noble Baroness, Lady Farrington, for her contribution. I am slightly worried that there is the feeling in London that we must not necessarily do everything that people do in Scotland because other people think that it is better. There may be an undercurrent of that here. I see my noble friend shaking her head; she does not feel that way but there are many people who advise her.

It is useful to have the deferment provision on the face of the Bill. I agree that my amendments are not the end of the story and will read with great care what my noble friend and the noble Baroness said. Perhaps I shall be able to produce something better at the next stage of the Bill. However, at this stage I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

[Amendment No. 16 not moved.]

Lord Carter moved Amendment No. 17:

Page 2, line 29, at end insert ("in writing").

The noble Lord said: In moving Amendment No. 17, I shall also speak to Amendment No. 19 in the names of myself and my noble friend Lady Jay. The amendment is quite clear, it inserts the words "in writing" into the Bill at the end of subsection (8) (a) so that the provision would read: inform the patient in writing". That is obviously intended to improve the provision for informing the patient that a supervision application has been accepted by the health authority. One cannot imagine that the health authority would do it in any other way than in writing, so I cannot see why the Government should not be prepared to accept the amendment and have the provision on the face of the Bill.

Amendment No. 19 proposes to insert at the end of line 37 on page 2 the words: and the Health Authority shall also inform the patient, both orally and in writing, of his right to apply to the Mental Health Review Tribunal and to be legally represented at the Tribunal hearing". That is to ensure that patients are informed of their right of appeal against being subject to compulsory powers of supervision and of their right to receive legal advice and representation.

The Government suggest that adequate safeguards to protect the rights of patients subject to aftercare under supervision will be provided by allowing patients to apply to the mental health review tribunal (MHRT). But those safeguards are useless unless the patients are informed of their rights—not only their right of appeal but also their right to free legal advice and representation.

Section 132 of the 1983 Act sets out in terms the duty of hospital managers to give to patients detained under the Act information about not only the legal authority under which they are detained but also their rights to apply to the MHRT. That is spelt out clearly. Managers are also required to take steps to ensure that the patient understands what he is being told. We are advised that similar provisions are required in relation to aftercare under supervision. If the duty is laid on hospital managers under the 1983 Act, we feel that it should also be spelt out in the Bill.

Some recent research suggests that patients are not properly informed of their right to appeal to the mental health review tribunal under the 1983 Act, There was an article in the British Medical Journal of 11th February this year. The research concluded that, our results suggest that the appeals procedure for Section 2 of the Mental Health Act is not a satisfactory way of protecting civil liberties of patients. The procedure has two main flaws: firstly, the patient has to initiate the appeal and, secondly, there is an unsatisfactory method for informing patients of their right to appeal. As a result the procedure favours patients who are well educated or have had previous admissions, but it works against patients suffering from depression or dementia. If patients were fully informed of their rights there might be a considerable increase in the number of appeals".

The object of the two amendments is to improve the provisions for informing patients that a supervision application has been made. When that application has been made, the patient should be informed both orally and in writing of his right to apply to a mental health review tribunal, to be legally represented, and to receive free legal aid. That should all be clearly understood. We feel that it should be on the face of the Bill. I beg to move.

The Earl of Balfour

I should like to take this opportunity to ask a question about Amendment No. 19. I am under the impression that one cannot get legal aid at a tribunal. I know that legal advice can be obtained through the citizens advice bureaux; but the person being represented at a tribunal of any kind has to pay the whole of the costs. I wonder in this case who would bear the costs for the person to be legally represented. I am not very familiar with the procedure.

Lord Carter

The brief that I have from the Law Society clearly speaks of the right to free legal advice and representation. I rely on the advice of the Law Society. Perhaps the Minister can also advise on the matter.

Baroness Cumberlege

Yes, I endorse the comments of the noble Lord. I understand that legal aid is available for hearings at these tribunals.

I can see the case for the amendments. The acceptance of a supervision application is a significant milestone in the treatment and rehabilitation of, and the legal requirements on, a patient. I recognise the argument that he (or she) should have documentary evidence. We should not want to prescribe the form that that documentation should take. That would be a matter for the health authority and the trust to which that role would be delegated. But we propose to consider the amendment very carefully.

I also firmly believe that the patients should be aware of their rights. The second amendment seeks to make it mandatory that a patient who is subject to aftercare under supervision will be told formally about his (or her) rights to a mental health review tribunal. Patients who are detained in hospital must be told of their rights to a tribunal by the hospital managers. For those in the community—those subject to guardianship—there is no equivalent provision in the Act. We followed the same principle in drafting this Bill. However, we recognise that, where a patient is to be informed in writing that an application for supervision has been accepted, he should also be informed at the same time of his appeal rights. Therefore, we shall give the amendment further consideration.

Lord Carter

I am extremely grateful to the Minister. It is hard to see how one can redraft and improve on the limpid clarity of the two words "in writing". It will be interesting to see what the department comes up with. I am extremely grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 18:

Page 2, line 33, after ("requests") insert ("in writing").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 24, 27, 30, 31, 33, 47, 48, 49, 50, 51, 52, 55, 58, 60, 61, 63 and 65. The amendments cover three subjects. They all relate to the nearest relatives and their position under the Bill. Without going into detail some of the amendments relate to adding the words "in writing". I shall explain that later. Other amendments relate to being part of the process of consultation to a greater extent than the Bill currently provides; and some concern being provided with information to a greater extent than the Bill provides.

Perhaps I may spell out why the nearest relatives are more important than has been allowed for in the Bill. I remind the Committee that I am advised on this matter by the National Schizophrenia Fellowship whose members consist on the whole of nearest relatives. They know what they are talking about.

An application for aftercare under supervision cannot be made under the terms of the Bill by a responsible medical officer unless he consults various professionals and, any person who the responsible medical officer believes will play a substantial part in the care of the patient after he leaves hospital but will not be professionally concerned with any of the after-care services to be so provided". I quote from Clause 1—the new Section 25B(2) (d).

The responsible medical officer is therefore not required specifically to consult the patient's nearest relative. It can be argued that if the nearest relatives are not playing a substantial part in the care of members of their family they should for that reason lose any right to be consulted. However, they may live far away from the patient. They may be, and sometimes are, advised by doctors that it is better for the patient's health if non-professionals who are not family members provide the major part of the care after discharge as they are not emotionally involved. They may be unable, because of other family commitments, to shoulder a substantial part of the patient's care. They may feel unable to do so because they simply cannot cope with the illness.

Members of the NSF, mostly relatives of someone with schizophrenia, feel strongly, even when they are not the main professional care givers at any one time, that they are often the only people with a continuing concern for patients —I emphasise "continuing"—who have knowledge of their personal history, their interests and their social networks. They frequently provide a great deal of back-up and should not be excluded from the consultations required in the Bill. The relevant amendments are Amendments Nos. 31, 50, 52 and 61.

Those people believe that where practicable they should be named on the supervision application and consulted when it is made, reviewed, extended or ended; that is to say, they should be consulted. The amendments which relate to consultation are Amendments Nos. 24, 30, 40, 58 and 63.

The Ritchie Report on the care and treatment of Christopher Clunis recommended that in any supervised discharge order the patient's relative should be named. Nearest relatives accept that sometimes patients do not wish them to be involved, and that it is reasonable, if they are not playing a substantial part in their care, to give patients the power to ask that they should not be consulted and informed about the supervision application. Indeed, that is very much in the Bill as it stands. Nevertheless, patients can sometimes make such requests on the spur of the moment and change their minds rapidly. The Ritchie Report illustrates that when it says, There were many times when Christopher Clunis would not tell those who were trying to help him the names and addresses of his family. But there were also many times when he did so … Too often his refusal to allow access to his family to those who were caring for him was accepted without question or investigation".

It was felt that Christopher Clunis's family could have been much more of a help to him if only health and social workers had maintained contact with them. It is therefore suggested that patients who do not want their nearest relatives informed or consulted should make that request in writing which would then be a more considered action. The point is that if somebody is asked, "Do you want your family to know?", the patient may say off the top of his head, "No, not those terrible people". If the patient is then asked, "Do you really not want them to know and if so would you mind writing it down?" then the patients concerned may think twice. They may decide that their families were not always harmful and the Christopher Clunis examples were of that nature. The amendments which contain the words "in writing" are Amendments Nos. 18, 33, 47, 49, 51, 55, 60 and 65. They are the ones that require this added reason to make sure that the patient concerned means what he says when he says that he does not want his family anywhere near him.

There is also concern that patients should not be able to prevent the nearest relative knowing what is happening if they are at risk of violence, which the history of the illness may show is a real possibility. Amendment No. 27 relates to that issue. In this case I am definitely proposing that even where the patient says he does not want his relatives to know, there may be occasions when the responsible medical officer has reason to believe that it may assist the aftercare supervision of the patient if the relative was consulted, even if the patient was not told of that, and that may be particularly so when the patient has a history of violence.

All the amendments relate to the same subject and I do not expect an immediate answer from my noble friend saying that she will accept this amendment but not that one. However, I hope that she will be able to say that the Government will give consideration to these matters of how relatives can be embodied more fully into the process than is currently the case. We will not accept the argument that, as it does not say they have to be kept out in every case, that means that they could come in. I have tried with the amendment to bring them in because all too frequently we find that people who are looking after mentally ill patients do not necessarily consult with everybody, including the nearest relative, if their name does not appear in the relevant regulations. Simply not having them there in the hopes that the social worker, medical officer or whoever it is will automatically think of them is not good enough in many cases. Though I would not want to overdo it—we have tried hard not to—something along the lines of what I suggested would be worthwhile and I hope that my noble friend can give the matter a sympathetic hearing. If we do not bring it off at this stage, perhaps we can improve on it at the next stage of the Bill. I beg to move.

5 p.m.

Lord Campbell of Croy

I want to add to what my noble friend said by pointing out that a sufferer from mental illness may not wish a nearest relative to be involved and that may be from a misplaced feeling of inadequacy, like other hallucinations experienced by those who suffer from schizophrenia. Furthermore, sometimes the medical profession tells parents that they must have no contact with a schizophrenic son or daughter for a considerable period—it may last for years—and also that the parents must not expect any contact in reverse. That is because it is helpful to the sufferer to be in that situation. Also, where the near relative is not playing a substantial part in the care of the sufferer, it is reasonable to give the patient the power to ask that the nearest relative not be consulted and informed about the supervision application. However, the nearest relative is usually the person most worried, concerned and wishing to help in every possible way, even though the nearest relative may have been told to keep at a distance.

My noble friend has already quoted from the admirable report by Mrs. Ritchie, QC, so I need not say more on that. The report, after the inquiry, brought out the need for consultation with families. My view is that we should not shut out the nearest relative unless there are overwhelming reasons to do so. Accordingly, I support the principle of my noble friend's amendments.

The days of undue reticence about mental illness are past and it should not be brushed under the carpet. I happen to be the nearest relative of a sufferer from schizophrenia—not a violent one, I quickly add—and am therefore one of the people, and have been for 25 years, whom we are discussing in these amendments. The sufferer has been in institutions and in systems both in Scotland and in England and I am therefore in a good position to comment on both parts of the Bill. Families have gained much experience from which they can contribute, particularly close members of families. They can make suggestions and provide information of value and sometimes of importance to the care arrangements being made. I hope that I have helped the Committee with this brief contribution based on years of experience of being a "nearest" relative.

Baroness Jay of Paddington

Perhaps the noble Lord, Lord Mottistone, or the Minister can say who will decide who is the nearest relative. That may sound like an odd question and, as has been shown by the noble Lord, Lord Campbell of Croy, there is no question about that. But we all know what my children would call "dysfunctional families" where the nearest relative is someone with whom the patient involved has long since fallen out. Perhaps the noble Lord, Lord Mottistone, will consider whether or not the patient should be consulted as to whom they will nominate as their nearest relative rather than simply going down the list as it is presently drawn up under the Mental Health Act.

