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

HL Deb 06 April 1995 vol 563 cc322-68

11.44 a.m.

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

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 4 [Community care orders]:

Lord Carmichael of Kehingrove moved Amendment No. 70:

Page 17, line 2, leave out from beginning to ("may") in line 4 and insert: ("Where a patient—

1. (a) is liable to be detained in a hospital under section 18 of this Act; and
2. (b) has attained the age of 16 years,

either the responsible medical officer or a mental health officer or both jointly").

The noble Lord said: I hope that the Minister will be able to supply good answers to this amendment which strikes me as being important. The effect of the amendment would be to limit community care orders to people who have been on long-term sections—that is, for six months. It would ensure that only people over the age of 16 can be subject to community care orders, and would enable an application to be made by either the mental health officer from the social work department or the responsible medical officer, or in some cases perhaps both.

We understand that the intention of the Government is that the new orders should apply only to people who have serious mental health problems who have been on long-term sections. We understand that that is the intention of what will be new Section 35B. That appears on page 18 at lines 37 to 40. However, on examining the provisions, we do not believe that they would achieve that result. Under Sections 24 and 26 of the Mental Health (Scotland) Act a person can be detained in hospital for a total of 31 days. An application could then be made for a community care order during the last three days of the patient's detention. I hope that the amendment would remove that possibility.

Turning to children and young people, the English provisions (which appear in Clause 1, on page 1, line 12) limit supervised discharge to young people who have attained the age of 16. The reason would appear to be that such young people would more appropriately be dealt with under the Children Act. Similar concerns would apply to young people in Scotland, who could have the benefit of supervision by the social work department and reference to a children's panel.

Is it appropriate for the application to come from the responsible medical officer in all cases? It is the social work department which takes the lead role in community care after the medical officer has done his work. The social work department continues the work. There may be times when a mental health officer (MHO) would want to initiate the process. We believe that it would be more in keeping with the care programme approach of community care if an application was made jointly by the RMO and the MHO. I believe that this amendment is fundamental, and I hope that the Minister will be able to satisfy the Scottish people on it. I beg to move.

The Earl of Lindsay

In moving this amendment, the noble Lord is seeking to limit community care orders to those detained under Section 18 of the 1984 Act and to patients who are over 16 years. The amendment allows application for the order to be made by the responsible medical officer, any mental health officer, or both. I regret that we are not able to accept any of those suggestions, and I shall explain why.

I think it is only proper that community care orders should be made available in respect of any patient detained in hospital under Section 18 and those detained under Part V, which includes those detained following their involvement in criminal proceedings. The discharge arrangements of such patients are rightly a matter for the responsible medical officer. It is only appropriate that community care orders should therefore be available, as indeed leave of absence already is, as a further stage in rehabilitation. We are not, of course, considering restricted (or "state") patients here; responsibility for their case management ultimately rests with my right honourable friend the Secretary of State for public safety reasons. But I am sure that the noble Lord would not seek to hamper the rehabilitation of any patient.

On the question of an age limit, I think we can all appreciate that the detention of children under the age of 16 years in a psychiatric hospital is a disturbing topic. However, the existing position is that it is possible for a child to be detained in hospital, but it is recognised that this should not be used for children unless absolutely necessary.

If there is the possibility of a person under 16 being detained in a hospital, it is also fair that that person should have the same rehabilitation opportunities as all others so detained, including community care orders. It is for this reason that the age limit of 16 years should not be imposed. Again, I am sure that the noble Lord would not wish to hamper any person's rehabilitation.

We do not consider it appropriate that the mental health officer in addition to, or instead of, the psychiatrist should be allowed to make the application. Where patients are currently maintained in the community on leave of absence, the medical lead is particularly strong. The responsible medical officer can bring a person back into hospital without the need to consult anyone else involved in the patient's care.

With the indulgence of the House, I should like to clarify a point made by my noble friend the Minister in the course of Tuesday's Sitting. A responsible medical officer in Scotland is not required by statute to be approved for the purposes of Section 20 of the 1984 Act. However, he is required to be employed on the staff of the hospital and must be authorised by the managers of the hospital to act as a responsible medical officer. In practice, we understand that it is rare for a responsible medical officer not to be approved for the purposes of Section 20. The terms in which the special medical officer is defined in new Section 35A(4) (b) introduced by Clause 4 therefore follow the common practice in relation to responsible medical officers in Scotland.

The leading role of the medical professionals under the community care order reflects the necessarily high level of medical content. The aftercare officer must nevertheless support the application for the order before it can go forward. The initial impetus in making an application for a community care order must remain with the psychiatrist. The patient is previously liable to be detained in hospital, and the psychiatrist must be the first person to decide whether the patient is making sufficient progress.

I very much regret that we do not consider the idea of a joint application to be appropriate. It would be complex. We have nevertheless given both the doctor and the social worker a very significant role. In effect, by the time the matter has reached the sheriff it will have become a joint application. I believe that that answers the point made by the noble Lord. There is a significant involvement by either the mental health officer or aftercare officer in the progress of the application. On those grounds, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Carmichacl of Kelvingrove

The Minister will realise that he has given an extremely complicated reply. As I said at the beginning, the question was a complex one. I still feel that there is a great deal of muddle in some of the definitions. For example, the idea that the RMO and the MHO will ultimately come together and present their case but originally only one of them can raise the matter seems to me to be unnecessarily exclusive, since in any case they will need to join forces at a certain point. I am convinced that the social work officer who will be the one most in touch with the day-to-day experience of the patient. Therefore, I think that they should have the right at least to vary these orders. I need to get advice on this matter because it is so complicated and in some ways slightly contradictory. I will take the matter away. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 71:

Page 17, line 4, after ("officer") insert (", or nearest relative, or the after care officer").

The noble Earl said: Amendment No. 71 is fairly similar to the previous amendment. Before I explain the purpose of the amendment, I should say that I am a little disappointed to hear from the noble Earl that the RMO need not be a Section 20 doctor. I find that a little surprising. By Amendment No. 71 I hope to extend the range of applicants to include the nearest relative or the aftercare officer, along with the RMO, whom I will normally expect to be a consultant psychiatrist. The logic of the amendment is that the nearest relative or aftercare officer may personally have made the earlier application for compulsory admission under Section 18. I believe that it would be reasonable and in the spirit of Scottish mental health practice to allow those two persons to make an application for a community care order.

My second argument in support of the amendment is that the RMO will not be the lead agency in the community care order. That role belongs to the social work department. On the face of the Bill there is little involvement by health board employees, unlike the provisions in Part I.I beg to move.

The Earl of Lindsay

We have already discussed the question of widening the scope of the application to allow other persons to make it, as proposed in the amendment moved by the noble Earl, Lord Mar and Kellie. At the outset perhaps I may again stress a matter that I dealt with in reply to the noble Lord, Lord Carmichael, in relation to RMOs. I emphasise that in practice it will be very rare for the responsible medical officer not to be approved for the purposes of Section 20.

I should like to make clear that the decision in relation to an application for a CCO is one that must be taken within a multi-disciplinary framework, but ultimately the patient is being discharged from liability to detention in hospital and therefore the responsibility for this decision must lie with the doctor. The aftercare officer must support an application by providing a supporting report. This ensures that the application is agreed by doctor and social worker.

At the stage of the making of an application, the legal person of the aftercare officer does not exist. Until the order is made there is only a person who is to be the aftercare officer. Therefore, it would be technically difficult to suggest that the aftercare officer should make the application.

We do not agree that the nearest relative should be empowered to make the application for a community care order. Of course, he is empowered to make an application for detention in hospital, but that is not really a part of the patient's rehabilitation. Decisions on the time at which a community care order is appropriate must clearly be taken by professionals at the appropriate time and not precipitated by the nearest relative. However, if the nearest relative is an informal carer, he will be consulted at that stage.

On the basis of that reassurance, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Mar and Kellie

While I have listened to what the noble Earl said about the proposed amendment, I am very concerned about the transfer of the lead role in responsibility for the patient from the health board to the social work department. I am afraid that I am unable to accede to the Minister's request that I withdraw the amendment and wish to test the opinion of the House.

11.57 a.m.

On Question, Whether the said amendment (No. 71) shall be agreed to?

Their Lordships divided: Contents, 52; Not-Contents, 96.

Division No. 1
CONTENTS
Acton, L.	Jenkins of Putney, L.
Addington, L.	Judd, L.
Airedale, L.	Macaulay of Bragar, L.
Ashley of Stoke, L.	McGregor of Durris, L.
Avebury, L.	McIntosh of Haringey, L.
Blackstone. B.	McNair, L.
Carmichael of Kelvingrove, L.	Mar and Kellie, E. [Teller.]
Cocks of Hartcliffe, L.	Merlyn-Rees, L.
David, B.	Molloy, L.
Dean of Thornton-le-Fylde, B.	Monkswell, L.
Dubs, L.	Morris ot Castle Morris, L.
Falkland, V.	Murray of Epping Forest, L.
Foot, L.	Nicol, B.
	Prys-Davies, L.
Gallacher, L.	Redesdale, L.
Graham of Edmonton, L. [Teller.]	Richard, L.
	Sainsbury, L.
Halsbury, E.	Serota, B.
Harris of Greenwich, L.	Simon, V.
Haskel, L.	Strabolgi, L.
Healey, L.	Thomson of Monifieth, L.
Hilton of Eggardon, B.	Tope, L.
Hooson, L.	Tordoff, L.
Houghton of Sowerby, L.	Turner of Camden, B.
Irvine of Lairg, L.	Wigoder, L.
Jay of Paddington, B.	Williams of Elvel, L.
Jenkins of Hillhead, L.	Williams of Mostyn, L.

NOT-CONTENTS
Aberdare, L.	Harding of Petherton, L.
Addison, V.	Harmsworth, L.
Alexander of Tunis, E.	Hayhoe, L.
Allenby of Megiddo, V.	Holderness, L.
Annaly, L.	HolmPatrick, L.
Annan, L.	Howe, E.
Balfour, E.	Hylton-Foster, B.
Belhaven and Stenton, L.	Inglewood, L. [Teller.]
Blaker, L.	Ironside, L.
Blyth, L.	Lauderdale, E.
Boardman, L.	Lindsay, E.
Boyd-Carpenter, L.	Long, V.
Brabazon of Tara, L.	Lucas, L.
Braine of Wheatley, L.	Lucas of Chilworth, L.
Brougham and Vaux, L.	Lyell, L.
Butterworth, L.	Mackay of Ardbrecknish, L.
Cadman, L.	Marlesford, L.
Carnegy of Lour, B.	Miller of Hendon, B.
Carnock, L.	Milverton, L.
Charteris of Amisfield, L.	Mottistone, L.
Chelmer, L.	Mountevans, L.
Chesham, L.	Moyne, L.
Clanwilliam, E.	Munster, E.
Cochrane of Cults, L.	Nelson, E.
Coleridge, L.	Newall, L.
Crathorne, L.	O'Cathain, B.
Cross, V.	Orr-Ewing, L.
Cumberlege, B.	Park of Monmouth, B.
Davidson, V.	Pearson of Rannoch, L.
De Freyne, L.	Pender, L.
Dixon-Smith, L.	Perry of Southwark, B,
Downshire, M.	Peyton of Yeovil, L.
Elliott of Morpeth, L.	Pike, B.
Faithfull, B.	Rawlings, B.
Ferrers, E.	Renton, L.
Fraser of Kilmorack, L.	Romney, E.
Gainford, L.	Saint Albans, D.
Gardner of Parkes, B.	Seccombe, B.
Geddes, L.	Sharples, B.
Gisborough, L.	Skelmersdale, L.
Gridley, L.	Strange, B.
Haig, E.	Strathcarron, L.
Hailsham of Saint	Strathclyde, L. [Teller.]
Marylebone, L.	Sudeley, L.

Swinfen, L.	Trefgarne, L.
Swinton, E.	Vaux of Harrowden, L.
Tenby, V.	Wakeham, L.
Teviot, L.	Wise, L.
Teynham, L.

Resolved in the negative, and amendment disagreed to accordingly.

12.6 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 72:

Page 17, line 7, leave out ("care") and insert ("treatment").

The noble Lord said: This is a minor but significant amendment. It is designed to clarify what is a significant distinction between care in the community in terms of the National Health Service and Community Care Act 1990 and the current proposals which are rooted firmly in mental health legislation. If the order is to be entitled a "community care order", there is likely to be significant confusion at all levels as to the status and involvement of the relevant professions.

