Lords Sitting of 1 May 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers— Read by the Lord Bishop of Exeter.

The Building Industry
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What proposals they are considering to stimulate and assist the house building and construction industries.
The Minister of State, Department of the Environment (Viscount Ullswater): My Lords, the Government work with these industries on a wide range of initiatives to promote productivity, innovation and competitiveness.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that wide-ranging Answer. There is of course no question at all that an expanded house building programme of properties for rent would benefit the building industry. I wish to concentrate on the latter part of my Question regarding the building industry. There appears to be general agreement among all sections of the building industry that legislation is required for what is known as a construction contracts Bill. I understand that a commission formed by the Government under Sir Michael Latham is now looking at the situation with a view to bringing legislation forward. Is the Minister aware that almost all of those involved in the building industry are asking that such legislation be brought onto the statute book as quickly as possible in order to benefit their ailing industry? Can the Minister give an undertaking as to whether or not that will happen in the near future?
Viscount Ullswater: My Lords, I am sure that the noble Lord will be appreciative of the fact that the Government have given their support in principle to legislation. A consultation paper on legislative proposals on liability and latent defects insurance was published on 12th April. One on fair construction contracts—that was mentioned by the noble Lord—should be published shortly. I believe that the Construction Industry Board, which is chaired by Sir Michael Latham, has not stood still in wanting to put his recommendations forward.
Lord Mellish: My Lords, is the Minister aware that everyone recognises that the house building industry is in a parlous state? Why does the Minister not pick himself and the Government up and say that something will be done for house building, instead of messing about?
Viscount Ullswater: My Lords, construction output increased by 3 per cent, last year after three and a half years of decline. New orders held up well during the strong resurgence in 1993. I believe that some readjustment would be expected as construction emerges from recession. Public sector capital spending was high during the recession, boosted by government measures,
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and stood at record levels for three years. With recovery it is right, I believe, that private investment should rise to take its place.
Lord Bruce of Donington: My Lords, is the noble Viscount aware that completions of houses in 1994 were still some 30,000 below the figure that was achieved in 1979? Is not the fact of the matter that the Government are afraid of bringing supply and demand for housing into better balance because that might depress the value of existing houses and create further difficulties in the mortgage field?
Viscount Ullswater: My Lords, it depends on which measure one wants to judge these matters. However, the homelessness and bed and breakfast figures continue to fall. New lettings funded by the Housing Corporation plus new lettings provided by local authority investment should provide around 180,000 homes over the next three years. That is a substantial contribution to tackling housing need in the areas where it is greatest.
Lord Ezra: My Lords, will the noble Viscount indicate whether the Government are concerned about the results of the previous housing condition survey which showed the poor state of a large proportion of the houses in this country? Are not houses and buildings part of the national capital asset and will the noble Viscount indicate what the Government propose doing about making their condition better?
Viscount Ullswater: Yes, my Lords. I think that any survey which indicates such measures not only has to be looked at very carefully, but also the measures on which that survey is based. By no means do I believe that the conditions outlined by the survey indicate that the housing is not fit for human habitation. But certainly the construction industry and the Government are aware of that. They are putting large sums of money into insulation projects so as to make homes, especially for elderly and disabled people, more comfortable to live in.
Lord Stallard: My Lords, does the Minister accept—as it is universally accepted by everyone involved in housing—that there is a drastic shortage of affordable housing for the many thousands of people who are languishing on waiting lists because they do not earn enough and do not qualify for benefits? The housing corporations cannot supply their needs because they have to charge market rents; and local authorities cannot supply their needs because the Government will not release their money. Who, then, will build the affordable houses that everyone knows is the greatest need at present?
Viscount Ullswater: My Lords, that is why the balance of our housing programmes has shifted more towards low-cost home ownership schemes. It is not right to say that that harms the house building industry or fails to tackle housing needs. Grants to tenants to buy homes in the private sector creates additional demand that helps the house building industry.
Lord McIntosh of Haringey: My Lords, the Minister has just mentioned figures projecting 180,000 completions over the next three years. Will he confirm that the target for completions in the first three years of this

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Parliament was 153,000 but the actual number completed was only 87,000? Under those circumstances what credence can we give to his present forecasts?
Viscount Ullswater: My Lords, I am not satisfied that the noble Lord is equating like with like. However, I believe that the fundings, the lettings and the completions, together with the new lettings provided by local authorities, should provide 180,000 homes. As I indicated, the homeless and bed and breakfast figures continue to fall. We should pay great regard to that indication.
Lord Cledwyn of Penrhos: My Lords, the Government have failed to be helpful to the Aelwyd Housing Association in Wales, upon which many people depend for new housing at this time. Why is that?
Viscount Ullswater: My Lords, the noble Lord gives me little indication of how the Government have failed to be helpful.
Lord Cledwyn of Penrhos: My Lords, if I do that it will take me a long time. However, I shall write to the noble Viscount, and I hope that he will turn out to be more helpful than the Government have been in the past.
Viscount Ullswater: My Lords, I should be grateful to the noble Lord for more information, and of course I shall write back to him.
Lord Dean of Beswick: My Lords, in his reply to the second part of my supplementary question concerning the building industry, the Minister gave a rather broad answer about the present situation which is not in accord with what I read is happening in the building industry at present. Is he aware that between 400,000 and 500,000 building operatives are still unemployed? Is he also aware that there is a perceptible downturn in building activity almost across the board? Will the Government take that on board and do something to arrest that decline?
Viscount Ullswater: My Lords, the noble Lord is quite right in drawing attention to the fact that employment in the construction industry has declined. However, I am glad to say that that decline stopped last year. In addition, we have seen considerable productivity improvements, which typically run at about 3 per cent. to 4 per cent. per annum. Therefore, the construction industry is very well placed to take advantage of the fact that the economy is being well run at present.

British Banknotes and Coins
2.47 p.m.
The Earl of Kinnoull The Earl of Kinnoull asked Her Majesty's Government:
What consideration is being given to balancing the preponderance of coins in British currency by the introduction of a £2 or £3 note.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, the issue of banknotes is the responsibility of the Bank of
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England. The Bank has no plans to introduce a £2 or £3 bank note. However, the Royal Mint has recently carried out a public consultation exercise about the possibility of introducing a circulating £2 coin. The results are being evaluated but no decision has been taken.
The Earl of Kinnoull: My Lords, I thank my noble friend for that reply. Is he aware—I am sure that he is— of the strong popularity of the Scottish £1 note and the support in the United States for retaining the US dollar bill? Is not the Royal Mint a little out of touch in ignoring that support? How widely will the Royal Mint consult when considering this type of question?
Lord Mackay of Ardbrecknish: My Lords, in its consultation document the Royal Mint consulted major users and handlers of coins, such as the vending industry, banks and the retail industry, as well as special interest groups such as blind people and the elderly.
Dealing with my noble friend's first point about Scottish banknotes, one Scottish bank still issues £1 notes; but I had better not name it in case that is seen to be advertising the bank against its competitors. Yesterday I took a straw poll in Scotland. I am not entirely sure whether people are not gradually coming to see the advantage of the coin over what can be, increasingly, a grubby £1 note.
Lord O'Brien of Lothbury: My Lords, may I invite the Minister to urge on the Government the need to replace entirely our deplorable coinage? They could not do better than imitate the Swiss coinage. It is the most perfect coinage in the world, all graded, and all round as good coins should be. The largest coin, no bigger than our 50 pence piece, is worth between £2 and £3.
If the Minister is prepared to consider such changes, I can provide him with a complete set of the Swiss coinage. I shall be glad to donate it free of charge for that purpose.
Lord Mackay of Ardbrecknish: My Lords, I am not so sure that I should accept that offer of the Swiss coinage! However, I have little doubt that the Royal Mint will listen with interest to that point. With its specific shape, the 50 pence coin is one of the items on which the Royal Mint is consulting. However, the shape of coins is important for special groups such as the blind, who need to be able to identify the coin they are handling by the feel of it.
Lord Ezra: My Lords, if the coinage is to be looked at, and if we are to add a £2 coin, should we not eliminate some coins which cause trouble? My particular bête noire is the 5p. coin. It is so small that it becomes lost in the recesses of my pockets. For that to occur may be useful to HMG, but it is not very productive for me.
Lord Mackay of Ardbrecknish: My Lords, one does not wish the coins to be too large or too heavy. Certainly the 5p. coin obeys both those conditions.
Interestingly enough—perhaps I may jolt some of your Lordships' memories—when we moved to decimal coinage, there were eight coin denominations ranging from the halfpenny to half-a-crown. We currently have only seven coins, so we have lost one in the process of decimalisation.

Baby Milks: Promotion Restrictions
2.52 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn asked Her Majesty's Government:
What steps they are taking to control the promotion of artificial milk products for bottle feeding babies in NHS hospitals and the health service generally.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the advertising and promotion of baby milks are restricted by the Infant Formula and Follow-on Formula Regulations which came into force on 1st March 1995.
Baroness Castle of Blackburn: Does the Minister agree with all the healthcare authorities in this country that breast feeding is infinitely superior to bottle feeding both for mothers and for babies? Is she not alarmed that the rates of breast feeding in this country are falling? Is that not because the voluntary code embodied in the latest regulations failed to stop the promotional advantage of the manufacturers of bottle feeding products over our own health service? Is she aware that the manufacturers' association admitted in a letter to me a few days ago that it is spending £4 million to £5 million a year on promoting those infant formulae, whereas the Government are spending less than £130,000 a year?
Will the Government not listen to such authorities as the World Health Organisation, the British Medical Association, the Royal College of Nursing and 40 other healthcare professional bodies and ban the advertising and promotion of those products in the health service and healthcare centres?
Baroness Cumberlege: My Lords, we agree with the noble Baroness that breast is best; and we try to encourage women to feed their babies from the breast. However, the new regulations that have been introduced in fact put into legislation an agreement that has been running for over 10 years. Indeed, the instance of women breast feeding has not fallen. It has been about the same over the past decade at 63 per cent. If one considers how the lifestyle of many women has changed, I believe that that is good progress.
Nevertheless, the Government will invest more heavily in the campaign. From 22nd May to 26th May we have a sponsored national breast feeding awareness week; we have set up the national breast feeding working group; we shall be investing £50,000 in a training programme; and we support the three voluntary groups in this area which do so much to promote this very good cause.
Baroness Gardner of Parkes: My Lords, I must declare an interest as chairman of the Royal Free Hospital Hampstead NHS Trust. Is the noble Baroness aware that we have appointed a second breast feeding adviser? Many women require encouragement, in particular at the beginning if breast feeding is difficult. Will she confirm that that kind of practice is desirable in hospitals?
Baroness Cumberlege: My Lords, I am aware that my noble friend runs an extremely good NHS trust. I would expect her to take up this cause, as she has. I believe that
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she is absolutely right. What women need is consistency of advice. To have two workers advising women in this field is an excellent idea.
Lord Rea: My Lords, in December 1993 the Government issued draft regulations on infant formula milk advertising which followed the guidance of the WHO and the European directive and restricted advertising solely to professionals concerned with infant feeding. Why did the Government later change their mind? The present regulations allow advertising to mothers through the healthcare system, thus giving the advertisements a spurious professional authenticity.
Baroness Cumberlege: My Lords, the situation has not changed. We supported the adoption of the code by the World Health Assembly in 1981. That recommended a basis for action in member states. It was left to individual countries to decide how to give effect to those aims and principles in their own territories. We have never given a commitment to transpose every jot and tittle of the WHO code into UK law. We believe that the regulations strike the right balance. They reflect our commitment to promote breast feeding and to deregulation where appropriate. Nothing has changed. All we have done is to ensure that the voluntary code, which has been operational for 11 years, is now enshrined in legislation in line with the WHO principles.
Baroness Sharples: My Lords, does my noble friend agree that it may be better to allow women to choose for themselves how their infants should be fed? Perhaps women know best.
Baroness Cumberlege: My Lords, we very much support the view that it is up to women to make their own decisions. However, we also want to promote breast feeding where that is appropriate.
Baroness Castle of Blackburn: No one is suggesting that women should be prevented or prohibited from using bottle feeding formulae if they so choose. We object to women being submitted to promotional pressure by those with vested interests in bottle feeding at the most vulnerable times for women—in the maternity wards, the health clinics and the healthcare centres. Is such pressure not a disgrace? Is the Minister aware that five European countries have introduced the ban advocated by the World Health Organisation with very beneficial results? The result in Norway, for instance, was that breast feeding rates rose to 99 per cent. on a free choice basis.
Baroness Cumberlege: My Lords, I do not think that women are silly. I believe that they know what is best for themselves, their babies and, indeed, their families. The new regulations ban all forms of general advertising and promotion of infant formulae to the public at large. Advertisements are permitted only in publications specialising in baby care and distributed through the healthcare system or in scientific and trade journals. Those advertisements are not seen by the general public. The content and presentation of all the advertisements are tightly controlled by the regulations.
I do not believe that there is a huge issue here. We are simply doing what has been done for 11 years. However, we are putting more effort and investment into promoting

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breast feeding because we recognise that it is better for mothers and their babies. But in the end it is up to women to make the choice.

Turkey: Human Rights
2.59 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
Whether they will ask the chairman-in-office of the Organisation for Security and Co-operation in Europe to call the attention of the OSCE Permanent Council to the violations of the Budapest Declaration in the emergency region of Turkey.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the chairman-in-office is aware of the shortcomings in Turkey's human rights performance. We understand an OSCE Parliamentary Assembly delegation is visiting Turkey this week.
Lord Avebury: My Lords, does the noble Baroness recall that the Budapest Declaration stated that armed forces will take due care to avoid injury to civilians and their property, and that they will not limit the peaceful and lawful exercise of their human and civil rights by persons, nor deprive them of their cultural or linguistic identity? Is not the fact that 2 million people have been forcibly displaced from their homes in the south-east of Turkey, and something like 2,000 villages and hamlets have been demolished, a large violation of the Budapest Declaration? In the case of Chechnya, the OSCE undertook two missions to the territory and subsequently stationed a permanent mission in Grozny. Does the noble Baroness therefore consider that a mission to the south-east of Turkey is justified, and that a permanent mission should be stationed in the capital of Diyarbakir?
Baroness Chalker of Wallasey: My Lords, I understand exactly what is in the Budapest Declaration. I have it here and read it again this morning. On the noble Lord's point, as I said in my initial reply, we understand that there are major problems. However, through the OSCE Permanent Council there is a multilateral forum in which we wish Turkey to continue to participate.
The noble Lord is also right that the chairman-in-office, a Hungarian by birth, has done excellent work on Chechnya. Obviously, he exercised a little political judgment. That work is now also continuing for Turkey, and I am delighted that the Turks will receive a visit by the OSCE parliamentary assembly delegation next month. I am certain that we shall hear a great deal more of it because the work is being carried out thoroughly by chairman Kovacs.
Lord Archer of Sandwell: My Lords, will the noble Baroness confirm that membership of the CSCE, the Council of Europe and the European Union all entail respect for the rule of law? Whatever else that may require, it is inconsistent with persecuting lawyers simply because they appear for clients of whom the government disapprove. Will Her Majesty's Government make it clear
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to Turkey that it will not be acceptable as a full member of the European community of nations until it discontinues that practice?
Baroness Chalker of Wallasey: My Lords, the answer to the noble and learned Lord's first question is yes. We have taken every opportunity to make known to the Turkish Government our anxiety over their human rights performance overall. We have emphasised time and time again the need for improvement. The Council of Europe Parliamentary Assembly has reiterated its deep concern about human rights in Turkey. It has called for Turkey to bring its constitutional laws into line with the Council of Europe's standards. We know full well that the European Parliament will not agree to various proposals until Turkey puts its house in order. Therefore, all those bodies are working on the subject.
However, we should always remember one point: the closer Turkey is to western institutions, the better locus we have to put across our anxiety on human rights and the rule of law, and the more influence we can bring to bear. That is most important. Of course, I agree with the noble and learned Lord about the persecution of lawyers—and not just persecution but even the killing of some lawyers.
Lord Bruce of Donington: My Lords, will the Minister agree that it is unfortunate that the Turkish Government are able to quote in their own defence the outrageous breach of the Budapest Declaration by President Yeltsin against Grozny which happened seven days later?
Baroness Chalker of Wallasey: Indeed, my Lords; not for the first time I agree with the noble Lord, Lord Bruce.
Lord Rea: My Lords, is the noble Baroness aware that on the recent inaugural broadcast of the Kurdish satellite television programme in which I took part, I was able to hold a broadcast telephone conversation with Mr. Ocalan, the leader of the PKK, the so-called separatist terrorist organisation? He stated that he was willing to lay down his arms at any time if the Turkish Government would do the same, in order to start talks with an open agenda. Can we persuade the Turkish authorities—to use an old adage—that jaw-jaw is better than war-war?
Baroness Chalker of Wallasey: My Lords, I did not know that the noble Lord, Lord Rea, had appeared on that programme with Mr. Ocalan. I agree that if that were all that Mr. Ocalan said or did—that is, jaw-jaw rather than war-war—it would be better. However, the PKK leader has undoubtedly been involved in things that are a long way from jaw-jaw and much more like war-war. That is why there is objection to him. It is also why there is great anxiety that any broadcasts made with people like him should be made in the interests of restoring human rights and the rule of law and getting away from the terrible fighting that we have seen in Turkey.
Lord Stallard: My Lords, the noble Baroness mentioned the ideal approach being to bring the Turks into the western arena. Does she accept that since 1974 that has failed? What has resulted is an intransigence on the part of the Turkish authorities and the Turkish

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Government, preventing any real attempt at a solution. Is it not time that the United Kingdom Government changed their mind about their own approach?
Baroness Chalker of Wallasey: My Lords, I do not agree with the noble Lord, Lord Stallard. What I said some moments ago is important. We need to have Turkey within the sphere of western influence if we are to put across our concerns and if we are to achieve change. I have no doubt that the best approach to Turkey is dialogue. That dialogue needs to be carried on at all levels. It may not succeed and we may have grave problems with it; but I see a situation in Turkey with a government with a narrow power base where it is sometimes difficult to achieve the kind of democracy that we in this country are used to.
Baroness Blackstone: My Lords, I accept the desirability of trying to keep Turkey within the sphere of western influence, and of course the desirability of dialogue. Nevertheless, will the Minister agree that until Turkey complies with international law—which it has certainly failed to do with respect to its invasion of northern Iraq—and until it improves its human rights record, in particular regarding the Kurds, it is premature for Turkey to enter a customs union with other member countries of the European Union?
Baroness Chalker of Wallasey: My Lords, I have a great deal of sympathy with what the noble Baroness said. We know that the incursion into northern Iraq was aimed at destroying the PKK capability to mount attacks against Turkey. But there is no doubt that the non-combatants in the region should not have been affected. It seems that they certainly have been. However, troops are withdrawing and that is a substantial step in the right direction—not before time. We look to the Turks to abide by their undertaking to withdraw fully at the earliest opportunity. Until that happens, and until there is an improvement in the way in which the Turkish Government operate the rule of law, I do not believe that the customs union will come about. That is important for us and is certainly important in influencing that government's better relationships with their own people.
Baroness Gould of Potternewton: My Lords, the Minister quoted from the decision of the Council of Europe last week. Are the Government fully in accord with that decision and all the clauses of the resolution?
Baroness Chalker of Wallasey: My Lords, I would be foolish to say that the Government agreed with every single word; but certainly as to the general tenor of it, I can assure the noble Baroness that the answer is yes.

Road Traffic (New Drivers) Bill
3.8 p.m.
Brought from the Commons; read a first time, and to be printed.

Olympic Symbol etc. (Protection) Bill
Read a third time, and passed, and returned to the Commons with amendments.

Mental Health (Patients in the Community) Bill [H.L.]
3.9 p.m.
Report received.
Clause 1 [After-care under supervision]:
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 1:
Page 1. line 10, leave out ("is liable to be") and insert ("has been").
The noble Lord said: My Lords, I beg to move Amendment No. 1 and I believe it would be convenient to take with it Amendment No. 2, also in my name. Those and the several other amendments to which I have put my name on the Marshalled List have been put forward by the Federation of National Health Service Trusts, of which the trust of which I have the honour to be chairman is a member.
I begin by apologising to my noble friend on the Front Bench and to the House for tabling amendments so late in the day. I am warmly in support of this piece of legislation and had every confidence in my noble friend's ability to steer it through the House. It did not seem that it required any assistance from me in the earlier stages.
I approach the Bill from the point of view of those who will have to operate the new provisions in Forest Health Care Trust. I insisted that the Christopher Clunis report should be read by every single member of the staff who had anything to do with the care of mentally ill patients, whether in hospital or in the community. There is no doubt that many of the lessons from that report have been learnt. Based on that case and a number of others, we have the provision for a supervised community care order which forms the heart of the Bill. Therefore I have no quarrel with the substance.
The amendments that I tabled last week have only one purpose; namely, to address what those who are out in the field and who have to operate the legislation see as difficulties, indeed anomalies, in the wording of the Bill. It is my hope that simpler and clearer wording will ensure that the responsibilities, in some cases quite heavy, imposed by the Bill on the statutory agencies and the individual professionals involved are more easily understood and therefore better fulfilled.
Like other noble Lords, I found the Notes on Clauses which the Government made available to the House extremely helpful. Perhaps I may draw the attention of the House to the first two paragraphs. The first, under the heading "Summary", states:
"Clause 1 introduces eight new sections to follow section 25 of the Mental Health Act 1983 … These provide a new legal framework for supervising the after-care in the community of certain patients"—
and I draw attention to the next few words—
"who have previously been detained in hospital for treatment under the 1983 Act, and who are considered to need this form of supervision to help to ensure that they receive the necessary care and support".
Paragraph 2 states:
"Clause 1 introduces into the 1983 Act a new concept of after-care under supervision to be available for people with a mental disorder who have left hospital after being detained under the 1983 Act".
I therefore find it very puzzling that, in referring to this matter at the outset, the Bill refers to patients who are,
"liable to be detained in a hospital in pursuance of an application for admission for treatment".

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That is why the amendment that I have tabled reflects, I believe, more accurately the intention of the Bill; namely, it relates to patients who have been detained. Instead of having an "application" for admission, the Bill could simply refer to an "order" for treatment. For the life of me I cannot understand why one has to go into all this hypothetical business about dealing with patients who are liable to be detained.
It is clear, is it not, that the provisions of this Bill apply only to aftercare under supervision for those who have been detained. If that is the case, why should not Clause 1 (1) of the Bill actually say so?
Baroness Cumberlege: My Lords, as I understand the amendments tabled by my noble friend, they seek to address what professionals have advised him are anomalies in the Bill. My noble friend wishes to emphasise that aftercare under supervision depends on the operation of Section 117 of the Act, and I understand that he has been advised that this applies only to patients who have actually been detained, as opposed to those who are liable to be detained. As I understand it, my noble friend wishes to change the definition of eligible patients to reflect this.
These amendments would allow the application to be made only after the patient had ceased to be detained. It is a basic principle in the Bill that the application is made while the patient is still detained or liable to be detained so that aftercare under supervision can take over from detention without a break. In practice, a patient may remain in hospital informally after the application has been accepted, but if he or she then leaves, supervision immediately comes into force.
The term "liable to be detained" is needed so that the definition includes detained patients who are on leave of absence, as well as those who are actually detained in hospital. Section 117 aftercare does in fact apply to those who are on leave of absence. That is made clear in the Mental Health Act code of practice. We wish to ensure that someone who is on leave of absence may be made subject to aftercare under supervision when their period of liability to detention ends.
It is very unlikely that anyone who is liable to be detained will not actually have been detained at some time. Even if there were such people, paragraph (b) would limit the scope to those who had actually been detained because the application could be made only if the patient was entitled to receive aftercare services under Section 117.
The whole purpose of the Bill is to formalise aftercare services for the most immediately vulnerable patients—those who have been recently detained because of the severity of their mental condition and those who, on discharge, must receive aftercare under Section 117 of the Mental Health Act 1983. I believe that my noble friend and I are at one in ensuring that all those who are entitled to Section 117 aftercare receive it. Health and social services authorities have a duty to provide aftercare services to those who have been detained or who are liable to be detained under Sections 3, 37, 47 or 48 of the Act.
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The Bill as drafted will ensure that those patients who are eligible for aftercare under supervision will receive the necessary services provided the criteria are met.
I can assure my noble friend that the Bill as drafted secures what he hopes to achieve. If these amendments are pressed it could lead to some unfortunate and unintentional results. I therefore ask him to reconsider his amendments in the light of my explanation.
Lord Jenkin of Roding: My Lords, I am very grateful to my noble friend for that very full explanation. In the course of her reply she used the phrase,
"who have been detained or who are liable to be detained".
If the Bill stated that, it would meet my case absolutely. I wonder whether between now and Third Reading my noble friend would consider whether, given the notes that I quoted, it could be made perfectly clear that this clause applies only to patients who have been in hospital and it does not apply to somebody who has not been detained—though I take the point about those who may be about to be detained and for whom the order needs to be considered. If it referred to patients who "have been detained or are liable to be detained", that would make it abundantly clear to those who have to operate the legislation. As I said in my opening remarks, as with all mental health legislation it is a matter of enormous concern to everybody involved that they follow the legislation meticulously. There is plenty of litigation if they do not. I hope that perhaps my noble friend might be prepared to consider that point before the final stage of the Bill. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Lord Campbell of Croy Lord Campbell of Croy moved Amendment No. 3:
Page 2, line 5, after ("suffering") insert ("or has suffered").
The noble Lord said: My Lords, Amendment No. 3 and my later amendment arise from questions raised by a leading psychiatrist based at a well-known hospital and dealing particularly with schizophrenia. These questions arrived after Committee stage. As we know, this Bill was brought forward quickly and obtained a place in the legislative Session. I was glad about that, but it meant that some of those working in the field were not able to comment at the early stages. These questions also reflect queries from some of his colleagues. I have been able to reply to him on some of the points, which were anyway answered by my noble friend Lady Cumberlege in Committee.
The intention of the Bill is to provide care and supervision for the mentally ill who become incapable of rational actions, cannot look after themselves and may also be dangerous to themselves and others. As it stands, the wording is "is suffering from mental disorder". It does not appear to take into account the ups and downs of mental illness, especially with schizophrenia. A sufferer may have days or weeks in a good state but could then have a serious relapse and indeed he may have a history of relapses. There could be substantial risk if such a patient on discharge from hospital could not be placed under a supervision order.
I am encouraged by the Government's acceptance recently in another place of an amendment on the Disability Discrimination Bill. In that Bill the definition of disabled people includes someone who has suffered from mental illness. That appears to recognise the point that I am making.
Perhaps I may illustrate that point in another way. Several days ago a television programme was presented by Marjorie Wallace, who has campaigned for understanding and suitable and sensible treatment for mental illness. About 10 years ago in your Lordships' House I drew attention to the excellent series of articles on the subject written by her and published in The Times. In that well constructed television programme appeared Mr. Ben Silcock, who had jumped into the lions' enclosure at the zoo. He testified personally to the varying conditions of his schizophrenia and how he could be normal for periods and then have dark periods of insanity which caused him to perform crazy and dangerous acts, such as his escapade at the zoo. After all, that is the origin of the word "schizophrenia". It refers not so much to a split personality as to changing moods, impulses and conduct at different times.
Therefore, I hope that in her reply my noble friend will be able to indicate whether the Bill as now drafted will cater for those situations or whether it needs to be altered.
I hope that the House will not be surprised to see me sitting with my leg up on the Bench and not consider that I am being casual or in any way disrespectful to the House. I should explain that at the end of last week a thrombosis was diagnosed in a disabled leg, for which I am being treated and on medication. I am supposed to keep the leg horizontal as much as possible. I am sure that those in the medical profession will understand what that means. I am trying to obey doctor's orders, unlike some of the mental patients whom we are considering. Over the weekend, my doctors in Scotland, rather than forbidding me to come to your Lordships' House, encouraged me to come when they heard that I would be speaking again on this Bill. But they requested me to observe their advice about the position of the leg. I beg to move.
3.30 p.m.
Baroness Cumberlege: My Lords, I am very sorry that my noble friend suffered a thrombosis. I wish him a very speedy recovery. As I understand his wishes, he is anxious to broaden the scope of the aftercare under supervision to include those patients who have suffered from one of the forms of mental disorder which are set out at new Section 25A(4) (a). That would mean patients who are no longer adjudged to be mentally disordered at the time of the application. I appreciate that it would still mean that the other conditions of new Section 25A(4) would have to be satisfied before the supervision application could be accepted.
My noble friend drew a correlation with the disability Bill which is currently in another place. That Bill brings in provisions whereby disability for the purposes of protection against employment discrimination would include forms of mental impairment, including severe mental illness such as schizophrenia.
1212
The impairment in this context would have to have a long-term daily substantial effect on the ability to carry out normal activities. There is, I believe, no intention of including those who are deemed to have suffered from, say, schizophrenia in the past. Nor is that our intention under this legislation.
My noble friend's amendment would conflict with a basic principle of the 1983 Act. The existing compulsory powers of the Act—detention in hospital or a nursing home; and guardianship—are employed only while someone is suffering from a mental disorder, and the patient has basic rights to have the case reviewed by a mental health review tribunal, which will need to be satisfied that the basic criteria for the use of the power is met. We propose the same regime for aftercare under supervision. Indeed, to do otherwise would risk contravening the European Convention on Human Rights.
I should also point out that the threshold for receiving aftercare under supervision is different from that to being detained in hospital. Under the present Bill the patient's mental disorder does not have to be of a nature or degree justifying his or her detention. So we are already making the new power available to a wider group of patients, but we think it would be going too far to extend it to people who currently are not suffering from mental illness at all.
Perhaps I may add that the Bill was based on proposals which were published in August 1993 and were the subject of wide consultation. Full account was taken of the comments made. In the light of those remarks, I hope that my noble friend will feel able to withdraw his amendment.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for such a full reply, which I shall convey to those who have raised this matter. I hope that there will be adequate arrangements in the final legislation for relapses where sufferers from mental illness, particularly schizophrenics, seem perfectly normal but then have one of their really dark periods. I am grateful to my noble friend and beg leave to withdraw the amendment.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 4:
Page 2, line 22, at end insert:
("( ) For the avoidance of doubt, a person to whom a duty is owed under section 117 below shall be deemed vulnerable as a result of mental illness under section 59(1) (c) of the Housing Act 1985 (Priority need for accommodation).").
The noble Baroness said: My Lords, the importance of this amendment cannot be underestimated. In terms of the need to have an acceptable package which will provide an environment in which someone can have the right to care and treatment, housing is an integral part. Because of the nature of the illness involved, the normal housing priority considerations may well not apply. It may well be that the individual concerned is not without a roof over his (or her) head. He or she may well have a room in a home with other members of the family, but it may be singularly inappropriate in the view of those considering the care package for that accommodation to be taken up.
Given the shortage of housing and the difficulty of finding it, it is critically important for that category of people—I cannot say how many are involved; perhaps at this stage I could press the Minister to be a little more specific about the numbers that the Government envisage might be involved with this legislation—that proper housing is part of the care package. Therefore, it is also critically important that a patient should be deemed to be, absolutely beyond any kind of argument, a priority need in terms of housing availability. I beg to move.
3.30 p.m.
Baroness Jay of Paddington: My Lords, I rise briefly to support my noble friend, who mentioned all the principles that lie behind the amendment. I wish to draw your Lordships' attention to one specific case which came to my notice after we debated this amendment at Committee stage. I hold in my hand the report of an independent panel of inquiry to the City of Westminster, the Kensington, Chelsea and Westminster health authorities and the North West London Mental Health Trust on the case of a mother and son, Ellen and Alan Boland, both of whom died.
I draw your Lordships' attention to this case because it illustrates clearly the points made by my noble friend about how inadequate housing may exacerbate the mental health problems of an individual. Mr. Alan Boland, one of the people who were the subject of the inquiry, was under the care of the local health authorities and attending a day hospital for his mental condition. He lived jointly with his mother, Ellen Boland, in a council flat. His relationship with his mother was particularly difficult and the people looking after him said that it seriously exacerbated his mental condition. Unfortunately, he later murdered his mother and six months ago committed suicide in Wandsworth Prison.
The problem as it relates to this amendment was that although his medical carers and the social services involved in his case applied several times—I imagine they made dramatic pleas given the circumstances and the final outcome —for him to be rehoused, the report states that,
"There was a considerable lack of urgency about his particular case. There was a lack of understanding by officers in charge of the housing of the exact nature of his problem".
Alan Boland was described in the report as having been a "cipher" on the housing list.
When the report was published various practical recommendations were made and, with your Lordships' permission, I shall quote them in a little detail. They fulfil some of the criteria which, at Committee stage, the Minister suggested would be good practice at local level. For example, one recommendation said:
"The Westminster Housing Department and its medical adviser, together with the medical practitioners and health authorities in the borough, should establish a formal mechanism through which they develop and keep under review the medical criteria and application procedures for obtaining priority housing on medical grounds".
The policy and procedures group, which arose from another recommendation of the housing department,
"should improve the scope and quality of the advice it provides to housing officers on how to implement policies and on the procedure that the group lays down. The housing department should examine the
1214
nature and location of the guidance given by senior managers to junior housing officers in cases of particular complexity. The housing department should, as part of service development, examine its procedures, publications, standard letters and other communications to ensure that they are clear, comprehensive and comprehensible".
If all those recommendations are accepted by the local authorities concerned, they will become an outstanding example of good practice. I refer your Lordships to the Minister's response to a similar amendment at Committee stage where, at col. 165 of the Official Report on 4th April, she said that it must be for local agencies to determine priorities. My concern is that if every local agency must suffer a tragedy similar to that I described, which happened close to our doors here in central London, it would be much more sensible for the legislation to be drafted in such a way that it establishes the vulnerability of people who are under these orders so that they become, automatically, priorities of local housing agencies and the difficulties of which I spoke are not likely to arise. I am reminded of the arguments that we rehearsed some 10 years ago in relation to the question of children on "at risk" registers when we argued that it was awful if every local authority had to suffer some individual tragedy which then had to be the subject of a public inquiry before national guidelines were set.
When replying to a similar amendment at Committee stage, the Minister said that not all people under the terms of the Housing Act and the terms of my noble friend's amendment, would be described as "vulnerable". I have been advised that that cannot be the case; that anybody who comes under one of the supervision orders must be vulnerable within the meaning of the Act and therefore would be suitable for this treatment. For those reasons I support the amendment.
Lord Desai: My Lords, I rise briefly to support the amendment in the name of my noble friend. Whatever the technicalities, when one talks to people or reads the tabloids and more popular newspapers an impression is given that people are being released from hospitals to roam around the streets and that they are liable to cause great harm.
The Minister may deny that, but that is essentially the impression that most people have; that under care in the community something has slipped. It is felt that these people are either homeless or not being placed in homes where they are looked after. That impression will not go away unless something specific and clear is done about the housing of vulnerable people. That is why I say that it is in the interests of us all to do something that is clear and noticeable.
The Earl of Mar and Kellie: My Lords, this amendment brings this specific client group into a special category. Social services and the health authorities are already working at maximum priority. I hope that the Minister will be able to bring housing up to that level of priority.
Baroness Cumberlege: My Lords, as I understand it, noble Lords opposite are seeking to reintroduce an amendment which was proposed at Committee stage but are now suggesting that it should appear in a different part of the Bill. I am not clear about the significance of this repositioning, but I believe the effect would be the same;