Baroness Cumberlege

I would hate to shoot my noble friend's fox and perhaps he would like to respond a little later. In reply to the general debate I am very much aware of my noble friend's anxieties in relation to the position of the nearest relative. We acknowledge the vital part played by families in providing support to patients and their natural wish to know what is happening to a close relative, especially when they have been seriously ill or even regarded as potentially dangerous.

At the same time not all relatives are on good terms and family relationships may have broken down for any one of a number of reasons and over a number of years before the discharge of a patient would be considered in these circumstances. In the Bill as it was introduced we have sought to strike a balance by requiring an informal carer who is going to be actively involved in looking after the patient—and who may be the nearest relative—to be consulted about the making of a supervision application and other matters, and otherwise requiring the nearest relative to be informed of these matters, unless the patient objects, once they have been decided. I understand that the definition of "nearest relative" is contained in Section 26 of the 1983 Act. It is there if the noble Baroness wishes to look it up.

Baroness Jay of Paddington

I suspect that it is simply a list—if it is not the parent, it is the grandparent. I cannot remember the precise order. There is a substitution list, as it were, but there is not an indication that the patient may say, "If it is not the parent, I would prefer my great aunt or my second cousin".

Baroness Cumberlege

The noble Baroness is correct. It sounds like something out of Gilbert and Sullivan—his sisters, his cousins and his aunts. I take the noble Baroness's point. It is one which we may consider.

I recognise that my noble friend has a number of arguments for extending the scope of consultation to include the nearest relative, even if he or she is not acting as an informal carer, and I am ready to consider very carefully the points which my noble friend, the noble Baroness and my other noble friend have made during the debate.

What I do not find so immediately persuasive is the argument that any objection by the patient should have to be recorded in writing. The Bill as it stands provides that the nearest relative, whether he or she is identified, will be given information unless the patient objects. The word "unless" is important because it means the presumption is that the nearest relative will be informed. We are not, however, convinced that this should have to be in writing. Patients may well make irrational or inconsistent demands, but we are not convinced that requiring them to put pen to paper—if indeed they can—will provide any further proof of their wishes. We think that these should be respected unless there are compelling reasons for not doing so.

Finally, in the context of the other amendment proposed by my noble friend, I understand his intentions when he proposes that, should a patient refuse to agree that his nearest relative should be consulted about making a supervision application, the responsible medical officer may ask the health authority for approval to do so. The patient's dangerous behaviour is one of the risk factors to be taken into account before recommending discharge under supervision. If, having consulted those directly involved —whether or not this ultimately includes the nearest relative, as my noble friend proposes—the responsible medical officer, along with those supporting his application, is satisfied that the risk can be contained with the help of supervision, arrangements should proceed without the addition of further procedures.

As I have said, we are prepared to give further consideration to the general question of consultation with relatives which is raised in these amendments. On that basis I hope that my noble friend will agree not to press the amendment.

The Earl of Mar and Kellie

Before we leave the subject of the nearest relative, perhaps I may draw one point to the Committee's attention. The noble Lord, Lord Mottistone, is right to differentiate between the roles of the nearest relative and the carer, although sometimes they are the same person. It is important not to diminish the role of the nearest relative even if the patient cannot stand the nearest relative. The reason is that in the context of inherited wealth—this is relevant to this House—the nearest relative may reluctantly have to safeguard and administer property, investments or business interests which belong to the patient. In compulsory mental health measures in Scotland a social worker working as a mental health officer or aftercare officer must see to the affairs of the patient. While that is wholly appropriate with regard to safeguarding a tenancy, we do not really expect a social worker to be running an estate, a business or the like. It is very important that we keep the nearest relative well involved. They will be performing what is no doubt a reluctant duty, backed up by a power of attorney.

5.15 p.m.

Lord Mottistone

I thank my noble friend for her reply and in particular for saying that she will look further at how we can involve the nearest relative more closely than is currently the position. I am most grateful for that. I am also most grateful to my noble friend Lord Campbell of Croy, who speaks as an expert, for his support.

With regard to the point made by the noble Baroness, Lady Jay, Section 26 of the 1983 Act goes a little further than just giving a list of relationships. It gives some advice on how they might be picked out, one against the other. There are seven subsections which are quite helpful in this general area. As I understand it, it is not on the whole difficult to identify the nearest relative. However, there are special cases. I have not had time to read Section 26 properly but it no doubt gives us enough guidance to deal with that.

I got the slight impression from what my noble friend the Minister said that she is sympathetic to the phraseology of my Amendment No. 27; or was she saying to me that what is proposed there is already in the Bill? Amendment No. 27 is slightly different from the other amendments because it specifically says that, even when the patient does not want the nearest relative to know, the responsible medical officer can, with approval, override that. If that is so, is she saying to me that that is set out elsewhere in the Bill or is she saying that she will include that in what she might herself propose when she sees whether she can go a step further in bringing the nearest relative into the Bill? Perhaps she can give me a line on that before I conclude.

Baroness Cumberlege

Where a patient refuses to agree that the nearest relative should be consulted about making a supervision application the responsible medical officer may ask the health authority for approval to do so.

Lord Mottistone

I thank my noble friend. I am most grateful to her for her undertaking to look further at this area. With the proviso that I may come through with some more amendments, too, just to make sure that we cover all the lost ground, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Lord Carter moved Amendment No. 20:

Page 2, line 37, at end insert: ("( ) On the acceptance by the Health Authority of the supervision application in respect of a patient, he shall cease to be liable to be detained in a hospital under the provisions of this Act").

The noble Lord said: Amendment No. 20 is intended to clarify that aftercare under supervision applies only to patients who have been discharged from hospital into the community and who are therefore no longer liable to be detained. As it is currently drafted, the first part of the Bill does not make clear that patients subject to aftercare under supervision should no longer be liable to be detained under the 1983 Act and hence liable to recall to hospital. As always, this point is, however, made clear in relation to community care orders in Scotland. Clause 4—Section 35A(8)—states clearly: On the coming into force of a community care order in respect of a patient, he shall cease to be liable to be detained in a hospital under this Part of this Act". Every time we look at the Bill and we see how much better things are in Scotland, I cannot help feeling that devolution should perhaps come the other way.

This amendment would also bring the Bill into line with provisions for guardianship under the Mental Health Act 1983. Section 8(5) of that Act clarifies that patients received into guardianship are no longer liable to be detained. Subsection (5) states: Where a patient is received into guardianship in pursuance of a guardianship application, any previous application under this Part of this Act by virtue of which he was subject to guardianship or liable to be detained in a hospital shall cease to have effect". So if it is made clear in that part of the 1983 Act and in the latter part of the Act which deals with Scotland, we cannot see why that provision should not also be in the first part of the Bill as this amendment suggests. I beg to move.

Baroness Cumberlege

We expect a health authority to accept a supervision application as soon as the authority—or the provider to whom acceptance will in practice be delegated (a trust)—is satisfied that the application has been properly made. That is that everyone who should have been has been consulted and has agreed the provision of the services the patient needs.

In the ordinary way we would expect the patient to be discharged as soon as possible after the application had been accepted, and at that point he or she would cease to be liable to be detained. However, if for any reason there was a time lag between acceptance of the application and the patient's discharge—for example, because some practical problem had arisen with the aftercare arrangements—we can see no advantage in ending the liability to be detained at an earlier point. I believe that to be the explanation, and I hope that the noble Lord will not press the amendment.

Lord Carter

It is not entirely clear why there should be this difference. On the other side of the Border a patient in Scotland, under this Bill, would cease to be liable to be detained, whereas a patient a few miles away in England would still be liable to be detained. Is that correct or is there a difference in the force of a supervision order and a community care order as there is in Scotland?

Baroness Cumberlege

As I understand it, the Scottish Act is very different from ours. It involves sheriffs and courts in a way that our Act does not. Therefore, we are always going to find differences between the way in which we promote our Bills and Scottish Bills. I appreciate that some people feel that in Scotland matters are dealt with better, but not always.

Lord Carter

I shall need to take advice on this matter. I shall read what the Minister has said, but I am still not entirely clear about the difference. There was also the point about the Mental Health Act which I raised. At this point I shall consider the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

Baroness Jay of Paddington moved Amendment No. 22:

Page 2, line 48, at end insert ("and any person authorised by the patient to act as their representative").

The noble Baroness said: In moving this amendment I shall speak as well to Amendment No. 23. Both these amendments are designed to achieve as far as possible a consensual approach to aftercare in the community which is to be organised on behalf of the patient being discharged under a supervised discharge order, and that it should be discussed not simply with the professionals involved, both in the hospital and in the community, but with someone whom the patient personally trusts to act as his representative. It is important that that should be done whenever arrangements about the discharge order are to be discussed.

Amendment No. 22 seeks the informal involvement of someone trusted by the patient at the time the supervised discharge is being planned. It has been pointed out to me that that should probably be done while the patient may still be in an acute phase of mental illness as an in-patient in hospital because, given the number of consultations and agreements which need to be discussed before a patient can be properly discharged, probably it should be done some time before that discharge is appropriate. As the Bill currently proposes, the patient is being detained in hospital under a treatment order, which by definition means that he is not judged to be able to make a rational judgment about his health or safety needs at that time.

The Mental Health After Care Association has suggested that it would at that point perhaps be sensible to allow the patient to be accompanied at any discussion, or that he should be represented there by someone from the legal profession, a user advocacy group or an experienced agency such as the citizens advice bureaux. That is allowed for in Amendment No. 23 where the responsible medical officer could make what from the patient's point of view would seem to be an arbitrary decision about who was likely to be the significant informal carer with whom the patient would relate once discharged into the community.

We have heard this afternoon, particularly from the noble Lord, Lord Mottistone, about the important recommendations which were made in the report by Jean Ritchie QC and her colleagues on the care and treatment of Christopher Clunis. Perhaps I may read briefly from the recommendations in this area. The patient should have a befriender or advocate. That is before the supervised discharge order was being proposed and this provision was suggested under Section 117 of the Mental Health Act. The report states: We are concerned that the patient very often considers that the …. aftercare plan is made at his expense rather than for his benefit. Although it is vital that the patient should, himself, participate in the formation of the plan, we consider that the patient needs someone to be his ally/befriender/advocate in relation to …. aftercare. That befriender should attend all S 117 meetings with the patient, should champion his cause, and should ensure that action which is supposed to happen under the plan, does in fact happen". That goes back to some of the earlier amendments which we have discussed this afternoon.

The report goes on to make specific and formal recommendations, including: Every patient, subject to S 117 Mental Health Act 1983 aftercare, should have a nominated relative, friend or volunteer to act as his befriender/advocate, unless the patient expressly states to the contrary. Statutory Authorities and Voluntary Agencies working in the field of mental health should recruit, train and support members of the public who wish to be S 117 befrienders. A copy of the current aftercare plan should be given to the befriender".

It seems to me that it is irrelevant to discuss which terminology or name we prefer for that person. There may be some people in this Committee who regard the word "befriender" as somewhat elaborate and inappropriate. But the idea behind the support and advocacy on behalf of the patient by someone in whom the patient has trust goes a long way towards reinforcing the consensual nature of the agreement on the supervised discharge order which has been the underlying part of our discussions throughout this afternoon. It again emphasises that, as far as possible, a discharge supervision order should be made with the explicit co-operation of the patient and be determined by a very non-coercive approach. I beg to move.

Lord Mottistone

I caution great care in this area. I am advised that it is quite possible for people belonging to organisations which are perhaps not the ones which the noble Baroness has quoted to cash in on this sort of thing. They may come in and perhaps put themselves forward as befrienders, but in fact they may be people who are not going to be all that friendly. They may take advantage of the situation for themselves.