It is proposed that application for a community care order is to be made by the RMO to the sheriff, which procedure is at odds with all other aspects of mental health legislation in Scotland and is based on medical opinion only. The title "community care order" is misleading. It is a small but important amendment. If the Minister cannot give a definitive answer now, it may be a matter that we can bring back on Report. I beg to move.

The Earl of Lindsay

The community care order is not an order to receive treatment but a way of ensuring that people receive the offer of, and are encouraged to receive, the care that they need. There is a necessarily high level of medical involvement, and the application process is initiated by a psychiatrist. But we have repeatedly made it clear that the proposals engender a multidisciplinary approach; we have accorded the aftercare officer an important role.

We feel that as part of the care it is important that there should be a possibility of reassessment in hospital. The decision to reassess in hospital is not one which we envisage being taken lightly. We have included in the reassessment in hospital the power to administer medication without the consent of the patient. That is a power which may be considered necessary, where insight is lacking, to prevent or limit the patient's relapse.

Our legal advice is that the proposals meet the UK's obligations under the European Convention on Human Rights. With the emphasis firmly on care and not on treatment, I ask the noble Lord to withdraw the amendment.

Lord Carmichael of Kelvingrore

I understand the point made by the Minister, but I have not had the same assurance as to whether the proposal is acceptable under the European Convention. There seems to be some doubt, but I am sure that the Minister has received sound legal advice on the point. However, lawyers could have a field day arguing the matter. It is also something that may be raised in another place. We shall read the Minister's reply and take advice on it. We will need to take advice from others in regard to many points in the Bill, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 73:

Page 17, line 14, at end insert: ("and

1. (c) a community care assessment under section 12A of the Social Work (Scotland) Act 1968 (in this Act referred to as a "community care assessment")").

The noble Lord said: It may be for the convenience of the Committee if we deal also with Amendments Nos. 77, 79, 89 and 95. The effect of Amendment No. 73 is to provide that a person who is subject to a community care order will have a full community care assessment under the National Health Service and Community Care Act 1990. It is essential that a person who is subject to a community care order should receive the benefit of the new community care system of assessment and care management. The amendment attempts to tie in the two systems to bring that about.

Amendment No. 77 attempts to ensure that the interrelationship between the new order and community care is borne in mind by the aftercare officer. It is a point of emphasis.

Amendment No. 79 gives the sheriff the power to defer making an order until he is satisfied that the patient's needs have been assessed. The Minister may say that that will always be the case but the amendment gives the sheriff the absolute power to determine that the care needs have been assessed. We believe that the sheriff should have the benefit of seeing a full community care assessment of the patient before he makes a community care order.

Amendment No. 89 provides that the person making the application must also consider the community care assessment of the patient. The Minister will have got the drift of the amendments; that there must be a multi-disciplinary approach towards the patient. The community care system has set up a new formal process for recording and determining the needs of people who require community care services. The procedures for establishing such needs are becoming well established. However, we believe that the patient who is subject to a community care order should receive the benefit of a proper community care assessment and be brought into the system. The amendments will ensure that the person considering whether to make a community care order will also consider the information about the patient's needs as set out in his formal community care assessment.

The Minister may tell me that that process will be undertaken but it is important that something is placed on the face of the Bill in order to make sure that it is. The words may not be correct but we must ensure that the total needs of the patient and the community are considered before the patient is committed. I beg to move.

The Earl of Mar and Kellie

We are dealing with a new emphasis and a new priority for this client group. Therefore, a full community care assessment should be carried out and that requirement should be put on the face of the Bill. I do not believe that the provision on page 17— that the patient should receive medical treatment and aftercare services under Section 8—is a sufficient description of what the patient may need. I support the amendment proposed by my noble friend Lord Carmichael, I am sorry, by the noble Lord, Lord Carmichael.

The Earl of Lindsay

I am glad that friendship is breaking out all over the Chamber. It must be due to the Easter season. The amendments give the aftercare officer the job of arranging for a needs assessment and make associated and consequential changes to the Bill.

Local authorities already have a duty under Section 12A of the Social Work (Scotland) Act 1968 to assess people's social care needs. We may wish to underline in guidance the circumstances in which this duty applies to community care order patients. We do not need to legislate for this, and we do not need to make the aftercare officer responsible for arranging the assessment. Local authorities may not find that appropriate and they must be left to deal with the administration of this as freely and as flexibly as possible.

We also do not believe that the community care order should be viewed by the patient as a lever to obtaining services. The duties on local authorities to provide aftercare are quite clear and are being made clearer in the Bill. If there are suggestions that there are problems in meeting those duties they should be addressed administratively and not by primary legislation.

I hope that with that explanation the noble Lord will withdraw this amendment.

Lord Carmichael of Kelvingrove

I am slightly worried by the use of the word "flexibly". Obviously, we do not want to bind people and remove their ability to look at the situation in different ways. However, one can have too much flexibility. We have examples of indecisive legislation, in particular in Scotland, relating to children. Too much flexibility can be a danger.

I am sorry that the Minister is not willing to agree to what I believe are helpful amendments. Perhaps I should say that all the amendments I have tabled are meant to be helpful and are aimed at clarifying the Bill. We may wish to return to this matter on Report. Perhaps the Minister will remember that flexibility can be overdone. I hope that he will have a different answer on the next occasion. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.15 p.m.

The Chairman of Committees

I should tell the Committee that if Amendment No. 74 is agreed to I cannot call Amendment No. 75.

Lord Carmichael of Kelvingrove moved Amendment No. 74:

Page 17, leave out lines 19 to 25 and insert: ("(3) If the sheriff hearing a community care application is satisfied that—

1. (a) the patient is suffering from a mental illness however caused or manifested of a nature or degree which makes it appropriate for him to receive medical treatment, but that 330 the grounds set out in section 17(1) of this Act for admission to and detention in a hospital do not apply to the patient;
2. (b) that the patient requires to be subject to a community care order—
1. (i) with a view to ensuring that he receives medical treatment, the after-care services to be provided for him under section 8 of this Act and a community care assessment, or
2. (ii) in the interest of his health or safety or with a view to the protection of other persons; and
3. (c) that the community care order and the conditions set out in it or such other conditions as the sheriff considers appropriate are necessary in order to ensure that he receives such treatment, services and assessment,

he shall make a community care order in respect of the patient, subject to the conditions set out in the application or to such other conditions as he considers appropriate: provided that if he is not so satisfied, he shall refuse the application.").

The noble Lord said: This is a probing amendment. The Bill sets out the ground on which the sheriff may decide to make or refuse an application. A community care order can be made only in respect of a person with a mental illness. The wording of the amendment mirrors that of Section 1 of the Mental Health (Scotland) Act 1984. The sheriff must be satisfied that the community care order will achieve its stated aims.

The amendment would introduce the need to state grounds for deciding applications. A great deal of anxiety has been expressed that the present clause gives no grounds on which the sheriff might refuse or accept an application. There is no clear basis for the sheriff to accept or to refuse an application. As in the other sections of the Mental Health (Scotland) Act, that should be an administrative decision taken by the sheriff when, and only when, he is satisfied that the order is appropriate on the facts supplied to him and that he has all the facts relating to the application.

The amendment sets out the grounds on which the sheriff should take the decision. It mirrors the working of new Section 35B(7) on page 20 of the Bill. It provides that a community care order shall be used only in the case of a person with a mental illness. We are aware of no suggestions that the Government' s proposals are intended to cover people with a learning disability. However, the term "mental disorder" used in the Mental Health (Scotland) Act includes mental handicap. We are not sure that the new Bill is appropriate or necessary for people with learning disabilities and we urge much wider consultation with organisations representing people with learning disabilities before imposing a new order on such people. Paragraph (c) of the amendment provides that the sheriff can impose or alter the conditions of the order only if he believes that it is necessary to ensure that the person receives the help he needs. Such an amendment is necessary to direct the sheriffs mind as to what he should bear in mind when considering variations of the order.

The Bill does not spell out in detail the kind of conditions the sheriff has the power to impose. The amendment makes clear that the only orders the sheriff can impose are those which ensure that the patient has access to medical treatment aftercare. I accept that the amendment is long and complicated but its purpose is clear. The wording may be unsatisfactory and considered to be too wide but we should be happy to discuss the matter with the Minister. I hope that he will give serious consideration to the proposal and if necessary take it back for discussion. I beg to move.

The Earl of Lindsay

These amendments would restrict the use of community care orders to people with a mental illness. I have no difficulty in accepting that the vast majority of the intended client group would be mentally ill. Therefore, I understand exactly the point which the noble Lord makes. Detention criteria are framed by reference to "mental disorder", which means mental illness and mental handicap. The community care order criteria are also framed by reference to mental disorder.

There may be cases in which a community care order might be appropriate for a person with a learning disability as well as a mental illness, as the noble Lord has mentioned. Therefore, we do not propose to close off an avenue which might be of use in an admittedly small number of cases. I should add that in framing the Bill, there was extensive consultation with learning disability organisations, so that we are aware of some of the anxieties which have been expressed.

We note that the purpose of the other part of the amendments appears to be to specify the matters about which the sheriff must be satisfied before making an order. Those are statements of opinion which must appear in the reports which accompany a valid application. Therefore, the criteria referred to in the amendment will already have been satisfied. A sheriff would not make an order if they were not satisfied.

The noble Lord suggested that the sheriff may have no clear grounds on which to make the decisions. But he went on to say that the sheriff had to be satisfied that he has had all the facts presented to him. Therefore, that in itself comprises clear grounds on which the sheriff is able to make the decision. I hope that, on that basis, the noble Lord will withdraw the amendment.

Lord Carmichael of Kelvingrove

This is a difficult point and I hope that the noble Earl may give some further thought to the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 75:

Page 17, line 23, leave out from ("application") to ("or") in line 24.

The noble Earl said: This amendment is rather similar to the previous amendment. I should like to strike out the words: such other conditions as the sheriff considers appropriate". I hope to reduce the power of the sheriff for the sake of clarity and for operational reasons.

I am concerned that the sheriff may believe that he may make conditions which the community care team cannot supply or administer. If the sheriff decided to generate new conditions at the hearing in addition to those planned by the community care team, the sheriff would have to adjourn the hearing until the community care team were able to agree to the conditions and then return to the sheriff court with what amounts to a fresh application. The sheriff's power of deferral in Section 35A(5) is a more practical way in which to amend the community care application. I beg to move.

The Earl of Lindsay

I am not sure that the amendment moved by the noble Earl, Lord Mar and Kellie, achieves quite what he intends, but I may be wrong about that. It would appear to result in the sheriff making a community care order only with the conditions originally included in the application. The amendment means that that discretion available to the sheriff to add further conditions, which it had become clear during the hearing were necessary to be included, would be removed.

The sheriff has an important role to play in the making of the orders and he should retain full discretion in relation to the imposition of conditions. That is in the interests of the patient, the professionals and the public. During a hearing it is quite possible that new information may come to light or new conclusions or a new analysis may emerge. It is quite proper that the sheriff should retain a discretion to act on any new information or conclusions arising during the hearing. On the basis that, as the Bill is drafted, the sheriffs discretion is in the interest of the patient, the professionals and the public, I ask the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie

I am pleased to hear from the noble Earl that the hearings will be extremely informal and, indeed, will be in chambers. I still wonder whether it will be possible for the community care team to take on board the sheriffs ideas if they have not been discussed in advance.

Section 35A(5) states: The sheriff may defer the making of a community care order until such arrangements as appear to him to be necessary for the provision of medical treatment and after-care services". I believe that it may be unwise to give the sheriff discretion in relation to matters that have not been raised previously. However, I accede to the noble Earl's request to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 76:

Page 17, line 35, after ("disorder") insert ("and who may be the responsible medical officer").

The noble Lord said: The effect of the amendment is to make it clear that the special medical officer may be the RMO who is making the application. We believe that in many cases the special medical officer will be the consultant psychiatrist at the hospital. The amendment makes it clear that that is appropriate. This is a simple amendment which I hope the Minister will be able to accept. I beg to move.

The Earl of Lindsay

I am grateful to the noble Lord, Lord Carmichael, for moving this simple amendment. If I do not accept the amendment that is not because I disagree with it but because it may not be necessary. My feeling is that the amendment is unnecessary, although we agree with the aims behind it.

There is nothing in the Bill as drafted which would prevent the special medical officer, the responsible medical officer or the after-care officer and the patient's mental health officer from being the same person. Indeed, we had envisaged that that might be so in most cases. However, we must also allow for the possibility that they will be different persons and that is why the Bill is framed in those terms.