1215
that is, to introduce a provision whereby all patients entitled to receive services under Section 117 of the Mental Health Act will be deemed vulnerable under the Housing Act 1985, whether or not they are subject to supervised discharge.
The consultation arrangements we have built into this Bill, its emphasis on inter-agency co-operation and communication, and the importance it attaches to care planning must mean that accommodation will rate highly in the considerations of all concerned. As I said when this was last discussed, it is for local agencies to decide where their housing priorities lie and we do not think it necessary or desirable to give all previously detained patients blanket vulnerability status in law.
The new power established by this Bill is rooted in Section 117 of the Mental Health Act 1983 which places a clear obligation on health and local authorities to provide for the aftercare services the patient needs. It would clearly be inconsistent with this not to ensure that the patient had an acceptable place in which to live.
Housing needs will be considered as part of the initial assessment and housing placements will relate to the total care plan. The suitability of this housing placement will, of course, be kept under review as part of the regular review of the aftercare services.
The noble Baroness, Lady Farrington, asked how many people would be covered by the Bill once it is enacted. The numbers will depend very much on how it is used. Our best estimate at present is around 3,000 people a year. We accept that the housing authorities have a key part to play. We believe that that is best covered by co-operation between the health authorities, social services and the housing departments rather than by a statutory requirement. I hope therefore that the noble Baroness will not press the amendment.
Baroness Farrington of Ribbleton: My Lords, I thank the Minister for that reply but must express disappointment. Her reply indicates a failure by the Government to recognise the pressures that exist on the limited availability of housing throughout the country and the vulnerability of this group of people. I feel therefore that I should test the opinion of the House.
3.39 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 78; Not-Contents, 132.

Division No. 1

CONTENTS

Acton, L.

Dean of Beswick, L.

Addington, L.

Dean of Thornton-le-Fylde, B.

Archer of Sandwell, L.

Desai, L.

Avebury, L.

Donaldson of Kingsbridge, L.

Banks, L.

Dormand of Easington, L.

Beaumont of Whitley, L.

Dubs, L.

Blackstone, B.

Elis-Thomas, L.

Bruce of Donington, L.

Falkender, B.

Carmichael of Kelvingrove, L.

Farrington of Ribbleton, B.

Cledwyn of Penrhos, L.

Gallacher, L.

Clinton-Davis, L.

Gladwin of Clee, L.

Cocks of Hartcliffe, L.

Gladwyn, L.

David, B.

Gould of Potternewton, B.

1216

Graham of Edmonton, L. [Teller]

Peston, L.

Prys-Davies, L.

Grey, E.

Rea, L.

Halsbury, E.

Richard, L.

Harris of Greenwich, L.

Robson of Kiddington, B.

Haskel, L.

Rochester, L.

Hollis of Heigham, B.

Russell, E.

Howie of Troon, L.

Sainsbury, L.

Hutchinson of Lullington, L.

Seear, B.

Hylton, L.

Sefton of Garston, L.

Jay of Paddington, B.

Serota, B.

Jeger, B.

Shepherd, L.

Jenkins of Hillhead, L.

Simon, V.

Jenkins of Putney, L.

Stoddart of Swindon, L.

Kilbracken, L.

Strabolgi, L.

Longford, E.

Taylor of Blackburn, L.

Lovell-Davis, L.

Taylor of Gryfe, L.

McIntosh of Haringey, L.

Tope, L.

Mar and Kellie, E.

Tordoff, L.

Mason of Barnsley, L.

Turner of Camden, B.

Merlyn-Rees, L.

Wallace of Coslany, L.

Milner of Leeds, L.

White, B.

Morris of Castle Morris, L. [Teller.]

Wigoder, L.

Williams of Crosby, B.

Nelson, E.

Williams of Elvel, L.

Nicol, B.

Williams of Mostyn, L.

Northfield, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Fraser of Kilmorack, L.

Addison, V.

Gainford, L.

Ailsa, M.

Gardner of Parkes, B.

Aldington, L.

Gray, L.

Alexander of Tunis, E.

Gray of Contin, L.

Ampthill, L.

Gridley, L.

Archer of Weston-Super-Mare, L.

Hailsham of Saint Marylebone L.

Astor, V.

Harding of Petherton, L.

Astor of Hever, L.

Hardinge of Penshurst, L.

Belhaven and Stenton, L.

Harmsworth, L.

Blatch, B.

Hayhoe, L.

Blyth, L.

Hogg, B.

Boyd-Carpenter, L.

Holderness, L.

Brabazon of Tara, L.

Hood, V.

Braine of Wheatley, L.

Howe, E.

Brookeborough, V.

Hylton-Foster, B.

Brougham and Vaux, L.

Inglewood, L.[Teller.]

Bruntisfield, L.

Ironside, L.

Burnham, L.

Jenkin of Roding, L.

Butterworth, L.

Johnston of Rockport, L.

Campbell of Alloway, L.

Kintore, E.

Campbell of Croy, L.

Kitchener, E.

Carnock, L.

Lauderdale, E.

Chalker of Wallasey, B.

Lindsay, E.

Chelmsford, V.

Lindsey and Abingdon, E.

Chesham, L.

Liverpool, E.

Clanwilliam, E.

Long, V.

Cochrane of Cults, L.

Lucas, L.

Constantine of Stanmore, L.

Lyell, L.

Courtown, E.

McColl of Dulwich, L.

Craig of Radley, L.

McConnell, L.

Cranborne, V. [Lord Privy Seal.]

Mackay of Ardbrecknish, L.

Mackay of Clashfern, L. [Lord Chancellor]

Crawshaw, L.

Cullen of Ashbourne, L.

Macleod of Borve, B.

Cumberlege, B.

Manchester, D.

Davidson, V.

Manton, L.

Dean of Harptree, L.

Marlesford, L.

Dixon-Smith, L.

Mersey, V.

Downshire, M.

Miller of Hendon, B.

Dundonald, E.

Milverton, L.

Eden of Winton, L.

Mottistone, L.

Elles, B.

Mountevans, L.

Elliott of Morpeth, L.

Mowbray and Stourton, L.

Finsberg, L.

Munster, E.

Foley, L.

Murton of Lindisfarne, L.

1217

Newall, L.

Shaw of Northstead, L.

Noel-Buxton, L.

Skelmersdale, L.

Norrie, L.

Soulsby of Swaffham Prior, L.

Northesk, E.

Strathclyde, L. [Teller.]

O'Brien of Lothbury, L.

Sudeley, L.

Oppenheim-Barnes, B.

Swansea, L.

Orr-Ewing, L.

Swinfen, L.

Oxfuird, V.

Swinton, E.

Peel, E.

Terrington, L.

Pender, L.

Teviot, L.

Plummer of St. Marylebone, L.

Teynham, L.

Rathcaven, L.

Thomas of Gwydir, L.

Rawlings, B.

Thurlow, L.

Renton, L.

Trumpington, B.

Renwick, L.

Ullswater, V.

Richardson, L.

Vaux of Harrowden, L.

Rodger of Earlsferry, L.

Vivian, L.

St. Davids, V.

Wade of Chorlton, L.

Seccombe, B.

Westbury, L.

Sempill, Ly.

Wise, L.

Sharples, B.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.47 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 5:
Page 2, line 22, at end insert:
("( ) The Health Authority and Social Services Authority shall, in providing after-care services, indicate how they propose to deal with the matters listed in section 117 and Schedule I below.").
The noble Baroness said: My Lords, in moving Amendment No. 5,1 wish to speak also to Amendments Nos. 6, 9 and 16. These amendments deal with the importance of the process whereby the care package which is deemed to be suitable is agreed and is checked for resourcing to be fully in place. In Committee and earlier this afternoon the Minister spoke about the importance of the process of working together. It is critically important that that process is set out and embedded in the legislation in order to ensure that all parties—all those with a role to play—dealing with this particularly vulnerable group of people have all the component parts of the care package in place to the professional satisfaction of those involved in the process of determining the care package. It is therefore vitally important that there is an explicit indication from the health authority and the social services authority in providing those services how they intend to deal with matters listed in Clause 117 and Schedule 1.
It is critically important for those with a professional responsibility who must exercise judgment in this critical and potentially dangerous situation that there is an opportunity for them to exercise that professional judgment, as Amendment No. 6 states, by incorporating and including the opportunity to refuse such a package as being inappropriate. It must also surely be the case that a health authority or social services authority should have the right to refuse a supervision order if it deems it to be impossible for it—that is, the authority—to meet the terms of that order in a way that it feels is professionally satisfactory.
Finally, the importance of Amendment No. 16 is that it stresses that the services must be available. It is not satisfactory when dealing with a very vulnerable group
1218
of people to say that the services in the package would be identified as satisfactory but that they are not fully available at all times to meet in full and in every way the needs that have been defined.
This is such a critical area that it is not necessary for me to remind your Lordships that the background to the legislation is what has happened when things go wrong and tragedy occurs and when there is a failure on the part of those who are supposed to be involved in the process of looking to the needs of both the patient and the community. It is therefore obvious that it is essential that all those professional components come together to the satisfaction of the authorities involved.
The Minister referred at previous stages to the consultation process and said that there will be consultation. All of us who have been involved in political and public life are aware that consultation can take a variety of forms. Perhaps the Minister will forgive me if I refer now to the fact that the consultation through discussion which has been pioneered at earlier stages of the passage of legislation is a good example. We have also in public and political life come across consultation with other parties which has taken the form of the delivery of a statement of intent with a request for comments, which are then duly noted, although the original intent is carried out without further to-do. In cases involving such a vulnerable group of people, it is critically important that that process does not occur. It is critically important that the process involves working together to mutual satisfaction to ensure that the package that is put in place will be effective, that it will be monitored and that it will meet the challenges. That is why this group of amendments deserves support. I beg to move.
Lord Rea: My Lords, I rise briefly to support my noble friend in this amendment. The Government should welcome this group of amendments because they put teeth into the aftercare package which should form part of a supervision order.
The amendment counters a criticism that has been made of the Bill—that the Bill substitutes an authoritarian legalistic measure for the proper care in the community which many people feel is the real thing that is lacking. If there was proper care in the community, the tragedies that we have seen would be less likely to occur. The amendments would ensure that a working package was put in place so that patients who were discharged would not feel lost but would know what was going to happen. The amendments would also ensure that the people who were going to help would know what their duties were.
Baroness Robson of Kiddington: My Lords, I should like to support Amendments Nos. 6 and 9 in particular. Without the provisos of those amendments, it is impossible to ask either the health authorities or the social services authorities to take on a responsibility which, willy-nilly, they will have to fulfil without the right to say, "We do not happen to have available the service that is required for that patient. We must refuse to accept him for the moment until we can organise being able to receive him into the community". Nothing

1219
would be more dangerous for a mental health patient than to be let out into the community without adequate provisions being made for his care.
Lord Thurlow: My Lords, I should like to support the amendment on the ground that it helps health authorities which are in the lead position in relation to the Bill. Anything that can be done to give power to the elbow of health authorities in their consultations and discussions with local authorities seems to me to deserve support. I therefore support the amendment.
Earl Russell: My Lords, it is proverbial that the impossible takes a little longer but, like most good jokes, it became a good joke because the real situation that it describes is not quite so funny. A lot of people have done on occasion what appeared to be impossible, but if one sets out to do the impossible, it must be a precondition that one has nothing else that one has to do. The trouble is that when an obligation is placed on an authority which has very scant resources or perhaps no services in place at all, the attempt to do the impossible must lead to the neglect of something else. We do not know what that something else might be. It might turn out to be something equally urgent or serious.
I have noticed over the past few years an increasing tendency, especially when dealing with local authorities, to deal with the question of shortage of resources by placing more and more stringent obligations on those local authorities in the hope of bumping up to the top of the queue whatever issue we are dealing with. It is beginning to be a bit like a rush to escape from a fire—and if we are not careful, it may end up the same as a rush to escape from a fire, with everybody falling over each other and a great deal more damage being done than need have been done. That is why I support this group of amendments.
The Earl of Mar and Kellie: My Lords, I rise to support Amendment No. 5. I believe that a detailed statement to prove that all the negotiations that should have taken place have taken place would be useful because I suspect that many of the authorities are still not very good at co-operating with each other.
Baroness Cumberlege: My Lords, most of these amendments were discussed in Committee and, as your Lordships are aware, the Government resisted them then. Although we have considered carefully the points that were made during that debate, we remain of our original view.
Section 117 ensures that the services will be specified because the detailed care plan drawn up by the multi-disciplinary team has to be attached to the application. There is nothing to be gained by insisting that the health and social services authorities repeat what is already in the care plan. As I have already explained, the Bill already allows that the health authority can refuse an application. Consultation with the local social services department will already have taken place before the application is made as part of the discussion with the care team whose duty it is to provide for the patient's care after he or she leaves hospital. The care plan must have been agreed by the local authority's representatives as far as it relates to the social care element. This is
1220
backed up by the requirement on the health authority to consult the local authority before it accepts the application.
We have already made it clear in the department's guidance to health and local authorities that the services required under Section 117 of the Act should be provided and organised in accordance with the care programme approach. The fact that the Bill defines aftercare under supervision by reference to the Section 117 duties should therefore ensure that the care programme approach is followed.
However, the care programme approach is not a statutory arrangement and we think there would be a risk of confusion if we tried to bring it more explicitly into the Bill. The form to which Amendment No. 16 refers is, we think, the aftercare check list which we have recently circulated to health and local authorities. The trouble about including this in the Bill is that its status is only advisory, so if an authority was using a different form the amendment would make it impossible for it to operate aftercare under supervision.
During the Committee stage noble Lords opposite pressed me on what would happen if the health authority rejected the application as they have done today, particularly the noble Baroness, Lady Robson, and the noble Lord, Lord Thurlow. The simple answer is that it would be "back to the drawing board". The patient would either remain in hospital if his or her period of detention had not yet expired or, if it had, he would be free to leave. If, however, the responsible medical officer in undertaking the necessary risk assessment before discharge, decided it would not be safe to release the patient then he or she would be detained once more. If the patient were discharged there would still be a duty to provide Section 117 aftercare, but it would be provided outside the framework of aftercare under supervision. In practice, I think a rejection by the health authority after consultation with the local authority will be very rare. The aftercare services will have been agreed by all concerned before the application is made and it is unlikely that any party will go back on its agreement unless there are exceptional circumstances. I hope the movers of these amendments will not press them.
Baroness Farrington of Ribbleton: My Lords, I have listened very carefully to the Minister's reply to the points raised. There still appears to be an unbridgeable gulf between the two positions in terms of what is necessary. It is very important that we continue to press the amendments. Therefore, I should like to test the opinion of the House on this amendment.
4.3 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 81; Not-Contents, 129.

Division No. 2

CONTENTS

Acton, L.

Kitchener, E.

Addington, L.

Longford, E.

Ailesbury, M.

Lovell-Davis, L.

Archer of Sandwell, L.

McIntosh of Haringey, L.

Avebury, L.

McNair, L.

Banks, L.

Mar and Kellie, E.

Beaumont of Whitley, L.

Mason of Barnsley, L.

Blackstone, B.

Merlyn-Rees, L.

Bruce of Donington, L.

Milner of Leeds, L.

Carmichael of Kelvingrove, L.

Morris of Castle Morris, L. [Teller.]

Cledwyn of Penrhos, L.

Clinton-Davis, L.

Nelson, E.

Cocks of Hartcliffe, L.

Nicol, B.

David, B.

Peston, L.

Dean of Beswick, L.

Prys-Davies, L.

Dean of Thornton-le-Fylde, B.

Rea, L.

Desai, L.

Richard, L.

Donaldson of Kingsbridge, L.

Robson of Kiddington, B.

Donoughue, L.

Rochester, L.

Dormand of Easington, L.

Russell, E. [Teller.]

Dubs, L.

Sainsbury, L.

Elis-Thomas, L.

Seear, B.

Falkender, B.

Sefton of Garston, L.

Farrington of Ribbleton, B.

Serota, B.

Fitt, L.

Shepherd, L.

Gallacher, L.

Stallard, L.

Gladwin of Clee, L.

Stoddart of Swindon, L.

Gould of Potternewton, B.

Strabolgi, L.

Graham of Edmonton, L.

Taylor of Blackburn, L.

Gregson, L.

Taylor of Gryfe, L.

Grey, E.

Thurlow, L.

Halsbury, E.

Tope, L.

Harris of Greenwich, L.

Tordoff, L.

Hollis of Heigham, B.

Turner of Camden, B.

Howie of Troon, L.

Wallace of Coslany, L.

Hylton, L.

Wharton, B.

lay of Paddington, B.

White, B.

Jeger, B.

Williams of Crosby, B.

Jenkins of Hillhead, L.

Williams of Elvel, L.

Jenkins of Putney, L.

Williams of Mostyn, L.

Kilbracken, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Clanwilliam, E.

Addison, V.

Cochrane of Cults, L.

Ailsa, M.

Constantine of Stanmore, L.

Aldington, L.

Courtown, E.

Alexander of Tunis, E.

Cranborne, V. [Lord Privy Seal.]

Ampthill, L.

Archer of Weston-Super-Mare, L.

Crawshaw, L.

Crickhowell, L.

Astor, V.

Cullen of Ashbourne, L.

Astor of Hever, L.

Cumberlege, B.

Barber of Tewkesbury, L.

Davidson, V.

Belhaven and Stenton, L.

Dean of Harptree, L.

Beloff, L.

Dixon-Smith, L.

Blatch, B.

Downshire, M.

Blyth, L.

Dundonald, E.

Boyd-Carpenter, L.

Elles, B.

Brabazon of Tara, L.

Elliott of Morpeth, L.

Brougham and Vaux, L.

Finsberg, L.

Bruntisfield, L.

Foley, L.

Burnham, L.

Fraser of Kilmorack, L.

Butterworth, L.

Gainford, L.

Cadman, L.

Gardner of Parkes, B.

Campbell of Alloway, L.

Gray, L.

Campbell of Croy, L.

Gray of Contin, L.

Carnock, L.

Gridley, L.

Chalker of Wallasey, B.

Hailsham of Saint Marylebone, L.

Charteris of Amisfield, L.

Chelmsford, V.

Hamilton of Dalzell, L.

Chesham, L.

Harding of Petherton, L.

1222

Hardinge of Penshurst, L.

Murton of Lindisfarne, L.

Harmsworth, L.

Noel-Buxton, L.

Hayhoe, L.

Norrie, L.

Hogg, B.

Northesk, E.

Holderness, L.

Oppenheim-Barnes, B.

Hood, V.

Orkney, E.

Howe, E.

Orr-Ewing, L.

Hylton-Foster, B.

Oxfuird, V.

Inglewood, L. [Teller.]

Peel, E.

Jellicoe, E.

Pender, L.

Jenkin of Roding, L.

Plummer of St. Marylebone, L.

Johnston of Rockport, L.

Rathcaven, L.

Kintore, E.

Rawlings, B.

Lauderdale, E.

Renton, L.

Lindsay, E.

Renwick, L.

Richardson, L.

Lindsey and Abingdon, E.

Rodger of Earlsferry, L.

Liverpool, E.

St. Davids, V.

Long, V.

Lucas L.

Seccombe, B.

Lucas of Chilworth, L.

Sempill, Ly.

Lyell L.

Shaw of Northstead. L.

McColl of Dulwich, L.

Skelmersdale, L.

McConnell, L.

Strathclyde, L. [Teller.]

Mackay of Ardbrecknish, L.

Sudeley, L.

Mackay of Clashfern, L.[Lord Chancellor.]

Swansea, L.

Swinfen, L.

Macleod of Borve, B.

Swinton, E.

Manton, L.

Tebbit, L.

Marlesford, L.

Terrington, L.

Merrivale, L.

Teviot, L.

Mersey, V.

Thomas of Gwydir, L.

Miller of Hendon, B.

Trumpington, B.

Mills, V.

Ullswater, V.

Milverton, L.

Vaux of Harrowden, L.

Mountevans, L.

Vivian. L.

Mowbray and Stourton, L.

Wise, L.