At the moment the Bill deals with the nearest relative, and my noble friend says that it may do so a little more than it does at present. It deals with people who will look after the patient in supervised aftercare. To have this extra body which may come from a rather sinister source needs to be kept very carefully out of the Bill, if possible, without wishing to say that someone who is genuine needs to be excluded, too. I suggest caution.

Baroness Cumberlege

Consultation is a thread running through the provisions of this Bill. We believe that at each stage of the process—before application, before renewal and before termination—there should be full consultation with all those who will be involved in the aftercare services: the patient and those who have the closest part to play in providing the services. That is spelt out clearly in the Bill.

As I understand this amendment, the noble Baroness, Lady Jay, seeks an advocate—a patient's representative, befriender or whatever term is chosen—to be included among those consulted, If the patient has an advocate, the responsible medical officer may well discuss the application with him or her in the presence of the patient. But I think it would be onerous to require the RMO to consult such an individual as well as the other persons he must consult.

It is hard to envisage a situation whereby a patient could be consulted about the possibility of supervised discharge without establishing who the relatives, friends or others who would have to play a substantial but non-professional part in his support in the community would actually be. We are talking about those with whom he would live, or be visited by, or who would support him in some other important way. That will be part of the care package that is worked out with the patient and, having established that with the patient's help, it should not be necessary to seek the patient's formal agreement to consulting any such person about his discharge under these provisions. As my noble friend Lord Mottistone said, we do not think that the amendments are necessary, and I hope that the noble Baroness will not press them.

5.30 p.m.

Baroness Jay of Paddington

I am impressed by the theory of what the Minister has said, but I am less certain about whether it will work in practice. I am also a little concerned by what I have come to believe is the rather romantic view that is held by the noble Lord, Lord Mottistone, of the existence of the family network of many of the people about whom we are talking. I suspect that many of them are what are colloquially known as the "homeless and rootless", people for whom the identification of the "closest relative" about whom we were speaking previously would be difficult.

The recommendations are drawn directly from the explicit case of Christopher Clunis that was considered by Mrs. Ritchie and her colleagues. Members of the Committee will remember that that was the most recent violent example of how the system can go wrong in practice, however good the intentions.

I entirely take the point made by the noble Lord, Lord Mottistone, about keeping the advocacy role away from those who may seek to promote themselves or their own views in that context. However, I believe that there are in this world enough people with a genuine concern about establishing a good care package for patients and about meeting their wishes who could be, as the Ritchie Report suggested, trained by the statutory agencies. That is the relevant point. Therefore, I do not accept the view of the Minister and the noble Lord, Lord Mottistone, that it is a redundant role. As I have said, I quibble slightly with the word "befriender", but I accept that there is a case for having a neutral voice of advocacy, particularly just before discharge, when the patient may well still be ill and confused. That is important. I shall read what the Minister has said and, at this point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 and 24 not moved.]

The Earl of Longford moved Amendment No. 25:

Page 3, line 12, at end insert: ("( ) a registered psychiatrist who will not be involved in the provision of after care services to the patient; and ( ) an independent solicitor").

The noble Earl said: The noble Lord, Lord Mottistone, brought before us the wisdom of the National Schizophrenia Fellowship and rightly said that it knows what it is talking about. I do the same for a more recently formed but equally effective body, the Matthew Trust, which attaches great importance to both parts of this amendment.

One has to ask oneself whether there are sufficient safeguards as things are. I am not expecting a definite assent to my amendment from the Minister this afternoon; I am simply asking her to think it over. Before the next stage, it may be possible for us to persuade her that there is widespread support among your Lordships for the amendment. In practice, it amounts to saying that if someone is to be put under supervision, it is necessary to have a second psychiatric opinion and, if possible, to ensure that an independent solicitor is brought in. I appreciate that in an earlier decision today the need to consult a psychiatrist in the first place was not accepted; so some modification of what is proposed might be needed. However, I am moving the amendment now to give the noble Baroness the opportunity to say that she will consider the matter. If she finds that there is widespread support in the Committee for the need for further safeguards, I am sure that she will be the first to admit it. I beg to move.

Earl Russell

I sympathise with the motives behind the noble Earl's amendment, but it is perhaps unduly prescriptive. Also, I am not sure that it allows for the fact that there may be a need for haste in some cases. When one is dealing with someone with acute mental illness, particularly schizophrenia, it is often possible that the patient may commit suicide within the next few hours. Therefore, one needs a power which will not have to wait until a consultant psychiatrist and a solicitor can be called in. If one waits, the patient may not be alive at the end of it.

In this Bill, we are dealing with a conflict between arguments of safety and arguments of liberty. We on these Benches have always been second to none in the respect that we give to arguments of liberty. I am not quite sure how well applied they are to this Bill. In the words of John Stuart Mill: Liberty consists in doing what one desires, and one does not desire to fall into the water". He was arguing that you could forcibly restrain somebody from crossing a broken bridge when they did not know that it was broken. That passage also applies to the case of mental illness. Obviously, libertarian considerations can be important, and things have been done in the past upon which one looks back with dismay. But mistakes can be made both on one side and on the other; so I think that we have to be careful when following the libertarian criticisms of the Bill to the point where they may present a real risk to the safety of the patient. In this area I think that the Bill has come as near as it reasonably can to getting it right.

Baroness Jay of Paddington

I agree with the noble Earl that it is precisely that balancing act that is the most difficult to achieve—

The Earl of Longford

Which noble Earl?

Baroness Jay of Paddington

I apologise to my noble friend Lord Longford. I was referring to the noble Earl who had just spoken—the noble Earl, Lord Russell. A plethora of noble Earls is involved in this amendment.

I agree with the noble Earl, Lord Russell, that the Bill has achieved a balancing act, although it has sometimes fallen down on one side and sometimes on the other as between questions of civil liberties and safety. However, perhaps I may ask the noble Earl to address one specific point. Although I understand what he is saying about the need for speed when dealing with the severely mentally ill, surely that concern would be more appropriate when the patient is to be admitted to hospital. The amendment, which stands in the name of my noble friend Lord Longford, refers to the time when the patient is about to be discharged when presumably the question of his imminent self-harm or the threat of suicide must be reduced, otherwise the supervised discharge order would not have been considered.

Earl Russell

Perhaps I may answer that briefly. I have known people who have changed from one of those states to the other within the space of half an hour, and you cannot see it coming.

Baroness Jay of Paddington

Surely that is an argument for delay. It would be useful if an independent solicitor and another psychiatrist were found before such a terrible clinical situation happened.

Lord Mottistone

Who is to pay for those eminent gentlemen—

Baroness Cumberlege

Or women?

I have already said that consultation is a thread running through the provisions of this Bill and have drawn your Lordships' attention to the requirements for consultation with the patient and others at the various stages of aftercare under supervision.

The noble Earl, Lord Longford, wishes to add another doctor, a registered psychiatrist, to this list of people the responsible medical officer must consult. As I have already pointed out on the noble Earl's earlier amendment, there is no legal provision for psychiatrists to be registered as such. I am sorry to disappoint the noble Earl, but in any case we think such a requirement is unnecessary. The additional doctor would not be involved in the provision of aftercare services. If the purpose is to have an independent voice, speaking up for the patient, there are already proper safeguards for the patient in the Bill. The RMO must not only consult the various people listed under new Section 25B(2) but his application must be supported by two recommendations—one from an approved social worker, the other from a registered medical practitioner who will be professionally concerned with the patient's medical treatment after he or she leaves hospital. That mirrors the procedure for applications for detention under the Act.

The amendment would also require an independent solicitor to be consulted. We do not think that is justified. Patients will have the right to appeal to a mental health review tribunal against the imposition and renewal of supervised discharge. At tribunals they have full access to legal representation which is free. We have made additional financial provision for the anticipated extra tribunal hearings because of the introduction of supervised discharge, as noted in the financial memorandum. Against that background, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Longford

I enjoyed the exchange between one of the other noble Earls and my noble Leader. I am bound to say that that master of logic, the father of the noble Earl, Lord Russell, would have felt that the balance of the argument on this occasion lay with my noble friend Lady Jay. It may well be that before the next stage there will be a great volume of support for this amendment. I cannot say. If there is, I shall return to it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Jay of Paddington moved Amendment No. 26:

Page 3, line 12, at end insert ("and ( ) the Mental Health Act Commission.").

The noble Baroness said: Amendment No. 26 seeks to extend the remit of the Mental Health Act Commission to include patients who will be receiving aftercare under supervision; that is, the patients we have been discussing this afternoon. In Scotland the Bill extends the role of the Mental Welfare Commission to cover patients who are subject to community care orders. I can only echo the words of my noble friend Lord Carter about the extraordinary advantages of reverse devolution in this case.

I am advised by, among others, the immediate past chairman of the Mental Health Act Commission that to introduce this extension of the MHAC's role in this way will be a very effective way of monitoring and evaluating the supervised aftercare provisions. For example, one of the problems about guardianship, which has been discussed this afternoon, is that little is known centrally about the number of people who are dealt with under the different forms of order in the community, and it is very difficult to maintain records of them. I refer back to the case of Andrew Robinson, the subject of the public inquiry chaired by Sir Louis Blom-Cooper, QC. One of the problems that arose in that case was the absence of a central register of the different types of care that he had received in different communities as he moved about the country. I go back to the point that I made on the previous amendment. So many of the people who will be subject to these orders may be described broadly as the homeless and rootless. To try to keep tabs on where they are and what they are doing is advantageous both from the point of view of maintaining contact with them and from the point of view of evaluating the services they receive to see whether they are effective.

One of the arguments advanced by several noble Lords at Second Reading was that this Bill should have been brought forward in the context of a general revision of the mental health Acts. The noble Lord, Lord Fraser of Carmyllie, said in reply: I wish to conclude by acknowledging the case for considering whether the Acts still reflect current practice … Our view is that we wish to take stock of the new powers that we propose should be introduced in the Bill before considering any further fundamental changes." [Official Report, 16/3/95; col. 979.]

It is possible to take proper and appropriate stock of precisely what will happen under supervised discharge if these new powers include referral to the Mental Health Act Commission. The reports will form a much more authoritative basis for considering both of the issues we have discussed about the relative merits of guardianship and supervised discharge orders, and many other forms of community care.

Of course, the Mental Health Act Commission is subject to the statutory requirement to report every two years through the Department of Health to Parliament. I believe that requirement to be important if in future we are to consider, as Ministers have suggested we may have the opportunity to do, a thorough revision of the mental health Acts as they now stand. I beg to move.

5.45 p.m.

Lord Campbell of Croy

I rise because of the references that have been made to what appears to be a superior system in Scotland proposed in Part II of the Bill. I only wish that those in Scotland thought so too. As I said at Second Reading, the great concern in Scotland is mainly about changing the leave of absence arrangements. They are separate and different in Scotland.

I should point out that the Scottish Mental Welfare Commission was in existence for many years before the body for England and Wales. I cannot help but be gratified by what has been said so far during the debate, having presided over the National Health Service as Secretary of State in Scotland for four years, although that was some time ago. When the Bill for England and Wales, which became the 1983 Act, passed through this House, some doubts were expressed as to whether the Mental Health Act Commission was necessary, whether it would do any good and so on. It was I who spoke up and said that there had been one in Scotland for several years, and I commended it. From what the noble Baroness, Lady Jay, has said, I believe it can be said that since 1983 the commission in England and Wales has served the purposes for which it was established. Therefore, I shall listen with particular interest to what the Minister says in reply.

Baroness Cumberlege

I concede my noble friend's tribute to the Scottish system and am grateful to him for the part that he has played in it.

This amendment seeks to add the Mental Health Act Commission to the list of persons the RMO must consult. The commission plays a valuable role in its visits to detained patients. It fulfils admirably the Secretary of State's functions under Section 120 to keep under review the exercise of the powers and the discharge of the duties relating to the detention of patients, or to patients liable to detention.