I believe that the noble Lord, Lord Carmichael, and I agree with each other, and the Bill already covers the ground which the noble Lord seeks to cover with his amendment. With that assurance, I hope that the noble Lord will withdraw the amendment.

Lord Carmichael of Kelvingrove

I am grateful to the Minister for his reply, which I shall read with great care. Perhaps he will also read my remarks to be sure that he understands what I have said. I do not know why these matters are not written on the face of the Bill to provide the flexibility which may be necessary. I know a little about mental health hospitals from the outside, and I can imagine that a number of jealousies may arise in certain circumstances among medical staff. I believe that it would be better to write such matters on the face of the Bill. It is a very small point, at which I shall look carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 77 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 78:

Page 17, line 42, at end insert ("and who may be the mental health officer making the application").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 86 to 88, 90, 102, 103, 105 and 112. Amendment No. 78 makes it clear that the aftercare officer may be the MHO who is making the application. In many cases, it would be appropriate for the aftercare officer to make the application. The sheriff will then be able to question him about the aftercare services provided to the patient. The amendment would make it clear that that is the appropriate process.

Amendment No. 86 is consequential to the above amendment and states that either the RMO or the MHO may make the application. The other amendments in the group are also consequential to the above amendment. I beg to move.

12.30 p.m.

The Earl of Lindsay

While dealing with Amendment No. 70, we discussed—and indeed rejected—the question of widening the scope of the application to allow other persons to make it, as these amendments seek to do. I have also explained that joint applications raise doubts as to who would be ultimately responsible for the application. However, as I explained in my response to Amendment No. 70, by the time an application reaches the sheriff, it has in effect become a joint application. It has involved both the special medical officer and the aftercare officer. I believe that that is a most important point. On that basis, and with the assurances given both as regards Amendment No. 70 and the present group of amendments, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove

Again, this is a matter which we shall need to reconsider. However, in view of the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 79 to 82 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 83:

Page 18, line 34, at end insert: ("( ) The steps to be taken under subsection (10) above shall include giving the requisite information both orally and in Awning.").

The noble Lord said: The above amendment seeks to add a new subsection (11) to Section 35A of the Mental Health (Scotland) Act 1984. It reads: The steps to be taken under subsection (10) above shall include giving the requisite information both orally and in writing". The effect of the amendment would be to increase the duty of the aftercare officer to explain the workings of the community care order to the patient. Section 110 of the Mental Health (Scotland) Act sets out the duty to ensure that the patient understands the provisions under which he is sectioned. That is a greater duty than that in the present section, which merely provides that there must be an explanation whether the patient understands. It is a slightly tricky point. In other words, it is not enough to get the patient in and "rabbit" on about it; time must be taken to discuss the matter with the patient so that he will understand.

It is essential that the patient understands his or her rights under the community care order. We do not believe that a lesser standard of information-giving than that given for detention is appropriate. It is a most important amendment which, however it is worded, must somehow or other be inserted into the Bill and also into the heads of those who are dealing with patients, which is probably even more difficult. I beg to move.

The Earl of Lindsay

I saw on the amendment groupings list that the noble Lord had grouped Amendments Nos. 80, 100 and 101 together with Amendment No. 83. Therefore, it may be for the convenience of Members of the Committee if I speak to all four amendments. The amendments have been proposed in the spirit of making changes to the explanations given to patients, as outlined by the noble Lord.

The requirement is already there that the patient will receive an explanation orally and in writing when the order is made. We believe that that is sufficient. Guidance as to how that is to be done will include reference to rights of appeal and representations to the Mental Welfare Commission.

I am also sure that we can deal with the explanations made at the time of renewal more efficiently, and perhaps more tidily, by including them in guidance which is to be brought forward, rather than on the face of the Bill. The difference between renewal and the initial making of the order is that, at the time of making, everything is new to the patient and it is appropriate that we frame in statute the explanation that he should receive. Things are not new to the patient when the order is renewed.

However, we can see the value in seeking to ensure that the patient is aware of, and is reminded of, his rights to appeal to the sheriff, and to make representations to the Mental Welfare Commission. We shall bear in mind the point made by the noble Lord while speaking to Amendments Nos. 100 and 101 when we draft guidance and also when we prescribe forms. I hope that the noble Lord will accept our understanding of what he is seeking to achieve and also our assurance on that point and that he will, therefore, feel able to withdraw the amendment.

The Earl of Mar and Kellie

I am somewhat worried about the matter because we are dealing with compulsory measures. Perhaps I may draw an analogy with a probation order. One of the first and quite useful tasks during the primary interview with someone on probation is that one goes through the order with that person, explaining the standard conditions of the probation order and any other conditions which may have been imposed. Eventually, the interview concludes with, among other things, the new probationer actually signing the order to the effect that it has been explained to him.

I do not know whether the document is yet available as regards what a community care order will actually look like when it is being signed and has been made available to the aftercare officer and the patient. However, I definitely believe that any variations should he in documentary form so that they can be discussed. That is a very positive part of the process of supervision.

The Earl of Lindsay

It may be convenient if I speak again on the matter. But if I am incorrect about anything that I say, I shall certainly write to the noble Earl. Variations in a community care order will be produced in written form. I believe that what we are talking about by way of the amendments is the extent to which the rights of a patient at either renewal or variation are re-explained to him both orally and in writing.

We believe that the noble Lord, Lord Carmichael, has made a point; indeed, it is something that we should like to reconsider. We shall be drafting guidance in that respect and we shall need to lay out the forms in such a way that will perhaps bring emphasis to the noble Lord's points. As I said, at the making of an order, an explanation will be given. The documents are not yet available. However, I should stress once again to the noble Lord that Amendments Nos. 100 and 101 will be considered.

Lord Carmichael of Kelvingrove

I am most grateful to the Minister for taking that point of view and for expressing that acceptance. Of course I realise that there is still a great deal of thinking to go into the matter. Generally speaking, I believe that guidance can sometimes be just as important; indeed, it is rather more flexible than putting provisions into the Bill.

When the Minister is thinking about the guidance, could he perhaps consider saving time at the next stage by letting us know, when it is published, whether the guidance will be available to the nearest relative of the client. The latter is not always fully aware of what is happening and, therefore, there must he some person responsible for him who must also be made aware of the facts. I hope that the Minister will be able to assure us that there will be no great secrecy involved. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Baroness Serota)

If Amendment No. 84 is agreed to, I should point out to the Committee that I will not be able to call Amendment No. 85. I now call Amendment No. 84.

Lord Carmichael of Kelvingrove

Not moved!

The Earl of Mar and Kellie moved Amendment No. 84:

Page 18, leave out lines 35 to 40.

The noble Earl said: I thank the noble Lord for his interjection, but I shall not accede to it yet. This is a probing amendment to try to find out why the patient has to be on a Section 18 order for the particular period of 28 days or more. It seems to me administratively restrictive to insist on Section 18 (that is the six months' detention order) when a suitable candidate for a community care application might already be on Section 25—that is, the informal to formal patient order—or Section 26, an extension of the Section 24 emergency admission order. I ask this with especial reference to the idea that the target group for community care orders are patients already on one year's leave of absence in the community. In fact, their Section 18 admission, if the target group is the correct one, was more likely to be a year and 28 days ago. Could community care orders not be extended to people who are in the community without their having to be hospitalised, or does this make the target group too large? I think that access to statutory services has much merit. I beg to move.

The Earl of Balfour

I was under the impression that the maximum order that a sheriff could make was just six months. I am rather intrigued that the noble Earl, Lord Mar and Kellie, has suggested that a court order can extend to a year. I do not think that that is right.

The Earl of Mar and Kellie

The noble Earl, Lord Balfour, is correct. I thank him for reminding me of that.

12.45 p.m.

The Earl of Lindsay

The amendment moved by the noble Earl, Lord Mar and Kellie, purports to remove the qualification that patients must have been in hospital for at least 28 days before their RMO can make an application for a community care order in their case. The provision in new Section 35B(1) is to allow the responsible medical officer to carry out a review of the person's detention under Section 22 of the 1984 Act within 28 days of his or her admission to hospital. It is therefore considered appropriate that detained patients should benefit from hospital for at least 28 days before an application for a community care order can be made.

The noble Earl also raised the question of patients on leave of absence going directly onto a community care order without returning for 28 days in hospital. While I believe that this will be possible I should perhaps write to the noble Earl to make sure that I lay out the facts accurately. I hope that the noble Earl will feel able to withdraw the amendment.

The Earl of Mar and Kellie

The noble Earl has misunderstood me. I do not believe that a patient currently on leave of absence has to be returned to hospital. I fully accept that the likely patients to be admitted to a community care order will already be on leave of absence. If that is the target group, why are we saying that they must be in hospital when we intend to put people on community care orders who have already been in hospital and are already out on leave of absence?

The Earl of Lindsay

It may be helpful if I explain that while the leave of absence has patients in the community who, as it were, at any time may be liable to be returned and detained in hospital, the community care order arrangements are very different. They set up a much longer term programme of care and treatment within the community. Therefore, the 28-day hospital period is a period which would largely be used by the different elements in the community care application, either on the medical side or on the social side. That is the logic behind the period in hospital while the application is being preferred. With the assurance that I shall write to the noble Earl if I feel I have misled him, I hope that he will feel able to withdraw the amendment.

The Earl of Mar and Kellie

I thank the noble Earl for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 85:

Page 18, line 37, after ("Act") insert ("under sections 18, 24, 25, and 26").

The noble Earl said: This amendment follows on in some ways from the previous one. In this amendment I seek to add the words, under sections 18, 24, 25, and 26". of the Mental Health (Scotland) Act 1984 to clarify that the patient who is being considered for a community care order may be detained on any of these different compulsory measures. I accept that Section 24 emergency admissions are only for 72 hours and that that is too short for a full assessment to be done. However, it could be done if Section 26—the 28 day extension order—was applied, or indeed if the patient was already on a Section 26 extension order. Similarly, an informal patient who becomes in need of compulsory measures may be held for two hours under Section 25 to allow for a Section 24 emergency admission to be arranged, or indeed for a Section 18 six months' order to be arranged. For this amendment to become relevant, there would need to be an extension of the target group for community care orders to include the less vulnerable group of patients for whom a guarantee of medical and social work aftercare seems to me to be of considerable help. I beg to move.

The Earl of Balfour

From my limited experience in this field I thought it was only for the rather longer periods that a sheriff was involved. If a patient is taken into care for, say, a three day or a 28 day order, that is something which the hospital or the psychiatric persons concerned can deal with without going to the sheriff. Therefore, I feel that as regards some of these sections—I have not had all the time I would have wished to do my homework—I really do not think that the sheriff would be involved in all of these. Therefore I do not think these amendments are necessary.

The Earl of Mar and Kellie

I would be inclined to agree with the noble Earl, Lord Balfour, but I am trying to achieve a wider target group for these orders so that more people who are mentally disordered but able to live in the community are able to benefit from statutory services.

The Earl of Lindsay

The amendment moved by the noble Earl, Lord Mar and Kellie, would appear to be intended to provide for community care orders for persons detained under different specific sections of the 1984 Act. Patients who may be made subject to community care orders are those liable to be detained under Part V of the Act and, in accordance with new Section 35B(1), not within the first 28 days of their admission to hospital in pursuance of an application. This makes community care orders possible for civilly detained patients —so-called Section 18 patients—and, by virtue of Schedule 2 to the 1984 Act as amended by the Bill, they are also possible for patients under a hospital order without restrictions, following criminal proceedings.

It is only proper that community care should be available for such patients just as leave of absence is available for them at present. I am grateful to my noble friend Lord Balfour for saying that the sheriff is not involved in all emergency cases. His analysis is indeed accurate on that point. However, on the basis of what I said to the noble Earl, Lord Mar and Kellie, I hope that he will feel able to withdraw his amendment.

The Earl of Mar and Kellie

I thank the noble Earl for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 86 to 90 not moved.]

The Earl of Mar and Kellie moved Amendment No. 91:

Page 19, line 37, leave out ("is") and insert ("has agreed ").

The noble Earl said: For the convenience of the Committee, in moving Amendment No. 91, I shall speak also to Amendment No. 92. The amendments seek to clarify that the psychiatrist who will be the special medical officer and the social worker who will be the aftercare officer have both personally consented to undertake their respective roles within the proposed community care order and have not been allocated the work simply by their line manager, as I rather fear will happen. The provision would be in line with the consent that is required from the patient, the nearest relative or his appointee and the carer.