Munster, E.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 6 and 7 not moved.]
4.11 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 8:
Page 2, line 25, at end insert:
("( ) If, on the date when a patient ceases to be liable to be detained in a hospital under this Part of this Act, a supervision application has been made in respect of him but the Health Authority have not yet accepted the application, his liability to be so detained shall continue until the Authority either accept or refuse it.").
The noble Lord said: My Lords, with this amendment, I am taking part of the subject that we have just debated, because I wanted, if possible, to persuade the Minister that this aspect of the problem needs to be reconsidered. She made a few remarks which I did not think took us very much further.
As everyone knows, this matter was debated thoroughly in Committee. On these general subjects, my noble friend (at col. 123 of Hansard for 4th April) sought to persuade the Committee that there was no need for safeguards such as those contained in the amendment because of differences in law and procedure between Scotland and England. As your Lordships will know, the provisions contained in Amendment No. 8 are in the Bill for use in Scotland.
I wish delicately to suggest to my friend that that argument is a smokescreen. The important point is—this was touched upon by those noble Baronesses who spoke

1223
from the Benches opposite—that when people need to be in hospital, they must be retained there if there are no facilities to look after them in the community. In England and Wales, the health authority is required by the Bill to consult the social services authority about the provisions necessary. That may well take a great deal of time.
My noble friend said that there would be no question—she has just repeated it—of an application for a supervised discharge being accepted by the health authority before appropriate arrangements had been made. But in Committee she made no mention of the need for the patient to be detained, if otherwise due for release, until the arrangements for care were provided fully. She did, it is true, touch upon that point in relation to the previous group of amendments, but that does not convince me that there is no need for a safeguard in the form of my amendment, which would make certain that if the care arrangements cannot be achieved by the time the patient's liability to be retained runs out, the liability would be extended to allow more time for services to be organised, thus enabling the application to be accepted, or for the health authority to decide that it must be refused.
It is an important safeguard not just because it prevents the type of situations that have led to these amendments, but because it gives a simple and definite way in which the relevant authorities can take the action necessary to retain the patients who need to be retained, as, indeed, is the case in Scotland. It is marginally different from the amendments moved by the noble Baroness, Lady Farrington, in that it does not, of itself, put an extra cost on the care-in-the-community budget. The extra cost, such as it is, will lie with the hospital retaining the patient. That is a different matter.
Perhaps my noble friend could move slightly towards accepting the principle that her noble Scottish friends have accepted, to ensure—that is all it is—that people who should not be released into the community because there are not the facilities to accept them, shall be retained in hospital until such facilities can be provided. I hope that the amendment will be accepted. I beg to move.
4.15 p.m.
Lord Desai: My Lords, I support the amendment. The noble Lord mentioned the cost to the care-in-the-community service. There may be some additional financial cost; but we should mention against that that the cost of letting the person go if there are no facilities, will be much greater. We must balance the visible costs (financial) as against those which are contingent and which could be much greater. That would be sound economics.
Lord Milverton: My Lords, I hope that my noble friend the Minister will respond favourably to the amendment, because there is something in it. As others have said, it is not right that people should be sent out into the community without there being proper and full arrangements at hand to receive them.
Earl Russell: My Lords, this is a constructive and helpful amendment. I believe we all agree with what the noble Lord, Lord Milverton, has just said: we do not want patients discharged into the community if they have
1224
nowhere to go. That, I think we would agree, is the worst eventuality. What is needed here, which I believe the noble Lord, Lord Mottistone, has provided, is a safety valve.
Every now and then, Parliament, in its wisdom, enacts things which it is difficult to make happen. In 1563, for example, Parliament enacted that anyone who refused twice to take the Oath of Supremacy should be guilty of treason. That meant, in effect, that any Roman Catholic in the country was guilty of treason. The Queen merely instructed the Archbishop not to tender the Oath a second time. That is the sort of let out that the noble Lord, Lord Mottistone, has supplied to us. It is in a long and honourable English tradition. I am very glad to see it.
Lord Thurlow: My Lords, I support the amendment. As the noble Lord, Lord Mottistone, said, it may be that we are dealing with a marginal issue; but if I understood the Minister's comments on the previous group of amendments, it is likely that in any circumstances patients who fall into the category covered by the amendment would probably be retained in hospital. I am not sure about the procedures for that in certain cases. So to plug the gap, I hope that the Minister will feel able to support the amendment; but, if he cannot do so, to go some way towards bridging the gap by saying something about the principle.
Baroness Farrington of Ribbleton: My Lords, I too support the amendment, and ask the Minister to accept it. The situation for which the legislation is intended is not easy, and will inevitably take time to resolve. There must be confidence on the part of those who are afraid of people who may be released into the community without the right support. But much more important is that there must be confidence on the part of those people who are worried about members of their family or friends, and there must be the security of knowing where responsibility lies regarding who will care for the patient and continue to have that responsibility until the package is accepted, agreed, and in place.
Baroness Cumberlege: My Lords, as my noble friend Lord Mottistone said, the amendment was fully debated in Committee. As both he and I explained at the time, it reflects what is contained in Clause 4 for Scotland. New Section 35A(6) extends a patient's liability to be detained in cases where an application for a community care order has been made but the patient's liability to detention has meanwhile run out. In these cases, a patient's liability to detention shall be continued until a community care order is accepted or until the application for the community care order is turned down by the sheriff. The powers in England and Wales are framed differently from those in Scotland, reflecting the different legal arrangements in the two jurisdictions. This is not just a technical point; two important issues are involved.
First, it is possible to apply for aftercare under supervision while a person is liable to detention but for it to come into effect after the period of liability to detention has ceased. Section 25A(1) enables the supervision application to be made while a patient is liable to be detained and Section 25G(1) states that a period of six months (the initial duration of supervision) begins when the patient leaves hospital. If a patient were to leave

1225
hospital after the application had been made but before it was accepted, it would simply mean that there would be a gap during which the patient had left hospital but the provisions of aftercare under supervision had not yet actually operated. In practice, we believe that, having been consulted about the aftercare services he is to receive, the patient is more likely to remain as a voluntary patient for a short period until the application has been accepted, and aftercare under supervision will take effect as soon as he is discharged.
Secondly, we must remember the role of the body considering the application. In England and Wales the application will be made not to the equivalent of a sheriff, for none exists—or, to use the noble Earl's words, not in an honourable and noble tradition of this country—but to the health authority. Unlike the sheriff, the health authority, under its Section 117 aftercare duty, will be one of the bodies which is actually responsible for providing the services. The responsible medical officer in the hospital will have to ensure that those involved in the provision of the aftercare services have been consulted before making the application. Therefore, we cannot envisage a situation whereby there should be any delay in accepting the application because the services are not in place, which is the aspect which understandably concerns your Lordships.
I should add that my noble friend's amendment has, however, set us thinking about another issue in this area; that is, the effect of a custodial sentence on aftercare under supervision and upon community care orders. We may need to bring forward an amendment about this at Third Reading.
Aftercare under supervision is rooted in joint working, good communications and the understanding of all concerned of their role. I believe that the amendment is unnecessary and I ask my noble friend to reconsider the matter.
Lord Mottistone: My Lords, I thank my noble friend for explaining her point of view clearly. I am delighted to hear that my amendment has set her and her officials thinking. However, she does not appear to be thinking along the same lines as I am. I wish to try to detach the thinking from the explanation that, because some things happen in Scotland, the provision that appropriate people are released into the community only when the facilities exist for them should not have the underpinning for which I asked. That is quite apart from what happens to sheriffs in Scotland, which is nothing to do with the argument at all. Perhaps we can detach our minds from that.
My noble friend said that there might be a gap as a result of a delay in making a supervision order. It is those very gaps that worry us because it is then that some people climb into lions' cages. My noble friend also said that the person having been consulted about the kind of services that are required for him will possibly be only too happy to stay as a voluntary patient. Perhaps that will occur in many cases, but one wants to be sure once the procedure is set in motion.
There is a further approach but perhaps it is too late to deal with it at Third Reading in this place. However, Members of another place might consider it. It is a
1226
provision requiring the responsible medical officer to begin the process good and early before the end of the patient's time in hospital so that there is at least nine months to plan what is to be done with him. I am not sure that that suggestion is practicable because some people will not be exactly the same nine months later. Therefore, on one occasion one may set the process in motion and it will not be necessary; on another occasion one may not begin the process and it will be necessary. In that case, I am wedded to my amendment.
However, my noble friend has generously said that she is thinking about the subject, even though her solution may be different, with a view to proposing an amendment when the Bill reaches another place. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 10:
Page 2, line 29, at end insert ("in writing").
The noble Baroness said: My Lords, in moving Amendment No; 10 I shall speak also to Amendments Nos. 11, 12, 27, 41, 42, 44, 46, 48, 51, 53, 55 and 56. All the amendments deal with the crucial question of the way in which a patient who is to be made subject to a supervision discharge order is informed of its conditions and of his right to apply to a mental health review tribunal. We discussed the matter in Committee. Of the amendments in the group, only Amendments Nos. 10 and 12 stand in my name; the rest stand in the name of the noble Baroness, Lady Cumberlege. Your Lordships will therefore understand that we have reached almost total agreement on the subject, about which I am delighted.
However, before the Minister explains the Government's thinking behind this long list of amendments I wish to ask her about one small matter. In Committee we asked that when those in the health authority inform the patient, both orally and in writing, of his right to apply to the mental health review tribunal it should also be explained that he should be legally represented at the tribunal hearing. That provision appears in Amendment No. 12.
Is it possible for that additional provision to be contained in the Minister's amendments? She will remember that in Committee there was some discussion about the matter and it was not totally understood whether there was the ability to be legally represented at a mental health review tribunal. In fact, the noble Earl, Lord Balfour, said that he thought that it was not possible. After some discussion, the Minister corrected us and said that it was indeed possible.
Given that there was such a degree of confusion about the matter, even in your Lordships' learned House, it may be appropriate to put the provision on the face of the Bill. That would make it clear to patients and to those looking after them that the right is included in the Bill.
I am extremely grateful to the Minister for accepting and developing the amendments. As was said in Committee by my noble friend Lord Carter, it would be difficult to improve on the limpid clarity of "in writing",

1227
which is included in Amendment No. 10, but the Department of Health appears to have done so. I beg to move.
4.30 p.m.
Baroness Cumberlege: My Lords, I am very grateful to the noble Baroness for that introduction of the amendments. Perhaps I may say that in Committee we agreed to the two amendments moved by the noble Lord, Lord Carter.
These amendments have again been tabled by the noble Baroness, Lady Jay, and the noble Lord, Lord Rea. The effect is to require the patient to be informed in writing of the acceptance of the application, and at the same time told both orally and in writing of his rights to a mental health review tribunal and to be legally represented there.
We accept the spirit of these amendments but have considered that this principle needs to be applied more broadly. We believe that there should be a duty to inform the patient both orally and in writing at each stage of the process: on making the application, when it is accepted, if the aftercare services to be provided or the requirements upon the patient are modified, if the power is renewed and when it is terminated.
The patient also needs to be told formally of his rights to a mental health review tribunal not only when the application has been accepted but when it is renewed. In practice, we envisage a leaflet setting out those rights. That would include reference to the free legal representation which is available to all those who appeal to a tribunal.
In considering the duty to provide information we also think that it would be right for the nearest relative to be informed in writing, where it is practicable to do so and where the patient does not object. Informing the nearest relative in writing will enable him or her to exercise the right to appeal to a mental health review tribunal.
Informing the nearest relative in writing ties in with existing provisions of the 1983 Act. We have not amended the references to the informal carer who does not at present feature in the Act. We think there should be flexibility in the way they are informed. In many cases the informal carer may be the nearest relative as well, so would be informed in writing anyway. The Government's amendments will be in the interests of the patient and I trust will be welcomed by your Lordships.
Baroness Jay of Paddington: My Lords, I am extremely grateful to the Minister for that extensive explanation. I am being extremely stupid because I have not yet found the reference in relation to legal representation but I am grateful to hear that it exists. Perhaps the Minister will tell me at a later stage in which of the Government's amendments that appears. I am satisfied by the Minister's explanation. We have covered a great deal of ground which we discussed at length in Committee and that has had a very satisfactory outcome. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 11:
Page 2, leave out lines 30 to 37 and insert ("both orally and in writing—

(i) that the supervision application has been accepted; and

(ii) of the effect in his case of the provisions of this Act relating to a patient subject to after-care under supervision (including, in particular, what rights of applying to a Mental Health Review Tribunal are available);

(b) inform any person whose name is stated in the supervision application in accordance with sub-paragraph (i) of paragraph (e) of section 25B(4) below that the supervision application has been accepted; and
(c) inform in writing any person whose name is so stated in accordance with sub-paragraph (ii) of that paragraph that the supervision application has been accepted.").
On Question, amendment agreed to.
[Amendment No. 12 not moved.]
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 13:
Page 2, line 37, at end insert:
("(9) Where a patient in respect of whom a supervision application is made is granted leave of absence from a hospital under section 17 above (whether before or after the supervision application is made), references in—

(a) this section and the following provisions of this Part of this Act; and

(b) Part V of this Act,

to his leaving hospital shall be construed as references to his period of leave expiring (otherwise than on his return to the hospital or transfer to another hospital).").
The noble Baroness said: My Lords, this amendment puts beyond doubt that a supervision application can be made for patients who have been granted leave of absence from hospital and who may be made subject to aftercare under supervision without having first to return to hospital, once their period of liability to detention comes to an end. That has always been our policy intention.
Under the existing Act patients who are on leave of absence are entitled to Section 117 aftercare, but remain liable to recall to hospital and are subject to the consent to treatment provisions in the Act. This means medication can be administered without their consent, although that would usually be given in hospital. When their period of detention ends, we foresee that some patients who are on their way to successful rehabilitation at the end of their period of liability to detention, but who still require supervision, could be made subject to the new power at that stage. Such aftercare services would then have to be provided under supervision. The patient would have the right to appeal against the decision to a mental health review tribunal in the same way as any patient for whom a supervision application has been accepted. I beg to move.
On Question, amendment agreed to.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 14:
Page 2, line 37, at end insert:
("( ) On the acceptance by the Health Authority of the supervision application in respect of a patient, he shall cease to be liable to be detained in a hospital under the provisions of this Act.").
The noble Baroness said: My Lords, this amendment intends to clarify the fact that aftercare under supervision applies only to patients who have been discharged from hospital into the community and are no longer liable to be detained. In a sense, that follows very closely and neatly after the previous amendment proposed by the Minister.
We debated a similar amendment in Committee which was moved by my noble friend Lord Carter. In her reply the Minister seemed to suggest that she felt that the force of the amendment was as regards the distance in time between the time at which the patient was in theory discharged from a hospital but was not yet under the auspices of a health authority and social services in the community.
In order to clarify that matter, perhaps I may emphasise that that is not the problem that concerns us. What concerns us is that, as currently drafted, the first part of the Bill does not make it clear that patients subject to aftercare after supervision should no longer be liable to be detained under the 1983 Act and hence liable to recall to hospital. As was pointed out in Committee, that was spelt out much more clearly in relation to the community care orders in Scotland. Clause 4 of the present Bill at Section 35A(8) states:
"On the coming into force of a community care order in respect of a patient, he shall cease to be liable to be detained in a hospital under this Part of this Act".
In response to that point, the Minister said in Committee:
"As I understand it, the Scottish Act is very different from ours. It involves sheriffs and courts in a way that our Act does not".— [Official Report, 4/4/95; col. 133.]
But that does not seem to be an entirely appropriate answer to the point raised about the patient's situation, which is dealt with in Clause 4 at new Section 35A(8). In view of the misunderstanding by the Minister, which seemed to arise in Committee, that we were concerned about the time-lag, which is not our primary concern, and in view of the fact that we did not feel that the Minister gave an appropriate answer, we have now brought back the amendment. I beg to move.
Baroness Miller of Hendon: My Lords, when this amendment was last moved in Committee by the noble Lord, Lord Carter, he told your Lordships that the intention was to clarify that aftercare under supervision applies only to those who are no longer liable to be detained. He drew a comparison with the Scottish provisions which state at new Section 35G(8) that a patient shall cease to be liable to be detained as soon as a community care order comes into force.
In England and Wales a supervision application can be made and accepted while the patient is still in hospital or liable to be detained. The new provisions would not, however, take effect until the patient had left hospital. Until that point the patient would remain liable to be detained provided his period of liability had not meanwhile expired. If it had, he could remain in hospital as a voluntary patient. New Section 25G(1) makes it quite clear that aftercare under supervision actually
1230
commences when he leaves hospital, although the period for appeal rights and renewal is calculated from the date the application is accepted.
In the light of that explanation, I invite the noble Baroness to withdraw the amendment.
Baroness Jay of Paddington: My Lords, I am grateful to the noble Baroness, Lady Miller, for that explanation, which is slightly different to that given in Committee. It expands on the points that were made then and with that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 15:
Page 2, line 40, leave out from beginning to ("and") in line 43 and insert:
("(a) subsection (2) below is complied with;").
The noble Baroness said: My Lords, in moving Amendment No. 15, I speak also to Amendments Nos. 17, 25, 43, 47, 49, 50, 52, 54, 57, 58 and 142. During the Committee stage my noble friend Lord Mottistone made a persuasive case for consulting the patient's nearest relative when reaching important decisions about making a supervision application, renewing it and ending it. I agreed to consider this further and I am pleased to inform my noble friend that we accept his case, with the proviso that the patient must retain the right to object. These amendments will require the nearest relative to be consulted about these matters where the patient does not object. We have also taken the opportunity to amend the phrase, "except where" the patient objects to "unless" the patient objects in the various places that it appears in Clause 1. This is simply a drafting improvement in the interests of greater clarity. I beg to move.
Lord Mottistone: My Lords, I thank my noble friend for this group of amendments. Amendment No. 57, to which she referred, is in my name and is a safeguard in case she had not got around to tabling amendments. She has more than covered what I was hoping to see and I am grateful for that.
Baroness Jay of Paddington: My Lords, I, too, wish to thank the Minister for covering all the points made by the noble Lord, Lord Mottistone, and others who spoke so eloquently at Committee stage on the subject of involving the closest relatives and the family. I wish to speak briefly to my Amendment No. 58, which is also in this large group we are discussing. In that amendment I suggest deleting the word "appearing", and inserting the phrase "identified by the patient". This is an area which we discussed in Committee. I wonder whether, on reflection, the noble Baroness might accept both "appearing" and "identified by the patient" instead of substituting the one for the other.
I return to the point about the patient having the ability to identify who is his nearest relative for precisely the reasons that I raised in Committee as regards families who fall out with each other and as regards how relations are substituted for one another, as in the Mental Health Act.

1231
I make no apology for returning again to the tragic case which has disturbed me very much, and to which I referred earlier when we discussed my noble friend's amendment on housing, and that is the inquiry into the case of Ellen and Alan Boland. In the terms of the Government's amendment as it now stands, Mr. Boland's mother would be Mr. Boland's nearest relative. The psychopathology of the relationship between them was clearly so bad that it contributed greatly to the deterioration in his mental state. Although he expressed his dissatisfaction at living with his mother and explained the extraordinary circumstances of their bad relationship to many of the social and health workers who looked after him at different stages in his illness, it was difficult, given the precise nature of the social services arrangements and of the various legal arrangements, to disentangle the circumstances in which he lived from those in which his mother lived.
I explain this again, not to reopen the discussion about housing, but simply to use this as an illustration of a tragic case where someone who would appear to be the patient's nearest relative, and who fulfilled that function, did so in a negative way. If the patient in this case had been asked to identify who he would regard as his nearest relative, he might well have identified someone else, with rather less tragic results.
Earl Russell: My Lords, I should just like to say a brief word of support in favour of Amendment No. 58. This seems to me a thoroughly sensible, practical and helpful amendment, and essential for the process to work. It is characteristic of mental illness that it often comes out of a pattern of a good deal of tension within the family and occasionally—as in the case which the noble Baroness mentioned—one particular relative may be the object of a particularly intense distrust on the part of the patient. It does not do any good to discharge the patient into the supervision of that person. I hope that the Minister will be able to see her way to accepting this amendment.
Lord Desai: My Lords, I wish to make a small observation to which I hope the Minister will reply. When defining "relative" it occurs to me—I have thought this ever since this debate started —that that term is rather narrow in terms of modern life. It relates to family or to a relative acquired by marriage. It may in practice be broadly interpreted—I do not know about that—and perhaps if a person is in a homosexual relationship, the partner may not be described as a relative. Perhaps, however, that might be precisely the person to consult. Could the noble Baroness say whether the term "close relative" is interpreted broadly so as to include a number of relationships, or whether it is interpreted narrowly? It is important that the term should be interpreted broadly and not narrowly.
4.45 p.m.
Baroness Cumberlege: My Lords, I am interested in what the noble Baroness said and the support which she has from your Lordships. I understand that "nearest relative" is defined in the Mental Health Act 1983, Section 23. Therefore, it would be difficult, indeed impossible, for me to accept that amendment.
On Question, amendment agreed to.
[Amendment No. 16 not moved.]
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 17:
Page 2, line 46, leave out from beginning to end of line 12 on page 3 and insert:
("(2) This subsection is complied with if—

(a) the following persons have been consulted about the making of the supervision application—

(i) the patient;

(ii) one or more persons who have been professionally concerned with the patient's medical treatment in hospital;

(iii) one or more persons who will be professionally concerned with the after-care services to be provided for the patient under section 117 below; and

(iv) any person who the responsible medical officer believes will play a substantial part in the care of the patient after he leaves hospital but will not be professionally concerned with any of the after-care services to be so provided;

(b) unless the patient has otherwise requested, such steps as are practicable have been taken to consult the person (if any) appearing to be the nearest relative of the patient about the making of the supervision application; and

(c) the responsible medical officer has taken into account any views expressed by the persons consulted.").

The noble Baroness said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, that amendment having been agreed to, I cannot now call Amendments No. 18 to 20 inclusive because of pre-emption. The next amendment to be considered is Amendment No. 21.
[Amendments Nos. 18 to 20 not moved.]
Lord Mottistone Lord Mottistone moved Amendment No. 21:
Page 3, line 12, at end insert:
("( ) Where the patient has requested that the person appearing to be his nearest relative should not be consulted about the supervision application but the responsible medical officer has reason to believe that it may assist the after-care under supervision of the patient if that relative is consulted, the responsible medical officer may consult that relative, especially where there is a history of violence.").
The noble Lord said: My Lords, we touched on this subject in Committee but I wish to return to the charge and ask my noble friend to consider once again the particular case of someone who has such a history of mental illness that it is necessary to inform his nearest relative about what is going on, even when the patient concerned says that he does not wish this to happen. I refer to the kind of circumstances which the noble Baroness, Lady Jay, has just mentioned. Sometimes it may be in the best interests of a patient that the nearest relative is involved in the matter. In Committee my noble friend Lord Lindsay spoke of the situation in Scotland (cols. 341 and 342 of Hansard). In Scotland there is such a provision. Let us not worry about the legal need for it to exist; it is a sensible measure to have.
My amendment seeks to provide similar arrangements in England and Wales with particular emphasis on cases where there is a history of violence. The Clunis case springs to mind. I think that Mr. Clunis himself said that it would have been helpful if his nearest relatives had

1233
known about his case. That kind of situation needs to be covered. Nearest relatives can themselves be the object of an assault and the National Schizophrenia Fellowship feels strongly about this matter because that body in the main consists of nearest relatives of the people we are discussing.
My noble friend wrote to me recently on this subject correcting something that she had said in Parliament, She wrote inter alia that guidance to doctors from the General Medical Council stated that they could override patients' objections if it was in the public interest. That might apply to the situation we are discussing. However, that is guidance. I am advised that the provisions of a statute can only be overruled by a statute. Therefore, my amendment is particularly necessary in view of the wording of the new Section 25A(8) at line 33 of page 2 of the Bill. For that reason it seems to me that there is room for an addition to the Bill on the lines of my amendment. I am quite ready to accept that there could be better wording. Indeed, in the splendid group of amendments which we have just agreed my noble friend used quite different wording from mine. She may do the same again.
The amendment is concerned with cases where patients have a record of violence which may not be immediately apparent to the people looking after them and which the nearest relative will be aware of, even if the nearest relative has been rejected by the patient and he or she does not want to see that relative. My amendment does not propose that the nearest relative should be made responsible for, or even be put in contact with, the patient. It proposes only that they should know what is happening so that they can contribute information concerning the historical background, to the general benefit of all the people who are trying to cope with that particular problem.
I hope that my noble friend will feel that the matter needs further consideration, perhaps not in this House but in another place. I beg to move.
The Earl of Mar and Kellie: My Lords, I support the amendment moved by the noble Lord, Lord Mottistone. I am concerned that where a relative has either been a victim or may become a victim there is probably a greater duty to inform that relative than to observe the patient's rights. I should not like us to create more victims unnecessarily. I hope that such information will be made available.
Baroness Jay of Paddington: My Lords, I support the general idea behind the amendment. However, I am still anxious about the issue I raised in relation to the previous amendment concerning who is the nearest relative and whether that understanding lies with the patient. I wonder whether we can find some way of identifying the nearest relative on the face of the Bill—and I understand what the Minister said about the wording of the Mental Health Act. Can we not try to find some way of using the words "nearest relative" or "appropriate person" in a manner which gives rights to the patient to say whether or not he wants that person to be informed but, as the noble Lord,
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Lord Mottistone, and other noble Lords have suggested, does not exclude the practical need to talk to the person who is involved with the patient's care in the community.
Lord Thurlow: My Lords, I support the amendment. I wish to emphasise that it is cast in very moderate language. It provides that the responsible medical officer may consult, leaving some discretion. Therefore, if there are compelling reasons for the clinically responsible officer to decide not to consult he may be guided by his own judgment.
I can conceive of a whole range of cases in which the patient would not wish the nearest relative to be consulted or informed because, as we all know, persecution mania, a familiar symptom of schizophrenia, concentrates on those nearest to the patient himself or herself.
I can imagine circumstances in which, if I were in a position of having to help with the care of a patient, that patient might wish to conceal information from me, even though it was agreed that it was in the interests of the patient himself that the nearest relative should be consulted or informed. I hope that the Minister will find some means of accommodating the principle covered by the amendment.
Lord Campbell of Croy: My Lords, again, I declare an interest as the nearest relative of a sufferer from schizophrenia, as I indicated in Committee. However, these provisions are very unlikely to apply in my case.
As I said in earlier debates, I believe that more interest should be taken in the relatives, and particularly the nearest relative, and their part in the procedure. Of course, various options should be available for different cases involving different families.
I believe that the arrangements are to be different in Scotland, as set out in the second part of the Bill, The nearest relative will be taken into account more than in England and Wales. I shall be grateful if my noble friend could comment on that point.
Baroness Cumberlege: My Lords, I should like to correct an error I made in the previous discussion on the definition of the nearest relative. I said that it was outlined in Section 23 of the Mental Health Act; it is, of course, Section 26. I do not wish to mislead your Lordships.
My noble friend's amendment repeats one he introduced when we debated the Bill in Committee. I agreed then to consider further the points he made about the involvement of the nearest relative throughout the Bill's provisions. My noble friend will find when we come to discuss his next amendment that we have agreed to take on board most of his underlying anxieties that the nearest relative should be consulted unless the patient objects. However, we do not feel that we can go quite as far as he suggests here.
I must reiterate my earlier explanation. The potential danger to the patient himself or that which he presents to others must be included in the risk assessment undertaken when supervised discharge is being considered. Doctors and other professionals considering the discharge of a patient have a special responsibility to consider carefully any history of violence, and that is emphasised in the guidance which the department issued last year. In the event of their being unable to make a confident

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assessment because the patient objected to the nearest relative being consulted they could be expected to err on the side of caution. Indeed, the refusal itself might be seen as a matter of some significance. On that basis, the potential value of the additional information does not seem to us to justify overriding the general principle of the patient's right to object.
If there is a serious risk of violence which could not be contained by supervision it is highly unlikely that a supervision application would be made. My noble friend prayed in aid the case of Christopher Clunis. The interesting point is that Christopher Clunis's family were not involved, not because Christopher Clunis objected but because nobody found out who the family were.
We are advised that the wording of the Bill would not prevent the responsible medical officer from contacting the nearest relative against the patient's wishes if he judged that there was an overriding public interest which justified doing so. In the light of those comments I hope that my noble friend will feel able to withdraw the amendment.
Lord Mottistone: My Lords, I wish to make just one point. As I said, I am advised by a lawyer that any provisions in this area—I quoted those of relevance here—which are declared in statute have to be nullified in statute. My noble friend did not pick up that point. I do not expect her to do so now at short notice. However, she may like to give thought to the matter and make sure that the part of the Bill to which I referred does not prevent the RMO from doing what she says he can do, on the basis of advice from the BMA rather than statute.
At this stage I do not wish to pursue the argument further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 22:
Page 3, line 31, after ("officer,") insert ("who shall be a practitioner having special experience in the diagnosis or treatment of mental disorder.").
The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendments Nos. 129, 130, 133, 139 and 140. All the amendments are designed to ensure that the community responsible medical officer has special postgraduate experience in mental health work before assuming that new and important role.
Noble Lords will see, again, that some of the amendments in the group will be proposed by the noble Baroness, Lady Cumberlege, and another by the noble Lord, Lord Mottistone. All the amendments address the points to which we spoke in Committee about the essential nature of this postgraduate and specialist qualification for someone holding this new and difficult post who will undoubtedly deal with a very stringent caseload.
I am delighted that the Government have seen the force of the argument and have agreed that guidance to local health authorities and local social services departments—as they suggested at an earlier stage in Committee—should be reinforced by primary
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legislation. As I stated in Committee, I believe that it is entirely appropriate that the salient government amendment, Amendment No. 139, should be included in Schedule 1, rather than in Clause 1 of the Bill as we propose in Amendment No. 22. I am delighted that the arguments appear to have been accepted. I beg to move.
Lord Mottistone: My Lords, I speak briefly to Amendment No. 130, since it is Report stage of the Bill. In advance of the Minister moving her amendments, I thank her for having accepted what I and the noble Baroness, Lady Jay, said in Committee regarding ensuring that those community medical officers are properly qualified to deal with mentally ill patients. It is splendid that she has accepted the argument; and I thank her very much.
Baroness Cumberlege: My Lords, I am grateful for the kind comments from all sides of your Lordships' House. These amendments pick up the concerns expressed by a number of your Lordships at Committee. The noble Baroness, Lady Jay, referred to the need to have a medical officer with the necessary postgraduate training to enable a detailed understanding of the diagnosis and the treatment involved in caring for a difficult group of people. She received support from my noble friend Lord Mottistone, who returned to this issue on the second day of Committee, my noble friend Lord Haig and the noble Earl, Lord Longford.
We acknowledged that doctors approved under Section 12 of the 1983 Act had special expertise and our intention was to stipulate in guidance that we anticipated the community responsible medical officer should normally be approved. Having considered this further we are persuaded that the importance of the community RMO's duties justified making this a statutory requirement.
The amendments do this in a slightly different way from that which was proposed by my noble friend Lord Mottistone. For technical reasons, it is not proposed to add Section 12 approval to the definition of the community responsible medical officer, but to add to the duties of the health authority accepting the supervision application that someone with Section 12 approval should be in charge of the patient's medical aftercare at all times. This will have the same effect.
Amendment No. 139 also requires that there is a supervisor at all times while the patient is subject to supervision, and that the supervisor should be someone professionally concerned with providing the aftercare services. This means that a community psychiatric nurse, a social worker, or the community RMO himself or herself could fulfil that role. It has been pointed out to us that the Bill as drafted would have allowed, for example, an informal carer to be nominated as the supervisor. This is not what we intended, and we believe it is important to establish the principle that this is a professional function.
I am grateful to noble Lords for raising the matter. I hope they will now feel that their concerns have been met.
The Deputy Speaker: My Lords, the Question is that the amendment be agreed to.
Lord Mottistone: My Lords, is Amendment No. 22 to be agreed to in view of what the Minister said?
Baroness Jay of Paddington: My Lords, I believe that there was a slight confusion with the Deputy Speaker. I moved Amendment No. 22. In view of what the Minister said, I am pleased to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker: My Lords, should Amendment No. 23 be agreed to, I shall be unable to call Amendment No. 24 owing to pre-emption.
Lord Campbell of Croy Lord Campbell of Croy moved Amendment No. 23:
Page 3, line 31, leave out (", and of the person who is to be the supervisor,").
The noble Lord said: My Lords, in moving the amendment, I say straight away that it is simply a probing amendment. In my view, there is no question of it affecting later amendments.
It is a matter on which clarification is sought. It is another amendment which I have put down because I received comments from a leading practising psychiatrist based at a well known hospital. The comments were too late for Committee stage, although I have been able to deal with many of the other points he raised.
Attention was drawn to the point by the wording of the Explanatory and Financial Memorandum in the original version of the Bill. It stated that supervision will be the personal responsibility of a nominated supervisor. We all know that that memorandum has no validity; it is not part of the Bill. However, within the medical profession it has raised a need to know what responsibilities the supervisor is expected to assume.
At present, does the Bill imply that the legal responsibility for doctors, which hospital trusts have taken on in cases of litigation, will not cover the nominated supervisor? Will the nominated supervisor be responsible for any failings of the social services, hospital services, GP services and others which are needed to provide the treatment for the mental patient? I am sure that there is an explanation. Clarification is sought by those who asked me to raise the matter.
If that were to be the case, there would be an impossible burden. It would also seem unacceptable to force someone to be a nominated supervisor against his will. For example, I am informed that a doctor accepting that responsibility might expect to face huge increases in his personal medical liability insurance premium. That is the kind of point which may arise unless the responsibilities that the supervisor will take on are clear.
Another point has been raised: what happens when the supervisor is away on holiday or in some other part of the world? Who is then responsible? These matters have been
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raised by the profession. I do not know the answers but I hope that my noble friend will be able to give some clarification and assurance. I beg to move.
Baroness Cumberlege: My Lords, I think that my noble friend wishes to remove the name of the supervisor from the application form.
Lord Campbell of Croy: No, my Lords, this is purely a probing amendment. I have no intention of trying to remove the phrase, merely to draw attention to the point I raised. I hope that my noble friend realises that I am asking for clarification and not trying literally to take the words out of the Bill. I contacted the Minister's office last week to tell her the object of the amendment.
Baroness Cumberlege: My Lords, I am grateful to my noble friend. The supervisor will, of course, play a crucial role in the successful working of the new power. It is he or she who will keep closely in touch with a patient, co-ordinating the care which the patient is to receive, convening meetings of the care team, alerting colleagues to any modifications that may be necessary and checking that any requirements laid upon the patient are followed. If found to be necessary, it will be the supervisor in the first instance who will invoke the power to convey the patient.
It is essential that the person who is to play this important role is identified early on and before the patient is discharged from hospital. The whole application process is founded on the understanding that there has been full consultation between the hospital RMO and the future care team and that one of the multi-disciplinary team has agreed to act as a supervisor for the patient. Indeed, the health authority could not accept an application without that degree of clarity. The nomination of the supervisor must follow from the consultation and discussion which have preceded the application and upon which the care plan has been based.
Having explained how we see the supervisor's role and how important it is to have it identified and formalised at the outset, I believe that my noble friend may have concerns about what legal liabilities this key role will attract, as he mentioned this afternoon. I think I can reassure him on that point. While the supervisor will have professional liabilities and responsibilities along with other professionals in the care team, there will be no additional liability of the kind I think my noble friend has in mind. The supervisor would, of course, be personally liable in cases involving, for example, serious professional negligence, indiscipline or the abuse of patients. But, in general, liability would fall on the bodies responsible for providing the Section 117 aftercare services, not the supervisor personally, just because he or she fulfils that role. This is the normal relationship between public bodies and the professional staff they employ, and in this respect the supervisor is in the same position as other professionals. I hope that in the light of that elucidation my noble friend will be satisfied.
Earl Russell: My Lords, before the noble Baroness sits down I wonder whether she could answer the question