The commission's remit is limited to detained patients and does not extend to those receiving care in the community. Therefore, it also rules out guardianship orders. We believe this to be right, given the need to make the best use of finite resources. At the moment, when a supervision application is made the patient will be detained in hospital and the commission will be able to review the way in which the procedures operate. But there is no obligation under the Act as it stands to consult the commission, for example before a patient is detained or before detention is renewed. It would be inconsistent to require this when supervised discharge was being considered.

In the light of this, I hope that the noble Baroness will not press the amendment.

Baroness Jay of Paddington I understand precisely what the Minister says about how this amendment will obviously extend the role of the Mental Health Act Commission, but that is precisely what it is intended to do. Perhaps the Minister can help me a little further on how the Department of Health, and indeed those bodies who will be responsible for patients under supervised discharge orders, expect to be able to evaluate appropriately this new form of care if there is no form of central register, or no way of reporting to a body that can monitor and evaluate this type of care at any future stage.

Baroness Cumberlege

Local mental health registers are being established. I believe that it would be up to the Social Services Inspectorate and the National Health Service Executive to monitor very carefully how effective those registers were.

Baroness Jay of Paddington

I am grateful to the Minister for that reply. Obviously, what she says is helpful. I hope that we can return to this at a later stage. I will read very carefully what she has had to say. However, given the context of the discussion at Second Reading about the possible need to revise the whole of the mental health legislation, we probably need something more systematic and nationwide in evaluating this new policy if we are to make approaches of this kind to the old Act. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 27 and 28 not moved.]

Baroness Jay of Paddington moved Amendment No. 29:

Page 3, line 32, after ("supervisor,") insert ("who shall be a Community psychiatric nurse,").

The noble Baroness said: Amendment No. 29 is designed to make specific on the face of the Bill who shall be the supervisor of those subject to supervised discharge orders. We have been told that the supervisor will be the named person who will carry the responsibility for ensuring that the patient receives aftercare services in the community. The named person will, if necessary, make the decision to convey the patient to the place where he resides, is being trained or is receiving treatment. Ultimately, it may be the named person who recommends that the supervised discharge order is revised or lifted. Obviously, this will be an extremely responsible and—one may almost think—exposed position. As I said at Second Reading, my fear, and that of several people to whom I have spoken who will be involved in both recruiting and managing people in the community who are subject to supervised discharge orders, is that if the responsibilities that the supervisor is supposed to have and the lines of management and accountability are not absolutely precise, it may be very difficult to persuade colleagues to take on these roles, particularly in view of the harsh spotlight of unpleasant publicity that can fall on named people in these local positions if something goes wrong.

On Second Reading I asked who would be the supervisor, and the noble and learned Lord, Lord Fraser of Carmyllie, said: The supervisor may well be a social worker. But we think it more likely in fact that he or she will be a community mental health nurse. Most key workers in the care programme approach are such nurses".—[Official Report, 16/3/95; col. 977.] That would be also be consistent with the Bill being regarded primarily as the health authority measure. Given that, it is surely important, so that the lines of responsibility and management accountability are understood clearly and agreed, that the Bill should specify who will hold that crucial post.

Whether they are named specifically on the face of the Bill, community psychiatric nurses will—if they are asked to take on this new role—carry a new and heavy burden. If the amendment is not accepted, I hope that the Government will acknowledge that the codes of practice will need to identify maximum case loads and the need for particular training in those new responsibilities which will almost certainly, as I say, fall upon the community psychiatric nurses who are already severely burdened and under strain. I beg to move.

Earl Russell

I am very much in sympathy with the objectives of the amendment, but I noticed that the noble Baroness said at the end that community psychiatric nurses are over strained and over-worked. There is a question then of the viability of the amendment. The Royal College of Psychiatrists says that in London the average reported case load of community psychiatric nurses is 37, and the range in that is 17 to 62. Do we need more community psychiatric nurses before the amendment is viable? I should be glad to hear the opinion of the noble Baroness on that.

Baroness Jay of Paddington

Perhaps I may respond briefly to the noble Earl. The point that he makes is an extremely good one. I hope that if this person is identified clearly and specifically, as the amendment suggests, the pressure to provide such people with adequate resources and to recruit more CPNs, and to see that they are trained appropriately to take on these additional tasks, will become irresistible.

Baroness Miller of Hendon

All professional members of a patient's care team have a degree of expertise and knowledge of the patient which will make their contribution essential to the patient's support and well-being in the community. In practice, the supervisor, for the purposes of supervised aftercare, will be the key worker identified under the care programme approach. That is at the centre of our policy on the care for mentally ill people in the community, which will apply equally to patients covered by the new provisions.

Most key workers are indeed community psychiatric nurses, who have particular skills and clinical background to enable them to fulfil that role effectively. But that is not always the case and there is no reason why other members of the care team—say the doctor or social worker—should not fulfil that role when it is in the patient's best interests and is more practical. The same flexibility is needed in nominating the supervisor under our new provisions. That should be the professional who is best suited, to the satisfaction of all concerned, with providing the aftercare health services needed, to undertaking the role.

Narrowing that to a single discipline is an unnecessary constraint. I hope that the noble Baroness will agree to withdraw the amendment.

Baroness Jay of Paddington

I accept what the noble Baroness said, but on the other hand if the assignment of authority—if one can call it that—is not made specific and clear, and, as she said, drawn rather narrowly, the opportunities for confusion and the breakdown of relationships, which has been demonstrated so clearly in so many of the reports which have been referred to in earlier amendments this afternoon, will persist.

If the Government feel that the most appropriate person is the community psychiatric nurse, and if the distinction, as we have heard it argued this afternoon, between the supervised discharge order and, for example, guardianship is that that is a health authority responsibility, why is it not appropriate to name the community psychiatric nurse as the appropriate person? As I said in response to the noble Earl, Lord Russell, I hope that that person will be supported adequately.

Baroness Miller of Hendon

It will not always be the community psychiatric nurse, sometimes it will be the social worker. We are only codifying what already exists. As the noble Baroness may be aware, we have had a huge increase in the number of CPNs, but we feel that we need the same flexibility to make the care package work successfully. I hope that that explanation will satisfy the noble Baroness.

Baroness Jay of Paddington

I am grateful to the noble Baroness for that reply. In a sense it comes back to the nub of the debate we had this afternoon about what it is that distinguishes the supervised discharge order from other forms of supervision in the community. Again, I refer to guardianship. I shall read what the noble Baroness had to say and may return to this at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 29 to 31 not moved.]

The Deputy Chairman of Committees (Lord McColl of Dulwich)

Before I call Amendment No. 32, I must point out that if the amendment is agreed to I cannot call Amendment No. 33.

The Earl of Balfour moved Amendment No. 32:

Page 4, line 33, leave out ("except where the patient otherwise requests").

The noble Earl said: All my amendments are grouped together because they all cover the same subject. One of the tragedies of persons suffering from mental disorder is that because they cease to think logically they cease to trust those nearest and dearest to them. That results in those nearest and dearest being unable to help because they are not trusted. The "nearest and dearest" need not necessarily be a relative. Two or three people may live together and be very close, but not necessarily be related. That is something that should be borne in mind.

Many persons who are seriously mentally impaired may appear to be perfectly normal, and sometimes quite witty. It is only after a period of up to two hours that strangers will become aware of how mentally impaired he or she is, because by that time mentally impaired persons will start to repeat themselves.

Of the four psychiatrists I have met, dealing mainly with my wife, only one of them quickly and clearly diagnosed how seriously mentally ill was my wife. He was the oldest, and the only one who asked the right questions. For the rest of what I shall say, I shall refer to the mentally impaired person as the "patient". The RMO referred to in the Bill should be not less than 45 years old, because persons under that age have not seen enough of life to know the right questions to ask the patient.

My wife was convinced that I needed a psychiatrist much more than she did. That illustrates how difficult it is for the nearest and dearest to be able to seek and obtain help. Regrettably she did not trust her daughter, either. The words I propose to leave out of the Bill are designed to remove from the patient the choice of whether the next of kin, or, as I have said, the nearest and dearest, are informed, because in almost every case that I have known such mentally impaired patients, because they do not think logically, always refuse to have their next of kin informed.

I have shown a different side to that described by my noble friend Lord Mottistone in speaking to Amendment No. 18 and others in that group. I ask that, where the next of kin is involved, he or she must be informed. After all, if the patient is cured the next of kin must help that patient to rehabilitate. I beg to move.

6 p.m.

Earl Russell

I congratulate the noble Earl, Lord Balfour, on the courage and clarity with which he spoke about what must be a most painful experience, even remembered at a long distance of time. I understand the situation that he described. He illustrated that the noble Baroness, Lady Jay, perhaps exaggerated the position in describing as romantic the review of the relationship with the family as given by the noble Lord, Lord Mottistone.

There are many people who are homeless, rootless and without contacts, as the noble Baroness described. However, there are also others whose families are deeply anxious. It does not necessarily follow that what the noble Earl has recommended is the solution. Such distrust of the people who care for the person most is a characteristic symptom, and therefore it is part of the problem. Indeed, it is almost at the heart of the problem.

However, I am not convinced that because it is at the heart of the problem one can deal with it by pretending that it is not there. One must recognise its existence and one must bring the treatment to the patient in a form that the patient can accept. It is a case of, "You can take a horse to the water but you can't make it drink". I express my greatest sympathy with the noble Earl, but I am not certain that the amendment solves his problem.

Baroness Cumberlege

I too greatly respect the experience and knowledge that my noble friend has of the subject. However, as he will be aware, our proposals allow that a patient's nearest relative, as defined under the Mental Health Acts, should be informed of every significant development connected with his or her aftercare under supervision—unless the patient requests otherwise. If the nearest relative is, or is to be, the patient's informal carer in the community, he or she will be consulted and kept informed throughout the process in any case.

My noble friend's amendment will allow the patient's nearest relative to be informed of what is happening to the patient, and possibly of the classification of his mental disorder, regardless of the patient's own wishes and the nature of the relationship between the two. They may have become distanced in any number of ways and, in rare cases, may well be on terms under which it would be entirely reasonable for the patient not to wish further contact or knowledge.

There is an underlying confidentiality issue here. It is perfectly reasonable to consult and inform all those who are to play a part in the aftercare arrangements (which could not be set up without the patient's compliance from the outset) but not to inform automatically someone who fits the technical definition of nearest relative unless he is one of these or unless the patient has no objection. In many cases the nearest relative will be the patient's carer and consulted accordingly. If this is not the case the patient should be allowed to ask for confidentiality.

I have agreed to consider the amendments tabled by my noble friend Lord Mottistone, which go some way towards these amendments, but I do not believe we can override the patient's wishes completely. I therefore suggest to my noble friend Lord Balfour that he does not press these amendments.

The Earl of Balfour

I had no intention of pressing the amendments. I merely wished to bring forward the side of the problem that I and so many of my friends have experienced. I wish to make one further comment and I do not expect my noble friend to reply at this stage.

In the case of my wife and in that of others, the real problem was that she was drinking—only wine but quite a lot. As far as the doctors were concerned, she was under the influence of drugs and therefore they did not want to know. I regret to say that I had to call in the doctors at the end of the day and say, "Enough is enough. Take her away". That is exactly what happened.

It is a matter of the nearest and dearest being able in some way or another to obtain help from social workers, doctors or whoever. What I have described is not uncommon. If there is a way in which people in that unfortunate position can seek and obtain help I should be pleased to help them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 not moved.]

Earl Russell moved Amendment No. 34:

Page 6, line 16, at end insert ("uncle, aunt, or grandparents").