I believe that it is an important provision. Serious consequences are laid down in the Bill in Schedule 2 for not providing effective supervision for the patient. I beg to move.

Lord Mottistone

I agree in principle with the amendments. Paragraph (b) of Amendment No. 136, which stands in my name, makes the same point about having the agreement of the person involved. I hope that there can be some such provision in the Bill.

The Earl of Lindsay

The amendment moved by the noble Earl, Lord Mar and Kellie, and supported by my noble friend Lord Mottistone covers an important part of policy. I can gladly give the clarification that the noble Earl seeks.

The intended special medical officer and aftercare officer will have been consulted by the responsible medical officer before an application for a community care order is made. The person who is to be the aftercare officer will also have to submit a report to accompany the application. We do not see how a sheriff could approve an application without the named persons agreeing to carry out their professional duties. I stress that.

We shall, of course, consider whether the matter might be mentioned in any sheriff court rules. However, given the clarification and reassurance that I have given on these points, I hope that the noble Earl will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove

The Minister will realise that the amendment stands also in my name and that of my noble friend Lord Macaulay of Bragar. I did not intervene earlier because the noble Earl, Lord Mar and Kellie, is much more expert than most of us on this matter. There should be particular understanding of the fact that he said that he spoke from positive experience. Sometimes there is a muddle. Therefore, the agreement is important. If the noble Earl is satisfied, I shall be satisfied. I wish to emphasise again in this case the noble Earl knows clearly what he is speaking about.

The Earl of Mar and Kellie

I thank the noble Lord for those words. I am a little disappointed with what the noble Earl, Lord Lindsay, said. However, in the belief that what has just been said may well strike chords in the Minister's mind later, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 92 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 93:

Page 20, line 5, after ("by") insert ("the patient's general practitioner or").

The noble Lord said: One of the medical recommendations may be made by the patient's GP. In most cases, the patient's GP would be the appropriate person to support an application for a community care order. The amendment makes that clear. It mirrors the wording of Section 20(1) (b) of the Mental Health (Scotland) Act which states that one of the recommendations accompanying an application for detention shall he by the patient's GP or another doctor who knows him. From experience in constituency work, I can say that frequently the GP may have known the patient for 20, 30 or 40 years, whereas, with all the great skill that the psychiatrist has, he may have met the patient for only half an hour. Therefore, some weight and understanding should be given to the recommendation that the GP makes. That is the purpose of the amendment.

The Earl of Balfour

From a practical point of view, as I understand the position, before someone can be compulsorily taken into care or held in a hospital a certificate needs to be signed by two doctors. That is usually someone such as a medical officer with considerable experience and the patient's own doctor who has that lengthy past history. Therefore the person's own GP needs to be brought into the situation. It is a good point.

The Earl of Lindsay

I believe that we are all at one on the point described by the noble Lord, Lord Carmichael. The Bill as drafted allows for the second report to be made by any medical practitioner with previous acquaintance of the patient. That would, of course, include the patient's GP. We think that the Bill has covered that probability in the circumstances. On the basis that we all seem to agree that the patient's GP may be involved, I ask the noble Lord to withdraw the amendment.

Lord Carmichael of Kelvingrove

The Minister seems to accept the basis and thrust of my point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 94 and 95 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 96:

Page 20, line 39, at end insert: ("(iv) the views of the patient and his or her carers as to such matters, as disclosed to the person making the application for the community care order during consultation; and").

The noble Lord said: The amendment stresses the fact that the person making the report must inform the sheriff of the discussions that he has had with the patient and with his carers. It is important that the sheriff should understand any problems with the community care order which either the patient or his carers may have. The patient may not attend the hearing, and the amendment provides an additional safeguard to ensure that his views are taken into account. I beg to move.

The Earl of Lindsay

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

It is important to bear in mind that we have made it a requirement that the patient and the carers are to be consulted by the responsible medical officer before the application is made.

I also draw the Committee's attention to the fact that in new Section 35A(2) we are attracting the provisions of Section 113 of the 1984 Act to the application for a community care order. That provides that the patient must be given the opportunity to be heard by the sheriff either in person or by means of a representative. I hope that the noble Lord will agree that that is the best safeguard in the circumstances.

On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove

The Minister has given assurance that the purpose of the amendment will be fulfilled with the provisions already in the Bill. It is a matter that some of those who advise noble Lords on this side of the Chamber will wish to consider carefully. I accept his interpretation at this point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 97:

Page 21, line 1, after first ("the") insert ("patient, and if he does not object, his").

The noble Lord said: The effect of the amendment is that the patient must be told of any application for a community care order. We are concerned that there will need to be provision for notice of all applications, variations, and so on, to be notified to the patient and his nearest relative. In some cases it would be "or" his nearest relative because the patient was not aware of what was happening, although I hope that such cases would be few. The amendment highlights one occasion when the patient himself or herself needs to be notified.

Generally, under the Mental Health (Scotland) Act, most notices are given under the provisions of an act of sederunt. A new act of sederunt will be necessary for community care orders. I can see that that would not be overcomplicated, but for the sake of the safety and the future of the patient I hope that the Minister will accept the amendment. Alternatively, perhaps he could find more appropriate wording which expresses the same sentiment as the wording that I used. I beg to move.

The Earl of Lindsay

The amendment seeks to do two things. First, it seeks to make it explicit that the patient must be informed about the proposed community care order. Secondly, it seeks to give the patient discretion about whether his nearest relative is to be informed that a community care order is being considered.

It appears to us impossible that an order could have reached that stage without the patient's knowledge, since his responsible medical officer will have to have consulted him under the new Section 35B(3). That part of the amendment therefore appears unnecessary.

We have made it clear that we believe that the patient subject to a community care order has the right to withhold information from his nearest relative. However, I wish to point out to the noble Lord that at that stage no community care order exists and the patient is liable to be further detained in hospital. We think it appropriate that the nearest relative of a patient detained in hospital should be informed that it is proposed that the patient should not be detained in hospital for much longer and that the patient should not be able to overrule that. After making that point, I ask the noble Lord to withdraw his amendment.

Lord Mottistone

I am grateful for those remarks by the Minister. That is the kind of provision that I sought to have inserted in earlier parts of the Bill. Once again, the Scots have produced very good legislation. Let us leave it that way.

Lord Carmichael of Kelvingrove

We always appreciate compliments when we receive them, but after a while we become embarrassed! There is only one point which I wish to raise with the Minister in order to improve what is already accepted. It is that the patient could be in an acute state at that stage. Therefore, it would be important for the nearest relative to be told about that, and to allow time for the patient to be told later when he is feeling better. I appreciate the importance of the Minister's remarks, however, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 98:

Page 21, line 4, at end insert: ("( ) A community care application shall be of no effect unless the patient is described in each of the medical recommendations as suffering from the same form of mental disorder, whether or not he is described in either of those recommendations as suffering also from the other form.").

The noble Lord said: This amendment seeks to insert a new subsection on page 21. The effect would be that each doctor should agree whether a patient's disorder is mental illness or mental handicap.

When we discussed the matter on a previous amendment, it was decided that the provision would not be necessary. However, we strongly suggest that the new community care order should not only apply to people with mental illness. Since the previous amendment was not accepted, this amendment would ensure that doctors have to agree whether the patient suffers from mental illness or mental handicap. The provision under Amendment No. 98 mirrors the provision of Section 18(3) of the Mental Health (Scotland) Act which states that a patient cannot be detained in hospital under a section if doctors do not agree on the form of mental disorder from which the patient suffers. The point has already been made that medical officers should agree whether the patient suffers from mental illness or mental handicap. I beg to move.

The Earl of Balfour

I wish to ask the Government to consider seriously a purely practical point. Before any patient is taken into the community, it should be decided whether, once he is back in the community, that person can be relied upon to boil an egg or to ensure that he eats properly and can carry out similar basic activities. One of the problems with mentally impaired people is that they cannot be trusted to light the gas once it has been turned on, to switch on an appliance or to switch off a light. It takes a long time to ensure that patients can do that. The amendment moved by the noble Lord, Lord Carmichael, has reminded me of an important practical point. Therefore, that should be taken into account, not necessarily in primary legislation but perhaps in the guidelines which are to be issued. There needs to be someone in the background, watching the patient recovering and recuperating, and ensuring that he can cope properly.

The Earl of Mar and Kellie

I support the amendment. We are dealing with a compulsory measure of care, when a citizen has had an order imposed on him effectively by the state. It is important that, since the basis of the compulsory order is a medical recommendation, we should require doctors to agree that the patient is schizophrenic, psychotic or has aggravated learning difficulties. It is not unreasonable to make that requirement.

The Earl of Lindsay

The Government very much agree with the sentiment behind the amendment. It is quite reasonable to expect that both medical reports should specify the same form of mental disorder. However, we believe that, for drafting reasons, the amendment will not alone achieve the desired effect. I should therefore be grateful if the noble Lord would consider withdrawing the amendment, to allow us to examine the matter further and introduce an amendment at a later stage.

My noble friend Lord Balfour rightly focused our anxieties on what happens to patients when they have returned to the community. I can give him the following assurances on the point. A community care order application is a multidisciplinary application which is made after a period of observation and analysis. It may be initiated by the responsible medical officer, but it draws in the mental health officer or the aftercare officer. Considerable thought is given to how the patient will survive in the community.

Secondly, other aspects of the patient's life in the community may be included in the process of planning, such as any informal carers or relatives who may be involved in his day-to-day life. The community care order is not the only option available at that stage of the patient's progress. It may be that guardianship is seen as a better option for a particular patient. It may be that even with medication to sort out a mental disability, because the person is liable to turn on the gas but not to light it, something more like a personal management plan is needed. That is, guardianship. I give the assurances both to Members of the Committee opposite and to my noble friend Lord Balfour that the anxieties that they have raised on the amendment will be met.

However, I return to the point that I made to the noble Lord, Lord Carmichael, that we agree with what he is trying to achieve. If he will withdraw the amendment, we shall return with some wording at a later stage.

Lord Carmichael of Kelvingrove

That statement makes it impossible for me to say other than that I beg leave to withdraw the amendment. I note that three people have spoken to this very small amendment. We shall be interested to see the wording of the new one. We acknowledge that the Minister accepts the spirit of the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 99:

Page 21, line 29, leave out ("responsible") and insert ("special").

The noble Earl said: At this point we move on to the procedures for renewing a community care order. The amendment relates to a technical drafting error. The new subsection 35C(3) deals with the special medical officer's duties in the run up to the renewal of an existing community care order. To my mind, the new paragraph (3) (b) (iii) should read: any person who the special medical officer believes plays a substantial part in the care of the patient".

By the time that the community care order is renewed—after four months in the first instance, and after 10 months subsequently—the responsible medical officer, who is the person whom I regard as the consultant psychiatrist, may well have become a rather remote figure in the care of the patient. The special medical officer—the psychiatrist who is dealing with the patient in the community—will be completely involved. He will know who in fact is concerned in the process of caring for the patient rather than who ought to be involved. I beg to move.

The Earl of Lindsay

I am grateful to the noble Earl and to the noble Lord, Lord Carmichael, whose name is also to the amendment, for spotting an error which we also had spotted. Indeed, we all arrived at the finishing post at the same time.

The amendment corrects an error in drafting of which the Government are aware and, as intended, properly ensures that the appropriate new sections refer to the special medical officer in place of the responsible medical officer, where the special medical officer is obliged to consult a number of people, including the patient's informal carer or carers, on the renewal, variation or revocation of a community care order or on the patient's proposed admission to hospital for reassessment. I am most grateful for the effort that everyone has put into chasing down that little inaccuracy.

However, the Government have gone further. We believe that the same error appears in the Bill on page 22 at line 10: page 23 at line 41 and page 26 at line 15. I have now spoken to Amendments Nos. 104, 118 and 125. They deal with the same matter. I hope that all those correcting amendments will be accepted by the Committee.

The Earl of Mar and Kellie

I am extremely grateful to the noble Earl for his remarks. This amendment has such a pedigree that I thought that we should have at least one amendment accepted.

On Question, amendment agreed to.

[Amendments Nos. 100 to 103 not moved.]

The Earl of Lindsay moved Amendment No. 104:

Page 22, line 10, leave out ("responsible") and insert ("special").

The noble Earl said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 105 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 106:

Page 22, line 18, after ("form") insert ("(which shall include an explanation to the patient and his nearest relative of their right to make representations to the sheriff about such proposed variations and the time limit for making such representations)").