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which the noble Lord, Lord Campbell of Croy, asked. It was whether it would be possible to refuse to be a supervisor. It is an interesting question.
Baroness Cumberlege: My Lords, if someone did not wish to be a supervisor but was appointed then the care plan would not work. It is essential that everyone should agree on how the care plan works, and the supervisor is the key person in that role.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend. I shall ensure that what she said is conveyed to those who are worried about the legal and constitutional side of their responsibilities. I hope that they will be reassured by what she said. These are serious points and that is why I thought it worth raising them in a probing amendment, even at this stage, because they had not been brought to my attention before the Committee stage. I am grateful to the Minister for her reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15p.m.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 24:
Page 3, line 32, after ("supervisor") insert ("who shall be a community psychiatric nurse or an approved social worker").
The noble Baroness said: My Lords, Amendment No. 24 follows precisely the concerns raised by the noble Lord, Lord Campbell, on the previous amendment.
Amendment No. 24 seeks to establish on the face of the Bill who will be the nominated supervisor who will deal with the patient who is on a discharge order and what that person's professional qualifications will be. Noble Lords will remember that at the Committee stage I raised the question in an amendment stipulating that the supervisor should be a community psychiatric nurse. Amendment No. 24 seeks to extend that to include an approved social worker under the meaning of the 1983 Act.
The noble Baroness, Lady Miller, who replied to our discussion at Committee stage, said (at col. 142 of the Official Report for 4th April 1995) that naming one professional discipline was an unnecessary constraint and that flexibility was needed. However, it seems to me that those were exactly the same arguments as were made by the Government at an earlier stage about not professionally defining the qualifications of the community responsible medical officer. As we have heard, the Government themselves rejected those arguments in bringing forward Amendment No. 139, which the House is likely to accept this afternoon. Perhaps I may remind noble Lords who were not in the Chamber that that amendment defines the qualifications for the community responsible medical officer in the way which we seek to do by Amendment No. 24 for the equally crucial role of the supervisor in the community. I hope that the Minister will be able to change her position about it.
As the noble Baroness, Lady Miller, told us in Committee, the supervisor will be the key worker dealing with patients in the community. As I said in earlier debates, the position of supervisor will be a new and extremely responsible one. It therefore seems only
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sensible that they should be appropriately professionally qualified. Both the Royal College of Nursing and the British Association of Social Workers believe that the position must be specified.
Their position is similar to the one raised by the noble Lord, Lord Campbell of Croy, on the previous amendment. They are concerned that their members will feel unable to undertake the responsibilities unless they are given specific professional status within their organisations. Both organisations are anxious that anyone who holds the position must be properly resourced. The Royal College of Nursing, for example, pointed out that only one in five people diagnosed as having schizophrenia currently has access to a CPN. The Royal College of Nursing therefore estimates that the number of CPNs would have to be doubled in England alone if supervised discharges were to work effectively.
At Committee stage, the noble Earl, Lord Russell, and I discussed whether, if professional designation of the supervisor were on the face of the Bill, it might encourage better resourcing of those people who held the posts. If that happened, it would in itself, it seems to me, be a good argument for accepting the amendment.
I also wish to point out that the amendment reflects one of the crucial recommendations made in the Ritchie Report on the Christopher Clunis case which has not yet been accepted by the Government. I thank the Minister very much for writing to me in considerable detail about the Government's present position on the recommendations of the Ritchie Report on Christopher Clunis. I particularly thank her as I raised the question with her only in the middle of last week.
The Minister will undoubtedly recall that in a previous debate which we had on community care on 16th March 1994—over a year ago—she said in reply to her noble friend Lady Cox:
"My noble friend Lady Cox will be pleased to learn that my right honourable friend the Secretary of State has accepted all the recommendations of the Ritchie Report".—[Official Report, 16/3/94; col. 283.]
I emphasise "all" because, although the Minister was kind enough to write to me explaining the position of the Government on the present state of their approach to the recommendations of the Ritchie Report, this recommendation is crucial. It is that anyone who held the key worker role in relation to supervised discharge— although at that stage the Government were only theoretically considering future legislation—should be either an approved social worker or a CPN, as the amendment suggests. I hope that this afternoon the Minister will stand by that commitment on this important issue and be able to accept the amendment. I beg to move.
Lord Rea: My Lords, I support my noble friend from the point of view of a practising GP. In my practice, many chronic mental patients have been supervised in the community either by CPNs or by social workers. It seems often to be the luck of the draw which member of which profession the patient relates to. In my case the CPNs were often moved more rapidly. The social workers were

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the more stable professionals who related to long-term schizophrenic patients. However, both professions equally can take on the role and do so effectively.
The Earl of Mar and Kellie: My Lords, it is important that for a case at this level of priority only an experienced social worker with specialist training in the mental health field should be allocated to the task and not just any social worker.
Baroness Miller of Hendon: My Lords, your Lordships expressed the view when we last looked at these provisions that a supervisor should always be a community psychiatric nurse. The present amendment broadens that by proposing that, as an alternative to a community psychiatric nurse, the supervisor may be an approved social worker—that is, a social worker approved by the local social services authority under the Mental Health Act as having a special competence for the purpose of making applications for compulsory admission to hospital or guardianship. As I explained previously, we envisage the supervisor being the same person as the key worker under the care programme approach in most cases and, again, in most cases, this will be a community psychiatric nurse. But we do not want to restrict who may be the supervisor in the way that the amendment proposes. In some cases that person might be a social worker rather than a nurse, but in others the patient's doctor might be better placed to perform the role. Nor would we want to exclude other possible but perhaps unusual arrangements such as, for example, a clinical psychologist being nominated.
The Government's Amendment No. 139 to Schedule 1 will, if your Lordships accept it, ensure that the supervisor is someone professionally concerned in the patient's care. We think that this will provide the safeguards necessary without being unduly rigid and prohibiting what, in some unusual cases, may be the most appropriate professional person. In the light of our proposed amendment to Schedule 1, I hope that the mover of this amendment will feel able to withdraw it.
Baroness Jay of Paddington: My Lords, as I said when we discussed the group of amendments that included Amendment No. 139—we accept that particular amendment and we are grateful to the Government for introducing it—I still feel unhappy about leaving this provision quite so baldly as it stands at the moment on the face of the Bill. As I said, there are two particular concerns, one of which is that raised by the noble Lord, Lord Campbell of Croy, about the concerns of professionals over their liability. The second is a more general one. It is the question of concerns about undertakings given on the basis of the Ritchie Report on Christopher Clunis, which made the very specific suggestion about the CPN or the ASW being the person responsible, which appears to have the agreement of all the professional bodies. Perhaps the Government will think about this matter again before Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 25:
Page 3, line 34, leave out from ("of') to end of line 37 and insert ("—

(i) any person who has been consulted under paragraph (a) (iv) of subsection (2) above; and

(ii) any person who has been consulted under paragraph (b) of that subsection.").

The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 26:
Page 4, line 24, after ("requirements") insert ("which will be set out in the care programme approach").
The noble Lord said: My Lords, with this amendment, we shall also take Amendment No. 135. Perhaps I may deal with the two points in turn.
Subsection (8) of what is now to be Section 25B of the Mental Health Act requires the application for a supervision order to be accompanied by four requirements: first, a statement from the proposed community responsible medical officer that he will be in charge; secondly, a statement by the supervisor that he will supervise the patient—we have just discussed the professional qualifications of such a person, and I shall return to that a little later; thirdly, the details of the aftercare services to be provided under Section 117 of the 1983 Act; and fourthly, details of the requirements to be placed on the patient for the purpose of securing that he receives those services. It is the last of those requirements to which my Amendment No. 26 is directed.
Noble Lords will remember that at the start of today's proceedings I expressed the view that it is crucial that this legislation should be readily understandable to those who will have to operate it. Few areas of health legislation require such continuous, precise and meticulous observance of the ipsissima verba of the statutes as the care and treatment of the mentally ill. It is therefore very helpful if the amending legislation can deploy language with which practitioners will be readily familiar. The phrase "care programme approach" is now widely used. Indeed, it is used in the Notes on Clauses with which we have been provided and was used in an amendment moved earlier by the noble Baroness, Lady Jay.
It is simply not clear what the "requirements" are, of which details need to be given under subsection (8) (d). However, practitioners would understand the words in my amendment,
"requirements which will be set out in the care programme approach".
That is perfectly clear. It is language with which they are familiar, and they would know precisely what has to be included. I commend that form of words to my noble friend.
Somewhat similar considerations apply to Amendment No. 135, which relates to page 35 of the Bill. It is to be found on page 19 of the Marshalled List. Paragraph 4 of Schedule 1 to the Bill amends Section 34 of the 1983 Act by adding two new definitions: one is the community responsible medical officer, and the other—we come back to our old friend—the supervisor.
Amendment No. 135 would add some words at the end of that definition, again to give, I hope, familiarity to those who will have to operate the legislation. The additional words suggested are,
"and will normally be the person who is the key worker for the purposes of the patient's care programme".
The phrase "the key worker" is one that is widely used and understood, and everybody will know what is meant. In other words, it is the front line person in charge.
I really must ask again: why is it that the draftsman will not use this phrase? It is widely understood in the professions. Why is it not possible to bring these sorts of commonly used expressions into legislation? Why is it that the draftsman always turns his back on words that ordinary people use and imports his own language, which simply gives everybody another task of trying to understand. They will say finally, "Oh, what you mean is the key worker", and, "Yes, that is who we mean, the key worker". Why can that not be in the Bill? This will apply again when we come to Amendment No. 135, although I shall probably not move it. The draftsman dealing with this kind of matter seems to live in a world of his own, remote from the people who deal with these matters. They have to deal through my noble friend's department, which is itself, with the best will in the world, somewhat removed from the health authorities, the trusts and local authorities where the people who operate the legislation are employed. The result is that thoroughly familiar expressions get lost. We have two such expressions here, and there is no reason why they should not be written into the Bill. They would make the legislation clearer and easier to understand for the people who will operate it. I beg to move.
Baroness Jay of Paddington: My Lords, I support the noble Lord, Lord Jenkin of Roding. He explained to me why Amendment No. 24 was not accepted; namely, because the words "community psychiatric nurse" and "approved social worker" are obviously not suitable for the draftsman either.
Baroness Cumberlege: My Lords, our objections in that regard go a little deeper.
As I understand my noble friend's amendments, they refer to the care programme approach which lies at the heart of all our initiatives to improve the care provided for mentally ill people. This approach provides for a personal key worker (to use my noble friend's words) and systematic arrangements for the assessment of aftercare and accommodation needs to ensure that those with a mental illness get the health and social care they need in the community.
The report of the internal review into the Legal Powers on the Care of Mentally III People in the Community which was published in August 1993, and upon which we consulted widely, forms the basis of the new power of aftercare under supervision. In that report we stressed that it was an underlying principle that any new power would reflect the objectives of the care programme approach and be part of a comprehensive multi-disciplinary approach to care. This principle has been incorporated into the Bill.
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These amendments are designed to link aftercare under supervision explicitly with the care programme approach by including it in the reference to requirements which may be imposed on the patient and by requiring the supervisor to be the key worker for the patient's care programme.
I have a lot of sympathy with the views expressed by my noble friend and the plea for plain language. But, as I understand it, our objections are not related to any language problem. It is simply that we do not believe that the amendments would work because they would make the operation of aftercare under supervision rely on the terms used in the care programme approach, which have no statutory basis.
It is certainly true that the Bill seeks to ensure the effectiveness of the care programme approach by giving it a measure of statutory backing. But because the CPA is not itself a statutory arrangement the Bill needs to have its own distinct terminology. The alternative would be to create a comprehensive statutory framework for the CPA and we do not think that that would be justified, given that most of the patients to whom it applies do not need to be subject to statutory supervision. We agree entirely that the supervisor should normally be the patient's key worker and that will be made clear in guidance. But we would not want absolutely to exclude an alternative arrangement if, for example, there were special reasons for the community responsible medical officer acting as the supervisor in a particular case.
My noble friend said that he would not press these amendments. I hope that to some extent I have enlightened him upon our position.
5.30 p.m.
Lord Jenkin of Roding: My Lords, I am grateful to my noble friend for her explanation. I understand the reasons of substance why, in the present framework of the legislation, it may not be possible to encompass words such as "care programme approach" and "key worker" and so on—words which are absolutely in the vernacular of CPNs and those who are involved in this area. I simply ask that when this kind of legislation is being put together it could start from the proposition of what people do and the language that they use —the phrases with which they are familiar—and not simply say, "Well, it is outside the statute and we will have our own special legislation in the statute".
I shall not labour the point. I simply say that I find the whole approach of the draftsman to this kind of legislation increasingly difficult. I hope that perhaps they may take some notice of the protests made from these Benches in this House. I am grateful to the noble Baroness, Lady Jay, for her support. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 27:
Page 4, line 28, leave out lines 29 to 36 and insert ("both orally and in writing;

(b) inform any person who has been consulted under paragraph (a) (iv) of subsection (2) above; and

(c) inform in writing any person who has been consulted under paragraph (b) of that subsection,").

The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 28 not moved.]
Lord Rea Lord Rea moved Amendment No. 29:
Page 6, line 27, at end insert:
("( ) The responsible after-care bodies shall not make such requirements specified in subsection (3) below unless they have first heard and considered the views of the patient.").
The noble Lord said: My Lords, as my noble friend and others have pointed out, the Minister has gone a long way in her amendments to meet the points made at Committee stage about consultation with those who might be concerned with aftercare and informing patients of their rights. However, it is still necessary to ensure that the patient himself, who after all is the chief actor on the stage—or chief persona, as he is acted upon—should be brought into the centre of the discussion about his (or her) future management and not merely into the mechanisms of drawing up the application for the supervision order.
It is true that long-stay patients with severe mental illness are still vulnerable people—although, according to the noble Baroness, they are apparently not vulnerable when it comes to deciding whether they should get priority in housing—but when they are about to be discharged, patients will be more settled and rational than when they were admitted. They should be given a full right as a citizen to express their views and preferences.
The amendment is not simply to ensure that a patient has a right to consultation. It is likely to make it much more probable that he will willingly co-operate with any arrangements that are made as a part of that process of consultation. Therefore, this provision will make the package much more likely to be a success rather than have it disintegrate through cither misunderstanding or even a form of protest by obstruction, because the patient did not feel that he had played any part in drawing up the care plan or package and did not have a proper voice in it.
I hope that my remarks have made the purpose of the amendments clear. I beg to move.
Baroness Cumberlege: My Lords, perhaps I may seek clarification from the noble Lord. Was he also speaking to Amendment No. 32?
Lord Rea: My Lords, I am extremely sorry. In moving Amendment No. 29, I spoke also to Amendment No. 32.
Baroness Cumberlege: My Lords, I am grateful to the noble Lord. Although I very much appreciate the noble Lord's concern about possibly unnecessary and unreasonable restrictions being placed on patients, I have emphasised the need for consultation and information throughout the procedures that we are proposing for supervised discharge. Before making an application for supervision, the hospital responsible medical officer must ensure that the patient has been consulted, along with members of the current and future care team. Such consultation will include the contents of the aftercare plan and any requirements on the patient thought necessary to help him comply with the plan. Thus, those who are actually discharging functions on behalf of the health and local authority are already under a requirement to consult patients and we do not think that it is necessary to impose a further requirement on the authorities themselves.
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The effect of the Government's amendments to which we have already agreed is that the patient will have to be told orally and in writing that the supervision application has been accepted, and of his rights of appeal to a mental health review tribunal. This represents very full provision for consultation and notification and we do not feel that the additional requirements that these amendments would impose are necessary. Therefore, we shall resist the amendments.
Lord Rea: My Lords, I thank the noble Baroness for her reply. I shall not press the amendments. The clarification that she has just given will be useful because it is now in the Official Report and those who will interpret the Act when it is brought into force will possibly look back to her words. It is good to have them on the record to refer to. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 30:
Page 6, line 30, after ("that") insert ("after consultation with the patient").
The noble Baroness said: My Lords, this a very simple amendment which seeks to require the aftercare authorities to consult with the patient about where he lives once he has been released from the hospital into the community.
I proposed a similar amendment at Committee, when I asked for a requirement that the authorities should "agree" with the patient. In reply, the noble Baroness pointed out some of the difficulties that might ensue if there were no agreement. However, in the framework of the consensual nature of this legislation, which has been very much extended this afternoon by the Government's own amendments, I believe that this is an amendment which could be accepted.
I also brought the amendment forward again because, on re-reading the Official Report, I felt that the Minister had perhaps misunderstood the very limited nature of the amendment. In her reply to me, she said:
"The Bill allows those responsible for a patient's aftercare under supervision to require him, if they think it is justified, to attend for treatment, rehabilitation or related purposes at specified times and places. Another requirement is that the patient should live at a specified address. To require the patient to agree beforehand would make the requirements unworkable".
I accept that and that is why the present amendment is drafted with the word "consult". She continued:
"If the patient were to withdraw his agreement, the provisions would fall entirely and become meaningless. As presently drafted, if he fails to attend when specified, he has failed to comply with the terms of his discharge and a review of his case might ensue".— [Official Report, 4/4/95; col. 149.]
In her reply the Minister emphasised the requirements on a patient to attend for rehabilitation or other forms of treatment. I agree that a patient must be required to attend at a specified clinic, rehabilitation centre or whatever; but there is a difference between that and requiring him to live at a specific place without the right to consult with him before that happens. As I said earlier in Committee, that is an authoritarian position which does not sit comfortably with the other more consensual arrangements to which the Government have agreed and to which they have added

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significantly this afternoon. I hope that in this slightly modified form the Government will be able to accept the amendment. I beg to move.
Baroness Cumberlege: My Lords, I have already commented on the need to be sure that unreasonable restrictions are not being placed on patients. The Bill allows for full consultation before an application for supervision is made. In particular, I am sure that if there was any question of a patient not agreeing to live at a specified place, and if such a requirement was thought to be in his best interests, the application would not go ahead.
I have explained the information the patient is to be given, in writing, when the supervision application has been accepted and his rights of appeal to a mental health review tribunal about the imposition of supervised discharge. I do not believe that a separate process of consultation in respect of this particular requirement—if indeed it is imposed—is either necessary or desirable. The terms of a patient's discharge will be agreed as a package in terms of the aftercare services to be provided to him, the person who will be his supervisor and the details of any requirements thought necessary to help him comply with his care plan. I cannot agree that the additional consultation provision proposed under this amendment is necessary.
I hope that, albeit the noble Baroness explained very clearly the lighter touch she has had on this occasion, she will not press the amendment.
Baroness Jay of Paddington: My Lords, I thank the Minister for that helpful reply. In a sense we have a slightly different approach this afternoon in terms of consultation. As the Minister repeated, the oral and written notification to patients of their rights and their specific position under a supervised discharge order was re-emphasised in the group of amendments spoken to with Amendment No. 10. I feel that that would be reinforced still further if this provision were on the face of the Bill. However, I accept what the noble Baroness says. We can only hope that good practice is as good as she thinks it will be. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 31:
Page 6, line 32, after ("treatment") insert ("including the requirement to take medication").
The noble Baroness said: My Lords, in moving Amendment No. 31 I shall speak also to Amendments Nos. 33 and 35. Noble Lords may think that this amendment and the ones that follow —to which my noble friend Lord Rea will speak—are mutually exclusive. That is true. Noble Lords who were present at the Committee stage will remember that I tabled an amendment similar to Amendment No. 33, to which my noble friend Lord Rea will speak in detail, and that that amendment would have deleted from the Bill the power to take and convey, partly because of the legal doubts about the possible contravention of the European Convention on Human Rights and also because of the important practical question of how community supervisors and responsible medical officers would be
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able to treat patients effectively, even if they had the power to take and convey them to a place where treatment could be given.
As I said at the Committee stage, the proposals in the Bill as presently drafted fall between two stools. First, they offend those whose primary concern is to protect the civil rights of the patient; and, secondly, they do not fulfil the wishes of many clinicians who would like to have powers to treat patients on supervision orders with medication. Amendment No. 31 seeks to fulfil one of those concerns by inserting the taking of medication into the provision of medical treatment. That is included also in Amendment No. 35.
Noble Lords will remember that the community treatment order which was earlier suggested by the Royal College of Psychiatrists included that power. At present the British Medical Association describes the Bill as:
"limited by the lack of power compulsorily to treat patients should they not comply with their recommended care programme".
Many recent reports on individual tragedies, such as that of Andrew Robinson and Christopher Clunis, emphasise that irregular medication contributed to the patients' instability and unpredictability and often in the end to tragic circumstances. I was interested to read on 6th April —the day we had our second Committee stage of this Bill—two experienced and senior doctors writing on this issue, perhaps somewhat surprisingly, in the London Review of Books. In relation to community treatment orders they said:
"Keeping someone stable in the community can only be guaranteed if regular medication is part of that process. Since the '60s the basis of community care has been the availability of effective medication, the sine qua non of the business, which does not mean that social support, personal relationships and a psychological understanding are not also vital in psychiatric care. But, if the patient/client suffers from formal thought disorder, little can be done by the comforts of talking".
Of course there is the legal controversy as well as the clinical discussion about accepting some form of compulsory treatment order. Fears about mandatory treatment in the community seem to revolve around dramatic images of men in white coats forcibly injecting people on the kitchen table, although of course the Mental Health Act insists that medication can be given only in hospital. As Drs. Turner and Neave, the authors of the article in the London Review of Books pointed out:
"Most patients, once they are in hospital, accept the verdict of the law and are compliant with medication. Given the choice between living in their own home and being in hospital, the great majority would prefer to be out of hospital. If it is laid down by an appropriate legal statute that they have to receive regular medication, then that would become part of the deal".
It would obviously only be "part of the deal" in extreme or emergency circumstances.
As to the problem of transgressing the European Convention on Human Rights, I draw your Lordships' attention to the report of the public inquiry on the Andrew Robinson case, The Falling Shadow, where that issue was addressed. I also remind your Lordships that the chairman of that inquiry was Sir Louis Blom-Cooper the distinguished barrister. The view of the inquiry was that European case law appears to demonstrate that a community treatment order with a requirement to take

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medication to prevent a deterioration of health is most unlikely to fall foul of convention obligations. Given that authoritative opinion, it is a little strange that the Government have not gone all the way in this Bill and introduced a provision for compulsory treatment in the community as well as the power to take and convey. The logic is surely that either the power to take and convey should be removed from the Bill, as I suspect my noble friend Lord Rea will argue in his amendment, or it should be extended to include medication. The purpose of this probing amendment is to invite the Government to explain why they have adopted an unsatisfactory middle course. I beg to move.
The Earl of Mar and Kellie: My Lords, the noble Baroness, Lady Jay, is right. We are definitely not looking for compulsory treatment at a physical level. But it is important that the community care team is able to take action sooner rather than waiting for the mental breakdown of the patient and subsequent hospitalisation. It is important that this is seen as a main condition of the order.
Lord Thurlow: My Lords, in general terms I support the amendment. I realise that it takes us into a wide field. It was not discussed in Committee, but, as the noble Baroness said, her intention is primarily a probing one.
I have long been in favour of this kind of provision but it requires a great deal of public discussion in order to get more public support than is at present apparent. There does not seem to be any logical reason why, if one has compulsory medication in hospital, under suitable safeguards one should not have it out of hospital, especially as, if treatment is to be effective, it is imperative that it should be regular. While saying that, I would not wish to press for any far-reaching commitment at this stage.
Lord Rea: My Lords, I wish to speak to Amendment No. 33, so it will seem as though my noble friend and I are doing a strange double act in that she is advocating one course and I am advocating precisely the other course. However, there is a valid point of view which objects very strongly to the power to convey, which is quite an essential part of the Bill.
My remarks on this matter should be taken in conjunction with my noble friend's points in her amendment, which suggests that the power to order medication should logically be part of the power to convey and is the only way in which it would work effectively. Good community care for those with severe mental health problems entails intensive support from key workers, who will work at making good relationships with service users and will visit service users and keep in touch with them regularly and not just when they have an appointment for medication. Sadly, the latter is what one sees so often now. It is feared that the power to take and convey will enable supervisors to keep a minimum of contact and not to maintain a supportive relationship.
In Committee the noble Baroness said that this power would give a useful backing to the care team when there is a temporary reluctance on the part of the patient to
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co-operate. That highlights a concern that the power will be exercised to force a patient to comply with the conditions imposed on him or her, such as the requirement to attend for medical treatment, but, curiously, not to have to accept medication or other forms of treatment once they have attended. There is in the Bill little control over the exercise of the power to take and convey.
The Government maintain that they envisage a comparatively rare use of this power. The noble Baroness said:
"Clearly this power to convey would be used only in times of emergency".—[Official Report, 4/4/95; col. 156.]
But there is nothing in the Bill to regulate the use of the power and, as drafted, it could be exercised arbitrarily, at any time, in any circumstances and for any reason. Such an extensive power could be open to widespread abuse.
A number of organisations, including the Commission for Racial Equality, are extremely worried about the power and suggest that it might well be discriminatory in its effect. Despite the belief of Sir Louis Blom-Cooper that there would not be problems with the European Convention on Human Rights, his is not the only opinion and others feel that there might well be problems with the European Court of Human Rights.
I have set out a very small list of the points which people have made against the power to convey. I feel that either the power to convey should be dropped altogether or that it should be given some teeth, as my noble friend suggested.
Lord Mottistone: My Lords, perhaps I may comment on all three amendments. It may be helpful if I give the House the view conveyed to me by the National Schizophrenia Fellowship on this very tricky area. I refer first to Amendments Nos. 31 and 35. The National Schizophrenia Fellowship members are not in favour of a patient being required to take medication when living outside hospital. They do not think it is workable on practical grounds. If a patient is not prepared to comply with taking prescribed drugs, either orally or by injection, he or she should be admitted to hospital. It is as simple as that. If there is a deterioration in mental health or a danger in terms of suicide risk or violence to others, which often happens as a result of not taking medication, hospital must be the place for them.
Turning to Amendment No. 33, as the noble Lord, Lord Rea, said, many civil liberties organisations object strongly to the power to convey. The National Schizophrenia Fellowship thinking on that point is that the power to convey could not and would not be used to convey someone to a clinic, a residential home, a work experience project, evening classes or whatever by force, as is sometimes necessary on admission to hospital. If there were any attempt to do that the National Schizophrenia Fellowship would object as much as any of the civil liberties organisations might do, as it sees that as destroying the whole basis of the Bill, which is to get as far as possible by consultation.
I am sure that many times my noble friend the Minister has told us that consultation and agreement are the basis of so much of what the Bill is trying to do. The