The noble Earl said: I hasten to assure the Committee that the amendment does nothing to increase or to diminish the powers of the next relative. I am aware that that is a controversial area of the Bill but the amendment does not enter into it. It deals merely with who shall be classified as next relatives and makes two additions; that is, uncle and aunt or grandparents.

Often those people are personally involved. In a sad number of cases it happens that where a person suffers from severe mental illness, either his or her parents suffer from such mental illness too—living with such illness is in itself a severe strain—or for one of many possible reasons the parent is absent. In such situations either the grandparents or an aunt or uncle tend almost instinctively to take on the responsibility. Therefore, if we are making a list of closely involved relatives, I do not immediately see any logical reason for leaving them out.

Perhaps I may add a light footnote. When we were putting the amendment together in the Whips' Office, our assistant, who was writing it, only just managed to do so because his infant niece, who was sitting on his knee, nearly got away with the pen. That illustrates why I believe the amendment is sensible.

Lord Mottistone

I was most intrigued by the amendment because I thought that the noble Earl was merely adding to the list the people who appear in Section 26 of the 1983 Act. Indeed, he has done so, but perhaps we may compare Section 26 with subsection (10), which the noble Earl is amending. Subsection (10) contains a list of in-laws who do not appear in Section 26, and it is strange that there is such a discrepancy between the two provisions. It would be nice to know why there is such a discrepancy and why all those in-laws have crept in.

Baroness Farrington of Ribbleton

Perhaps I may ask about a slightly different category of carer and next-of-kin. I refer to people who, in the case of single parents who are mentally ill, are family members caring for the children. They have a particular knowledge, concern and interest and need to be consulted. There may exist a degree of mistrust of other members of the family, as referred to with such depth of knowledge by many Members of the Committee, and in such circumstances a specific problem can be created with regard to the role, relationship and difficulties facing someone who cares for the children.

Baroness Jay of Paddington

I agree with the noble Lord, Lord Mottistone. When I first looked at the amendment in the name of the noble Earl, Lord Russell, I thought that it referred back directly to the 1983 Act. But, indeed, Section 26 is slightly broader and different.

I should like to ask the noble Earl, Lord Russell, why he did not include a person other than a relative with whom the patient normally resides. Such a person is referred to in Section 26. I believe that the colloquial expression for such a person would be "the partner". If the amendment intends to extend the category of those people with whom the patient has a close relationship, then the partner—I hesitate to use the words "significant other"—is a relevant person to be included.

On an earlier amendment introduced by the noble Lord, Lord Mottistone, I asked whether the patient is to be consulted about who he or she regards as a close relative, and I make that point again in relation to this amendment.

Earl Russell

I can only reply to the noble Baroness with the classic words of Chief Justice Bereford when quizzed by counsel about the meaning of a statute: He that drew the statute meant it to be in the statute and only left it out through inadvertence. It shall therefore be construed to be in the statute".

Baroness Miller of Hendon

I cannot say too much about the laws, in-laws and so on. We are talking here about Section 12(5) of the Mental Health Act and not Section 26. This is merely about those relatives who can make recommendations under Section 10.

Those who cannot make a medical recommendation for the purposes of an application for the admission of a patient come under Section 12(5) of the Mental Health Act 1983. That does not preclude the uncle, aunt or grandparent. To do so in this Bill would be inconsistent with the existing provisions of the 1983 Act. The amendment raises an interesting point, but we believe that it needs to be considered in a broader context. I hope that the noble Earl will withdraw the amendment.

Earl Russell

I should not for a moment contemplate pressing the amendment. I thank the noble Baroness for her reply and I shall read it with care. I hope that the noble Baroness has noticed that there is a feeling that it may be worth looking again at the drafting. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 35:

Page 6, line 27, at end insert: ("( ) The responsible after-care bodies shall not make such requirements unless they have first heard and considered the views of the patient.").

The noble Lord said: The amendment is clear. Its purpose is to ensure that the patient is consulted about the requirement which the so-called aftercare bodies may impose. It would add the words at the end of Section 25D(2) on page 6 of the Bill which states: In this Act 'the responsible after-care bodies', in relation to a patient, means the bodies which have (or will have) the duty under section 117 below to provide after-care services for the patient".

Section 117 of the Mental Health Act 1983 provides that: It shall be the duty of the District Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies after-care services". Therefore, we now have the health authority, the local social services authority and the relevant voluntary agencies all involved. The point is that the power of those aftercare bodies to impose requirements on the patient is wide and unprecedented. It would be contrary to the principles of natural justice to allow those public bodies to make decisions affecting the liberty of individuals without them having a full and proper hearing.

I believe that I am right in saying that under the Bill the only right of the patient to object is provided in Clause 1(8) (c), where the patient has the right to object about the information being given to the nearest relative.

In Scotland, there is a judicial process, precedents, case law and the opportunity for advocacy and representation. That is not present in England and Wales. For those reasons, we feel that, if there are to be those wide-ranging powers affecting the liberty of individuals, they should have a full and proper hearing and have the right to be heard and their views considered. I beg to move.

6.15 p.m.

Baroness Cumberlege

The requirements, if any, to be placed on the patient will have been considered by the care team, discussed with the patient and attached to the application before it is submitted to the health authority. A requirement that the patient should have another hearing at this level before the requirements can be imposed is unnecessary and unworkable. Professionals acting on behalf of the responsible bodies will already have been involved in setting up the aftercare before the application and its associated requirements are accepted. Therefore, we feel that we cannot agree to the amendment.

Lord Carter

I shall read what the noble Baroness said, which was brief, to see whether I am convinced by the argument. I am not sure that I am convinced, because there arises again the point about the rights of a patient, although I appreciate that the patient has rights, once the package has been designed with regard to how it will work. However, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Jay of Paddington moved Amendment No. 36:

Page 6, line 30, leave out ("a") and insert ("an agreed").

The noble Baroness said: In moving this amendment I should like to speak also to Amendment No. 38. These two amendments are extremely simple. They refer simply to the consensual nature which, as we have mentioned several times this afternoon, is at the base of the supervised discharge orders, in terms of agreeing where the patient should live once he is discharged into the community.

The question of the home, hostel or flat where the patient will reside once he is discharged from hospital will be absolutely crucial to his well-being. It seems to me that it is entirely appropriate that that should be agreed with the patient and, as my noble friend Lord Longford suggests in his amendment, agreed in advance with the patient. My amendment is slightly less specific.

Obviously the House, home or hostel where the patient resides will be crucial to his well-being. It seems that it would be appropriate to put on the face of the Bill the word "agreed" or the words "agreed in advance" with the patient in order to emphasise yet again the co-operative and consensual nature of the arrangements which will be put in place under the care package. I beg to move.

The Earl of Longford

My amendment is in accordance with the spirit of the amendment moved by my noble friend Lady Jay. Once again, my amendment is based on a great deal of experience of the Matthew Trust. It embodies a very simple proposition that the arrangements, which may be extremely difficult and painful, should be carried out as far as possible in harmony with the patient.

Baroness Cumberlege

We are aware of your Lordships' concerns for the rights of patients and in particular the proud record of the noble Earl in safeguarding their interests. I can understand the wish to keep as unrestrictive and reasonable as possible the requirements which could be made for ensuring that patients receive the support that they need in the community. But I cannot agree to what is suggested.

The Bill allows those responsible for a patient's aftercare under supervision to require him, if they think it is justified, to attend for treatment, rehabilitation or related purposes at specified times and places. Another requirement is that the patient should live at a specified address. To require the patient to agree beforehand would make the requirements unworkable. If the patient were to withdraw his agreement, the provisions would fall entirely and become meaningless. As presently drafted, if he fails to attend when specified, he has failed to comply with the terms of his discharge and a review of his case might ensue. That reflects the overall purpose of the Bill and I therefore ask the Committee not to accept the amendment.

Baroness Jay of Paddington

I am disappointed by that reply. It seems to me that there is a very clear difference between specifying where a patient should attend for training or treatment, which will obviously be an identifiable clinic, rehabilitation centre of whatever it may be, and specifying, without the agreement of the patient, where he should live. Obviously there will be requirements for the person to attend a centre for the other services that are specified in the section. However, to insist that he should have no say in the place where he lives seems to me to be entirely different. It is simply a rather authoritarian attitude which is unfortunate in the context of what the Minister often described during the earlier discussions on the Bill as being a consensual relationship if it is to be successful.

The Earl of Longford

I share the disappointment and echo the sentiments just expressed by my noble leader.

Baroness Jay of Paddington

I can do no more than underline what my noble friend Lord Longford has just said. I shall take away and consider what the Minister said, but I suspect that we may need to return to the matter at a later stage. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 37 to 39 not moved.]

Lord Carter moved Amendment No. 40:

Page 6, line 38, at end insert: ("( ) Where the responsible after-care bodies decide to impose requirements on the patient, they shall—

1. (a) inform the patient, in writing, of the requirements, if any, they have decided to impose; and
2. (b) explain, orally and in writing, the legal effect of imposing the requirements.").

The noble Lord said: If there is a decision to impose certain requirements, the purpose of the above amendment is to include in the Bill an obligation on the responsible aftercare bodies to inform the patient in writing of such requirements and explain to him, orally and in writing, the legal effect of imposing the requirements". The proposed wording really looks back to Amendments Nos. 17 and 19 which were dealt with earlier and which the Minister said she was minded to take away, consider and, perhaps, return with the Government's own amendment. Those amendments dealt with the position of the health authority and sought to ensure that it should, inform the patient, both orally and in writing, of his right to apply to the Mental Health Review Tribunal and to be legally represented at the Tribunal hearing". If there is a decision to "impose requirements" under Section 25D(3), there is a feeling that the same rights should apply; in other words, that the patient should be informed in writing and have explained both orally and in writing the legal effects of the imposition of those requirements.

As the Bill is drafted, there is no requirement to inform the patient of the requirements that the aftercare bodies decide to impose. The amendment is designed to ensure that the patient is both told of the requirements and given a legal explanation of their effect. As the Government were sympathetic to the earlier amendments, surely they can agree that there should be a duty to inform and explain the requirements placed on a patient by the aftercare bodies. I beg to move.

Baroness Cumberlege

We agree with the general spirit of the amendment, but do not think that the issue it raises is one that needs to be spelt out in the Bill. If any requirements are to be placed on the patient—as to residence, or attendance at specified times and places for treatment, occupation and so forth—then, before they are placed on him, the hospital RMO will have consulted the patient and in the process explained to him what the requirements will mean. A statement about that must be submitted with the application to the health authority.

If the requirements are to be subsequently modified by the responsible aftercare bodies, then the Bill already specifies that further consultation must take place with the patient before the requirements are changed—Section 25D(6). The patient is informed after they are changed under Section 25D(7). The patient will be left in no doubt both as to the requirements and what they mean. The team responsible for the patient's care will want to ensure that he keeps to the requirements and no doubt the team will consider whether they should be put down in writing. But we do not think that that is something that needs to be spelt out on the face of the Bill. For those reasons, we feel that the amendment proposed is unnecessary.

Baroness Farrington of Ribbleton

I should like to press the Minister to explain why it is logical to say, if I understood her correctly, that there should be notification in writing if there is a change of requirements but no notification in writing of the original requirements. The reason that I raise the point is that one of the issues which runs through the Bill is that of people's right to appeal in the event of a breakdown in arrangements whereby people do not feel satisfied that the patient is safe for himself or, indeed, for others. Surely the process of appeal is made that much easier if it is demonstrable that, in all cases, the patient was made fully aware at the beginning of the requirements in writing so that no difficulty or argument could arise.

Baroness Cumberlege

An explanation will be in the care plan which, of course, is a written document and is attached to the application for supervised discharge.