The noble Lord said: This amendment is grouped with Amendments Nos. 107, 108, 111, 113, 114 and 116. The effect of the amendment is to ensure that the prescribed form explains the patient's rights. We should like to have confirmation from the Government that it is intended that any form used under the new subsection will contain details for the patient of his rights under paragraph (3).

Amendment No. 107 requires that the nearest relative be notified of a variation in the community care order.

Amendment No. 108 provides that if the sheriff who made the original order is not available, another sheriff from the same "sheriffdom"—that word does not look Scottish to me! —should be informed of the proposed variation and the Mental Welfare Commission should also be informed.

Amendment No. 111 also requires that the nearest relative should be given the right to object to any variation of the community care order.

Amendment No. 113 requires notification of variation to go to the nearest relative. We are concerned that the nearest relative should be kept informed at all times.

With regard to Amendment No. 114, while the doctors and social workers have the right to apply to the sheriff to vary the conditions of the community care order, no such right is given to the patient who has to live with the conditions on a day to day basis. We feel that that is wrong. This amendment gives the patient the right to require the sheriff to reconsider his case. Obviously there would have to be some restriction on the number of times a patient could ask a sheriff to reconsider the case. But the purpose of the amendment is to give the patient at least the right to request it.

Finally, Amendment No. 116 provides that the person making the application must notify the patient, his nearest relative and the aftercare officer, or the special medical officer, whoever was not involved in the application for variation. The notification has to be given promptly. If the amendment is accepted, either the special medical officer or the aftercare officer may apply for a variation and each of them will have to notify the other. That is so that if something is done with the patient, the people involved will all be aware of what is happening. It is essential that the patient and his nearest relative be informed and also that it is done promptly. I beg to move.

The Earl of Lindsay

As the noble Lord explained, these amendments would make various changes to the procedure that we have proposed for a variation in the conditions of a community care order. We note what has been proposed about notifying the Mental Welfare Commission of a variation and the technical point about sheriff clerks. Those are matters that we wish to consider further.

We also note that the amendments attempt to prescribe what should be included on the form relating to variation of conditions. We note what has been proposed, and would point out that the prescription of forms under the 1984 Act is a matter for regulations, the content of which we shall consider carefully.

These amendments would allow the nearest relative to object to the proposed variation and be heard on this subject. I have to say that we do not consider that appropriate. If the nearest relative is also an informal carer, he will already have been consulted about the proposed variation. The conditions are a matter for the patient and those caring for him. It is for the patient to decide whether or not he wishes to object to what is proposed.

The amendments also extend the right of appeal by the patient to the sheriff to include an appeal against a variation of conditions. I should point out that we have already included a right for the patient to object to a proposed variation, and that the variation may not be approved without a hearing in front of the sheriff if he does so object. There is no equivalent appeal, for example, for patients detained in hospital, if they object to being transferred from one hospital to another, provided that it is not a transfer to a state hospital, which is of course a matter of particular gravity.

We therefore believe that, in this case, the right to be heard, which we have proposed, is adequate. On the basis of the various assurances that I have given on the large number of amendments in this group, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Carmichael of Kelvingrove

I am grateful to the Minister for having gone so far as he could go. However, there is a nagging worry that the patient may not be fit—although not in any way psychotic —to discuss this matter. It may be a transfer for the convenience of the hospital rather than for the convenience of the patient. It may be important therefore that someone is told that the patient is being moved and why. That person can then make an evaluation on behalf of the patient, who may not be in a fit state to make the decision himself. I am not suggesting that there would be anything underhand about the move, though that has happened when space was required in a specific hospital and patients were moved without anybody being told. If the patient is not able to understand, it would be wrong for a close and responsible relative not to be informed of the move.

I shall consider my position for a moment to allow others to make any points they wish before I decide what to do with the amendment.

Baroness Seear

Before the noble Earl replies, can he confirm—I may be out of order in asking this—that the carer has a right to object to the variation and the objection may be upheld? I know that the carer has a right to be consulted, but if the carer believes that the variation is bad either from the point of view of the patient or of the carer—I speak from the Carers National Association point of view—what is the position of the carer when a variation is being proposed? What rights does the carer have as distinct from consultation?

The Earl of Lindsay

If, on reviewing my reply, I feel that I have said anything inaccurate, I shall write and correct it. The noble Baroness, Lady Seear, asked about the rights of carers. On the face of the Bill, informal carers are not specified as statutory consultees but, given the multidisciplinary background to any application either for a variation or renewal, it would be impossible for the two medical officers and the aftercare officer to bring forward an application to the sheriff which did not simultaneously consult the caring arrangements available for the patient. In practice therefore the informal carer is almost certainly to be consulted on any change or variation.

Baroness Seear

The point is that the variation can substantially change the obligations laid on the carer. I am asking whether the carer has a right to refuse those variations. The Minister may not know the answer.

The Earl of Lindsay

The guidance being issued before the Bill comes into force will cover much of the ground that makes up the care that results from the Bill. The Bill sets up the framework, and the guidance will seek to add to the framework with the requirements needed for good sensitive care.

Carers will be consulted. In Scotland there is also the Mental Welfare Commission which may receive a request at any time from a patient in the community to explore the circumstances of a variation or renewal. There are therefore safeguards in this instance that are specifically outlined, in that the carer, probably through the patient, ensures that the Mental Welfare Commission is alert to the circumstances of variation which may be against the patient's best interests.

In response to the noble Lord, Lord Carmichael, I should add that patients subject to community care orders will be capable of living in the community, subject to their medication. That is an important point to make both now and in relation to other points raised earlier. Community care patients are able to live normally subject to their medication and treatment.

Lord Kirkhill

I hope that my noble friend Lord Carmichael will seriously consider his position in regard to the amendment in the light of the Minister's comments. They fall considerably short of the type of assurance that he seeks.

Perhaps I may make a personal remark which has no validity other than to justify my usual prejudices. I am unusually suspicious of the psychiatric profession. I regard it at arm's length, certainly in relation to those with whom I have been concerned who have had to deal with that professional body. In allying my prejudices to the fine mind of my noble friend Lord Carmichael and his interesting amendment, I urge my noble friend to consider his position seriously.

Baroness Jay of Paddington

I hesitate to come into this extremely distinguished Scottish company on a broader issue. I wish to respond to the points made by the noble Baroness, Lady Seear, regarding carers. I know that her concern in this matter extends beyond Scotland, which we are discussing this morning. It is worth pointing out both to her and to the Committee that the assurances given by the noble Earl, which are somewhat insecure, would not apply in England and Wales. As we found on Tuesday, the Government are not prepared to accept the intervention of the Mental Health Act Commission, which would be the equivalent of the Mental Welfare Commission in relation to these patients. There are therefore no safeguards for carers in England and Wales.

Lord Carmichael of Kelvingrove

I am trying to cover my blushes after the kind comments of my noble friend Lord Kirkhill. The Minister must realise that there is a fair amount of anxiety in the Chamber at this point. While he made clear that we were talking about people living in the community—I believe he was exclusively dealing with people living in the community—the point made by the noble Baroness, Lady Seear, reminded me of the inconvenience that may be involved.

Carers go to a great deal of trouble. Moving a patient to another reference hospital could add enormously to the difficulties of the carer, and that is the type of thing about which the noble Baroness was speaking. Therefore, unless the Minister has something else to say, I shall provisionally withdraw the amendment. We shall want to look at it with great care and possibly bring it back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 107 and 108 not moved.]

The Earl of Mar and Kellie moved Amendment No. 109:

Page 22, line 24, at end insert: ("(d) the Mental Welfare Commission for Scotland").

The noble Earl said: Amendment No. 109 is similar to Amendment No. 108. It seeks to add the Mental Welfare Commission for Scotland to the list of those notified about any variation in the conditions of the community care order. As the Mental Welfare Commission for Scotland has to be informed about the making of the community care order, quite rightly, and as it has powers and duties to perform in respect of community care orders, I see it as essential that it should also be informed of any change to the orders.

The powers and duties of the Mental Welfare Commission for Scotland revolve around visits for quality assurance purposes. It also handles appeals and can ultimately order the discharge of people who are subject to community care orders. I believe therefore that it should be informed of any variation and I hope that the noble Earl will be able to accept the amendment. I beg to move.

1.30 p.m.

The Earl of Lindsay

As I said when responding to a similar amendment proposed by the noble Lord, Lord Carmichael, we would be grateful to have the opportunity to consider this point further. It is indeed important that the Mental Welfare Commission should be able to undertake its protective role while being in full possession of the facts. On that basis, I should be grateful if the noble Earl would consider withdrawing his amendment.

The Earl of Mar and Kellie

The noble Earl is quite right. The Mental Welfare Commission for Scotland has statutory duties in this area. I shall certainly withdraw the amendment at this point to allow him to consider the matter further.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 110:

Page 22, line 24, at end insert: ("( ) If any person consulted under this part of this Act is replaced by another person that change shall be reported to—

1. (a) the patient;
2. (b) the patient's after care officer; and
3. (c) the sheriff clerk for the sheriff who made the community care order.").

The noble Earl said: It is essential that any staff changes in the community care team for a community care order patient should be notified formally to the patient, the aftercare officer and the sheriff clerk. This amendment would ensure that any changes in personnel were documented. I suspect that such notification should be made informally as well to the special medical officer, to the Mental Welfare Commission for Scotland and to the carer and nearest relative. I beg to move.

The Earl of Lindsay

I am grateful to the noble Earl for having introduced the amendment. We had recognised that there might be some difficulty in varying the named persons. This matter is currently under consideration. While I appreciate the noble Earl's intentions, the matter is quite detailed. I can assure him that we intend to propose amendments on this point at a later stage in the Bill. With that assurance, I hope that he will consider withdrawing the amendment.

The Earl of Mar and Kellie

I like what the noble Earl says. I shall certainly withdraw the amendment at this point.

Amendment, by leave, withdrawn.

[Amendments Nos. 111 to 114 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 115:

Page 23, line 14, at end insert ("to ensure that he receives such medical treatment and after-care services").

The noble Lord said: Any variation to a community care order which the sheriff makes must be necessary to secure the general aims of the community care order. The sheriff would not be free to make variations to an order on too wide a basis. The variation should be made in order to achieve the objects stated in the Bill. The amendment would make clear the basis on which the sheriff was to exercise this discretion. This is a precautionary measure but it is essential that there should be certain prescribed controls. I beg to move.

The Earl of Lindsay

This amendment specifies that when the conditions of a community care order are varied by a sheriff following the refusal of an appeal against the order these conditions must be, to ensure that he receives such medical treatment and after-care services". We believe that this is unnecessary and probably restrictive. Variation of conditions would continue to relate to the need for conditions imposed with a community care order to be with a view to ensuring that the patient receives medical treatment and aftercare services. In addition, the discretion of a sheriff to vary the conditions, which must of course be exercised reasonably, is preserved in new Section 35E(2) (b). As an example of how the sheriff might vary the condition, a separated spouse may find contact with her ex-husband distressing and the sheriff may find it appropriate to make a condition restricting the patient to visiting her house only by prior arrangement. With the assurance I have given the noble Lord on this point, I hope that he will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove

I thank the Minister for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 116 not moved.]

The Earl of Mar and Kellie moved Amendment No. 117:

Page 23, line 30, after ("deteriorated") insert ("or the patient has ceased to lake his prescribed treatment").

The noble Earl said: This amendment seeks to deal with the question of a patient not taking his medication. The amendment recognises that there is a time delay between the patient ceasing to take his medication—obviously against advice—and the deterioration of his mental health. The amendment would allow for the community care team to react positively before mental health had broken down completely. The patient could be admitted to hospital for a much briefer period to resume taking his medication in a hospital setting and so be restabilised and returned to his home quickly and without taking up a hospital bed for a substantial period. I believe that the amendment would therefore be very useful is such circumstances. I beg to move.

The Earl of Lindsay

The effect of this amendment would be that a patient could be considered for reassessment in hospital on the grounds that he had stopped taking his medication and that his mental state was, or was likely to become, such as to give grounds for serious concern regarding his health or safety, or the protection of other persons.

I think that this goes much further than what we have proposed, which is that there must have been a deterioration in the patient's mental state, and his mental state must be such as to give grounds for serious concern regarding his health or safety or the protection of other persons. It may be that the patient's mental health deteriorates because he ceases to take his treatment.