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National Schizophrenia Fellowship feels that having the power will be a very useful reinforcement, as my noble friend said in Committee, for, for example, a community psychiatric nurse or a social worker saying to someone, "You have to go to the clinic. I have my car here. Now come along". Such an approach might well work in practice by persuasion. In other words, what is wanted is the power to reinforce persuasion for the persuadable and not to get hold of 10 policemen or even one to take the patient anywhere by force. Therefore, I believe that the proposal in Amendment No. 33, which is to remove subsection (4), would lead to so much time being taken to implement the other aspects of the Bill that the situation that it is designed to deal with would have long changed into something else by the time the application had been approved by the health authority. Amendment No. 33 is not practicable.
Earl Russell: My Lords, it seems to be the contention of the Opposition that the Bill is, as Sir Winston Churchill said of Sir Clive Bossom, neither one thing nor the other. The Minister might possibly be tempted to reply that in that case the Bill is just like real life.
I understand the argument for saying that one needs a power to compel the taking of medication in the community. But that is a great deal easier said than done. If any of us had been in the position of having to try to induce a patient to take medication which he is absolutely determined not to take, I think it would be agreed that it really is true that one can take a horse to water but one cannot make it drink.
That is why the power to take and convey in this Bill is necessary. I listened very carefully to what the noble Lord, Lord Rea, said. It is true that one takes such powers only warily and hesitantly. In the end one has to take account of safety. There are many situations when the patient left outside is not safe. I remember an occasion when, late at night and in the dark, the patient was in a black cloak standing in the middle of the road. The traffic could not see her, and she would not move. That is the sort of situation where one needs the power to take and convey. I do not believe that we shall ever get this right but it seems to me that the Bill has come as near to it as we can reasonably hope.
6 p.m.
Baroness Cumberlege: My Lords, we very much share the views of my noble friend Lord Mottistone and those of the noble Earl, Lord Russell. I am grateful for his support on this occasion. We feel that compulsory medication in the community has no place in our proposals. The requirements placed on a patient may include where he should attend for treatment. There will be a power to convey him there if absolutely necessary. But the idea of compulsory medication goes against the basic philosophy of the Bill.
The medication a patient needs will be part of the aftercare services provided for him under Section 117 of the Act, and if he does not co-operate with this part of his care the new Section 25E provides for the case to be reviewed and in particular for consideration to be given to whether he might need to be re-admitted to hospital under the Act. As your Lordships know, the
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balance between the liberties of patients and the protection they and other people may need from the effects of their illness is a delicate one. To introduce a provision for compulsory treatment in the community into the Bill would alter that balance fundamentally and this is not a course we wish to take. The fact that there is no power to medicate will itself help to ensure that the power to convey is used sparingly because there will be no point in using it unless there is reasonable expectation that the patient will co-operate.
I must confess that we are a little surprised to find the noble Baroness and the noble Lord, Lord Rea, proposing in the same breath that the Bill should be made tougher by introducing compulsory medication in the community and that the power which it already contains to convey the patient should be removed. As I have acknowledged previously, we recognise that ultimately aftercare under supervision is not going to work without the co-operation of the patient. I also accept that the power to convey a patient can be seen as somewhat more coercive than Clause 1 as a whole. Indeed, we would expect it to be used in only fairly rare cases.
But in those cases where there is a temporary reluctance to co-operate on the patient's part, this limited measure of compulsion may be very valuable in ensuring that the care arrangements are maintained. That is a significant part of the underpinning of the aftercare arrangements introduced by the Bill. I hope very much that the noble Baroness and the noble Lord will agree not to press the amendment. Perhaps I may just add that all the legal advice we have had is that all the provisions of the Bill are compatible with the European Convention on Human Rights.
Baroness Jay of Paddington: My Lords, I am very grateful to the Minister for that reply. As I hope I made clear in my introductory remarks, my noble friend and I were introducing these amendments, which we recognise to be mutually exclusive, in a probing way. I am very grateful to all noble Lords who have taken part in this short debate because it has illustrated how complex and difficult this whole area is.
I say to the noble Lord, Lord Mottistone, that if the patient does not agree to take medication and, as he was suggesting, that hospital would then be the place for them, the difficulty is that it would mean totally revising the supervised discharge order under which they were living in the community, as I understand the Bill as it now stands. That may not be quite as easy as the noble Lord suggested it was. That again illustrates the complexity of this area which the amendments were designed to address.
Finally, the noble Earl, Lord Russell, said that the amendment was perhaps not compatible with real life. My concern is that so many of the people who are dealing practically with patients in the community suggest that their work would be made much easier if Amendment No. 31 was adopted. However, in real life so many members of the civil liberties community and many patient bodies, are opposed to the provisions about taking and conveying which would have been left out if Amendment No. 33 had been accepted.

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As I say, it has been made very clear from these discussions that real life, particularly as it deals with the whole issue of treating the mentally ill successfully in the community, is enormously complex and stretches way beyond the simple issues of social care and probably far into areas of jurisprudence and ethics. I thank all noble Lords who have taken part in this short debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 32 and 33 not moved.]
Baroness Jay Baroness Jay moved Amendment No. 34:
Page 6, leave out line 39 and insert:
("( ) An application for a patient subject to after-care under supervision to be taken and conveyed (in this Act referred to as a "conveyance application") duly completed in accordance with subsection (4A) below, shall be sufficient authority for the patient to").
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 36. In a sense these two amendments are in contrast to the previous group. They seek to introduce a rather practical provision into the power to take and convey and to ensure that it is used only in emergencies, as has been suggested by the Minister at Committee stage and which has been discussed in our debates on earlier amendments this afternoon.
These amendments would establish that this power was required in the interests of the health and safety of patients or for the protection of others. It would also establish that the appropriate procedures making a conveyance application had been duly completed. In this way the amendments would bring the Bill into line with the existing powers to take and convey which are in the Mental Health Act 1983.
Many concerns have been expressed, as the noble Lord, Lord Rea, said, as regards the earlier amendment, about the power as drafted and particularly that it does not include the same explicit criteria for taking and conveying as exist in the Mental Health Act 1983. For example, the Law Society has written to me saying,
"A power of this nature is only necessary when the person is refusing to comply with the requirements imposed on them. Since this involves depriving the person of the liberty and freedom of movement against their will, it is therefore a power with considerable weight normally reserved only for police officers when taking a person into custody. Powers of this nature are in any other situation only allowed to be used with numerous safeguards to protect both the person being conveyed and the person effecting the conveyance".
As we know, the Mental Health Act 1983 already contains some provisions for an unwilling patient to be taken and conveyed to hospital although these provisions are limited to what is necessary to effect an admission to hospital. Under the existing provisions, which I understand are in Sections 6 and 137, a properly completed application for admission to hospital provides the necessary authority to take the patient and convey him to hospital. The application includes the recommendations of two medical practitioners that the patient is suffering from mental disorder of a nature or degree which warrants detention. The Act also confirms that the power to convey a person to hospital includes all the powers of a police officer when taking a person
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into custody. Reasonable force may be used to effect the conveyance and the person is deemed to be in legal custody.
During the debate in Committee the noble Baroness, Lady Cumberlege, said,
"We have followed the form of the existing Mental Health Act power for conveying a patient to hospital following an application for detention".—[Official Report, 4/4/95; col. 154.]
But the Bill as currently drafted does not set out the circumstances in which it is envisaged that the power may be used nor does it require the supervisor to obtain any form of authority before using the power or before delegating the power to anybody else.
At col. 156 the noble Baroness also said in response to an earlier debate on this subject,
"Clearly this power to convey would be used only in times of emergency".
However, the circumstances which constitute such an emergency are not on the face of the Bill. They should be clarified to give the legislation the force and to give the people involved in it the protection which they have under the Mental Health Act.
These two amendments would achieve that clarity by specifying the circumstances in which the power may be used and by clarifying the authority required by the supervisor before using this power or delegating it to someone else. I beg to move.
Baroness Cumberlege: My Lords, the noble Baroness, Lady Jay, and the noble Lord, Lord Rea, now propose that the power to convey should feature as a way of helping a patient to comply with the requirements of his care plan in the community. However, I cannot support the approach they have adopted here. It would introduce a provision whereby on each occasion that a supervisor thought it was in the best interests of the patient to convey him to where he was supposed to be, a "conveyance application" should be made to the health authority. If a patient is on supervised discharge, the health authority would have accepted a supervision application at the outset and, under our proposals, the authorisation of a power to convey is implicit in that original acceptance.
That power would be used under only very limited circumstances, but I understand that it may be particularly valuable in emergencies. As the noble Earl, Lord Russell, illustrated clearly in response to an amendment tabled by the noble Earl, Lord Longford, when we discussed our proposals in Committee last month, where someone has a severe mental illness—possibly a person with schizophrenia who is not adhering to his care plan and might cause himself or others harm if not supported urgently—an immediate power is needed. It would not be practical or in the best interests of the patient to wait for the bureaucracy of an application to take its course. We do not believe that the amen0dments are practical and I hope that the noble Baroness will not press them.
Baroness Jay of Paddington: My Lords, I thank the Minister for that reply. I am sorry that the noble Lord, Lord Jenkin of Roding, is not in his place at the moment because, following his earlier amendments about making things clear to those in the community who will

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have to deal with these complicated provisions, he might have said what I feel—that the amendments would help to spell out precisely the circumstances and authorities needed to apply to what we have all described as a very important and rather difficult power.
Surely, however, the Minister's point about the provisions involving unnecessary bureaucracy in an emergency has already been met under Section 6 of the Mental Health Act, where emergencies are acknowledged and where the powers to take and convey are provided for, as suggested in my amendment. In fact, I believe that the wording of my amendment is drawn almost precisely from that of Section 6 of the Mental Health Act. Presumably, those who apply that part of the Mental Health Act to emergency admissions to hospitals do not find the bureaucracy overwhelming and difficult. I see no logical reason why it should not be the same in the community.
As I said, these are practical amendments as compared with our earlier amendments which were designed to provoke precisely the discussion that we had so successfully. I am disappointed that the Minister does not feel able to accept them because, as I said, I believe that the provisions would help those who are working in the community in this extremely difficult area to understand both their powers and responsibilities. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 35 and 36 not moved.]
Lord Rea Lord Rea moved Amendment No. 37:
Page 7, line 35, at end insert:
("( ) Where the patient is admitted to hospital for treatment following a referral to an approved social worker under sub-section (4) (b) above, the hospital manager must refer the case to the Mental Health Review Tribunal for a hearing within 4 weeks, without prejudice to the patient's right to apply to the Mental Health Review Tribunal under the provisions of this Act.").
The noble Lord said: My Lords, the purpose of this amendment is to ensure a speedy review of any patient's detention in hospital should that patient fail to comply with aftercare under supervision. The only sanction—the ultimate sanction—that is available to the responsible medical officer in the community and the associated aftercare body with which he or she is working, in cases where a patient under supervision refuses or neglects to comply with all the requirements imposed upon him or her, is to consider readmission to hospital.
There are likely to be many reasons why a patient may refuse or neglect to comply with the requirements of his aftercare under supervision. Preparation for aftercare and taking the patient's views into account may, as we said earlier, improve the success rate of the care plan. However, since readmission to hospital is to be the main sanction for non-compliance, particularly now that the decision not to require medication in the community has definitely been made, it is important that the need for detention is reviewed by the mental health review tribunal at the earliest possible opportunity to
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protect the patient's rights and to ensure that the power is not abused. That is a brief description of what the amendment is about. I beg to move.
6.15 p.m.
Baroness Cumberlege: My Lords, this amendment seeks to require that where a patient who has been subject to aftercare under supervision is readmitted to hospital for treatment under the Act, he will have his case automatically referred by the hospital managers to a mental health review tribunal within four weeks. Such a referral would be independent of his right to appeal to a tribunal on his own behalf.
Patients who have been subject to aftercare under supervision will have been closely monitored and their progress towards rehabilitation will be known to the supervisor and other members of the care team. Therefore, if unfortunately their mental condition deteriorates to such an extent that they require detention once more, several professionals will be well acquainted with their condition and readmission can be organised speedily. They will have an immediate right to appeal to a mental health review tribunal against their detention.
The effect of the amendment would be to treat those patients differently from those who were detained for treatment without having been subject to aftercare under supervision. I can see no justification for that. All patients have the right to apply for a tribunal as soon as they are detained under the Act. We see no reason why, in the case of these patients, it has to be reinforced by an additional duty on the managers. I hope that the noble Lord will withdraw the amendment.
Lord Rea: My Lords, I thank the Minister for that reply. We still feel that this is a special group of patients who should be able to cope, with help, in the community. We feel that rather more searching scrutiny should be made of the reasons for their readmission and that consideration should be given to the question of whether their readmission or detention in hospital is necessary. However, I do not intend to press the amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 38:
Page 7, line 36, leave out from beginning to ("under") in line 37 and insert:
("(5) The responsible after-care bodies shall not modify—
(a) the after-care services provided (or to be provided)").
The noble Baroness said: My Lords, in speaking to Amendment No. 38, I should like to speak also to Amendments Nos. 39 and 40. This group of amendments tidies up the existing provisions in new Section 25E. These all relate to the modification of the aftercare services; in other words, changes to the agreed care plan.
As currently drafted, the Bill would not allow for a change to the care plan to be made before the patient left hospital. In the great majority of cases the sequence of events will be, broadly, that the care plan will have been drawn up and agreed, the supervision application made and then accepted by the health authority, and the patient leaves hospital and returns to the community

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where he will be subject to aftercare under supervision. However, it is possible that the care plan may need to be revised before discharge from hospital—perhaps a hostel place has fallen through, or the care team has to change. It therefore seems sensible to build in the possibility that the aftercare services could be modified before the patient leaves hospital. Changes as needed could also be made to the requirements in new Section 25D. Any other approach would mean that the original care plan and requirements would take effect when the patient leaves hospital and would then need immediate review and change.
The responsible aftercare bodies must not modify the aftercare services which are actually being provided or will be provided when the patient leaves hospital, unless they consult the patient, informal carer and nearest relative (where practicable unless the patient has objected) about the modifications. Again, as currently drafted, the Bill places the duty to undertake the consultation upon the responsible aftercare bodies; that is, the health authority and the local authority with the duty under Section 117 to provide aftercare. The amendments are intended to add flexibility to the system by leaving open who actually undertakes the consultation. In practice, we envisage that when the patient is subject to aftercare under supervision it will fall to the supervisor. The amended new Section 25E(6), however, makes it incumbent upon the responsible aftercare bodies that they must take into account the views expressed by those who have been consulted. I beg to move.
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 39:
Page 7, line 42, leave out from beginning to end of line 7 on page 8 and insert ("unless subsection (6) below is complied with.
(6) This subsection is complied with if—

(a) the patient has been consulted about the modifications;

(b) any person who the responsible after-care bodies believe plays (or will play) a substantial part in the care of the patient but is not (or will not be) professionally concerned with the after-care services provided for the patient under section 117 below has been consulted about the modifications;

(c) unless the patient has otherwise requested, such steps as are practicable have been taken to consult the person (if any) appearing to be the nearest relative of the patient about the modifications; and

(d) the responsible after-care bodies have taken into account any views expressed by the persons consulted.").

On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 40:
Page 8, line 9, after ("provided") insert ("(or to be provided)").
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 41:
Page 8, leave out lines 13 to 21 and insert ("both orally and in writing;

(b) inform any person who has been consulted under paragraph (b) of subsection (6) above; and

(c) inform in writing any person who has been consulted under paragraph (c) of that subsection,

that the modifications have been made.").
The noble Baroness said: My Lords, I spoke to the amendment with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 42:
Page 8, line 44, after ("patient") insert ("both orally and in writing").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 43:
Page 9, line 1, leave out ("except where") and insert ("unless").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 15. I beg to move.
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 44:
Page 9, line 2, after ("inform") insert ("in writing").
On Question, amendment agreed to.
The Deputy Speaker (Lord Elliott of Morpeth): My Lords, I understand that there is a misprint on the Marshalled List, and that Amendment No. 45 should be in the name of the noble Baroness, Lady Jay of Paddington.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 45:
Page 9, line 6, at end insert:
("Regulations as to transfer of patients.
(1) This section applies when a patient decides to move from the original place of residence decided under section 25(d)
above and this move involves a change of responsible Health Authority or Social Services Authority.
(2) Where subsection (1) above applies in relation to a patient, the responsible after-care bodies shall consider whether appropriate after-care services will be available in the areas in which the patient wishes to reside, being an area not within that of the responsible Health Authority or local social services authority as specified in section 25A.
(3) Where subsection (1) above applies in relation to a patient, the responsible after-care bodies shall consult the persons referred to in subsection (4) below who will be professionally concerned, in the intended area of residence, with the after-care services to be provided for the patient under section 117 below, or shall, if the patient intends to reside in Scotland, make an application to the appropriate sheriff under section 35 below.
(4) The persons referred to in subsection (3) above are—

(a) the responsible medical officer within the area of the Health Authority where the patient intends to reside; and

(b) an approved social worker acting for the local social services authority where the patient intends to reside.

(5) Where a patient is for the time being subject to after-care under supervision of a Health Authority by virtue of an application under section 25A above, that patient may be transferred into the after-care supervision of another Health Authority after such consultation, and in such circumstances and subject to such conditions as may be prescribed by regulations made by the Secretary of State.
(6) Where a patient who is subject to after-care under supervision is transferred in pursuance of regulations under subsection (5) above to after-care under supervision of another Health Authority, the provisions of this Part of this Act shall apply as if the application were for his reception into the after-care under supervision of that Health Authority and had been accepted at the time when it was originally made.").
The noble Baroness said: My Lords, I am sorry that the amendment does not stand in the Minister's name. It is, however, similar to an amendment introduced in Committee by the noble Earl, Lord Haig, and it is with his permission that I am introducing it. The amendment allows for flexibility and continuity in the aftercare arrangements if a patient on a supervised discharge order moves from one health or local authority area to another. That will obviously be an issue where patients live in a large city such as London and by inadvertence move out of one local authority or health authority's area into another.
The noble Earl asked what would happen to patients who may move between Scotland and England where, as we know, the jurisdictions and care programme arrangements are different. The community supervision arrangements proposed in the Bill are dissimilar. We have been made aware that many patients are inclined to drift from one place to another. We have experienced such examples, and reports of difficult cases have been mentioned several times today.
Responding to the noble Earl's amendment in Committee, the Minister said that continuity of care was assured under the Section 117 duties on health authorities and social services which are transferable. That is fine in theory and in statute: it may not be so good in practice. It does not always work. Patients sometimes become the only source of information about their circumstances and diagnoses when they turn up in another jurisdiction and appear before another set of doctors and social services staff.
There is a strong case for revising the powers of the Mental Health Act Commission, something that we shall discuss under Amendment No. 141. In any case, there is an argument for being more precise on the face of the Bill about the need for cross-boundary consultation. That, as I say, will be especially important across the national border between England and Scotland. In Committee, in reply to that point, the Minister said:
"We are looking carefully at what might be done to address this and we hope to bring forward our proposals soon".—[Official Report, 4/4/95; col. 163.]
When I saw the Marshalled List before the misprint came to light, I thought that that might have been what had happened. I have been disabused of that optimism. I beg to move.
Baroness Cumberlege: My Lords, the amendment suggests that where place of residence is among the requirements—if any—placed upon a patient, special arrangements for moving him or her to another area covered by another health and local authority would be necessary. I hope I can explain that, while the arrangements will indeed be necessary, the amendment itself is not. The power of supervised discharge aims to ensure that a discharged patient receives the services which must be provided under Section 117 of the Mental Health Act. This latter provision has been in existence since 1983 and allows—without specifying the detailed arrangements and consultations which must take place as a matter of good practice—a patient to move from one area to another without losing the care in the community and support he or she needs. Section 117 simply says that it is the duty of the authorities in
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which the patient is resident (or to which he or she is discharged) to provide those services, regardless of whether the authorities change because of where the patient subsequently moves to. Therefore, if a patient wishes to move to a different area and it is considered to be in his or her best interests, then arrangements can be made regardless of whether his or her actual place of residence is a requirement under supervised discharge. Such a change could be accommodated by the review of requirements provisions already in the Bill and by the flexibility which Section 117 already allows. A change of community responsible medical officer or supervisor, whether because of a change of location or any other reason, is allowed for in the Bill as drafted.
The transfer to Scotland is, as your Lordships have identified, a slightly different matter, as would be a transfer in the opposite direction. We are looking at this at present and I intend to put proposals to the House on Third Reading. In the meantime, in the light of that explanation, I hope that the noble Baroness will withdraw the amendment.
Baroness Jay of Paddington: My Lords, I am grateful to the Minister for that explanation and in particular for her remarks that she will be tabling proposals relating to cross-border transfers, or whatever one may call them—drifting perhaps rather than transfers —at a later stage of the Bill. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 46:
Page 9, line 26, after ("patient") insert ("both orally and in writing").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 47:
Page 9, line 27, leave out ("except where") and insert ("unless").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 15. I beg to move.
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendments Nos. 48 to 56:
Page 9, line 28, after ("inform") insert ("in writing").
Page 9, leave out line 31 and insert ("that the report has been furnished.").
Page 10, line 25, leave out from ("whether") to end of line 43 and insert ("the conditions set out in subsection (4) above are complied with unless—

(a) the following persons have been consulted—

(i) the patient;

(ii) the supervisor;

(iii) unless no-one other than the community responsible medical officer is professionally concerned with the patient's medical treatment, one or more persons who are so concerned;

(iv) one or more persons who are professionally concerned with the after-care services (other than medical treatment) provided for the patient under section 117 below; and

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(v) any person who the community responsible medical officer believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services so provided;

(b) except where the patient has otherwise requested, such steps as are practicable have been taken to consult the person (if any) appearing to be the nearest relative of the patient; and

(c) the community responsible medical officer has taken into account any relevant views expressed by the persons consulted.").

Page 11, leave out lines 4 to 13 and insert ("both orally and in writing—

(i) that the report has been furnished; and

(ii) of the effect in his case of the provisions of this Act relating to making a patient subject to after-care under supervision for a further period (including, in particular, what rights of applying to a Mental Health Review Tribunal are available);

(b) inform any person who has been consulted under paragraph (a) (v) of subsection (6) above that the report has been furnished; and
(c) inform in writing any person who has been consulted under paragraph (b) of that subsection that the report has been furnished.").
Page 11, line 27, leave out from ("unless") to end of line 45 and insert ("subsection (3) below is complied with.
(3) This subsection is complied with if—

(a) the following persons have been consulted about the giving of the direction—

(i) the patient;

(ii) the supervisor;

(iii) unless no-one other than the community responsible medical officer is professionally concerned with the patient's medical treatment, one or more persons who are so concerned;

(iv) one or more persons who are professionally concerned with the after-care services (other than medical treatment) provided for the patient under section 117 below; and

(v) any person who the community responsible medical officer believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services so provided;

(b) unless the patient has otherwise requested, such steps as are practicable have been taken to consult the person (if any) appearing to be the nearest relative of the patient about the giving of the direction; and

(c) the community responsible medical officer has taken into account any views expressed by the persons consulted.").

Page 12, line 7, after ("patient") insert ("both orally and in writing").
Page 12, line 13, leave out ("except where") and insert ("unless").
Page 12, line 14, after ("inform") insert ("in writing").
Page 12, line 17, leave out ("of his ceasing") and insert ("that the patient has ceased").
On Question, amendments agreed to.
[Amendments Nos. 57 and 58 not moved.]
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 59:
Page 12, line 30, leave out subsection (3).
The noble Baroness said: My Lords, I shall speak also to Amendment No. 128. The amendments change the commencement date of the Bill from 1st January 1996 to 1st April 1996. We have taken stock of the Bill's progress through Parliament and considered the need for consequential amendments and secondary legislation. We believe that once the legislation has been passed
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there must be sufficient time for guidance to be issued and read and fully understood by those who are to operate the new powers both in England and Wales and in Scotland. During Committee we also took note of the points made about local government reorganisation in Scotland, and the Government consider that a 1st April start date would be a more suitable date for this reason. I beg to move.
On Question, amendment agreed to.
6.30 p.m.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 60:
After Clause 1, insert the following new clause:
("Guardianship
In section 7(5) of the Mental Health Act 1983 after the words "the local social services authority" in each place they occur, there shall be inserted the words "or relevant health authority".").
The noble Baroness said: My Lords, in moving Amendment No. 60 I shall speak also to Amendment No. 61. They would place on the face of the Bill the amendments to the Mental Health Act 1983 which would make guardianship a statutory alternative and with the same terms as a supervised discharge order. That would thus make the two provisions interchangeable.
On Second Reading we discussed the general advantages of guardianship. I suggested that if the guardianship orders in the Mental Health Act 1983 were amended as we now propose, the new supervision order could be made redundant. However, in Committee I proposed an amendment to ensure that guardianship was considered before a supervised discharge order was made. In reply, the Minister said that she was sure that in practice that would happen. However, she also said that, as the guardianship order was seen as a social services provision and the new order is to be health authority driven, and as there is no power to take and convey in guardianship as it now stands, it was unlikely that guardianship would often be used for this particular group of patients.
The new clause seeks to amend the 1983 Act so that guardianship may in future be the responsibility of a health authority as an alternative to a social services authority. It also adds to Section 8 of the Mental Health Act the additional power to take and convey. I remind your Lordships that that additional power as regards guardianship was suggested by the Law Commission report on mental incapacity. It was published earlier this year but after publication of the Bill. Those consulted by the Law Commission were unanimous in supporting the additional power and said that the fact that it was not in the present guardianship arrangements was a serious omission.
We know that guardianship is growing in practice, although at one stage it was not often used by local social services. There were 66 orders in 1983–84 and 326 in 1993–94. I believe that if the practice is becoming acceptable to patients and to doctors and social workers, who understand the implications of the guardianship law and have practice in using it, the simple addition of taking and conveying to make it consistent with the new

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Bill and to amend the 1983 Act in the way that I have suggested would make it even more useful. I beg to move.
Baroness Miller of Hendon: My Lords, these amendments would make it possible for a health authority to become guardian to a vulnerable patient under the Mental Health Act and would also introduce to guardianship for the first time the power to convey for treatment and rehabilitation.
We believe that there may be scope for improving the use of guardianship. Indeed, we have just finished a consultation exercise about how it is used and how this could be improved. But we also believe it is there for a different type of patient—one with perhaps a lower risk factor and fewer medical needs—than the patient we think would benefit from supervised discharge. My noble friend has explained at earlier stages our reasons for believing that a new power is needed which will have a different focus from guardianship and can work alongside it. What these amendments would do is to change guardianship to make it more like supervised discharge. We believe that this can only cause confusion and that it will be better to keep the two powers distinct until we are better able to take stock of the effectiveness of the new one.
Similarly, we would not want to introduce a power to convey someone subject to guardianship at this stage. But we will certainly be prepared to look at this again when we have analysed the comments that we have received from our recent consultation exercise and when we are in a position to see how supervised discharge works as an entirely different provision to guardianship. I hope that under those circumstances the noble Baroness will feel able to withdraw the amendment.
Baroness Jay of Paddington: My Lords, I am grateful to the noble Baroness, Lady Miller, for that helpful reply. In particular, I am pleased to hear that the Government are considering a new approach to guardianship and are closely considering the results of their consultation. I look forward to hearing about the results of that and to any appropriate amendments subsequently made to existing or future legislation. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
Clause 2 [Absence without leave]:
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 62:
Page 12, line 43, leave out ("later") and insert ("earlier").
The noble Baroness said: My Lords, the amendment is designed to ensure that a person is not liable to be taken into custody for longer than the period for which he or she was liable to be detained under the Mental Health Act. Once again, the amendment is designed to ensure that the provisions of the new legislation are consistent with the 1983 Act; in particular, that the protection of the rights of the patient is not undermined by a failure to make explicit the understanding of some of the new arrangements—in other words, not to leave crucial matters to good practice when bad practice may mean that very vulnerable and difficult patients suffer.
As we understand it, Clause 2 has been introduced because under the Mental Health Act the power to take a patient who is absent without leave back into custody and then into hospital ceases after 28 days. It is also my understanding that this provision attracted considerable negative public attention after the highly publicised case of a man who was detained under a hospital order—that is, it was made after a criminal conviction—but not a restriction order. It is worth repeating that most of those detained in hospital—I believe about 87 per cent.—are detained under civil provisions, which means that they are not detained following conviction.
Several of the organisations which deal with patients in the community and which act as their informal advocates are anxious that, for example, if patients are absent without leave and liable to detention for much longer than the original sectioning under which they were detained, it is likely that they will stay away from mental health services even though they might otherwise have sought help. It has been suggested that the decision to detain someone must be free from arbitrariness.
It is also suggested that under the proposals as drafted someone could be taken to hospital more than five months after the original authority to detain had expired and detained without the procedures that are otherwise provided for by the 1983 Act. I remind your Lordships that those include an application by a social worker supported by two medical opinions. I am sure that that cannot be the intention of the Bill as drafted and I believe that the amendment would help to make more explicit the understanding of some of the new arrangements. I beg to move.
Baroness Cumberlege: My Lords, the amendment would significantly shorten the period of time in which a patient who went absent without leave would be liable to be taken into custody. Indeed, should a patient go absent without leave within the last 28 days of his or her authority for detention, his or her liability to be taken back into custody would be shorter than the 28-day period in the 1983 Act which this clause was introduced to address. Should a patient abscond the day before his or her authority for detention expired, the period in which he or she was liable to be returned to hospital would be little more than a matter of hours. I am sure that your Lordships would agree that this would not be an acceptable situation. The fact that at present a patient who absconds cannot be returned to hospital after more than 28 days has aroused widespread public concern. I believe that the public would be a little surprised to see us shortening this further.
I also remind your Lordships that if a patient had been at liberty for more than 28 days, he could not simply be returned to hospital without further ado. The new Section 21B then requires the responsible medical officer to examine the patient. He will then only continue to be detained if the RMO, who must consult others including an approved social worker, so recommends.
Setting a time limit on the return of absconding patients is not a straightforward task. It involves a careful balancing act taking account both of the civil rights of patients and their safety and that of the public. We are