Lord Carter

When the Minister began her response, I thought that I was going to be as fortunate with this amendment as I was with the previous two that I mentioned. The Government agree with the general spirit of the amendment; in other words, they feel it is important. I accept that there is an emphasis upon more consultation. However, as I understand it, the patient does not have any right to object. He can listen and be consulted but, at the end of the day, such requirements can be imposed. For that reason, I believe that there should be an obligation to explain, inform and, above all, ensure that the patient is fully aware of the implications of all that is to be imposed on him. I shall read the Minister's response and take further advice. I believe that we may wish to return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord McColl of Dulwich)

Before I call Amendment No. 41, I must point out that, if the amendment is agreed to, I cannot call Amendment No. 42.

Baroness Jay of Paddington moved Amendment No. 41:

Page 6, leave out lines 39 to 43.

The noble Baroness said: At this stage, the above is a probing amendment. Therefore, I imagine that we will also be considering Amendment No. 42. It is a probing amendment designed to question both the legality and the effectiveness of the power to take and convey a patient subject to a supervised discharge order as proposed in the Bill.

I am advised by the Law Society that the power to take and convey may breach Article 5 of the European Convention on Human Rights, which is connected with the liberty and security of the person, and that it may also breach Article 8, which is concerned with respect for private and family life. There is also concern that, while the Bill gives wide-ranging powers to the supervisor to take and convey a patient, there are no specific authorisations such as exist in Sections 6 and 137 of the Mental Health Act 1983 concerning removal to hospital or a place of safety. The powers in the Mental Health Act include all the powers of a police officer taking someone into custody. But those powers are not specifically included in the Bill. There seems to be potential for serious legal challenge.

However, I must tell Members of the Committee that other lawyers—not members of the Mental Health and Disability Committee of the Law Society—have advised me that it is unlikely that successful proceedings could be taken on the basis of the European convention. But if it is possible that lawyers will argue in the future and also possible that the Government could be seriously embarrassed by a negative ruling, I think it is appropriate at this stage for the Minister to be more precise about the belief that the powers in Section 25D(4) are legally watertight.

Apart from the legal issues, my main concerns regarding the power to take and convey are about its effectiveness as it is proposed. For example, the Mental After Care Association has written to me saying: As this significant new power lies at the heart of the Bill, we are keen to learn [what Ministers] hope to achieve by this measure. How, in practice, will this new power ensure that patients comply with aftercare arrangements? If a patient fails to arrive at a day-centre or training course, will the Community Psychiatric Nurse be expected to convey the individual there? Or will the power be delegated to another agency, for example the police? Whatever the case, is the attendance at a place of 'occupation, education or training' considered so important as to necessitate [these] far-reaching legal powers? The Mental After Care Association, and other bodies working with the mentally ill in the community, suspect that the true force of the provision lies in the power to convey a patient to a place of treatment. But, of course, there is no power compulsorily to treat a patient once he is conveyed. The Royal College of Psychiatrists questions the purpose of the power to convey reluctant patients when there is no power to treat. It appears to that body that the expectation of the Government is that such coercion will induce some patients subject to this order to have their treatment, which might include medication. However, if patients refuse any item of treatment, there is no provision in the Bill as presently drafted either to treat them in the community or recall them to hospital.

The British Medical Association has also described the Bill as limited in this respect because doctors cannot compulsorily treat. The BMA would like to see the ultimate ability to treat a patient compulsorily in extreme circumstances. In other words, the provision as drafted at the moment—to take and convey—seems to be a classic case of taking a horse to water but not being able to make it drink.

The Committee will remember that the Royal College of Psychiatrists earlier suggested a community treatment order which included of course compulsory treatment. That was rejected both by the Department of Health and the Health Select Committee in another place. But, as the provision is drafted at the moment, it seems to satisfy no one. The clinicians who want the power compulsorily to treat patients in the community do not have that power and those concerned primarily with the consensual nature of care under a supervised discharge order are dissatisfied because they feel the power to convey is on its own a coercive threat to the therapeutic alliance between patient and professionals. I hope the Government will consider carefully the drafting of new Section 25D(4) so that it meets one or other of these concerns and does not—as it does at the moment—fall precisely between the various stools of concern: the concerns of the clinicians and the concerns of those primarily involved with the civil rights of patients. I beg to move.

6.30 p.m.

Lord Mottistone

As the Committee is aware, I am advised by people who are involved in this matter. I myself questioned this particular part of the Bill. I am told that our advisers are strongly in favour of retaining new Section 25D(4) as it now stands. That is the subsection which Amendment No. 41 seeks to remove. One must remember that the subsection does not refer to treatment only but also to where the person lives, or resides, as is stated in the provision. That does not necessarily mean the patient will also receive treatment at the same time. Therefore the issue as to whether the treatment is not compulsory does not really enter under those circumstances. The important matter is that the people who know about these issues have all said they think the measure should stay in the Bill. That includes someone who has schizophrenia. He believed equally strongly that the measure should be retained in the Bill. I hope that my noble friend the Minister will not lightly give it away.

Baroness Farrington of Ribbleton

I wish to speak in support of my noble friend Lady Jay. There appears to be a conflict between the assessment that the patient will be capable of conforming to, agreeing to, consenting to, and participating in a package of measures designed to enable him or her to live in the community, and the concept of people being forcibly taken—conveyed, by implication, against their will—to a place where, for example, they will receive education. There does not seem to be a logic behind that sort of concept. On the other hand there is a situation where, for the sake of the safety of the patient or other people, the need to convey the patient to a place for diagnosis as a matter of urgency and emergency would appear to be logical. I hope I may press the Minister on this point. I believe that would occur in extreme circumstances when the whole pattern of care was in danger of breaking down and there was genuine anxiety. The idea of conveying against someone's will, at this particular stage, as envisaged in this part of the Bill, would appear not to be in conflict with the whole spirit of the measure.

Earl Russell

These are heartbreakingly difficult areas. I have already argued that I do not think one can really apply libertarian arguments in the area of mental illness in quite the way one would in some others. The essence of those libertarian arguments is freedom of choice and the use of the will. It is of the essence of mental illness that one's control over the operation of one's will is, to put it no higher, extremely imperfect. Therefore it is difficult to construct the classic libertarian argument of free choice in favour of mental patients. I think one might say what Locke said about the rights of children—that they are not born in this state of equality though they are born to it. As one considers in libertarian arguments about children not what the child wants but what is in the child's interest, so I think one has to ask the same question in areas of mental illness. Like the noble Lord, Lord Mottistone, I have known cases where the use of a power to convey was capable of bringing a patient back to what he told us afterwards he really wanted. That must command attention though it is not conclusive.

On the point about the European convention, the briefing I have had is that this is a grey area. I understand that the Government have already taken advice on this subject. I am prepared on this to give the Government the benefit of the doubt provided that the Government will admit that a doubt genuinely exists. I am sympathetic to the Bill as it is; I am also sympathetic to the arguments in favour of the amendment. I do not think we shall ever get it right but I do not think we shall get much nearer than the Bill has at present.

Baroness Cumberlege

I am grateful to the noble Earl, Lord Russell, for supporting this proposal, although I understand the caveat that he has introduced. I am also, of course, grateful to my noble friend Lord Mottistone. Perhaps I could just take Article 5 of the European Convention on Human Rights first. We have taken legal advice and we are advised that there is no conflict between the provisions of the Bill and the obligations under the European convention. Although we envisage the comparatively rare use of the power to convey a patient, we do see it as an important feature of the new provisions. It will enable a supervisor, or any person authorised by the supervisor, to take the patient to the place where he or she is required, under the terms of the supervision arrangements, to live or attend for treatment or rehabilitation.

While it is true that ultimately supervision will succeed only with the patient's participation, the power to convey will give useful hacking to the care team, for example where there is a temporary reluctance to co-operate. We have followed the form of the existing Mental Health Act power for conveying a patient to hospital following an application for detention. I do not believe that this power will he misused because to do so would be so obviously self-defeating.

With regard to Amendment No. 42, we believe that this amendment—I see the noble Baroness rise. I am sorry; I thought she was taking them together.

Baroness Jay of Paddington

I am sorry. I think the Minister misunderstood me. I only replied to the Chairman who said that, if Amendment No. 40 was accepted, it would be inappropriate to call Amendment No. 42. I said I thought that Amendment No. 40 would not be accepted, as it has proved not to be.

I agree with the noble Earl, Lord Russell. My advice also is that the legal position on the European convention is still a grey area. I have heard what the Minister said about Article 5. I can only hope that the Government will not find themselves in embarrassing situations with patients bringing successful cases on the basis of that convention, because I still do not think we have absolutely hard and fast assurances that that will not be possible.

My concern with this provision in the Bill is—unlike the concern of the noble Earl, Lord Russell, which is of a philosophical, libertarian nature—a practical one. I am concerned about whether or not it will be effective. What happens if a patient is conveyed to a place where he or she is required, to reside or to attend for the purpose of medical treatment. occupation, education or training and he or she simply walks out again? It seems to me that this provision sounds as if it gives great powers and will persuade people to comply with care programmes with which they may not he entirely in agreement, but it has no teeth. It has no teeth and the Government in a sense have not been prepared to go as far as some of the medical advisers have suggested. I would say to the noble Lord, Lord Mottistone, that, although I obviously respect the authority of the National Schizophrenia Fellowship, I hope that he will equally respect the authority of the Royal College of Psychiatrists and the British Medical Association in this field.

I do not argue for a medical solution to the problem. I simply inquire whether the power to convey, as drafted, will be a remotely effective tool in the armoury of the supervisor in the community, who will obviously have a very difficult task in any case. As I said, this is a probing amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Jay of Paddington moved Amendment No. 42:

Page 6, line 40, leave out (", or by any person authorised by,").

The noble Baroness said: This amendment develops the discussion about who should have the authority to take and convey the patient if that duty is required. The amendment would delete the words: or by any person authorised by", the supervisor. The relationship which it is hoped will be built up between the person who is the subject of the supervision order and the supervisor is bound to be undermined if, in the extreme circumstances which we discussed in relation to the previous amendment, the person with responsibility devolves that responsibility to somebody else.

The other reason for pursuing the amendment is that it is not clear whether there will be the same powers under this Bill as exist under the Mental Health Act 1983, which enables the police to be brought in in such a situation. If it is the case that the police may be "any person authorised by" the supervisor then that should he stated. However, that will seriously undermine the consensual and co-operative nature of the agreement which, as we have said repeatedly, is supposed to be the basis of a supervised discharge order.

It may be that the person authorised by the supervisor is somebody who has physical strength, for example. It has been suggested to me that a 5 ft. psychiatric nurse may have to deal with a large, muscular 6ft. 4 ins. patient and may need somebody else to help if there is any question of physical force being involved in conveying the patient to the place where he resides or needs to undergo medical treatment. In that case there might he a practical argument for the provision.

As drafted, the provision is unclear. It suggests that the position could be the same as under the Mental Health Act 1983 and the police might be involved. That would he very unfortunate. I beg to move.

Baroness Cumberlege

We believe that the amendment would be impractical. The supervisor may not be personally on hand at a time of emergency, nor in a position for other reasons to take a patient to where he or she should be. Authorising another person to fulfil that function would be a reasonable response in those circumstances. We do not accept the amendment.

Baroness Jay of Paddington

That reply was brief and to the point. However, the Minister did not respond to my anxieties about the role of the police as authorised under the 1983 Act. Can she help the Committee on that point?

Baroness Cumberlege

Clearly this power to convey would be used only in times of emergency. In the discussion earlier this afternoon the noble Baroness said that she felt that guardianship was the way to go. The criticism that we have received of guardianship is precisely that it does not have this type of provision. When a patient chooses not to comply there is no means whereby someone who is responsible for the patient's care can ensure that the patient is conveyed to a place where it is felt that the treatment given to that patient would be beneficial. That is exactly the same argument as put by the noble Earl, Lord Russell, in relation to the previous amendment.