The amendment does concern us, because we have provided that evidence of deterioration of the patient's mental state is to be the point which triggers examination under the new Section 35F(3) and we do not accept that the trigger point should be ceasing to take prescribed treatment. But I can assure the noble Earl that ceasing to take prescribed medication will certainly be of interest to those caring for the patient. They may then wish to consider the patient's situation as a result of any such failure.

I think that there is a difference here which may appear subtle at first but which is actually quite great. The amendment could result in people being detained in hospital when their long-term medication is still working and they are not actually suffering symptoms of mental illness. We also remain unconvinced that an amendment such as that proposed by the noble Earl is acceptable because of the implications for consent to treatment. On the basis of that and the assurances I gave earlier, I hope that the noble Earl will feel able to withdraw the amendment.

The Earl of Mar and Kellie

If I may go back to my previous analogy about the probation order, I hope that when this document is drawn up one of the conditions of a community care order is that the patient must take his or her medication or other prescribed medical treatment in the same way as condition 1 of a probation order states that the probationer shall be of good behaviour. I fully accept that any hint of compulsory medication in the community is unacceptable. However, I believe that early readmission to hospital would have benefits in the sense that the amount of time taken up in a hospital bed would be diminished. After all, under my reckoning the patient would have breached his order by not taking his prescribed treatment.

The Earl of Lindsay

For the noble Earl's interest, perhaps I may stress again that if a patient ceases to follow the conditions laid down in his order, that would immediately trigger interest among those people who are caring for that patient. But the fact that he is not complying with the condition laid down in his order that he must take his medication is not by itself a sufficient trigger for automatic reassessment in a hospital. That trigger should surely be a deterioration in his mental health.

The Earl of Mar and Kellie

I go along in some way with what the noble Earl has said. I should just like slightly to short-circuit the need to wait until mental health has deteriorated again. The person is subject to a community care order, which is a compulsory measure of care, because we recognise that part of his illness relates to thinking that he is well when he is not.

The Earl of Lindsay

It can be done in anticipation of deterioration and not before deterioration itself.

The Earl of Mar and Kellie

I am extremely pleased to hear what the noble Earl said, although I suspect that we may return to this matter at Report stage. I withdraw the amendment at this point.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 118:

Page 23, line 41, leave out ("responsible") and insert ("special").

The noble Earl said: I spoke to this amendment earlier. I beg to move.

On Question, amendment agreed to.

[Amendment No. 119 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 120:

Page 24, line 38, at end insert: ("( ) A patient who is detained in hospital under this section shall have the right to appeal to the sheriff for his discharge from detention. ( ) Unless the sheriff is satisfied that—

1. (a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for assessment, or for assessment followed by medical treatment for at least a limited period: and
2. (b) he ought to be so admitted and detained in the interest of his own health or safety or with a view to the protection of other persons,

he shall order that the patient be discharged from hospital and he may revoke the community care order").

The noble Lord said: The purpose of this amendment is that a patient on a community care order should always have the right of appeal if he is returned to hospital. Whereas a patient on a community care order generally has the right to appeal against it, during the first six months of that order he does not have that right. New Section 35E on page 22 of the Bill allows for appeal only after the first renewal of the order, echoing the appeal provisions for detention in hospital.

Deprivation of the patient's liberty without appeal to a judicial forum may be in breach of the European Convention on Human Rights. We strongly urge that the Minister takes this matter away for further consideration. He says that advice has been taken as regards an earlier amendment on European rights. Obviously, if he can tell us that there is no question of any contravention of those rights, that would clear things up to some extent. However, it would still leave us concerned about the patient's rights quite apart from the European situation. It is only reasonable to say that I have been informed that there could be a breach of the European Convention. I beg to move.

The Earl of Balfour

From a purely practical point of view, based on my experience of two persons whom I looked after very carefully while they were in hospital, there were only two occasions when they were thoroughly and completely upset. They were a real worry to the nurses and nursing staff. In the first instance the ward was being redecorated. The fact that they were moved and their routine disturbed seriously upset them.

The next occasion was when they were considered to be well enough not to be held any longer in a mental hospital and were moved to a geriatric hospital. For about the first week they were very upset and in a very distressed state of mind. I am glad to say that at the end of the week, my wife, one of the patients, said to me, "It is very nice now being in the south of France" when in fact she was in a hospital in Scotland.

The Earl of Lindsay

This amendment seeks to introduce a right of appeal to the sheriff by the patient against reassessment in hospital. We do not think that that is appropriate. There is to be no right of appeal at this point because the detention in hospital is for the purposes of reassessment. We recognise that it may be also for the purposes of reassessment and treatment, and that treatment may be without the patient's consent.

However, the reassessment period is quite short. It is for a maximum of seven days. I am not sure whether the noble Lord, Lord Carmichael, grasped that point. This is why we believe no right of appeal to be necessary. At the end of seven days, the patient will be returned to the community on his community care order, or the community care order will be revoked; or an application for detention in hospital will have been made in respect of him. If he is returned to the community, he is no longer detained in hospital and there appears to us to be no need for an appeal. If an application for detention is made, then the patient has a right to be heard by the sheriff as any patient would in the same situation. This appears to us to be sufficient.

To answer the point raised by the noble Lord, Lord Carmichael, our legal advice is that the proposals meet the obligations of the United Kingdom under the European Convention. On that basis I hope that the noble Lord is able to withdraw his amendment.

Lord Carmichael of Kelvingrove

I thank the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.45 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 121:

Page 24, line 38, at end insert: ("( ) This section is without prejudice to the emergency admission provisions of section 24 of this Act; and in the event that a patient under a community care order is admitted to hospital under section 24 of this Act, his community care order will cease to have effect.").

The noble Lord said: The effect of this amendment is to allow a patient under a community care order to be admitted to hospital in an emergency without going through the procedures of new Section 35F. If that happens the community care order will come to an end. The procedures under the section are complex and unwieldy. In an emergency it may be a too-lengthy process to comply with all the procedures. Doctors should retain the ability to bring a patient to hospital and the community care order should come to an end. Generally, if doctors feel that the community care order is working they will rely on new Section 35F, but the retention of Section 24 would give them flexibility.

If this amendment is not accepted it may be possible to argue that new Section 35F has replaced Section 24 for patients on community care orders. Despite the civil liberties implication we feel that that is an acceptable risk, Many psychiatrists who responded to the Scottish Office consultations on the new measure are concerned about how that would work in practice. The psychiatrists showed sufficient interest to approach the Scottish Office. I shall be interested to hear the Minister's reply having been given time to look at it with care. I beg to move.

The Earl of Lindsay

I am grateful to the noble Lord, Lord Carmichael, for introducing this amendment and for explaining it. We agree that when the emergency powers to detain a community care order patient under Section 24 are exercised, the community care order should fall and should not be suspended only to re-enter into force at a later date. We will, therefore, consider whether an amendment is required to make that clear. On that basis I hope that the noble Lord is able to withdraw his amendment.

Lord Carmichael of Kelvingrove

I am very grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 122:

Page 25, line 24, at end insert ("patient, and if practicable and the patient does not object, his nearest relative and the").

The noble Lord said: This is a short amendment. The patient and his nearest relative will be told that the patient will stay in hospital for another 21 days under new Section 35G(4). That is the effect of the amendment. The reason, as we have tried to emphasise throughout this Bill, is that the patient and his nearest relative must be kept informed of developments. I hope that the Minister will be as kind with this amendment as he was with the previous one. I beg to move.

The Earl of Lindsay

Of course, I shall be as kind with this amendment as I was with the last. We are once again grateful to the noble Lord, Lord Carmichael, for bringing this matter to our attention. We note that there is a difference between the list of people who receive the reports before the patient is reassessed and those who receive the reports made in hospital during reassessment. We shall consider who should receive copies of the reports made in hospital. With that assurance I hope that the noble Lord will withdraw his amendment.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved amendment No. 123:

Page 25, line 39, at end insert: ("( ) A patient who has been detained in hospital under this section shall not be further detained under this section or under section 24 of this Act immediately after the expiry of the period of detention.").

The noble Lord said: This is another helpful little amendment. I believe that the effect of it will be that there must be no successive detentions under the reassessment procedure. Nor can a patient who has been brought to hospital for reassessment be immediately thereafter kept under the emergency detention provisions of the Act. That mirrors Section 24(6) of the Mental Health (Scotland) Act 1984 which prohibits successive emergency detentions. In crude layman's terms it is known as a "cat and mouse". I hope that the Minister will give an assurance that precautions will be taken against the possibility of that provision being used. I beg to move.

The Earl of Lindsay

This amendment has been described as "another helpful little amendment" by the noble Lord, Lord Carmichael of Kelvingrove, who moved it. It prevents the use of Section 24 following reassessment in hospital, and of the use of repeated periods of detention in hospital for reassessment. We do not accept that Section 24 should not be available immediately following reassessment. It may need to be available in such cases, and we see no need to restrict this. However, we undertake to consider whether it is necessary to include a provision to prevent the re-use of reassessment in hospital. This is something which we would certainly not wish to encourage, but we should like some more time to consider this. With that assurance, I would ask the noble Lord to withdraw this amendment.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 124:

Page 25, leave out lines 43 and 44 and insert: ("(1) Within the period of 7 days ending on the 28th day after (he patient became subject to the community care order, the special medical officer shall examine the patient or obtain from another medical practitioner a report on the condition of the patient; and if, after consulting the persons mentioned in subsection (2) below, he").

The noble Lord said: This is another amendment to which I hope that the Minister will give sympathetic consideration. It would require a special medical officer to re-examine a patient within the first month of the community care order and consider whether it is necessary. If not, he must discharge the patient. Under the detention provisions, once a patient is in hospital the medical officer must examine him within the first month and discharge him if necessary. This amendment mirrors the provisions of Section 24(4) of the Mental Health (Scotland) Act and provides for a fixed review once the patient has been living for a while in the community under supervision. It is a helpful little amendment and I hope that the Minister will at least accept the spirit of it. I beg to move.

The Earl of Mar and Kellie

I should like to support the amendment. It would be useful for the community care team to have such focus because by the time that the provisions become appropriate, the patient would have been living in the community for at least five weeks. I commend the amendment to the noble Earl.

The Earl of Lindsay

This amendment seeks to introduce a statutory review of the patient's need for a community care order, to be carried out at the end of the first month of the order.

I have to say in passing that in attempting to do so it also removes the general power of the special medical officer to revoke the order if he considers that the patient no longer requires to be subject to a community care order.

We have not included a mandatory review in the same way that this is required for detention in hospital under Section 22 of the 1984 Act because we do not consider that this is necessary for a patient in the community. The constant review of the patient's need for a community care order should form part of good multidisciplinary practice by the care team, and is very much a matter for guidance. I hope that the noble Lord will feel able to withdraw this amendment.

Lord Carmichael of Kelvingrove

It would be very grudging of me if I did not say that the Minister has given a good explanation of his reasons for not accepting this amendment, especially when he has accepted many of the other amendments. All that I can say is that I shall take the amendment away but, in the meantime, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 125:

Page 26, line 15, leave out ("responsible") and insert ("special").

The noble Earl said: I spoke to this amendment earlier. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 126:

Page 26, line 30, at end insert: ("(4) Where a patient subject to a community care order is detained in custody in pursuance of any sentence or order passed or made by a court in the United Kingdom (including an order committing or remanding him in custody) the period for which, under section 35C of this Act, the community care order has effect shall continue to run but the conditions to which he is subject under that order shall not, for so long as he is so detained, apply in relation to him." ").

The noble Earl said: In Clause 1 for England and Wales there is provision for the effect of a custody sentence imposed upon a patient subject to aftercare under supervision. This amendment introduces a similar provision for Scotland. The effect of the amendment will be that where a patient subject to a community care order is detained in custody on sentence or order of a UK court including a remand order, the conditions of the community care order will be suspended. The community care order will remain in effect and the period will continue to run. On release from custody, if the community care order has not expired, the conditions will resume. On the other hand, if the order has expired, the patient will no longer be subject to either the community care order or the conditions.

Clearly, it is not feasible to expect an imprisoned person to continue to comply with the conditions of a community care order and it is also unfair to "stop the clock" on the order when he is in prison. I hope that the Committee will agree to this amendment. I beg to move.

The Earl of Mar and Kellie

I am a little concerned about the effect of the amendment. Someone who is in the community may need to be subject to a community care order because of their vulnerability due to the state of their mental health; but we now see that they might be imprisoned. However, when their order has expired, and when they come out of prison, which itself is a difficult period, that already vulnerable person will be left high and dry. I wonder whether it is possible to continue the community care order for at least another seven days in order to give the community care team the opportunity to meet up with the patient after he has left gaol.