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confident that the provisions in Clause 2 as they currently stand have got this balance right. Therefore, I ask the noble Baroness not to press the amendment.
Baroness Jay of Paddington: My Lords, I am grateful to the Minister for that reply. As the noble Baroness said, this is an issue where the balancing act which we all have to follow is extremely difficult. Obviously, there is legitimate public concern about some of the incidents to which I referred when introducing the amendment.
What the Minister said about explicit undertakings and her explanation of them in relation to new Section 21 B in terms of the distinct co-operation and collaboration between the RMO and an approved social worker will remove many of the anxieties that have been expressed about the lack of consistency in the present proposals and the 1983 Act. In view of that and what the Minister rightly described as a certain public disquiet about this issue, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Community care orders]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 63:
Page 17, line 2, leave out from beginning to ("the") in line 3 and insert:
("Where a patient who is liable to be detained in a hospital under section 18 or Part VI of this Act, and has attained the age of 16 years,").
The noble Lord said: My Lords, I understand that the Government intend that the new orders should apply only to people who have serious mental health problems and who are the subject of long-term sections or who have come to hospital through the criminal justice system. I understand that that is the intention of new Section 35B on page 18 at lines 37 to 40.
However, new Section 35B does not achieve that result. Under Sections 24 and 26 of the Mental Health (Scotland) Act, a person may be detained in a hospital for a total of 31 days. It is then possible to make an application for a community care order during the last three days of the patient's detention. The amendment removes that possibility.
If one looks at the position of children and young people, the English provisions of Clause 1 limit the supervision and discharge of young people who have attained the age of 16. The reason would appear to be that such young people are dealt with more appropriately under the Children Act. Similar concerns apply to children in Scotland who could have the benefit of supervision from social work departments and reference to a children's panel.
Those would seem to be the appropriate bodies for exercising control and supervision over the lives of young people. They have the experience and the procedures in place for considering the special needs of young people. In general, we are very pleased with the work of our children's panels. I hope that the Minister will be able to reassure the House that those panels will be used, in particular for those aged under 16. I beg to move.
The Earl of Lindsay: My Lords, this amendment appears to make community care orders available to those
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detained under Section 18 and Part VI of the 1984 Act, and to patients who are over 16 years. I regret that, although we understand what the amendment seeks to provide, we are not able to accept it.
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 patients sent to hospital by a court under a hospital order without special restrictions following their involvement in criminal proceedings. The discharge arrangements of such patients are 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.
By including a reference to Part VI of the Act, the amendment could also make community care orders available to restricted, or "state", patients. As the noble Lord will know, for public safety reasons responsibility for the case management of these patients ultimately rests with the Secretary of State. The powers available under Sections 64(2) and 68(2) of the 1984 Act, which allow for the conditional discharge of these patients, work well. Consequently, we do not consider that community care orders should be available for restricted patients.
The noble Lord is, I understand, seeking clarification in the Bill that community care orders are not available for patients detained under Section 24, then Section 26. I hope that we have provided that clarification by tabling government Amendments Nos. 64, 69, 70 and 77.
On the question of an age limit, and as we discussed in Committee, we all appreciate that the detention of children under the age of 16 years in 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 detention 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. In the light of that explanation, I ask the noble Lord to withdraw this amendment.
6.45 p.m.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for that very full explanation, although I do not pretend to agree with it. For example, will children in hospital in those circumstances be detained in conditions different from those for the other general patients? Will there be a wing for patients aged under 16 or will they be in wards with adults? I am sure that the noble Earl will recognise that that would be a very retrograde step. I shall look at what he said and take advice on the technical points which were raised. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 64:
Page 17, line 3, leave out ("under this Pan of this Act") and insert ("in pursuance of an application for admission").
The noble Earl said: My Lords, it may be for the convenience of the House if I speak also to Amendments Nos. 69, 70 and 77 at this stage. It became evident in Committee that it was not necessarily clear exactly which patients might be candidates for community care orders. I note in particular the discussion which took place then about Amendment No. 85, proposed by the noble Earl, Lord Mar and Kellie, as recorded at columns 337 and 338 of the Official Report.
We have therefore proposed these amendments of a drafting and technical nature to seek to clarify exactly who is, and who is not, a candidate for a community care order. The text of these amendments states that it shall be a person who is liable to be detained in hospital under the Mental Health (Scotland) Act 1984,
"in pursuance of an application for admission".
This is the wording used in the Act to refer to a person who is liable to be detained in hospital as a result of an approved application for admission, that is, a person detained in hospital under Section 18 of the Act. Patients subject to a hospital order without special restrictions are also included by virtue of paragraph 5 of Schedule 2.
We further require that the person should have been liable to be detained under Section 18 or under the hospital order for a period of 28 days before an application for a community care order can be made. This allows the review of the patient's liability to detention required by Section 22(4) of the 1984 Act. We seek to clarify that in Amendment No. 77.
We take the view that community care orders should be for people who have been detained in hospital because of their mental disorder under Section 18 or under a hospital order. Patients who are detained under Sections 24, or Section 24 followed by Section 26, and who then require no further liability to detention in hospital are covered by the care management arrangements. We have made it clear in guidance that patients with a mild mental illness may be discharged only following agreement of a multi-disciplinary care plan which will ensure that they receive a good standard of clinical and aftercare services. This is set out in the circular, Community Care in Scotland, Assessment and Care Management. I beg to move.
On Question, amendment agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 65:
Page 17, line 14, at end insert ("and
(c) a community care assessment under section 12A of the Social Work (Scotland) Act 1968
(in this Act referred to as a "community care assessment").").
The noble Lord said: My Lords, this amendment seeks 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. We believe it is essential that a person who is subject to a community care order receives the benefits of the new community care system of assessment and care management. This amendment attempts to tie in the two systems to bring this about. In an earlier part of the discussion on this Bill the noble Earl said,
"Local authorities already have a duty under Section 12A of the Social Work (Scotland) Act 1968 to assess people's social care needs"—[Official Report, 6/4/95; col. 329.]
This amendment would make it clear that such an assessment should be carried out before the community care order was granted. The sheriff should have the benefit of seeing the full assessment before he grants a community care order. I have not been able to tie up what the Minister said earlier with this amendment, but I believe that it takes his amendment a little further than he would perhaps wish. However, I should like to hear his reply to Amendment No. 65 and, incidentally, to Amendment No. 81 which is also in the group we are discussing. I beg to move.
The Earl of Lindsay: My Lords, as we understand it, these amendments, spoken to by the noble Lord, Lord Carmichael, seek to introduce a statutory requirement that the patient should receive a needs assessment, and make an associated change to the Bill. I have to say in passing that we are not convinced that the drafting would achieve their aim. We do not need to legislate for this. As the noble Lord remembered from the Committee stage, local authorities already have a duty under Section 12A of the Social Work (Scotland) Act 1968 to assess people's social care needs.
We believe the duties on local authorities to provide aftercare under Section 8 of the 1984 Act are quite clear and are being made even clearer in this Bill on page 39, at paragraph 3 of Schedule 2. We will also underline in guidance the circumstances in which this duty applies to community care order patients.
The noble Lord also mentioned that the sheriff should see an assessment in place before he grants a community care order. However, I would stress that, as it is, the sheriff must be fully satisfied with the arrangements which have been made both for the medical and the social aftercare of a particular patient before he grants an order. As matters stand, the sheriff has to be convinced that the necessary arrangements are in place. If there are problems in meeting these duties, these should be addressed administratively and not by primary legislation. I ask the noble Lord to consider withdrawing his amendment.
Lord Carmichael of Kelvingrove: My Lords, if the Minister can assure me that the consultation with the sheriff will be the equivalent of the sheriff having the benefit of a full assessment, and it is not merely an untutored or an unstructured discussion, I would be happy with that. However, we wanted the sheriff to be required to have a full assessment established so that in future the sheriff would be able to say, "I saw everything and I agreed with it". If the noble Earl can assure us that what he is suggesting would be the equivalent of a full assessment, I would be quite happy to withdraw the amendment.
The Earl of Lindsay: My Lords, I can reassure the noble Lord. The sheriff must be convinced that the appropriate community facilities are in place, and that the structural support is in place. Until he is convinced that that is the case, he will not be in a position to grant a community care order.
Lord Carmichael of Kelvingrove: My Lords, I am satisfied now with what the Minister has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 66 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 67:
Page 17, line 24, after ("appropriate") insert ("and which are agreed to by the special medical officer and the aftercare officer").
The noble Earl said: My Lords, my concern here is that the wording of the Bill allows the sheriff to introduce conditions of his own. I want to guard against the rare situation where a sheriff might introduce unrealistic conditions based upon idiosyncratic views. I note that in Committee we learnt that the sheriff should be able to approve conditions which are newly suggested during the course of an application hearing. We all applauded the news that applications would be held in chambers rather than in the more formal setting of open court. In Committee I withdrew an amendment which denied the sheriff the opportunity to make any additional conditions on a community care order without prior consent of the special medical officer and the aftercare officer. After learning of the informal judicial setting of the application, I believe that this amendment would enable the sheriff to propose new and additional conditions achieving consent from the special medical officer and the aftercare officer as the application was being dealt with. I beg to move.
The Earl of Lindsay: My Lords, the amendment moved by the noble Earl, Lord Mar and Kellie, would require the special medical officer and the aftercare officer to agree to any additional conditions which the sheriff decided were appropriate when he made the order. We discussed related points at the Committee stage of this Bill. The sheriff has discretion to make conditions at the point of making an order as he considers appropriate. Also, sheriffs must exercise powers reasonably. We have no grounds for assuming that they would not exercise their powers reasonably. The noble Earl thought there might be some rare circumstances where they might indulge in idiosyncratic whims. If they do, the making of any such order on such idiosyncratic whims would be open to legal challenge. It is unlikely that a sheriff could regard as appropriate a condition which was opposed by either the special medical officer or the aftercare officer.
The sheriff has a power under new Section 35A(5) to defer the making of an order until arrangements have been made. If a sheriff decided in a particular case that he wished to use that power to satisfy himself that arrangements had been made, and that as part of this he wished to be satisfied that the conditions to be imposed were acceptable to the care team, that would be a matter for him.
I should emphasise that such other conditions as the sheriff considers appropriate are, in the terms of new Section 35A(1) also conditions pertaining to the objective of the community care order, and they would have to fall within the scope of all conditions imposed under a community care order; that is, they must be imposed with a view to ensuring that the patient receives medical
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treatment and aftercare under Section 8 of the 1984 Act. On the basis of that explanation, I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of Mar and Kellie: My Lords, I thank the noble Earl for his explanation. My concern is that the special medical officer and the aftercare officer have to implement anything which is in the order. That is why I raised this amendment again. However, I am happy with the noble Earl's answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 69:
Page 17, line 49, leave out ("under this Part of this Act") and insert ("in pursuance of an application for admission").
The noble Earl said: My Lords, I spoke to this amendment when I moved Amendment No. 64. I beg to move.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 70:
Page 18, line 7, leave out ("under this Part of this Act") and insert ("in pursuance of an application for admission").
The noble Earl said: My Lords, I also spoke to this amendment when I moved Amendment No. 64. I beg to move.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 71:
Page 18, line 17, leave out from first ("and") to end of line 18 and insert ("any other person who has been consulted under subsection (3) (a) of section 35B of this Act;").
The noble Earl said: My Lords, in moving Amendment No. 71 it may be for the convenience of the House if I also speak to Amendments Nos. 73, 74, 80, 88, 92, 93, 99, 102, 111, 116, 117, 122, 123 and 124.
Noble Lords: Hear, hear!
The Earl of Lindsay: My Lords, we believe in efficient working in this House.
In the light of the discussions in Committee about the importance of the nearest relative, we are proposing to clarify his role. As your Lordships may have gathered from that lengthy list of amendments, these are quite complicated changes, but I shall attempt to be as clear as possible.
We propose that, in addition to any situation in which he may already be consulted, the nearest relative should be consulted, if practicable and if the patient does not object, at the following points: first, before an application for a community care order is made; secondly, before the renewal of a community care order; thirdly, before a proposed variation of conditions; fourthly, before reassessment in hospital is directed; and, fifthly, before a community care order is revoked by the special medical officer. We also propose that the patient, in addition to any point at which he must already be consulted, must be consulted before the renewal of the order and before the revocation of the order by the special medical officer.
We also propose that, if he has been consulted, the nearest relative is also informed at various points in the following ways. First, if he is consulted before an

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application is made, then he will be sent a copy of the community care order and he will be sent a copy of the written explanation given to the patient when the order is made. Secondly, if he is consulted about the renewal of the community care order, then he will be notified of any renewal and he will be sent a copy of the written explanation given to the patient. That is proposed in government Amendment No. 96, but I shall mention it briefly here. Thirdly, if he is consulted about a proposed variation of conditions, then he will be sent a copy of the proposed variation of conditions and a copy of the approved variation of conditions. Fourthly, if he is consulted about a proposed reassessment in hospital, he will be sent a copy of the pre-hospital reports and the direction requiring the patient to attend hospital. In all these cases, if the nearest relative has been consulted, the patient will have no right to prevent him being informed.
We have deliberately excluded the case of revocation from this scenario because it is a particularly important part of the community care order. Where a community care order is revoked, the nearest relative will always be informed. That is regardless of whether the revocation has been by the special medical officer or the Mental Welfare Commission and regardless of whether the nearest relative has been consulted.
The other amendments make technical changes to the procedures by which the nearest relative receives a copy of the written explanations given to the patient. This will occur only where the nearest relative has been consulted. I beg to move.
On Question, amendment agreed to.
Baroness Miller of Hendon: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion I suggest that the Report stage begin again not before eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.

Royal Assent
7.3 p.m.
The Deputy Speaker (Baroness Hooper): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Finance Act,

Building Societies (Joint Account Holders) Act,

Civil Evidence (Family Mediation) (Scotland) Act,

Requirements of Writing (Scotland) Act,

Letchworth Garden City Heritage Foundation Act.

Human Rights Bill [H.L.]
Read a third time.
Clause 1 [Incorporation of European Convention on Human Rights into United Kingdom law]:
Lord Scarman Lord Scarman moved Amendment No. 1:
Page 1, line 12, leave out ("subsection (1) above") and insert ("Schedule 1").
The noble and learned Lord said: My Lords, this is purely a drafting amendment. It would substitute for the provisions of "subsection (1)" in Clause 1(1) "Schedule 1". The schedule sets out the articles of the convention to be incorporated into law and the first protocol. "Schedule 1" is all that need be said. I beg to move.
The Minister of State, Home Office (Baroness Blatch): My Lords, all the amendments in the names of the noble and learned Lord, Lord Scarman, and the noble and learned Lord, Lord Archer, and the noble Lord, Lord Lester, although minor in nature, appear to the Government to be entirely sensible improvements to the Bill as it presently stands. It follows that the Government will not seek to oppose them, notwithstanding their wider concerns about the Bill as a whole.
On Question, amendment agreed to.
Lord Scarman Lord Scarman moved Amendment No. 2:
Page 1, line 13. leave out ("serve as") and insert ("be").
The noble and learned Lord said: My Lords, this again is purely a drafting amendment, but there is some point in getting the matter right now rather than purely from the point of view of drafting.
Clause 1(2) provides that the provisions shall:
"serve as an aid to the construction of primary and secondary legislation".
My amendment would delete the words "serve as" so that it reads the provisions shall:
"be an aid to the construction of primary and secondary legislation".
Clearly, this is a purely drafting amendment. However, there is a lack of harmony in speaking of words in an Act of Parliament as "serving as an aid". There is almost a degree of subordination of Parliament. The matter is perfectly straightforward if those words are deleted and the word "be" is inserted. I beg to move.
On Question, amendment agreed to.
Lord Scarman Lord Scarman moved Amendment No. 3:
Page 1, line 13, leave out ("primary and secondary legislation") and insert ("any enactment").
The noble and learned Lord said: My Lords, again this is a drafting amendment. Clause 1(2) (a) refers to the provisions serving as an aid to the construction of "primary and secondary legislation". That is a long description and a rather academic description of something that could be put in terms which are already used in the Bill. Therefore, I propose to delete the words "primary and secondary legislation" and insert the words "any enactment". The clause would then read:
"The provisions set out in Schedule 1 … shall … be an aid to the construction of any enactment".
That covers the whole field of statute law. I chose those words because they pick up and echo subsection (5) in which there is a reference to the meaning of the word "enactment" in the Bill. It indicates quite clearly that the Bill applies to the whole of the United Kingdom. Therefore, any enactment covers the whole of statute law. I beg to move.
On Question, amendment agreed to.
[Amendment No. 4 not moved.]
Lord Scarman Lord Scarman moved Amendment no. 5:
Page 1, line 16, leave out ("in the United Kingdom").
The noble and learned Lord said: My Lords, I beg to move the amendment equally briefly. There is no need to indicate that legal proceedings are "in the United Kingdom". If one deletes those words, the provision states:
"The provisions set out in subsection (1) … shall … be taken into account in equity and at common law, so that effect may be given to them in any legal proceedings".
It can only be "in the United Kingdom". The additional words are surplusage.
On Question, amendment agreed to.
In The Title:
Lord Scarman Lord Scarman moved Amendment No. 6:
Line 4, leave out ("the disposition of").
The noble and learned Lord said: My Lords, we move now into a strange world—at least I always find it strange when we start to tinker about with the Title of someone's Bill. Nevertheless, on Report some strange words were introduced into the Title, which now reads:
"An Act to incorporate Section 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950 and the First Protocol to that Convention in the disposition of the law of the United Kingdom".
I propose to delete the words, "the disposition of". What on earth do those words mean in that context? The word "disposition" indicates to me that someone has a choice. Does the Bill suggest that the judges should chose whether or not in a specific case the convention should be considered incorporated? Those are dangerous words. I do not really know what they mean. Let us get rid of them. I beg to move.
On Question, amendment agreed to.
Lord Scarman Lord Scarman moved Amendment No. 7:
Line 5, at end insert ("and to provide for the interpretation and application of the law.").
The noble and learned Lord said: My Lords, this is an interesting amendment. I propose that certain words should be added to the Title. The words are,
"and to provide for the interpretation and application of the law".
I do so in order that it may be perfectly clear that the new clause which entered the Bill on Report—it was the clause moved by the noble Lord, Lord Cocks—should have its purpose reflected in the Title. Quite clearly, the emphasis of the new clause was on interpretation and application of the law.
In a sense, in justice to the noble Lord, Lord Cocks, we should ensure that those words are now in the Title. So far as is relevant the Title will then read,
"An Act to incorporate Section 1 of the Convention … in the law of the United Kingdom and to provide for the interpretation and application of the law".
Emphasis on interpretation and application is sound. It reflects what I believe to be the main purpose of the amendment that was moved on Report. I beg to move.
On Question, amendment agreed to.
7.16 p.m.
Lord Lester of Herne Hill: My Lords, I beg to move that the Bill do now pass.
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I should like to express my gratitude to the whole House for the care with which the Bill has been considered, debated and improved. I am especially grateful to the noble and learned Lord, Lord Scarman, who—at great personal inconvenience—has improved the drafting of the Bill and, if I may say so, given wise leadership and unflagging encouragement to those of us who seek to strengthen the effective protection of human rights in this country.
Although the House passed three similar Bills, introduced by Lord Wade and Lord Broxbourne in 1979, 1980 and 1986, this is the first occasion on which the incorporation of the European Convention has the support of the senior judiciary and of the Labour Party. The great majority of noble Lords who have spoken in the debates on the Bill have supported it. That is a source of great encouragement for the future. It is also apparent from recent independent polls of public opinion that this is by far the most popular of all proposals for constitutional reform, being supported by almost three-quarters of respondents.
The Government have argued that the Bill would diminish parliamentary sovereignty. However, as amended, the Bill requires our courts to give effect to Acts of Parliament if they are plainly intended to be inconsistent with the convention. By passing the Bill your Lordships would help to restore rather than to diminish parliamentary sovereignty.
The decision to ratify the convention and accept the right of individual petition was taken by the Government of the day under prerogative powers without any parliamentary debate. Parliament, as represented by this House, now has the opportunity to decide to translate convention rights, freedoms and duties into the law of the land so that British courts can provide British remedies with the European Court of Human Rights acting only as a long stop, where British remedies are insufficient. That would, I submit, strengthen the protection of the civil and political rights of the citizens of this country under the rule of law and greatly influence the role of British law in Europe. It would also give effect to the doctrine of subsidiarity. It would bring the UK into line with the position of all the other contracting states which have incorporated the convention or have constitutional Bills of Rights which match the convention. That is also the position in almost all Commonwealth countries, including Canada and New Zealand.
The passing of the Bill would be likely to diminish the embarrassingly large number of cases in which the UK has been found in breach of the convention—second only to Italy, most of whose breaches result from delays in the Italian legal system. The Minister argued in previous debates that the record is not as bad as it seems when related to population size and to the date on which the right of petition was accepted by the state concerned. That is a fair point, but it does not explain the continuing high level of breaches; nor does it justify the continuing failure to provide speedy and effective remedies in this country, giving us equal protection to that available in the other contracting states.

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Perhaps I may give one example from a country of comparable size and complexity, to serve for all—Germany. Germany has accepted the right of petition for 10 years longer than the UK; yet the number of established breaches of the convention is more than three times as many for this country as for Germany. Whereas there are 16 cases against the UK now pending before the European Court, only one case is pending against Germany. That is not because we respect human rights any less but because Germany provides far more effective domestic remedies in its system.
The Lord Chief Justice has kindly expressed his disappointment at being unable to be present today to speak in support of the Bill, as he did at Second Reading. In yesterday's Sunday Times he was reported as saying that:
"The fundamental freedoms accepted by the Government nearly 50 years ago are not sufficiently protected by the common law and existing statutes".
The House will wish to give great weight to that considered statement by the Lord Chief Justice, whose views are shared by the Master of the Rolls and, on the basis of the previous debate, by the great majority of noble and learned Lords.
It was reported in yesterday's newspaper that the Government might take the unusual course this afternoon of seeking to kill the Bill in this House, using their considerable in-built majority. I hope that that report is incorrect because it would deprive the other place of an opportunity to consider the Bill. I should like to think that that is simply an example of misplaced and inaccurate journalism.
Whatever the fate of the Bill this evening, the question is no longer whether Parliament will domesticate the convention but when it will do so. I hope and believe that the people of this country will not have to wait much longer to have their rights properly protected by British law. I also hope that this House, having made the original Bill so moderate and unobjectionable in its amended form, will now decide that it should pass so that it may be available to he considered in another place. I commend the Bill to your Lordships.
Moved, That the Bill do now pass.—(Lord Lester of Herne Hill.)
Lord Houghton of Sowerby: My Lords, a Bill of this importance requires and should have a better consideration than it can be given in the dinner break in your Lordships' House. We have here some of the most notable and teamed Lords, who have forsaken their knives and forks in order to come to the debate and help us understand the Bill and bring it to a conclusion.
It is a story of government indifference. It is staggering to think that we are considering acting on a convention accepted 45 years ago. Forty-five years ago I was a youngster and it has taken all this time to give me the civil rights that the rising generation was intended to have after the war.
I am in a fog as to whether the European law is incorporated in United Kingdom law. If it is, it is not in the form to which we are accustomed—having our law good for certainty and precision; good for courts to interpret. European law is not always—probably not at
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all—in conformity with the form we have evolved for our own legislation. There is no doubt that in some countries the broad outline of the law is what Parliament decides and administration and bureaucracy decide on application and interpretation.
I have a particular interest in some of the cases pending at present before the European Court. I do not know whether I should comment on them. But Britain ought to be protected from the legislative panic which the Government got into in 1991 with the Dangerous Dogs Act. It is causing much trouble, confusion, anger and anguish. It was the product of a government who ran for cover before they were attacked.
I must not dwell on it. We have only an hour and I am waiting for the noble and learned Lords who have kindly come here to speak. We offer a special welcome to the noble and learned Lord, Lord Scarman, a pleasant person to listen to in our earlier debates. The noble and learned Lord, Lord Hailsham, expressed his regret at being unable to attend the debate. He would have been a supporter of the Bill. See what the House has lost in holding a Third Reading of such an important Bill when people are otherwise occupied! It is as if those who want to do a service for their country must give up their dinner to come. That is contrary to all the rules and trade union practices of which I am aware. We ought to have compensation—double time—for being put to such inconvenience.
I support the Bill. I recall with approval the late Lord Wade who used to come here year after year in order to foster the extraordinary departure from our normal legislative ways to incorporate the broader concept of human liberty which comes from Europe. If people do not like Europe, they do not like European law and European methods. I am afraid that even with the enthusiasm that we had all those years ago, all the parties have lost interest in the matter. If anyone had taken notice of it, we would not be talking about the Bill now. The Government would have decided to do something. I have said enough. I heartily support the Bill and hope that noble Lords will rise as one from all Benches to say: "Aye! Content".
Lord Scarman: My Lords, I intervene early in the debate because I wish to congratulate my noble friend Lord Houghton and assure him that, whether or not we support the Bill, the stomachs of the House will not suffer. There will be no gastro-enteritis as a result of this debate.
I quickly take the point: my noble friend Lord Lester is absolutely right that the European Convention was one of the most valuable products of victory in Europe. It is providential that the debate should take place in VE week. Victory in Europe was not victory over German arms. That is not what we celebrate. It was victory over the principles and governance of wicked men, led by Adolf Hitler. One of the products of that victory was the European Convention.
We have been arguing the technicalities of the matter. I invite noble Lords to look at the merits. The European Convention was a gift from victory. When we celebrate VE Day, think of it as the victory of the principles of the European Convention over the evil of those to whom the wonderfully civilised German people fell.