Baroness Jay of Paddington

In relation to the previous amendment I did not say that I thought that guardianship was the way to go. I asked the Minister whether the guardianship supervision order, as it is described and used, is not an exact parallel of the new supervised discharge order. The Minister replied that, because the guardianship order was conducted largely as a social services measure, it was different from the supervised discharge order, which is a health authority measure. We did not at any stage discuss the question of whether guardianship, because it does not involve the question of taking and conveying, is relevant to this particular amendment. I drew the Committee's attention to the fact that the Law Commission had suggested that guardianship could be extended to include this power in the revision of the Mental Health Act.

I am sorry to persist, but I do not believe that the Minister answered the question about the precise force of the take and convey provision and whether the same strenuous types of authority could be invoked as are invoked under the Mental Health Act 1983. That is not specified on the face of the Bill. We may have to return to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

The Deputy Chairman of Committees

I point out that there are two words missing from the last line of Amendment No. 43. The words "the duty" should be inserted between "discharge" and "under".

Earl Russell moved Amendment No. 43:

Page 7, line 35, at end insert: ("( ) It shall be the duty of the Secretary of State to ensure that there are sufficient hospital places to allow the responsible after-care bodies to discharge the duty under subsection (4) (b) above.").

The noble Earl said: I remember the noble Baroness, when she was answering Questions from the Dispatch Box, once being asked whether the Treasury was involved in the matter. The noble Baroness replied that in her short time in office she had yet to find any matter in which the Treasury had not been involved. That answer drew a great deal of approval from long-standing Members of this Chamber. It is relevant to this amendment.

On the whole, the provisions of the Bill should work rather well, but the question is whether there are the resources for them to be made effective. It is a rule among historians in construing statutes that, if one finds the same provision repeated over and over again in a succession of statutes, one concludes that it was not effective the first time. That rule is also relevant to the amendment.

The amendment deals with the situation in which those responsible for a patient's aftercare recommend that the patient be committed to hospital. It places a duty on the Secretary of State to ensure that sufficient hospital beds are available. I do not believe that that is the case at present. The Royal College of Psychiatrists reports that in London there is 130 per cent. bed occupancy. That rather Irish statement does not mean that there is a system of box and cox. It means that large numbers of patients who ought to be in hospital are either at home, in prison, in inappropriate beds elsewhere or have been prematurely discharged.

The Royal College of Psychiatrists argues—and the point is important to the Government's response—that the present methods of collecting official data make it impossible to check how acute the shortage is. It has therefore undertaken a survey of its own from which it established that 204 patients were lodged elsewhere, 53 were in non-admissions psychiatric beds, five were in medical wards, 42 were in other NHS hospitals, 60 were in private psychiatric hospitals, 30 were at home or in the community and 14 were in prisons or in police cells.

Prisons and, even more, police cells are not appropriate places for treating mental illness. I understand that the prison authorities and the police agree. The noble and learned Lord, Lord Taylor of Gosforth, giving a seminar paper at Liverpool as recently as last Friday, quoted a figure given by Mr. Brendan O'Friel of 2,000 mental health sufferers in prison who should not be there. That is grossly ineffective for the treatment of mental illness, it may be cruel to the patients concerned, it is extremely expensive of public funds and it forces the prison staff to try to develop skills in which they are probably not trained and which perhaps they do not possess. In effect, it is a case of exporting problems into another Ministry. I should be tempted to use my regular phrase for such situations, "only connect", save that the title of the novel in which that appears might, in the context, be misinterpreted. I beg to move.

Lord Harris of Greenwich

Some years ago I visited Attica Prison, a high security prison in upper New York state. I was told by the director of the New York State Prison Department that there had been a long-running dispute between his department and the mental health authorities of the state of New York. Eventually, the situation became so serious that the governor of the state had to bring in an arbitrator to deal with the dispute. It concerned what happened with mentally ill inmates who should clearly have been transferred to a mental hospital.

My noble friend Lord Russell referred to the speech of the noble and learned Lord the Lord Chief Justice. I should be grateful if the noble Baroness would deal specifically with the point. It raises substantial matters of public policy. As she is aware, arguments have been going on between the Home Office and the Department of Health, to my mind for at least 15 years, and the noble Lord, Lord Carr, could arguably testify that they went on even longer than that. Grave disquiet has been expressed about the number of people who are mentally ill and who are held in prisons because there are not adequate places for them in mental hospitals.

My noble friend referred to the Lord Chief Justice quoting Mr. Brendan O'Friel, chairman of the Prison Governors' Association. We can all speculate as to how many people in prison suffer from mental illness. The figure may be 2,000; it may be less, it may be more. Nevertheless, there is a real issue of public policy here and I should be grateful if the noble Baroness could express her views on the matter. It is causing serious disquiet in the Prison Service and among many judges who have expressed their disquiet on the Bench. We wait with interest to hear what the noble Baroness says.

The Earl of Mar and Kellie

There has been some talk today about the patient being ill at the time when the supervision application is made. I put it that the patient will have been stabilised prior to the supervision application. He will appear to be well rather than ill. The problem is that he is liable to become ill again, usually if he stops taking his medication. Indeed, for the power to convey to be imposed on him is a substantial symptom of his deteriorating mental health.

Therefore, I suggest that there is a need for a guarantee that a bed will be available if the patient's mental health deteriorates to the point of requiring readmission. I insist that the provision of a hospital bed must be part of the community care plan. A health authority will need to keep a quota of beds free proportionate to the number of supervision orders operating in its area. The beds must be available when needed, otherwise the idea of aftercare with supervision in the community will become worthless.

Baroness Farrington of Ribbleton

I support the points raised on the amendment. I refer particularly to the experience which some of us have of seeing people whose mental health has deteriorated to the point where they behave in a bizarre way and in the end are drawn to the attention of the police. There is not only a problem in prisons; there is sometimes a problem in police cells which are the only place of safety to which people can be taken in advance of hospital beds being made available. Such people may have committed a crime or appear to be about to commit a crime. It is critically important to ensure that we do not close beds as patients move out as a book balancing exercise, a financial transaction, only to discover that inevitably there will be occasions when, not necessarily for permanent return but for respite care, in the best interests of the patient a hospital bed is the best place.

Baroness Cumberlege

Health authorities are responsible for assessing the needs of their populations for the full range of mental health services and for contracting with NHS trusts and other providers to ensure that sufficient services are available. To make that the subject of a specific statutory provision would, we believe, undermine the essential principle that the details of local arrangements and priorities are a matter for decision at local level.

However, we are aware of the resource situation. Large increases in the number of medium-secure psychiatric hospital places are planned in our current building programme. There will be an increase from 700 in 1992 to nearly 1,200 in 1996, next year. The number of mentally ill people who have transferred from prison to hospital increased from 325 in 1990 to 755 in 1993. I agree with Members of the Committee who have spoken about the need to prevent people from getting into the prison system in the first place. The Committee will be aware of the number of court diversionary schemes which we have also introduced.

Different forms of care can be provided with beds for mentally ill people. When I was chairman of the South West Thames Regional Health Authority, we were responsible for the huge institutions commonly known as the "Epsom Cluster". They were enormous Victorian institutions which used to house 2,000 people. Sometimes I had sleepless nights thinking about their care and the nature of those places. I am pleased that the situation has radically changed and that some have closed.

Members of the Committee may know the work of Virginia Beardshaw who wrote an interesting book, Conscientious Objectors. There is an appendix at the back of the book showing the 22 major inquiries which took place between 1968 and 1981, and the Committee will be horrified by some of the results. One must get into perspective the type of care that has been provided over the years.

As to the long-stay hospital beds, in the past 10 years the number of places in the large hospitals has continued to fall. However, that has been matched by an increasing provision of alternative places in smaller NHS hospitals, local authority places and private and voluntary nursing homes. We welcome the growing number and diversity of places for mentally ill people in the community. In 1988–89 the number of short-stay beds was 22,505; in 1991–92, it was 22,159.

Baroness Farrington of Ribbleton

Perhaps the Minister will give way for a moment. I agree that there are major areas where there has been a transfer of resources into the community. But equally in almost every major town and city individuals are known to fall between the available resources. That is because they are unable to accept the requirements of living in a community setting, which makes more demands on their ability to behave in a socially acceptable way to other residents than they are able to live with. Those difficult cases are known in almost every small town throughout the country. People sleep in doorways, they sleep rough and they are incapable of fitting into the models that we are discussing and which are essential in terms of development.

As regards the amendment, my fear is that we are dealing with the very people for whom there is no alternative if the residential part of their care package breaks down and they become impossible. That is because the demands they will make on the people with whom they share the accommodation are far too great. Therefore, they must have a bed and it must be available for so long as that person needs it.

7 p.m.

Baroness Cumberlege

The noble Baroness interrupted and perhaps I could finish what I was about to say. Going back to the long-stay institutions, studies carried out in central London have shown that all those who are roofless and who are homeless are not people who have been discharged from long-stay institutions. But, a great many of them have a mental illness. We accept that. That is why we set up a mental health task force to look at the needs of London in particular. It produced a recent report Priorities for Action, which found that some of the problems could be alleviated by increasing community provision or improved bed management strategies. But the task force also identified a need for more acute beds in a few inner London districts. The district health authorities involved have agreed action plans to bring about the required increase in provision.

So we accept some of the arguments and are taking action on them. But we resist this amendment.

Earl Russell

I thank the noble Baroness for that reply and all those who have spoken on the amendment. It is an important issue. Listening to the noble Baroness about the proposed statutory duty, I was reminded of the comments of local authorities on the subject of Amendment No. 1. There is a resistance to having a statutory duty placed upon them. I can see why. It tends to pass the problem round the circle. But it means of course that the patient gets passed around the circle as well. In the end, the buck has to stop somewhere.

I understand what the noble Baroness said about the responsibility of health authorities. But, in the end, there must be a final duty resting somewhere; or else, as happens with mental illness patients, the patient will be passed repeatedly around the country. If the responsibility does not finally stop with the Secretary of State, I do not see where it would stop.

I listened to what the noble Baroness said about what she called the "Epsom cluster" and understood her remarks. I have visited patients who were in that cluster. But, like the noble Baroness, Lady Farrington, I see them now, sleeping in doorways off the Strand. I work in the Strand. I walk down the Strand late at night quite often and have some idea of what goes on there.

Baroness Cumberlege

Before the noble Earl proceeds, perhaps if he will look at the studies that we have done, he will see that the people in the Strand, who are homeless and who are roofless, are not the people who have come from the long-stay institutions, although they may well have a mental illness.

Earl Russell

I accept that a very large number of them are not from such institutions. I am sure that the noble Baroness has heard me speak about the 16 and 17 year-olds often enough for me not to need to go into that subject again. I am equally sure that many are, including some cases whom I happen to know personally. Those people come from a great many different categories. That, I believe, is one of them. The noble Baroness should also bear in mind what the Royal College of Psychiatrists said; namely, that the monitoring does not have the statistical techniques available to it to be quite so certain about those points.

The Government have suffered many times from the Rayner principle: they only collect the statistics which are necessary to them. They keep finding that the statistics which are necessary are those that they did not foresee would be necessary. So the information is not there.

We have not had an answer on the point of the noble and learned Lord the Lord Chief Justice and mental health sufferers in prison. That is an extremely serious point which needs to be taken into account in any full resolution of the issue. I should be grateful if the noble Baroness would perhaps write to both me and my noble friend Lord Harris of Greenwich before we come to that issue on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 44 to 52 not moved.]

Earl Haig moved Amendment No. 53:

Page 9. line 6, at end insert:

("Regulation an to transfer of patients

( ).—(I) This section applies where, for good reason, the patient wishes to reside at a place other than that imposed on him under section 25D above.