The Earl of Lindsay

I note what the noble Earl, Lord Mar and Kellie, has said. This is an issue which the Government have raised previously and which we continue to study in detail. I remind the noble Earl that the prison rehabilitation services will be involved in a prisoner's departure from prison. Therefore, they can undertake to make any arrangements which they feel may be necessary in the circumstances. We shall continue to consider such points. I commend he amendment to the Committee.

On Question, amendment agreed to.

On Question, Whether Clause 4, as amended, shall stand part of the Bill?

Lord Carmichael of Kelvingrove

It may seem drastic to seek to remove a whole clause from the Bill, but this is the only way in which it is possible to raise one or two of the worries that have been brought to our attention by those involved. We are seeking to retain the status quo in Scotland, pending more detailed consideration of the most appropriate course of action for patients in the community who are suffering from mental disorders.

There is a strong consensus in Scotland across the health, social work and voluntary sectors that it is not appropriate to introduce supervised discharge orders in Scotland nor is the proposed introduction of community care orders supported by CoSLA. It is considered that greater use of the existing powers, particularly that of guardianship and, to a lesser extent, that of leave of absence, should be made. The proposed community care order appears to confer less power than a guardianship order. It is therefore difficult to envisage any benefits arising from its introduction.

I should be grateful if the Minister could comment on some figures that I am about to give him. If he cannot do so right away, perhaps he will write to me later. A significant benefit of the leave of absence arrangements in Scotland is that they allow patients to be discharged into the community while still being liable to recall to hospital should their circumstances deteriorate. I am informed that the total number of patients on leave of absence in Scotland at 31st December 1994 was 412, of whom only 15 had been on leave of absence for over three years; 32 for over two years and 101 for over one year. Those figures suggest that the number of patients likely to become the subject of community care orders is small and that heavy-handed legislation is unlikely to remove all possibility of any such patient committing a violent crime. The Minister may well have more up-to-date figures, but the figures that I have given—if they are correct—show that the principle of Clause 4 seems to be, to say the least, a little over the top.

Lord Campbell of Croy

I should like to say just a word or two about the Motion because, as I indicated on Second Reading, there is concern among those working in the field about doing away with the leave of absence system in Scotland. The noble Lord, Lord Carmichael, has assisted us by providing the current figures. When at the time of the publication of the Bill I raised this matter with my noble and learned friend Lord Fraser of Carmyllie, who is responsible for health matters in Scotland, he pointed out what had been suspected for some time, namely, that the system was subject to a legal challenge. Doubt had already been thrown upon it by a sheriff court as far back as 1987. I am very sorry that it has that threat of legal challenge hanging over it because, as I said at Second Reading, its great merit is that it works and all those concerned are in favour of it. However, I recognise that it may have to be changed.

If it were possible to continue the system but alter the legislation so that the threat of challenge was removed, I believe that that would be the best answer as far as Scotland is concerned. Whether that is possible I do not know, but I have suggested that it be done. It may be beyond the lawyers and parliamentary draftsmen to do it. However, I shall listen carefully to what my noble friend says in reply. I emphasise that this is something that really matters in Scotland.

Two days ago in Committee when we dealt with the clauses relating to England and Wales, continual reference was made to how much better the system was in Scotland. It was even said that the provisions of the Bill were better as far as Scotland was concerned. But apparently the one drawback as far as Scotland is concerned is the removal of the leave of absence system which has worked very well.

2 p.m.

The Earl of Lindsay

Clause 4 is an important one. It introduces into the 1984 Act the concept of formalised multidisciplinary care in the community for certain people with mental disorders. We do not deny that the development of these proposals has been a complex process. There has been a difficult balance to strike between the rights of the patient and the rights of the public. We believe that these proposals strike the right balance and will ensure that mentally ill people who need support and supervision in the community will be properly supported. This includes the possibility of reassessment in hospital, which is intended to prevent a major relapse of the patient. That event would be of great distress to the patient and those caring for him.

As your Lordships are aware from what has been said previously on this matter, we do not believe that it is wise or defensible to maintain the current open-ended leave of absence arrangements. However, it is clear that if leave of absence is to be limited, not removed, there is a need for a community-based care and treatment option to fill the gap that is created. It is to provide that option that we have proposed community care orders.

My noble friend Lord Campbell of Croy was quite right in outlining the background to our worries about leave of absence. Sheriff Younger's judgment delivered in 1987 raised doubts about the lawfulness of the use made of leave of absence as a long-term care and treatment option. The Government are convinced that if things are left as they are it will only be a matter of time before a legal challenge is made. The time-limiting of leave of absence creates a need, which we intend to fill by this Bill, for a community care programme.

The noble Lord, Lord Carmichael, suggested that CoSLA was unhappy with certain aspects of the Bill. We consulted at three different stages on the Bill and met a pretty wide diversity of aspirations and ambitions. The Government are convinced that in taking note of that consultation they have managed to strike a balance between the wide variety of views put to them.

The noble Lord also mentioned the possible greater use of guardianship. I stress that guardianship and community care orders are perhaps not as closely related or as interchangeable as some noble Lords may believe. Community care orders are designed to control behaviour patterns and enable somebody with medical treatment to live a fairly normal life. Guardianship is designed to look after the day-to-day affairs of somebody, perhaps because of learning difficulties or for other reasons. In the case of guardianship, there is no presumption about a recall to hospital, whereas in the case of community care orders, because medication is involved, there has to be such a presumption. Therefore, in brief, guardianship is personal management; a community care order involves controlled medication and treatment to ensure that somebody can live an otherwise normal life.

The noble Lord, Lord Carmichael, quoted specific figures for those on leave of absence. I do not wish to argue about the figures today. I know that they are comparatively small. It may well be that if I check them I will agree with him. However, these people need specific help, and the community care orders under the Bill are designed to target that help on those who need it. Although the numbers may be small, the effort that has been put into the creation of community care orders is justified because of the aid and support that they will provide.

I have said that Clause 4 is a crucial part of the Bill. We believe that it introduces valuable new powers to the 1984 Act and the powers have been considered carefully. We have listened carefully to what others have had to say on this potentially difficult subject. I also stress to the noble Lord, Lord Carmichael, that many of the points he has raised in Committee today have had a sympathetic hearing from the Government. We have given assurances that there are matters that we will reconsider and come back to. I commend the clause to the House.

The Earl of Mar and Kellie

I should like to offer my congratulations to the noble Earl for so clearly defining the difference between guardianship and community care orders. I believe that the whole Committee will find that very useful.

Lord Carmichael of Kelvingrove

I thank the Minister for his explanation. I believe that the noble Lord, Lord Campbell of Croy, and myself will be a little disappointed. He has put forward a case that is perhaps worth looking at to see whether anything can be done to change the situation; or we may be satisfied with it when we have looked at it with greater care. Therefore, perhaps we can increase the entente cordiale and discuss it together in another place before a final decision is reached. In the meantime, I am grateful to the Minister for his attention.

Clause 4, as amended, agreed to.

Clause 5 [Absence without leave]:

Lord Carmichael of Kelvingrove moved Amendment No. 127:

Page 26, line 38, after ("patient") insert ("who is subject to a hospital order made under section 175 or section 376 of the Criminal Procedure (Scotland) Act 1975").

The noble Lord said: The amendment is an effort to extend the absence-without-leave provisions which will apply only to patients who are in hospital following the commission of a criminal offence. It is difficult to understand why a patient who might be hospital for only a three-day section could, if he escaped, be liable to be recaptured up to six months later. As I understand it, that is the case at present.

I understand also that the case which led to the amendment concerned a person who had killed his wife, who then escaped and remained at liberty for 28 days, and was thus no longer liable to detention. We do not believe that that case justifies such a drastic change for a vast majority of patients; in other words, we are back to taking a sledge-hammer to crack a nut. Although that was an appalling case, I hope that the Minister will give us a full explanation of why the amendment should not be accepted.

It is not an easy matter because, as I said, it seems bizarre that a person who has killed his wife and is at liberty for 28 days should no longer be liable to detention. I hope that the Minister can give us an explanation. I beg to move.

The Earl of Lindsay

The amendment purports to seek to restrict the application of the return and readmission to hospital provisions of Section 28 of the 1984 Act only to patients subject to hospital orders imposed by the courts who are absent without leave. We do not think the amendment achieves such a restriction.

In any event that would be a serious backward step for us to take. Our mental health legislation is founded on the principle that there should be no discrimination between patients based on their particular route to detention in hospital, except for persons on whom the court has imposed a hospital order with restrictions. A proposal to single out for special provisions in respect of absence without leave those mentally ill patients who have been involved in criminal proceedings but not made subject to restrictions is unacceptable.

If the noble Lord's intention in proposing the amendment is to target for return to hospital only those absconders who are thought to be dangerous, I suggest that he has missed the mark? There are ordinary detained patients—that is, detained under civil powers—who have committed criminal acts and who might be regarded as dangerous. Indeed, our policy is that mentally disordered people who come into contact with the law should be diverted from the courts or from custody to receive non-discriminatory care from the health and/or social work services.

As with the general thrust of the Bill, there should be no discrimination in the absence-without-leave provisions; so with the background I have explained, I ask the noble Lord to withdraw the amendment.

Lord Carmichael of Kelvingrove

I know that the Minister has received immediate authoritative confirmation of the case that he has just put to me. I shall read with care what he said. The case that was mentioned struck me as being horrendous, but it may not have been enough to change the whole tenor of the law. The Minister's explanation went further than I had expected. I am grateful to him for that. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 128:

Page 28, line 19, at beginning insert ("Subject to subsection (8) of this section and section 33(2) and (4) of this Act,").

The noble Lord said: It may be for the convenience of the Committee if I deal also with Amendment No. 129. The effect of the amendments would be to allow the patient the right to appeal against a decision that he should be detained in hospital after he had been recaptured. I believe that the failure to insert this provision in the Bill must have been an oversight. The wording of the provision is that of Section 36 of the Mental Health (Scotland) Act, which allows a patient to appeal if his detention is renewed. It is a variation of the provision relating to the fact that if a patient is at liberty for 28 days he cannot be detained. The amendment merely gives the patient the right to appeal if the authorities wish him to remain in hospital. I beg to move.

The Earl of Lindsay

The right of appeal sought by the noble Lord in his amendments is already provided for at Clause 5(2) and (5). That amends Section 30(6) and Section 47(6) of the 1984 Act. Given that we are providing what the noble Lord seeks, I hope that he will withdraw his amendment.

Lord Carmichael of Kelvingrove

I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 129 to 131 not moved.]

2.15 p.m.

The Earl of Lindsay moved Amendment No. 132:

Page 31, line 42, leave out subsection (8).

The noble Earl said: We discussed the substance of this amendment when debating the corresponding amendment to Clause 2 in the England and Wales part of the Bill. The amendment rectifies the same inconsistency relating to Scotland in Clause 5.1 beg to move.

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 [Leave of absence from hospital]:

The Earl of Mar and Kellie moved Amendment No. 133:

Page 32, line 29, leave out ("12") and insert ("24").

The noble Earl said: This is a probing amendment to discover whether the conditions of any period of leave of absence under Section 27 of the 1984 Act are lawful. It has been suggested to me that the so-called Sheriff Younger judgment raises questions about the powers of treatment during any period of leave of absence. As was suggested by the noble Lord, Lord Campbell of Croy, that leave of absence could be amended in order to take on board the anxieties raised by Sheriff Younger in 1987. That would allow community care orders to be abandoned. Will the Minister say whether the conditions relating to leave of absence are legally sound unamended for any period of time? I beg to move.

The Earl of Lindsay

As well as attempting to reduce the risk of legal challenge to leave of absence, we have had to consider what constitutes a reasonable period for the patient, who remains liable to detention, to remain living in the community. We have concluded that a period of up to 12 months is the maximum period under the Act for which a person may remain on leave of absence. That is the same maximum period for which the authority for a patient's liability to detention is renewed after two initial six-month periods. It is anticipated that such patients who are on leave of absence for up to 12 months will be candidates for community care orders.

The noble Earl asked whether we might simply amend leave of absence and save ourselves the problem of Clause 4. The Government never wish large pieces of legislation on themselves. If amending the provision had been a possible route that is the route we should have taken. However, advice was taken and it appeared that a simple amendment to existing legislation would not work. Furthermore, as regards legitimacy of the 12 months' leave of absence, that is based on advice as to compliance with European convention. I hope that with those assurance the noble Earl will withdraw the amendment.