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It is thought that there is not much common law in the European Convention. No doubt that is because it is called the European Convention on Human Rights and Fundamental Freedoms. We at governmental level took a very large part in drafting the European Convention. There is plenty of common law thought in the articles of Section I of the convention, soon, I hope, to be part of our law. If I may refer to him in a colloquial way, Maxwell Fyfe played a great part in leading a team of draftsmen from this country. One of the senior parliamentary draftsmen of that time, with him, helped to draft the convention. There are packets of common law sense in the convention.
Then why did the government of the day not incorporate it? They had a facile view—shared, I regret to say, over centuries by a great number of our fellow Britons—that English law was so perfect that there was no need to incorporate the European Convention; we had it all. I suppose that that was a legitimate view in 1949 and 1950. It is not a legitimate view now. I shall not go into statistical arguments about how we stand vis-à-vis other signatories to the convention or unhappy experiences in the European Court of Human Rights. That is no part of my task. I shall simply say that there have been enough to indicate that we should look at the common law and see that it gets strengthened. The object of this Bill is to strengthen the common law, and to strengthen common law rights in just those areas where they need strengthening. I mention one example, and I shall say no more. What is the common law of privacy? We could do with a little injection of Article 8 of the convention.
There it is. It is available. But why do we want this Bill now? I shall tell the House why I want it. I want persons present in the United Kingdom, whether citizens or not, who find that they are suffering an infringement of their human rights or fundamental freedoms to go at once to a court and get relief. It is absurd that we should make great efforts to draft this Bill, ratify it—that is to say, make ourselves internationally obliged to comply with it—and then say, "If the common law as laid down by the judges does not touch it, you can't have it, even though it is in the convention. What you have to do is go trotting off in the company of very expensive lawyers to Strasbourg and there see whether you can first persuade the European Commission that you have some sort of case, and then hope that the Commission will push you on to the European Court of Human Rights". That is a monstrous thing to do as we celebrate VE Day. Let us make our contribution to VE Day the incorporation of the European Convention.
7.30 p.m.
Lord Renton: My Lords, I must apologise to the noble Lord, Lord Lester, and other noble Lords for not having having been here when he made his speech. I had to detach myself—I hope within the trade union rules, as the noble Lord, Lord Houghton of Sowerby, would say—from a rather special family gathering.
Although I am a loyal supporter of the Government, I strongly favour this Bill. We have a convention to which Britain was a party, which all parties in our Parliament agreed at the time and which gives rights to British
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people. It seems a very strange situation that those rights should not be capable of being enforced under our own legal system. The situation is quite absurd.
The noble and learned Lord, Lord Scarman, mentioned the European situation. I remind noble Lords that, so far as the laws of the European Community are concerned, our courts have not only the power but the duty to enforce them. That they should not have either the power or the duty to enforce the rights which every British man, woman and child has under the European Convention in our own splendid courts seems to be an absurd proposition.
I wish to add one other point arising from the speech of the noble and learned Lord. He put forward the proposition that this country played some part in drafting the convention. I do not wish in any sense to put forward my own virtues—I do not think that ! have any. But I have to tell noble Lords that the first draft for the European Court of Human Rights was one for which I had responsibility—I was only a Back-Bencher at the time; I was a delegate to the Council of Europe. M. Rolin, the famous Belgian lawyer who defended Dr. Mossadec at The Hague after the unfortunate situation in Iran, worked on the French text. I worked on the English text. He knew English better than I knew French. He had lived here for a lot of time during the war. I knew a little French and a little of French law. We agreed the two texts for the European Court of Human Rights. It was those texts that were put before the European Assembly for approval. They were slightly altered later, but they were the foundation of the method of working of the European Court of Human Rights. I hope that noble Lords do not mind my just mentioning that, but it seems to reinforce the argument put forward by the noble and learned Lord as to the part that this country has played throughout.
The Lord Bishop of Oxford: My Lords, if this House felt able to pass the Bill in its present form, a substantial body of Church people in this country would applaud us. In 1985, the Roman Catholic bishops of England and Wales supported the incorporation of the European Convention on Human Rights into United Kingdom law in principle, as did the majority of the executive committee of the then British Council of Churches a year later.
I had the privilege of being a member of the working party of the Churches of Britain and Ireland which produced Human Rights and Responsibilities in Britain and Ireland, of which mention was made in earlier debates on the Bill in this House. It was one of the strongest recommendations of the report that the European Convention should be so incorporated.
Since that report was published in 1988, thank God, real progress has been made in Northern Ireland. But the peace process is still precarious. There are still very great fears, which could be assuaged by incorporation of the Human Rights Bill into the law of this country. What was written then is no less true today:
"We have unanimously concluded that the single most important recommendation that we can make in this field is that each of the two states should incorporate into domestic law all the human rights and freedoms which it is already bound by international law to respect and ensure. This can best be done by incorporating the European Convention on Human Rights into the national legal systems of the United Kingdom and the Republic of Ireland".

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The arguments were so thoroughly rehearsed in previous debates that I simply want to make two very brief points. First, I see the incorporation of the convention as a confidence building measure, not only in relation to Northern Ireland, as I mentioned, but more generally in relation to our whole political and legal system. It is widely recognised that our society is in many ways floundering, with so little in the way of agreed moral guidelines.
As your Lordships have already pointed out, the United Kingdom was one of the first to ratify the convention and make it possible for individuals to petition. It seems to many of us that the next logical step is to incorporate the convention into law, thereby revealing the clear framework and foundation of human rights on which we have always prided ourselves. Not being a legal positivist, I believe that in the end it is a moral matter and that the rights enshrined in the convention are not there simply because certain states decide that they will be there but because those states recognise certain fundamental moral principles which need to be enshrined in law.
The noble Baroness the Minister has twice indicated concern about disturbing the balance between the judiciary and Parliament. But it is basic to our democracy that the judiciary already has a degree of independence and it is a fundamental and proper concern of the judiciary to safeguard the rights of individuals. In her previous speeches the Minister has indicated that there were very often conflicting claims which needed to be balanced or adjudicated between Parliament and the judiciary.
I should like to suggest that the majority of the rights set out in the convention are absolute and, although they have to be interpreted, it is the proper role of courts to interpret the law. Parliament, of course, is very concerned with human rights; but it is quite properly concerned with the general interest and the common good. The reason that we have rights is to say that there are circumstances in which, whatever the common good, certain fundamentals should not be overridden. It seems to many of us that where there is a conflict it is the function of the judiciary to safeguard those rights. It can be significantly helped in that task by having the clear framework of the European Convention incorporated into United Kingdom law.
I believe that there is a growing body of opinion which desires that. It will be an important confidence-building measure in relation to the peace process in Northern Ireland and will help to make clear the moral foundation of our own legal system.
Lord Simon of Glaisdale: My Lords, the amendments at Third Reading were designed to correct some anomalies that had crept into the Bill at Report stage. My noble and learned friend Lord Scarman came to make those corrections and, in addition, has favoured us with a most moving speech. My noble and learned friend has come to the House at great personal sacrifice and must have spoken under considerable personal strain. We are very deeply in his debt.
Those amendments have put the Bill into a reasonable, clear and comprehensible state, in which it can be submitted to the other place. As the noble Lord, Lord Renton, pointed out very clearly—as indeed did the noble Lord, Lord Lester, who has put us in his debt, and my
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noble and learned friend—what this Bill does is very simple. There is a European Convention on Human Rights. Our own lawyers took a prominent part in framing it and the noble Baroness no doubt will attach weight to the fact that it was one of the most illustrious of her predecessors, Sir David Maxwell Fyfe, who had a principal hand in framing it. He had already brought great glory to the English law by his conduct of the prosecution at Nuremberg. What he did in that convention was to see embodied in it the principles of British law which had already been expressed in our own Bill of Rights, which was the main source of the American Bill of Rights, the first amendment of the constitution.
We are bound by that convention, we are bound to follow its interpretation. But at present there is the extraordinary situation that anybody who wants to rely on the convention has to go to Strasbourg to obtain adjudication. This Bill says that that adjudication shall be available in the English courts, which are so well conversant with its principles, whether statutory or common law.
It would be most extraordinary if at this stage there were any vote against the Bill. It would be entirely contrary to the conventions of this House. It would be quite disgraceful if Ministers on a Private Member's Bill were now to go into the Lobby against tem. I strongly support the Bill.
7.45 p.m.
Lord Browne-Wilkinson: My Lords, I cannot match the eloquence of my noble and learned friend Lord Scarman. I would not seek to do so. However, it seems to me that the legal views on the Bill have so far been expressed by those who no longer, unhappily, adjudicate. My remarks will take less than one minute.
As a serving judge, I am profoundly in favour of the Bill for reasons which have already been deployed. First, it is common ground among all parties—all sides of this House —that all the inhabitants of the United Kingdom enjoy the rights secured by the European Convention on Human Rights. There is no dispute about that. Secondly, everybody is agreed that those rights should be enforceable. Thirdly, there is apparently a difference of view between many people —I am among their number— who say that the rights of Englishmen should be capable of enforcement in an English court and that Englishmen, enjoying those rights, should not be turned away from the English courts, which say that they have no power to act, being forced, five years later and several thousand pounds the poorer, eventually to reach Strasbourg. This Bill repatriates our rights. I believe that it should be allowed to do so.
Finally, perhaps I may again seek, as I have tried at earlier stages, to shoot the canard—I am not sure if one shoots canards—which is the argument that this Bill infringes parliamentary sovereignty. That is, with the utmost respect (as lawyers say), complete rubbish. This Bill enables Parliament to do as it always has done; that is to say, to enact exactly what it likes. Parliament having done so in clear terms, the courts must give effect to what Parliament has enacted. What the Bill will do, if it passes into law, is prevent the position continuing to arise whereby Parliament uses general words and then those

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general words are said to authorise administrative acts which infringe the convention. That is the practical application of this Bill. There is no question of Parliament's sovereignty being interfered with in any way.
I believe that I speak on behalf of a very large number of judges, certainly all save one of those who spoke in the earlier stages of this Bill, when I say that the Bill is welcomed by the judges not as empire building but as conferring the basic right to which all Englishmen are entitled; namely, to have their rights determined within this country and not outside it.
Lord Renton: My Lords, before the noble and learned Lord sits down, does he agree that just as Parliament ratified the Rome Treaty and the amendments to it, so Parliament was asked to ratify the Convention on Human Rights and did so?
Lord Browne-Wilkinson: My Lords, undoubtedly the convention has been ratified; there is no doubt about that. What has not been done is to comply with what I understand to be one of the articles; namely, that those rights be assured by the Government to people within this country. As I understand it, that is the position.
Lord Hylton: My Lords, I agree strongly with the right reverend Prelate the Bishop of Oxford. I happen to be a member of the working party to which he referred. He is completely right in saying that at this time the passage of the Bill through Parliament will be a confidence-building measure in the peace process in Northern Ireland.
My second reason for strongly supporting the Bill is that domestic jurisdiction under the convention, and in particular under Articles 4 and 5, will provide real protection in this country for a class of people who are particularly subject to abuse and exploitation. I refer to the domestic workers coming from overseas countries to Great Britain who are tied and bonded to one employer. When this Bill is enacted they will be able to apply for a remedy to British courts. That will greatly enhance and protect their position.
Lord Slynn of Hadley: My Lords, what is recognised internationally is that the European Convention on Human Rights is the most successful expression of the United Nations declaration on human rights arrived at as an answer to the horrors of the 1930s and the Second World War. I personally regret that we in the United Kingdom should be the last of the parties to that convention to make it part of domestic law.
I wish to add only two points to what I said at an earlier stage. First, between 1969 and 1976 I appeared on behalf of the United Kingdom in probably all of the cases brought before the Commission and the Court of Human Rights at Strasbourg. I became increasingly convinced that it was regrettable that those cases had to go to Strasbourg and could not be dealt with by our national courts in this country. I felt it was inefficient, expensive, time-wasting and left entirely out of account the ability of judges in this country properly to deal with those claims. It is therefore largely for a pragmatic and practical reason that I feel strongly that we should now give this convention the force of law in this country so that it may be dealt with by our national courts.
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Secondly, at that time I was a member of the Bar. Now, as a judge, I do not feel that the kind of issues which are likely to be raised in the national courts will involve judges in grave political disputes and distinctions which may lead to problems. I shall not tease the Minister by referring to one or two other cases, not concerning human rights, which over the years the courts have had to decide and which some people think had a political context. I do not believe that the issues likely to arise under the Convention on Human Rights fall into that category. I am proud to be associated with the noble and learned Lord, Lord Scarman, in supporting this Bill.
Lord Beloff: My Lords, perhaps a layman may be excused for introducing a note of dissent into the unanimity which has so far prevailed—not that I think it would be proper for the House to reject this Bill, according to our normal conventions. However, there appears to be a gap, if I may respectfully say so, in the arguments put forward in its support.
The principal argument and one with which I have a great deal of sympathy is that if rights are formulated in an enactment, to which we are bound by our ratification of it, then the proper place for remedies is in our own courts. It is certainly, and has been, somewhat absurd that in order to secure redress, litigants have been obliged to face the delays and expenses of Strasbourg.
I would therefore have been perfectly happy with the Bill if, at the same time, it meant that such recourse would no longer happen; if our courts had the final say in the interpretation of what would be then part of British law. I shall be glad if one of the supporters of the Bill will explain whether or not there is any barrier proposed to people who, failing in a British court, then seek to appeal to Strasbourg. It seems to me that there we have the makings of a possible clash of jurisdictions, the more likely because although, as has been pointed out by the noble and learned Lord, Lord Scarman, and others, there was a good deal of input of the common law into the document, it nevertheless remains the case that western Europe is divided between two forms of law—the civil and the common—and that the court in Strasbourg is bound by virtue of its membership to be heavily weighted against the common law and common law interpretations. Is it therefore envisaged that if the Bill is enacted there will be no further appeal against the decisions of our highest courts?
Lord Lester of Herne Hill: My Lords, perhaps I may deal with that straightaway. All 34 contracting states that belong to the European Convention are in the process of ratifying the 11th Protocol. That will give a permanent right of access to the European Court for all the peoples of Europe, whether or not they have incorporated the convention. I am glad to say that the Government of this country ratified that convention earlier in the year.
The answer to the noble Lord, Lord Beloff, therefore is that even if we incorporate the convention, as I hope we shall, there will remain the same right in this country as in the other contracting states, as a last recourse, to go to Strasbourg.
Baroness Blatch: My Lords, the noble Lord made reference to the Government being engaged in some kind of dastardly plot this evening. I made it absolutely clear

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on behalf of Her Majesty's Government that I would not oppose the Bill at any stage and I find it deeply depressing therefore that he has not come to view me as somebody whose word is her bond. What I wish to say also is that of course I alone speak for the Government in these matters; all other Members in this Chamber, on Private Member's Bills, are free spirits. It would be absurd and inappropriate of me to pre-empt how the Bill may be viewed when it is asked that it be given a Third Reading. I make it absolutely clear that I shall not oppose it.
The guiding principle of the Bill, and of the series of stimulating debates we have enjoyed during its passage through this House, is that the preservation and development of the rights and freedoms of the individual are an essential feature of effective and legitimate constitutional arrangements. The Government wholeheartedly endorse that principle and—I must stress this—take very seriously their human rights obligations under the European Convention on Human Rights and under the other international treaties to which they are party.
What we are discussing here therefore is not ends but means. The Bill now before us would incorporate the convention into the domestic law of the United Kingdom, providing for the principles set out in the convention to serve as an aid to the construction of primary and secondary legislation and to be taken into account in equity and at common law. We have debated at length various different forms of incorporation and, as the Bill now stands, some have suggested that this particular form of incorporation would be helpful in that it would clear up existing confusion over how the courts should approach the convention without impinging upon parliamentary sovereignty.
That is simply not the case. The current position in our courts is clear: under our constitutional arrangements it is for Parliament to enact detailed and specific legislation on matters affecting the rights and liberties of the individual and for the courts to apply that legislation, having regard to the convention only where there is ambiguity. This Bill would certainly change that position. It would enable the courts to interpret legislation by reference to the convention even where there is no such ambiguity and Parliament's intention is clear and specific; and, in the case of the common law, it would apparently allow the courts to overturn long established traditions in common law which would, now, be considered to be the domain of Parliament.
It is a vital merit of our present arrangements that, if and when change of this kind is needed, it is our democratically elected and accountable Parliament which decides how and when any such changes should be made. As well as assuring proper accountability for such decisions, this helps to ensure that such changes, often in areas of keen social and public interest, carry public support and understanding.
The Government's view remains that incorporation of the convention into the domestic law of the United Kingdom would do nothing in practice to improve the enjoyment of the rights of freedoms protected under the European Convention on Human Rights. As the Secretary General of the Council of Europe himself has recently observed, these rights and freedoms are already well protected under the existing arrangements in this country.
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The figures speak for themselves. Given the length of time that the right of individual petition has been accepted in this country, and the size of our population, the United Kingdom's record is very much better than that of many countries which have incorporated the convention.
Nor would incorporation guarantee fewer referrals to Strasbourg, as some of your Lordships have argued; nor would it minimise the cost or waste of time or effort, as is shown very clearly when we look at the records of those countries where the convention has been incorporated into their domestic law. What happens in practice is that a large number of those cases still find their way to the European Commission and Court of Human Rights where they must be examined afresh.
I should remind the House that, in 1994, 62 allegations of violation were referred to the Austrian Government; 723 to the Turkish Government; 118 allegations to the French Government; and 356 allegations to the Italian Government. What did they all have in common? All those countries had already incorporated the European Convention on Human Rights. By contrast, 46 such allegations were referred to the United Kingdom Government during the same period. I cannot see how, from these figures, it can be argued that incorporation is a way of reducing costs or speeding up the handling of cases.
I noticed that the noble Lord, Lord Lester, referred to Germany. He was mightily selective in choosing Germany. He did not choose Italy, France, the Netherlands, Belgium, Sweden, Austria or Switzerland. France, a country with a comparable size of population to the United Kingdom, has almost as many violations as the United Kingdom despite having accepted the individual right of petition only 14 years ago. Italy, which again is of similar size to the United Kingdom, has more than twice as many violations. Of the smaller countries, which arc a quarter of the size of the United Kingdom or less—the Netherlands, Austria, Switzerland, Belgium and Sweden—all have between 20 and 27 violations. That hardly suggests that the United Kingdom has the worst record in Europe.
This hardly seems a basis upon which to make changes to constitutional arrangements which have been tried and tested over many years. No citizen in this country is denied his rights under the European Convention on Human Rights. The Government's view remains that incorporation, whatever form it takes, is undesirable and unnecessary, both in principle and in practice; and accordingly, we cannot give support to the Bill. But although it is the convention that we make known our views about the Bill, I shall not be opposing the Bill.
Earl Russell: My Lords, perhaps I may—
Noble Lords: Order!
Baroness Trumpington: My Lords, I would very humbly tell your Lordships, speaking from the little red book, that not speaking more than once and not speaking after the Minister applies on Third Reading as it does on Report.
Lord Lester of Herne Hill: My Lords, I hope that I am not violating anything in the little red book in saying, first, that I should like to thank all noble Lords who have taken

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part in this remarkable debate among a series of very remarkable debates. Secondly, I do not propose, your Lordships will be relieved to hear, to make a speech. I should like simply to say about the league tables, to which the noble Baroness referred, that it is in a way, with respect, pointless to start making these complex international comparisons.
In a reply in Hansard on 18th April the noble Baroness, Lady Chalker, gave information which showed that the United Kingdom had the second largest number of violations of the convention recorded before the European Court, being exceeded only by Italy. Those Italian cases all flow from delay. It also showed that we have the largest number of cases pending before the European Court.
I agree that that does not give a fair picture of the state of human rights in this country. But nor is there much point in comparing our position with that of Turkey on the basis that it has incorporated and we have not and that incorporation therefore does not do the trick. All I would like to say about the league tables—
Baroness Blatch: My Lords, with the leave of the House, I did not mention Turkey.
Noble Lords: You did!
Lord Lester of Herne Hill: My Lords, my recollection is to the contrary. All I would like to say is that the case for incorporation does not depend upon a comparison with other member states. It stands on its own feet. The question is whether there should be effective domestic remedies in this country. The Minister has not suggested that our domestic remedies are as effective.
I very much hope that your Lordships will feel able to pass the Bill through this House so that the democratically elected other place will have the opportunity, if it wishes, of considering its provisions.
Baroness Blatch: My Lords, with the leave of the House, the noble Lord is right in terms of the number of allegations referred. In the comparisons which I gave in terms of population and numbers of cases that were regarded as breaches I did not include Turkey.
On Question, Bill passed, and sent to the Commons.

Mental Health (Patients in the Community) Bill [H.L.]
8.7 p.m.
Consideration of amendments on Report resumed on Clause 4.
[Amendment No. 72 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 73 and 74:
Page 18, line 32, leave out (", if practicable and the patient does not object,").
Page 18, line 33, leave out ("the nearest relative of the patient") and insert ("any other person who has been consulted under subsection (3) (a) of section 35B of this Act").
The noble Earl said: My Lords, I spoke to Amendments Nos. 73 and 74 when I moved Amendment No. 71. I beg to move.
On Question, amendments agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 75:
Page 18, line 34, at end insert:
("( ) Where the performance of a condition attached to an order requires the provision of a facility or a service by a statutory agency, it shall be the duty of that statutory agency to provide that duty or service.").
The noble Lord said: My Lords, this amendment requires the social work department and health board to provide the services spelt out in the community care order. If the patient must comply with the community care order we believe that the statutory agencies must also abide by the rules of the order. This amendment merely underpins that duty. It may be for the convenience of the House if Amendments Nos. 72 and 76 are dealt with at the same time. They merely stress the fact that information given to the patient should be given orally and also in writing. I beg to move.
The Earl of Lindsay: My Lords, perhaps I may respond to Amendment No. 75. It is important to understand that the conditions specified in the order are imposed with a view to ensuring that the person concerned receives medical treatment and aftercare services. The amendment appears to do nothing more than underline statutory duties which already exist. Health boards have a statutory duty under Section 37 of the National Health Service (Scotland) Act 1978 to provide healthcare, regardless of whether this is part of the conditions of a community care order. Similarly, if a person is detained in hospital, the health board is obliged under the same general duty to provide for that person.
It was nevertheless considered necessary as a consequential amendment for this Bill in Schedule 2, paragraph 3, to amend Section 8 of the 1984 Act to ensure that the statutory duty on local authorities to provide or arrange for the provision of aftercare services includes those persons subject to a community care order, without prejudice to the general duty under that section.
It appears that health boards and local authorities are the only statutory bodies which could be affected by the amendment. Statutory duties already exist for these bodies.
I hope that this explanation goes some way to reassure the noble Lord and that he is able to withdraw his amendment.
Lord Carmichael of Kelvingrove: My Lords, I take it that the very full explanation given by the Minister means that the patient will be given the statutory orders that are required. As I said when speaking earlier, we merely intend to underpin the duties of the statutory agencies. I believe that the Minister has satisfied us in that respect. As regards giving the orders orally and in

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writing, that is something which the Minister has not quite covered. Perhaps that is part of the duties imposed on the statutory bodies. Can the Minister answer that?
The Earl of Lindsay: My Lords, it may be for the benefit of the House if I say that we are coming to that specific point in a later amendment. Perhaps we can deal with that matter at that time.
Lord Carmichael of Kelvingrove: My Lords, with that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 76 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 77:
Page 18, line 36, leave out from ("time") to ("the") in line 37 and insert ("after the expiry of").
The noble Earl said: My Lords, I spoke to this amendment in moving Amendment No. 64. I beg to move.
On Question, amendment agreed to.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 78:
Page 18, line 36, leave out from ("time") to the end of line 40.
The noble Earl said: My Lords, this is a probing amendment. Its purpose is to allow an application for a community care order to be made on behalf of a mentally ill person who would benefit from the provisions of a community care order without the need for compulsory admission to hospital. There seems to be an anomalous situation looming ahead of us here. The Bill as written dictates that the patient has to have at least 28 days' compulsory detention in hospital under Section 18 before a community care order can be considered. To do that in every case would be against the philosophy of community care and indeed might not be possible if a person at that point did not meet the criteria for compulsory admission under Section 17 of the 1984 Act.
Indeed, to become acceptable for a community care order a person has to be stated not to meet the criteria for compulsory admission to hospital as set out in new Section 35B(7) (a). People already living in the community are therefore denied the benefit of a community care order, and that seems wrong and unduly restrictive. The amendment suggests that any relevant person would be eligible for a community care order and not just those coming towards the end of a period of detention in hospital.
While we are rescheduling priorities for the care of the mentally ill, I believe that a broader approach is appropriate and would be most beneficial, especially as this kind of group may need the co-ordinated help of a local authority and health board workers. I beg to move.
8.15 p.m.
The Earl of Lindsay: My Lords, as I understand it, the noble Earl is seeking to broaden the group with access to community care orders. As I made clear when speaking to Amendment No. 64, we are firmly of the opinion that community care orders should be available only for people whose mental disorder has, as a result
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of meeting the criteria in Section 17(1) of the 1984 Act, led to detention in hospital under Section 18 or under a hospital order. We have sought to clarify this. As we have also previously pointed out, we envisage that many candidates for community care orders will have been on leave of absence from hospital for a long period.
We do not believe that those detained under Sections 24 and 26 should be candidates for community care orders. Their detention in hospital is quite short. We have made it clear in guidance that if a patient's needs are mild, he should not be discharged until a multi-disciplinary care plan has been developed. This will ensure that he receives a good standard of clinical and aftercare services. I referred before to the circular Community Care in Scotland, Assessment and Care Management.
It appears to us that those who have not been detained in hospital at all should most certainly not be candidates for community care orders. It is not our intention to make a person who has been in hospital voluntarily, or who has been living in the community, subject to the legal framework of a community care order. A step down in the legal controls over a person, from liability to detention in hospital to a community care order, is quite different from a step up, from no control to a community care order.
Local authorities and health boards have statutory duties to provide care and treatment. This is true regardless of whether people are subject to community care orders. There may be prioritisation of mental health services, but we believe that this is proper. But we do not believe that providing a legal framework of the type proposed by community care orders will result in those not subject to the orders being denied access to services.
Bearing all these points in mind, I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of Mar and Kellie: My Lords, I thank the noble Earl for his answer. I wish to make two points. I am disappointed that those who are mentally ill and in the community cannot be afforded the same high priority care as will be granted to those on community care orders. The second point is that I accept that the noble Earl has laid down that those who are eligible are only those who are on Section 18 orders. Did I understand him correctly to include those on hospital orders? The noble Earl nods his head in acceptance of that. I thank the noble Earl for that and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 79:
Page 18, line 40, at end insert ("under section 18 or 26 of this Act").
The noble Earl said: My Lords, the purpose of this amendment is to establish whether it is the noble Earl's intention that only Section 18 patients should be eligible for community order applications. I beg to move.
The Earl of Lindsay: My Lords, I hope that the noble Earl will accept that the explanation given on the earlier amendments covers many of the points which he raises as regards this amendment. I hope that he will feel able to withdraw it.
The Earl of Mar and Kellie: My Lords, I thank the noble Earl. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 80:
Page 19, line 3, at end insert ("and, if practicable and the patient does not object, his nearest relative").
The noble Earl said: My Lords, I spoke to this amendment when I moved Amendment No. 71. I beg to move.
On Question, amendment agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 81:
Page 19, line 30, at end insert ("; and
( ) the community care assessment of the patient").
The noble Lord said: My Lords, this amendment was discussed with Amendment No. 65, which was not accepted by the Government. Accordingly, I shall not move the amendment.
[Amendment No. 81 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 82:
Page 19, line 37, after ("name") insert ("and the written agreement").
The noble Earl said: My Lords, this amendment relates to the position of the special medical officer in relation to an application. The responsible medical officer—that is, the consultant—and the aftercare officer are both able to give their consent to their part in the future care of the patient who is to be the subject of the community care order. However, the special medical officer, a more junior doctor, may find that the case is simply allocated to him or her. As the special medical officer plays a leading role in the community care order and is also subject ultimately to punishment for failure to care adequately, I believe that it is essential that the sheriff should be able to read the written consent of the future special medical officer when the application is before him.
For once, I shall plead that the English provisions are more adequate in this respect because line 9 on page 4 states:
"A supervision application shall also be accompanied by—
(a) a statement in writing by the person who is to be the community responsible medical officer in relation to the patient after he leaves hospital".
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The Scottish phrase for "community responsible medical officer" is "special medical officer". Given all the lavish praise that was heaped on the Scottish provisions earlier, I am sure that the noble Earl will see the advantage of accepting this amendment. I beg to move.
The Earl of Lindsay: My Lords, I note from cols. 338 and 339 of the Official Report that we considered a similar matter in Committee. Although I appreciate the sentiment behind the amendment, I am afraid I can do little more than underline the explanation I gave then. The intended special medical officer and the intended aftercare officer must be consulted by the responsible medical officer before an application is made. We do not see how a person would become the proposed special medical officer or proposed aftercare officer and be consulted about the proposed application yet not be aware of this. If he is not happy about the distribution of work by his line manager, he should address this in the usual manner.
I should underline once more that we do not see how a sheriff could approve an application without the named persons agreeing to carry out their professional duties.
In response to the noble Earl's suggestion that the SMO might be a more junior doctor, I should stress that that is not necessarily the case. Therefore, we disagree with the assumption behind the noble Earl's remarks. With the assurance that I have given him, I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of Mar and Kellie: My Lords, I have listened to the noble Earl and note that he resisted the idea of adopting English practices—I probably agree with him on that! I believe that it was worth raising this issue because social workers will have their say. Nevertheless, accepting the noble Earl's word, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 83:
Page 20, line 5, after ("by") insert ("the patient's general practitioner or").
The noble Lord said: My Lords, this amendment suggests that one of the medical recommendations be made by a patient's general practitioner. In most cases, a patient's GP would be the appropriate person to support an application for a community care order. It is important that the second opinion is given by a doctor who knew the patient while he was living in the community. A patient's GP would, or should, be able to speak about any problems which the patient might have had while living in the community. If the amendment is not accepted, the second opinion could be given by another hospital doctor who knew the patient. Such an opinion would not be acceptable if the plan is to prepare the patient for life in the community again.
The amendment merely mirrors the wording of Section 20B of the Mental Health (Scotland) Act which states that one of the medical recommendations accompanying an application for detention should be made by the patient's GP or another doctor who knows the patient. In the view