(2) Where subsection (1) above applies in relation to a patient, the responsible after-care bodies shall consider whether appropriate after-care services will be available in the area in which the patient wishes to reside, being an area not within that of the responsible Health Authority or local social services authority as specified in section 25A")

(3) Where subsection (1) above applies in relation to a patient. the responsible after-care bodies shall consult the persons referred to in subsection (4) below who will be professionally concerned, in the intended area of residence, with the after-care services to be provided for the patient under section 117 below. or shall, if the patient intends to reside in Scotland, make an application to the appropriate sheriff under section 35 below.

(4) The persons referred to in subsection (3) above are—

1. (a) the responsible medical officer within the area of the Health Authority where the patient intends to reside: and
2. (b) an approved social worker acting for the local social services authority where the patient intends to reside.

(5) Where a patient is for the time being subject to after-care under supervision of a Health Authority by virtue of an application under section 25A above, that patient may he transferred into the after-care supervision of another Health Authority after such consultation, and in such circumstances and subject to such conditions as may be prescribed by regulations made by the Secretary of State.

(6) Where a patient who is subject to after-care under supervision is transferred in pursuance of regulations under subsection (5) above, to after-care under supervision of another Health Authority, the provisions of this Part of this Act shall apply as if the application were for his reception into the after-care under supervision of that Health Authority and had been accepted at the time when it was originally made.").

The noble Earl said: The purpose of this amendment concerns patients who, for good reason, wish to move between districts when subject to an aftercare supervision order. The inference of the Bill, as currently drafted, is that a patient subject to an aftercare order might only change his place of residence within the same health authority or local social services authority area. That limitation is most likely to prove a problem in major cities where there can be numerous health trusts and local social services authorities within a comparatively small area. Under the current provisions of the Bill, a patient could only have the requirements imposed upon him amended if he refuses or neglects to receive aftercare services or comply with the requirements of the supervision order.

The only options available to the aftercare bodies then are either to cancel the supervision order or to admit him to hospital. Obviously, neither option is appropriate. There should be greater flexibility within the framework of the Bill. In cases where there are better opportunities for housing, employment, or support from relatives, a move should be countenanced without hindrance from unnecessary red tape.

Perhaps I may make a proviso; namely, that a move should only take place with care and consideration and in the certainty that cases will be delivered into safe medical hands. There is always the danger that a patient can escape between one doctor and another and thus forgo the planned medical programme. It is envisaged that the amendment will allow for such transfers between districts in England and Wales and also between England, Wales and Scotland. This amendment has the support of the Royal College of Psychiatrists. I beg to move.

The Earl of Balfour

I do not wish to interrupt the Committee in any way. I believe that one of the most wonderful services provided by the National Health Service is that a patient can be moved from a hospital in London, say, all the way to a hospital in Scotland under the National Health Service provisions. That is marvellous. It happened in the case of my mother who broke her leg falling downstairs in London and was taken to a hospital at home in Scotland. Under these provisions, if somebody who required mental care wanted to be moved from, say, England to Scotland, I wonder whether he could go with a qualified person accompanying him on that journey.

Baroness Jay of Paddington

I too should like to ask the Minister whether this amendment would precisely illustrate the great advantages of involving the Mental Health Act Commission (as I suggested in my earlier amendment)? It would focus attention on how and where patients were transferred and on their supervision arrangements when they left a certain place, so that they could be appropriately reinvigorated when they moved to a new place. It would ensure that responsible authorities—as I know has happened in previous tragic circumstances—did not have to rely exclusively on the version of the patient himself as to what his care involved.

Baroness Cumberlege

Though we understand the reasoning behind the amendment, we believe it to be unnecessary. The Bill already allows for a patient to move to another area and for aftercare under supervision to continue. That is not explicit in the Bill, but works because of the link with Section 117. The Section 117 duty is placed on the health authority and the local social services authority for the area in which the patient is resident. That means that the duty transfers when the patient moves and lasts until the two authorities are satisfied that the person no longer needs the services. There is therefore no need for the amendment, and we would not wish to issue regulations covering transfers.

There is however one issue which we are still considering. That is transfers between England or Wales and Scotland or vice versa. This raises some rather difficult issues of converting a power which is based on an application to a health authority and one firmly rooted in the courts, by an application to the sheriff. We are looking carefully at what might be done to address this and we hope to bring forward our proposals soon.

In view of what I have said, I hope that my noble friend will withdraw his amendment.

Earl Haig

I thank my noble friend for that helpful reply and look forward to hearing at Report stage how she intends to plan the future. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 54 to 65 not moved.]

Clause 1 agreed to.

Lord Carter moved Amendment No. 66: After Clause 1, insert the following new clause:

("After-care: housing . For the avoidance of doubt, a person to whom a duly is owed under section 117 of the Mental Health Act 1983 shall he deemed vulnerable as a result of mental illness under section 59(1) (c) of the Housing Act 1985 (Priority need for accommodation)").

The noble Lord said: The purpose of the amendment is entirely clear from its wording. It states: a person to whom a duty is owed under section 117 of the Mental Health Act 1983 shall be deemed vulnerable as a result of mental illness under section 59(1) (c) of the Housing Act 1985 (Priority need for accommodation) It seeks to ensure that a person who is subject to aftercare under supervision and any other person who has been detained for treatment under the Mental Health Act 1983 but is discharged, meets one of the qualifications for housing by the local housing authority.

We can all agree that there is a link between homelessness and mental illness in certain circumstances. We are not clear whether that is cause or effect but there is certainly a link. Some research indicates that many people are detained in hospital for longer than necessary because they do not have accommodation. The amendment places a duty on housing authorities, which may or may not be the same as the local social services authority, to provide accommodation for someone who has been detained in hospital.

The Government are slowly and reluctantly accepting the proposition which for most people is common sense; that is, that there is a link between social conditions and health, and stress is certainly a factor in this. Poor housing is related to poor health and mentally ill patients who are prone to stress will be further disadvantaged with poor housing, having to fight for accommodation or will be bed-blocked in hospital because of lack of accommodation.

For those reasons we felt that there should be a duty on the local authority to provide housing in that situation. We discussed earlier the right of the social services authority to refuse to accept a supervision discharge order. We agreed that it was not clear what would happen if the order was refused. It was recognised that housing, or the lack of it, may be a reason for such refusal.

For all those reasons we feel that the patients we are discussing are vulnerable in the true sense of the word and as a result there should be a duty on the housing authority to provide them with housing on their discharge. I beg to move.

The Earl of Mar and Kellie

I agree with the noble Lord, Lord Carter, that Amendment No. 66 would provide a useful buttress in establishing a successful community supervision order. It would clarify that this group of citizens are vulnerable and entitled to special care by housing authorities.

Baroness Cumberlege

The accommodation available to, or to be provided for, a mentally disordered patient leaving hospital must be a fundamental consideration in planning for his or her welfare and the aftercare services that are to be provided. Providing safe and secure accommodation is an essential part of caring for mentally ill people in the community. The Government are doing all they can to encourage local agencies to work together to provide this. But it must be for local agencies to determine the best use of the housing that is available. I think it would be wrong for the Government to stipulate that all people for whom the health and local authority has a duty under Section 117 to provide services must be treated as vulnerable under the Housing Act. That Act in Section 59(1) (c) says that those with mental illness are to be treated as priority cases. What this amendment seeks to do is to increase the scope of the provision by particular reference to aftercare under supervision.

Patients being discharged from detention or liability to detention will not all be vulnerable and will have differing needs. It must be for local agencies to determine what those needs are. I hope the noble Lord will not press the amendment.

7.15 p.m.

Baroness Farrington of Ribbleton

I find the response of the Minister astounding. The special meeting held stressed that we are dealing with an exceptionally vulnerable group of people. We are dealing with people to whom the noble Baroness referred in a previous answer as people who may need to be conveyed, against their will, to a place of training, education or residence. It is a group of people whom the Bill as it stands assumes need protecting at all stages.

Sadly, in my view, we are not dealing with an amendment that would make it a requirement that all those in desperate need of housing, for whatever cause, should get it. But the amendment deals with a particularly vulnerable group of people. It does not seem logical for the Minister to say that they are so vulnerable that it is necessary for someone to convey them to their residence to ensure that they are safe, yet it is not equally important to ensure that that residence is there, safe, suitable and provided as a matter of priority.

I was tempted, but it would be unforgiveable so close to the dinner break, to make the comment that some of the Minister's friends appear to be prepared, when it comes to other groups such as single parents, to interfere with local authority priority lists; but it would be inadvisable and unsuitable to raise that matter now.

Lord Carter

My noble friend put the case extremely well. If ever there was a predictable answer from the Minister, we certainly received it. We shall not leave the matter. It is important.

I take the Minister's point about being a little more specific. I should like to think about the matter, perhaps redraft the amendment and make the application rather more specific to define the vulnerability more closely. I take the point made by my noble friend that these are people who, above all, fit the definition of vulnerability. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Absence without leave]

Baroness Cumberlege moved Amendment No. 67:

Page 15, line 43, leave out ("or placed under guardianship by a guardianship order").

The noble Baroness said: This amendment is relatively minor and raises no issue of policy. It serves to correct an anomaly in the provisions relating to patients subject to guardianship who go absent without leave.

Clause 2(3) provides for the return of patients who abscond to the Republic of Ireland after having gone absent without leave. As it stands, this applies both to patients subject to hospital orders and those subject to guardianship orders. Under Section 88 of the 1983 Act, however, patients subject to guardianship orders who go absent without leave may only be taken into custody within England and Wales. The effect of Clause 2(3), therefore, would be that patients subject to guardianship orders who went absent without leave could be taken into custody in the Republic of Ireland, but not if they abscond to Scotland, Northern Ireland, the Channel Islands or the Isle of Man.

The proposed amendment seeks to put matters on an even footing. It limits the effect of Clause 2(3) to those patients subject to hospital orders. Patients subject to guardianship orders who go absent without leave would remain liable to be taken into custody within England and Wales alone. I beg to move.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 [Leave of absence from hospital]:

Baroness Cumberlege moved Amendment No. 68:

Page 16, line 36, at end insert: ("(1A) In Schedule 1 to that Act (application of provisions to patients subject to hospital and guardianship orders), in Part II (patients subject to special restrictions), in paragraph 3(c) (modifications of section 17(5)), for the word "six" there shall be substituted "twelve.").

The noble Baroness said: In moving this amendment I wish to speak also to Amendment No. 69. These amendments introduce a new Section 1A which amends Schedule 1 to the 1983 Act. This will have the effect of enabling the responsible medical officer to recall a restricted patient—those who are subject to the Home Secretary's powers defined in Section 41 of the Act—from leave of absence at any time up to 12 months from the first day of his absence on leave. The Home Secretary will still be able to recall the patient at any time.

These are relatively minor amendments which raise no issues of policy. They serve to correct an oversight in the Bill whereby the provisions for leave of absence relating to restricted patients differ from those relating to unrestricted patients.

Clause 3 amends Section 17(5) of the 1983 Act to remove the limit of six months on the period for which leave of absence may be granted to detained patients in England and Wales. This will allow a longer period of rehabilitation—up to a maximum of 12 months—under the care of an RMO before a patient's liability to detention ends.

As it stands, the position of restricted patients is covered separately in paragraph 3(c) of Part II of Schedule 1 to the 1983 Act. In Schedule 1, however, the time limit of six months after which a patient cannot be recalled by the RMO remains. The proposed amendments bring the position of restricted and unrestricted patients into line by changing the maximum six-month period provided in the schedule to one of 12 months. I beg to move.

On Question, amendment agreed to.

Baroness Cumberlege moved Amendment No. 69:

Page 16, line 37, leave out ("Subsection (1) applies") and insert ("Subsections (1) and (1A) apply").

The noble Baroness said: I have just spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

Baroness Miller of Hendon

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.