The Earl of Mar and Kellie

I believe that the Minister said that 12 months' leave of absence was legally sound. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 [Short title, commencement and extent]:

Lord Carmichael of Kelvingrove moved Amendment No. 134:

Page 33, line 4, leave out ("1st January 1996") and insert ("1st April 1997").

The noble Lord said: This is an important amendment because of the day to which it relates. It defers the introduction of the new order to bring the provisions of the Act into force at the beginning of a financial year.

The present system of Scottish local government is to be reorganised with effect from 1st April 1996. That is an important day because it is when the new elections will take place for the new councils. It makes little sense to introduce new responsibilities for existing regional councils as social work authorities for the three-month period prior to the introduction of 29 unitary authorities which will assume the function.

Furthermore, budgets have already been set for 1995–96 without any financial provision having been included in terms of the new provisions. Therefore, in order to avoid chaos it is only sensible to delay the introduction of the order until 1st April 1997. It is a purely technical matter. I hope that the Minister will accept the amendment.

The Earl of Mar and Kellie

I hope that the noble Baroness will be able to accept the amendment. Social work departments will be reorganised, and I strongly support what the noble Lord, Lord Carmichael, said.

Baroness Cumberlege

I understand what both noble Lords have said but we cannot agree to defer implementation until the date proposed because we do not believe that it is necessary or desirable. We believe that to defer implementation until April 1997 would be too long a period to wait before introducing the important safeguards which the Bill provides for protecting patients and the public.

I understand why the noble Lord believes that a deferral would be beneficial. However, I assure him that people with hands-on responsibility for the delivery of services will transfer to the new Scottish authorities without any change in their working patterns or practices. That will be true of those who have the duty to operate the new community care orders. In any event, I assure the Committee that we propose to issue full guidance to those concerned with the new provisions. We propose also to issue full information for patients before the provisions are put into force. Therefore, I hope that the noble Lord will withdraw the amendment.

Lord Carmichael of Kelvingrove

I welcome the noble Baroness to our Scottish Committee today. We have had very good responses from the Minister and a number of amendments have been accepted or taken away for consideration.

I am sorry that the noble Baroness is not able to help us in this regard. I agree that the timing and introduction of the new local authorities causes difficulties. But we believe that it is nonsense to introduce such changes because no reorganisation is needed. In the wee small hours of the morning, it may be that we have a very nice story to tell the country from Scotland. It would be wrong not to withdraw the amendment, in the spirit of camaraderie which exists with the noble Baroness. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135 not moved.]

Clause 7 agreed to.

Schedule 1 [After-care under supervision: supplementary]:

Lord Mottistone moved Amendment No. 136:

Page 34, line 33, leave out from ("who") to end of line 35 and insert ("—

1. (a) having been approved for the purposes of section 12 above by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and
364
2. (b) having been appointed with the agreement of the practitioner by the Health Authority which have the duty under section 117 below to provide after-care services for the patient,

is in charge of the medical treatment").

The noble Lord said: I have already spoken briefly to the amendment. Now is perhaps an opportunity to speak to it rather more fully, although I shall not detain the Committee for very long.

The aim of the amendment is to ensure that the community responsible medical officer accepts the appointment in that capacity—that is the second part of the amendment—and that he is appropriately qualified to look after patients who are subject to aftercare under supervision. I believe that a GP with no special training in psychiatry would not be equal to the job. Amendment No. 28, in the name of the noble Baroness, Lady Jay, and Amendment No. 137, in the name of my noble friend Lord Haig, which we discussed earlier, said much the same. Therefore, we all agree about the importance of the special qualifications and such a provision already exists in Scotland.

At present, under Section 12(2) of the Mental Health Act doctors recommending the admission of patients to hospital are required to be approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder. I believe, as does the National Schizophrenia Fellowship, that the community responsible medical officer should meet those standards.

When we briefly discussed the matter on Tuesday 4th April, my noble friend the Minister said that the guidance would be necessary. I questioned whether guidance was really the right place for it and whether it was not more appropriate to include such a provision in Schedule 1, as my amendment seeks to do. My noble friend the Minister then said that guidance is a good thing, because it produces a degree of flexibility".—[Official Report, 4/4/95; col. 113.] In that particular area, for this particular amendment and for the particular qualifications involved, flexibility is what I seek not to have. In that sense, I should not have thought that guidance was really the right answer. It is much better to have such a provision on the face of the Bill so as to make it quite clear to everyone concerned that the community responsible medical officers will be properly qualified and experienced in looking after mentally-ill people. I beg to move.

Baroness Jay of Paddington

Perhaps I may briefly express my support for the amendment. The noble Lord, Lord Mottistone, referred to my Amendment No. 28 which the Committee discussed on Tuesday and which, indeed, reflected much the same concerns about the particular responsibilities and qualifications of the community responsible medical officer. As we agreed when we discussed the matter earlier, it is a new post and one which is not encompassed by existing legislation under the Mental Health Act.

Further, I should add that I agree with the response of the noble Lord, Lord Mottistone, to the earlier reply as regards the nature of guidance in the matter. Like the noble Lord, I feel that this is an inappropriate area for guidance. As I also said on Tuesday (at col. 114 of Hansard), I really have little confidence in the "force of guidance" in something as complicated and necessary and where such clarity is needed as is the case here.

Earl Haig

My noble friend Lord Mottistone mentioned Amendment No. 137 which is tabled in my name which I shall speak to later. However, in the meantime, I should like to express my support for my noble friend's amendment. There should be no questioning the fact that the care of the patient will be in the hands of a doctor who, because of his experience in treating the mentally ill, is qualified to supervise treatment. The RMO should be able to understand the patient's current condition so that he can give confidence to patients and to relatives. He should be able to respond where there are signs of regression in an illness and, if necessary, should symptoms indicate the need for a change in treatment, take such steps as are necessary without delay. In some cases, there can be grave consequences from wrong diagnosis or delays over treatment. Therefore, the amendment is of great importance.

Baroness Cumberlege

In the first part of his amendment my noble friend Lord Mottistone identified the principle of good practice. 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 need to be applied. That would fit them very well to act in the role of the community responsible medical officer. We shall certainly want to take account of that in the guidance that we shall be issuing on the implementation of the Bill. I understand that the noble Baroness, Lady Jay, does not have a great deal of faith in guidance. However, I believe that I am more resolute in believing that guidance can actually be very effective. We believe that there may be cases where it is justifiable for someone not approved under Section 12 of the 1983 Act to be the community responsible medical officer if, in all other respects, the care package is in the best interests of the patient.

The amendment would also require the community RMO to be appointed rather than nominated by the health authority concerned and to have given his agreement to being appointed. In that regard, we believe that the term "nominated" correctly reflects the nature of the CRMO's responsibilities. A provision in the schedule for the RMO to agree is not needed because, under the new Section 25B(8) (a)—which is to be found at line 11 on page 4 of the Bill—he has to make "a statement in writing" that he is to be in charge of the patient's medical treatment. Although I appreciate that my noble friends will not find that explanation to be totally satisfactory, I hope that they will seek to withdraw their amendments on this occasion.

2.30 p.m.

Lord Mottistone

I thank my noble friend up to a point. She has gone no further than the reply that was given on Tuesday. I shall certainly return to the matter at the next stage of the Bill to try to improve the situation because I do not accept the argument that there will be exceptional cases—or whatever were the words my noble friend used—when it will not be necessary for the person to have the experience of mental illness that we are seeking. I do not believe that that is a good argument. If I may say so, it is a little stubborn on the part of all those concerned to insist on it. As to whether we return to the matter of whether a CRMO agrees in advance to the provision, that is not to my mind quite so important. However, I shall certainly return to the first part of my amendment at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Haig moved Amendment No. 137:

Page 34, line 33, after ("who,") insert ("having been approved by the Secretary of State for the purposes of section 12 above, and").

The noble Earl said: As my noble friend Lady Cumberlege explained on Tuesday, the Mental Health Act Commission's remit is limited to detained patients. This is a probing amendment whose purpose is to extend the role of the Mental Health Act Commission to include patients subject to Clause 1 of the Bill who are receiving care in the community. The proposal is in keeping with the existing role of the commission with regard to reviewing those patients subject to Part IV of the Act which concerns consent to treatment. Furthermore, this would enable the commission to develop amendments to the code of practice, in accordance with the proposal contained in paragraph 16 of Schedule 1 based upon actual instances investigated by commissioners.

Such a policing role must help in the development of good practice in the operation of aftercare supervision, and perhaps aftercare provision in general. I share the concern expressed by some Members of the Committee about giving too much power to doctors and supervisors. Given the possibility of considering the rights of patients through the mental health commission over questions of discharge and readmission, I believe the opportunity should be taken advantage of. That would keep a balance between medical needs on the one hand and civil liberties on the other. I beg to move.

Baroness Cumberlege

Because the Secretary of State's duties under Section 120 of the 1983 Act are delegated to the Mental Health Act Commission this amendment would effectively extend that body's remit. The commission plays a valuable role in protecting the rights of detained patients. At the point when a supervision application is made the patient will be detained in hospital and the commission will be able to review the way procedures are operating. Once they have left hospital and are living in the community we do not see the need for a body to protect their rights in the same way as those who are formally detained in hospital. We believe there are sufficient safeguards built into the Bill.

The commission's remit has never included those subject to guardianship and for the same reasons we do not favour extending it to them now. Scotland's mental welfare commission has a role in relation to community care orders but this reflects the very different legal set-up in Scotland. The mental welfare commission effectively combines the role of the Mental Health Act Commission and mental health review tribunals in England and Wales. Patients subject to aftercare under supervision will, as we have remarked on earlier amendments, have access to mental health review tribunals. I understand this to be a probing amendment by my noble friend. I hope that his efforts have been rewarded by my reply.

Earl Haig

I thank my noble friend for her explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 138 not moved.]

Schedule 1 agreed to.

Schedule 2 [Community care orders: supplementary]:

Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 139:

Page 39, line 23, at end insert:

("Consent to treatment

( ) In section 96(1) of that Act (consent to treatment) there shall be inserted the following paragraph— (d) a patient under a community care order who has been detained in hospital for assessment under section 35F(4) (a) of this Act.".").

The noble Lord said: I have to confess that I have been re-reading this amendment. I should like more confirmation from both the medical and legal people who have been advising me because the matter is not clear. However, I want to give the Minister an indication that I may return to the matter at the next stage. I shall not move Amendment No. 139 at this stage.

[Amendment No. 139 not moved.]

The Earl of Mar and Kellie moved Amendment No. 140:

Page 39, line 27, leave out ("wilfully").

The noble Earl said: The amendment aims to make the offence of ill-treating or neglecting a community care order patient more meaningful and to raise the priority level given to such patients. By eliminating the word "wilfully" it would be easier to determine whether an offence had been committed. To retain the word would allow a plea that the neglect had been accidental or, for example, that it was the result of there being a shortage of staff. By striking out "wilfully" it becomes a simple matter of establishing that the patient has been neglected, with dire consequences for medical and social work managers.

I believe that this draconian-sounding measure would be helpful in establishing the priority to be given to this particular client group. I acknowledge that Section 105 of the 1984 Act would need to be consequentially amended if the amendment were accepted. I must admit to be seeking to protect the position of the staff who will be involved in community care orders in future. I beg lo move.

The Earl of Balfour

Again, from a purely practical point of view, if the word "wilfully" were left out, it would be extremely difficult for anyone dealing with such a case to prove it. I believe that the word is definitely needed.

The Earl of Lindsay

I am grateful to my noble friend for that rather brief explanation and declaration of intent on the amendment.

New subsection (2A) proposed for Section 105 of the 1984 Act is consequential on the provisions on community care orders and makes it an offence for any individual to ill treat or wilfully neglect a patient in respect of whom a community care order is in force. The same offence of ill treating or wilfully neglecting already exists in relation to in-patients, out-patients and patients in guardianship or otherwise in custody or care. There is no scope for creating a different offence of "neglecting" rather than "wilfully neglecting" a patient in this existing section, and we do not think that we should do so.

The noble Earl pointed out that there would be quite a lot of consequential work to be done by draftsmen in the event of that being the case. However, I stress to him that whatever he feels about the word "wilfully", ill treatment still remains an offence. With those thoughts, I hope that the noble Earl is able to withdraw the amendment.

The Earl of Mar and Kellie

I note that both noble Earls prefer a rather more liberal view of how the offence might be described. Noting that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

House resumed: Bill reported with amendments.