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of most people in Scotland, that is equally important for patients who are being considered for community care orders.
Many GPs will say off the record that they have no doubts at all about the great skill, ability and devotion to duty of the specialists, but in many cases a GP will have known a patient for 20 or 30 years, whereas a specialist, who sees a patient for only a short time, will be able to offer a diagnosis on the symptoms only. From personal experience, I can cite a number of examples of a GP knowing how a patient would be in five years' time because he knew the patient's previous history intimately and over a long period. I hope that the Minister will view the amendment with a certain amount of understanding and recognise that a GP could be a back-up to a specialist in being one of the people empowered to make medical recommendations to a specialist. I beg to move.
The Earl of Lindsay: My Lords, I can show the noble Lord a certain amount of understanding as regards the sentiment behind his amendment. We accept that a patient's GP will normally know a patient very well and may therefore be the best person to provide the second medical report to accompany the application for a community care order. However, I am sure we can all think of circumstances where this may not be so. A patient may not, for instance, have been registered with a GP prior to being detained in hospital. The Bill retains the flexibility to cover such circumstances. The Bill seeks to cover all options in the event of a patient's GP not being available or it not being practicable for a GP to provide a second opinion. On that basis, I hope that the noble Lord will accept the Bill as drafted on this point and that he will feel able to withdraw his amendment.
Lord Carmichael of Kelvingrove: My Lords, I see the problems. Indeed, I saw them while I was moving the amendment: not everyone has a GP for life and some people may not be with a GP for very long. I find the Minister's sentiments satisfactory, however. If only we could get GPs occasionally to spend a little time reading the Minister's wise words in Hansard, everything would be all right. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 84:
Page 20, line 15, leave out ("disorder") and insert ("illness however caused or manifested").
The noble Lord said: My Lords, this amendment limits the making of community care orders to people with mental illness. There was no suggestion on consultation that the Government's proposals were intended to cover people with a learning disability, but the term "mental disorder" in the Mental Health (Scotland) Act includes mental handicap. We have been over some of this ground before, but it is important to get it straight. I am not aware of any discussions or consultation about whether the new provisions are appropriate or necessary for people with learning disabilities.
I urge the Minister to consider the possibility of wider consultation with organisations representing people with learning disabilities before he imposes a new order on that group of people. There is time. The Bill will be under
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consideration in the other place for several weeks. If the noble Earl could simply give us an idea of his thinking on the matter, that would save a certain amount of time in the other place. I believe that the amendment merits considerable attention and discussion. I beg to move.
8.30 p.m.
The Earl of Lindsay: My Lords, the amendment would restrict the use of community care orders to people with a mental illness. As the noble Lord said, the detention criteria are framed by reference to "mental disorder", which means both mental illness and mental handicap. The community care order criteria, which must relate to liability to detention in hospital, must therefore be framed by reference to "mental disorder".
The consultation papers on this subject referred clearly to the legal powers of the care in the community for people with a mental disorder, which includes both mental illness and mental handicap. As the noble Lord will know, the consultation was widespread and was carried out over three separate periods. I can assure the noble Lord that among the organisations consulted was Enable, formerly the Scottish Society for the Mentally Handicapped. Such organisations were given the opportunity to put their ideas into the consultation process.
That said, I have no difficulty in accepting that the vast majority of the intended client group would be mentally ill. However, there may be cases in which a community care order would be appropriate for a person with a learning disability; for example, if such a person also had a mental illness.
The noble Lord used the word "imposed" in connection with the community care order. It is merely an option where the patient has both a mental handicap and a mental illness or there are some such circumstances. It is important that we do not close off that avenue as it might be of use in a small number of cases. With that in mind, I ask the noble Lord to withdraw the amendment.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for explaining that there have been discussions. I was not aware of that. His answer is sufficient to enable me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 85:
Page 20, line 28, at end insert:
(" and for the purposes of subsection (6) (a) above the recommendations do not comply with this subsection unless the patient is described in each of them as suffering from the same form of mental disorder (that is to say, mental illness or mental handicap), whether or not he is described in either recommendation as suffering also from the other form").
The noble Earl said: My Lords, in Committee I undertook to consider further the amendment proposed on this subject by the noble Lord, Lord Carmichael of Kelvingrove, as recorded at cols. 342 and 343 of the Official Report. It is important that the two medical recommendations which accompany the application for a community care order should be required to specify the

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same form of mental disorder, just as that is required of medical recommendations accompanying an application for admission to and detention in hospital.
I note that the noble Lord, Lord Carmichael, has tabled an amendment to that end which appears on the Marshalled List as Amendment No. 90. I think we are at one on this matter, but we believe that the wording of Amendment No. 85 is more likely to achieve the desired effect. I therefore hope that the noble Lord will feel that on balance he will not need to move Amendment No. 90. I beg to move.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for having listened to what was said in Committee. I agree that it may be wiser for me to accept the amendment. When we come to Amendment No. 90, I may have something else to say, but at this point I agree with the Minister on Amendment No. 85.
On Question, amendment agreed to.
[Amendment No. 86 not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 87:
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: My Lords, the effect of the amendment is to require the person making the report to inform the sheriff of the discussions that he has had with the patient and his carer. It is important for the sheriff to understand any problem with the community care order which the patient or his carers may have. The RMO will have consulted both before making the application. The amendment merely requires him to report on those discussions. Although the patient has a right to attend the hearing, he may be too ill to attend or feel intimidated by the process, which is much more likely for the average patient. The amendment will provide an additional safeguard to ensure that the patient's views are taken into account. I beg to move.
The Earl of Lindsay: My Lords, the amendment would introduce a requirement that the aftercare officer's report accompanying the application should include the views of the patient and his carers about the proposed order. As drafted it would be the patient's views as disclosed to the RMO.
Let me begin by pointing out that the Bill as drafted makes it a requirement that patient and carers are consulted by the responsible medical officer before the application is made. Logically, the application should reflect the views of those consulted.
As I am sure your Lordships are also aware, new Clause 35A(2) attracts the provisions of Section 113 of the 1984 Act to the application for a community care order. That means 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 your Lordships will agree that an interested and vociferous patient will probably wish to attend the hearing and that that is the best safeguard. I have to say that we take the view that a patient who was
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so ill as to be unable to attend a court hearing should probably not be being considered for a community care order.
However, I accept that a patient may choose not to attend the hearing, and we will use guidance to underline the importance to the application of the views of those consulted and to make it clear to the different professionals involved that patients should be encouraged to attend such hearings.
With those assurances, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Carmichael of Kelvingrove: My Lords, we are reassured by the fact that the patient will be encouraged and not intimidated in any way by the use of bold type or underlining in the letter, which may scare the wits out of him. It is important that patients be involved, and so encouragement is what we want. I thank the Minister for what he said and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 88:
Page 21, line 1, leave out from ("inform") to ("to") in line 2 and insert ("any person, other than the patient, who has been consulted under subsection (3) (a) above of his right, by virtue of section 35A(2) of this Act,").
The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 71. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, in view of the fact that Amendment No. 88 was agreed to, I cannot call Amendment No. 89.
[Amendment No. 89 not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 90:
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: My Lords, the amendment deals with a community care application. It would require that each doctor should agree whether the patient's mental disorder is mental illness or mental handicap. If the amendment on page 10 of the briefing is accepted, Amendment No. 90 will not be needed. We strongly suggest that the new community care order should apply only to people with mental illness. If that amendment is not accepted, this amendment would ensure that the doctors have to agree what is wrong with the patient—mental illness or mental handicap.
This provision mirrors the provisions contained in Section 18(3) of the Mental Health (Scotland) Act which provides that a patient cannot be detained in hospital under the section if the doctors do not agree about which form of mental illness he is suffering from. I understand that the Government are to propose an amendment at a

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later stage to cover that point. I may have that wrong, but if that is the case, I shall be happy to accommodate the Minister. In the meantime, I beg to move.
The Earl of Lindsay: My Lords, I hope that the noble Lord will accept that we covered some of the concerns he has raised when we dealt with Amendment No. 85. I can assure the noble Lord that the later amendment for which he is hoping will indeed be forthcoming.
I may have misled the House on that point. Amendment No. 85, to which the House has agreed, related to the medical reports being agreed in their conclusions and also to the possibility of a community care order being applied to someone with a mental handicap who simultaneously has some form of mental illness, or such circumstances. I hope that that is something that the noble Lord can accept, and I ask him to withdraw the amendment.
Lord Carmichael of Kelvingrove: My Lords, I thank the Minister for those assurances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 91:
Page 21, line 4, 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—

(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

(b) he ought to be so admitted and detained in the interests 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: My Lords, the amendment is misplaced in the Marshalled List. Having taken advice, I shall not move the amendment today but will bring it back on Third Reading. That is perhaps the best way of dealing with the difficulty, which is my fault. I apologise to your Lordships.
[Amendment No. 91 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 92 and 93:
Page 21, line 22, at end insert:
("(ai) the patient and, if practicable and the patient does not object, his nearest relative;").
Page 21, line 43, leave out from first ("and") to ("and") in line 44 and insert ("any other person who has been consulted under subsection (3) (b) (ai) above;").
The noble Earl said: My Lords, I spoke to these amendments when moving Amendment No. 71. I beg to move.
On Question, amendments agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 94:
Page 21, line 46, after ("of") insert ("(i)").
The noble Lord said: My Lords, I shall speak also to Amendment No. 95. Section 110(1) of the Mental Health (Scotland) Act 1984 spells out the information to be given to a person whose section has been renewed. We are advised that some of the authorities in Scotland which are involved believe that it is not tolerable that a lesser amount of information should be given to a patient whose community care order is renewed. An alternative way to achieve the same effect is to extend Section 110 of the Mental Health (Scotland) Act, which is covered by community care orders. That would be a neater way than that suggested in the Bill. I beg to move.
The Earl of Lindsay: My Lords, following an amendment tabled in Committee by the noble Lord, Lord Carmichael, we undertook to consider the issues that he raised. That we have done, and Amendment No. 96 will make it a requirement for the aftercare officer to give the patient an explanation orally and in writing at the time of the renewal of the community care order. That would address the noble Lord's anxieties.
Having indicated that position, and in anticipation of Amendment No. 96, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 95 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 96:
Page 21, line 47, at end insert:
("( ) Subsection (10) of section 35A of this Act shall apply in relation to a renewal of a community care order under this section as it applies in relation to a community care order made under that section, but with the substitution of a reference to subsection (3) (b) (ai) of this section for the reference to subsection (3) (a) of section 35B.").
The noble Earl said: My Lords, following an amendment tabled in Committee by the noble Lord, Lord Carmichael of Kelvingrove, we undertook to consider whether it should be made clear on the face of the Bill that the patient should receive an explanation of the effect of the renewal. I am grateful to the noble Lord for bringing the matter to our attention.
The effect of this amendment would be that, following renewal of a community care order, the aftercare officer would be required to explain to the patient, both orally and in writing, the purpose and effect of the renewal and the conditions of the order; the patient's right of appeal to the sheriff; and the fact that the patient could make representations to the Mental Welfare Commission at any time. The aftercare officer would also be required to send a copy of the written explanation to the nearest relative, if the nearest relative had been consulted.
We believe that this meets the concerns which were expressed. I beg to move.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for having listened and acted on the amendments tabled in Committee.
On Question, amendment agreed to.
8.45 p.m.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 97:
Page 22, line 1, after ("where") insert ("either").
The noble Lord said: My Lords, the amendment is designed to provide an opportunity for the doctor or the social worker dealing with the case to consider whether the order requires variation. We believe that in many cases the social worker in the community will be closer to the needs of the patient and will be able to take a view whether his or her aftercare is working. Indeed, a high proportion of social workers are women. If it is not working, the social worker should be able to call for a variation, which I assume will go through the usual channels before a decision is made. The social worker or the doctor will be allowed to trigger the reconsideration of the case. I beg to move.
The Earl of Lindsay: My Lords, it may be for the convenience of the House if I also speak at this stage to Amendments Nos. 98,100 and 108.
In Committee we discussed and rejected the question of widening the scope of an application for a community care order to allow other persons to make it, because joint applications raise doubts as to who would be ultimately responsible for the application.
The purpose of these amendments would be similarly to widen the scope for varying the conditions of a community care order. I accept that some conditions will relate purely to social care issues and it would seem appropriate to allow the aftercare officer to vary them. However, we believe that the care team needs a single focus for decisions about a patient's care and that that role is best carried out by the special medical officer, who must decide whether the patient's condition justifies a proposed variation.
We have made provision for the care team, and specifically the aftercare officer, to be consulted on all variations. Indeed, guidance could encourage the aftercare officer to propose such variations to the care team. However, we do not favour extending to the aftercare officer the responsibility for proposing a variation of the conditions of the order.
I hope with that explanation the noble Lord will feel able to withdraw his amendment.
Lord Carmichael of Kelvingrove: My Lords, I am not sure whether I understood the Minister's reply. Does it mean that the aftercare officer will not be able to initiate reconsideration of the case even by discussing it with the medical practitioner? If that were the case, I should be reluctant to withdraw the amendment. Will the Minister give an assurance that the aftercare officer acting with the patient will be able to discuss the matter formally with the medical practitioner? If so, I shall be happy to accept the amendment.
The Earl of Lindsay: My Lords, we understand the noble Lord's point. Guidance will encourage the aftercare officer to propose such variations to the care team.
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Therefore, the aftercare officer can initiate an inquiry with the rest of the medical team. The special medical officer, however, will continue to have ultimate responsibility for the community care order patient and therefore he will initiate and lodge the application on a formal basis. It may be that informally the variation has been initiated by the aftercare officer.
Lord Carmichael of Kelvingrove: My Lords, I thank the Minister for that assurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 98 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 99:
Page 22, line 3, at end insert ("and, if practicable and the patient does not object, his nearest relative").
On Question, amendment agreed to.
[Amendments Nos. 100 and 101 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 102:
Page 22, line 21, at end insert ("and any other person who has been consulted under subsection (1) (a) above").
On Question, amendment agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 103:
Page 22, line 21, at end insert ("and, if he does not object, the patient's nearest relative.").
The noble Lord said: My Lords, the nearest relative must always be kept informed, if the patient does not object. This amendment ensures that the nearest relative will be able to speak at any hearing as regards the proposed variation and can act generally to protect the patient's interests. I beg to move.
The Earl of Lindsay: My Lords, we considered this issue when we discussed Amendment No. 102. That proposes that if the nearest relative has been consulted about a proposed variation then he will be sent a copy of both the proposed and approved variation of conditions. Therefore, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Carmichael of Kelvingrove: My Lords, yes. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 104:
Page 22, line 23, leave out ("who made the community care order") and insert ("of the sheriffdom within which the patient is resident").
The noble Earl said: My Lords, we undertook in Committee to consider this point further. This amendment will provide that the proposed variation of conditions should be sent to the sheriff clerk of the sheriffdom in which the patient is resident, not the sheriff clerk for the sheriff who originally made the order. We believe that this amendment meets the anxieties which were expressed in Committee. I beg to move.
On Question, amendment agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 105:
Page 22, line 24, at end insert ("whom failing a sheriff of the same sheriffdom; and

(d) the Mental Welfare Commission.").

The noble Lord said: My Lords, this amendment provides that if the sheriff who made the original order is not available, another sheriff from the same sheriffdom should be informed of the proposed variation and the Mental Welfare Commission should also be informed.
The sheriff who made the original order is obviously the best person to consider a variation. However, if he is no longer alive, or has retired, someone else will have to be appointed. We believe that the Mental Welfare Commission should be involved in that at all stages.
It may well be argued that a sheriff is a sheriff is a sheriff and that a different sheriff has all the wisdom of the previous sheriffs. However, I believe that we should have an explanation as to why such a reasonable amendment cannot be incorporated into the Bill.
The Earl of Lindsay: My Lords, we undertook in Committee to consider the question of ensuring that any proposed variation in conditions would be sent by the special medical officer to the sheriff clerk for the sheriffdom in which the patient is resident, rather than to the sheriff clerk of the sheriff who made the order. We made the necessary technical amendment in Amendment No. 104.
Amendment No. 105 also seeks to ensure that a copy of the proposed variation is copied to the Mental Welfare Commission. We undertook in Committee to consider this further and I think we shall be meeting the concern in this part of the amendment when I move Amendment No. 109. Therefore, I ask the noble Lord to consider withdrawing these amendments.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for his assurances and flexibility. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 106 not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 107:
Page 22, line 25, after ("patient") insert ("or his nearest relative").
The noble Lord said: My Lords, this amendment seeks to provide that the nearest relative shall be given the right to object to any variation in relation to a community care order. The Mental Health (Scotland) Act gives the nearest relative the right to advocate on the part of the patient. He is given the right to appear at all hearings. If he is concerned about a proposed variation of a community care order, he should be given the right to express his concern directly to the sheriff. As I said, that mirrors the provisions in the Mental Health (Scotland) Act. I beg to move.
The Earl of Lindsay: My Lords, this amendment 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. We understand that there is concern that a floridly ill person may not understand or be able to discern the purpose of a variation of conditions. If a person is so floridly ill we
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would suggest that those caring for him might feel the need to consider whether a reassessment in hospital was necessary, and not a variation of conditions.
If the nearest relative is the informal carer, he will be consulted about the proposed variation. We believe that this is reasonable because there is no statutory duty on anyone other than the health board and the local authority to provide health care or aftercare for a person subject to a community care order. We would not expect that the moral duty of care which so many informal carers feel they have should be disregarded, and we do not think that those statutorily involved in caring for a patient will override the feelings and wishes of informal carers. As I said in Committee, we shall want to ensure that the position of carers is fully recognised in guidance.
I should also make it clear that it appears to us that it would not be for a variation of conditions to "increase" the burden of care on an informal carer. Any condition imposed on a patient under a community care order is with a view to ensuring the patient receives the care and treatment he needs, and the statutory duty to provide what is necessary falls on the health board and local authority. With those reassurances, I hope that the noble Lord will consider withdrawing the amendment.
Lord Carmichael of Kelvingrove: My Lords, again, I am grateful to the Minister for giving such a lengthy explanation. However, I believe that there is still a problem. I admit that sometimes the nearest relative is not the best person to give advice or with whom to discuss the matter but, on the other hand, in most cases the nearest relative will be the person who has the greatest interest in the welfare of the patient.
I do not know that there is an easy solution to the problem. Therefore, I must accept the Minister's good will. I hope that that will be carried forward into the institutions and officials so that they appreciate that the nearest relative should also be involved in helping to make the decisions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 108 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 109:
Page 22, line 37, leave out ("the patient and") and insert:

("(a) the patient and any other person who has been consulted under subsection (1) (a) above;

(b) the Mental Welfare Commission; and

(c)").

The noble Earl said: My Lords, I hope that this amendment addresses the point about the Mental Welfare Commission which the noble Lord, Lord Carmichael, and the noble Earl, Lord Mar and Kellie, have sought to highlight in Amendments Nos. 105 and 106 respectively.
I should remind your Lordships that consultation with the nearest relative only takes place if practicable and if the patient does not object. We believe that it is important that the patient and his nearest relative, if he has been consulted, along with the aftercare officer, should be informed of the variation of conditions when it has been approved by the sheriff.
That is also an appropriate stage for the Mental Welfare Commission to be informed, since it needs to be aware of any change to the conditions as part of its role in exercising protective functions over the community care order patient. The Mental Welfare Commission does not need to be informed of a proposed variation of conditions. Clearly, once the variations are approved, the commission may, for example, make appropriate inquiries into any particular set of facts, or visit a patient on a community care order, in exercise of its protective functions. The commission's role tends to be reactive. I beg to move.
The Earl of Mar and Kellie: My Lords, I wonder whether the noble Earl will help me as regards the drafting. I believe that the name of the organisation should be the Mental Welfare Commission for Scotland. Am I right about that?
The Earl of Lindsay: My Lords, I believe that the suggestion made by the noble Earl is correct. We shall certainly seek to act on any consequences of his observation.
On Question, amendment agreed to.
9 p.m.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 110:
Page 22, line 37, after ("patient") insert ("and, if practicable and the patient does not object, to the patient's nearest relative").
The noble Lord said: My Lords, this amendment could perhaps have been grouped with others. It may be a déjà vu situation but the amendment is concerned again with the matter of the nearest relative being given notification. I am sure I shall receive an assurance from the Minister that best endeavours will be made to keep the nearest relative informed at all times. Perhaps that could be put on the face of the Bill. I have moved the amendment to ascertain what help the Minister can give on the matter. I beg to move.
The Earl of Lindsay: My Lords, as the noble Lord explained, this amendment seeks to ensure that, if the patient does not object, his nearest relative will be sent a copy of the approved variation of the conditions of a community care order. I addressed the concerns behind this amendment in government Amendment No. 109 which ensures that a copy of the variation of conditions approved by the sheriff is sent to the nearest relative if he has been consulted on the variation. I hope the noble Lord will feel satisfied with that explanation and feel able to withdraw this amendment.
Lord Carmichael of Kelvingrove: My Lords, I thank the Minister for those comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 111:
Page 22, line 42, at end insert ("but with the substitution of a reference to subsection (1) (a) of this section for the reference to subsection (3) (a) of section 35B").
The noble Earl said: My Lords, I spoke to this amendment when I moved Amendment No. 71. I beg to move.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 112:
Page 22, line 42, at end insert:
Change of special medical officer or after-care officer
("35DA.—(1) This subsection applies where a patient's special medical officer, after consulting the persons mentioned in subsection (3) below, agrees with another medical practitioner ("the new special medical officer"), who shall be a practitioner approved for the purposes of section 20 of this Act by a Health Board as having special experience in the diagnosis or treatment of mental disorder, that the new special medical officer should, from a date so agreed, assume principal responsibility for the patient's medical treatment while the community care order is in force.
(2) This subsection applies where a patient's after-care officer, after consulting the persons mentioned in subsection (4) below, agrees with another person ("the new after-care officer"), who shall be a mental health officer of the local authority which is providing (or, if different, the local authority which is to provide) the after-care services to be provided for the patient under section 8 of this Act while the community care order is in force, that the new after-care officer should, from a date so agreed, assume responsibility for co-ordinating the provision of the after-care services to be so provided.
(3) The persons referred to in subsection (1) above are—

(a) the patient and, if practicable and the patient does not object, his nearest relative;

(b) the other persons concerned or to be concerned with the patient's medical treatment (including the new special medical officer);

(c) the patient's after-care officer;

(d) the other persons professionally concerned or to be so concerned with any aspect of the after-care services provided or to be provided for the patient under section 8 of this Act; and

(e) any person who the special medical officer believes plays or is to play a substantial part in the care of the patient but is not, and will not be, professionally concerned with the after-care services so provided or to be so provided.

(4) The persons referred to in subsection (2) above are—

(a) the patient and, if practicable and the patient does not object, his nearest relative;

(b) the patient's special medical officer;

(c) the other persons concerned or to be concerned with the patient's medical treatment;

(d) the other persons professionally concerned or to be so concerned with any aspect of the after-care services provided or to be provided for the patient under section 8 of this Act (including the new after-care officer); and

(e) any person who the after-care officer believes plays or is to play a substantial part in the care of the patient but is not, and will not be, professionally concerned with the after-care services so provided or to be so provided.

(5) Where subsection (1) or (2) above applies the new special medical officer or, as the case may be, the new after-care officer shall, from the agreed date, assume responsibility as mentioned in that subsection and shall within seven days of that date intimate the change, in the prescribed form, to—

(a) the patient and any other person who has been consulted under paragraph (a) of subsection (3) or, as the case may be, (4) above;

(b) the Mental Welfare Commission; and

(c) the patient's after-care officer or, as the case may be, special medical officer.

(6) On a change of special medical officer or after-care officer by virtue of this section, the community care order shall have effect in respect of the patient as if the new special medical officer or, as the

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case may be, the new after-care officer had been the special medical officer or after-care officer specified in the community care order by virtue of section 35A(4) of this Act").
The noble Earl said:
My Lords, the way in which a change of special medical officer or aftercare officer might take place was a subject raised in Committee by the noble Earl, Lord Mar and Kellie. I indicated then that we were considering the way in which this might take place. This amendment contains our proposals.
If I can take the example of a change of special medical officer, the change could only take place after consultation with the patient and, where practicable and if the patient did not object, his nearest relative, and with those involved, or to be involved, in the care and treatment of the patient. There would be an agreement between the special medical officer and the proposed new special medial officer that, from an agreed date, the new special medical officer should assume principal responsibility for the patient's medical treatment while the order was in force.
Within seven days of assuming responsibility, the new special medical officer would have to inform the patient, the nearest relative, if the nearest relative had been consulted, along with the Mental Welfare Commission and the aftercare officer. A change of aftercare officer would operate in a similar way, with the aftercare officer and the new aftercare officer taking the leading roles, and the special medical officer being consulted. We believe this provision would offer a means of changing the special medical officer and aftercare officer which is in keeping with the spirit of consultation in the Bill. I hope it meets the concerns raised by the noble Earl in Committee. I beg to move.
The Earl of Mar and Kellie: My Lords, I certainly think the amendment that the noble Earl has proposed meets the concerns I expressed in Committee.
On Question, amendment agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 113:
Page 22, line 46, at end insert ("or for a variation of the conditions of the order").
The noble Lord said: My Lords, the purpose of the amendment is to clarify the point that while the doctors and social workers have the right to apply to the sheriff to vary the conditions of the community care order, there is no such right given to the patient who is having to live with the conditions on a day-to-day basis. We think this is wrong. The amendment gives the patient the right to require the sheriff to reconsider his case. Having reread the amendment, I realise that there are flaws in it. For instance, there is no time factor involved. There is no indication as to how often a patient can ask for a variation. We know that in certain cases, perhaps because of a loss of memory, there may be almost daily applications. Therefore, the provision would need to be tightened up in that regard. However, the sentiment behind the amendment is that someone other than the doctors or the
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social workers should be able to ask for a variation. We are seeking a safeguard that the patient should have some rights in this matter. I beg to move.
The Earl of Lindsay: My Lords, as the noble Lord explained, this amendment seeks to extend the right of appeal by a patient to the sheriff to include an appeal against a variation of conditions. The noble Lord may be less enchanted with some of the detail of the amendment but we feel that the substance of the amendment, which I now concentrate upon, is unnecessary.
The Bill as drafted includes in new Section 35D(3) a right for the patient to object to, or make representations concerning, the proposed variation, and, if he does so, the sheriff shall not approve the variation without hearing the patient's case. We therefore believe that the right to be heard which we propose is adequate.
I should mention in passing that we are considering a technical amendment to ensure that the appeal against the community care order is by summary application to the sheriff of the sheriffdom in which the patient resides. I would ask the noble Lord on this basis to withdraw his amendment.
Lord Carmichael of Kelvingrove: My Lords, that is quite reassuring. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114 not moved.]
The Deputy Speaker: My Lords, before calling the next amendment I should inform your Lordships that there is a printing error on the Marshalled List. This amendment should read,
"Page 23, line 20, leave out from first ("The")".
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 115:
Page 23, line 20, leave out from ("The") to first ("of") in line 21 and insert ("person applying for the variation of the community care order shall promptly notify the patient, and if practicable and if the patient does not object, the patient's nearest relative, and the after-care officer or the special medical officer, as the case may be").
The noble Lord said: My Lords, the purpose of this amendment is to provide that the person making the application must notify the patient, his nearest relative and the aftercare officer or the special medical officer not involved in the application for variation. The notification should, of course, be given promptly. If the amendment is accepted, then either the special medical officer or the aftercare officer may apply for a variation and either will have to notify the others. It is essential that the patient and his nearest relative be informed and that that is done promptly. This seems fairly straightforward to me. I beg to move.
The Earl of Lindsay: My Lords, as explained by the noble Lord, Lord Carmichael, this amendment appears to seek to ensure that the person making a variation in the conditions of a community care order must notify the patient, his nearest relative and those professionally involved but who were not consulted about the variation. We believe that the amendment is unnecessary.
We have already rejected Amendments Nos. 97, 98, 100 and 108 which sought to allow a variation of conditions to be proposed by the aftercare officer in

1305
addition to the special medial officer. We agreed to government Amendment No. 102 which amends new Section 35D(2) and ensures that the special medical officer must send a copy of the proposed variation of conditions to the patient, the nearest relative if he was consulted, the aftercare officer and the sheriff of the sheriffdom in which the patient is resident.
Government Amendment No. 109 will also ensure that where a variation is approved the patient and any other person consulted shall receive a copy of the approved variation in conditions. We believe that that is sufficient. I hope that the noble Lord will also consider it sufficient. On that basis, I hope that he will consider withdrawing his amendment.
Lord Carmichael of Kelvingrove: My Lords, we have laboured the point in many of the earlier amendments. I am grateful to the Minister for elaborating even further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 116 and 117:
Page 23, line 34, at end insert:
("(za) if practicable and the patient does not object, his nearest relative;").
Page 24, leave out lines 24 and 25, and insert:
("(a) any person who has been consulted under subsection (2) (za) above;").
The noble Earl said: My Lords, I spoke to Amendments Nos. 116 and 117 when I moved Amendment No. 71. I beg to move.
On Question, amendments agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 118:
Page 24, line 33, at end insert ("and shall not be further detained in a hospital by virtue of this section immediately after the expiry of the period of detention.").
The noble Earl said: My Lords, I hope that in speaking to the amendment I shall be able also to address some of the points that the noble Lords, Lord Carmichael, and Lord Macaulay, may raise in connection with Amendment No. 121.
In Committee we agreed that we would consider further the question of immediate re-use of the provision allowing reassessment in hospital. We take the view that where a person has been reassessed in hospital for seven days those caring for him should not have the opportunity on the expiry of the seven-day period immediately to redetain him for further assessment for a further period of seven days. The amendment would ensure that that would be the case.
If further detention is likely to be necessary after the expiry of the seven-day reassessment period then an application for admission under Section 18 of the 1984 Act should be submitted to the sheriff. That will permit the interim detention in hospital of the patient while the application is being processed. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 119 to 121 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment Nos. 122 to 124:
Page 26, line 4, leave out from second ("the") to end of line 5 and insert ("patient, his nearest relative (if practicable), his after-care officer and the Mental Welfare Commission").
Page 26, line 8, at end insert:
("(za) the patient and, if practicable and the patient does not object, his nearest relative;").
Page 26, line 28, leave out from second ("the") to second ("of) in line 29 and insert ("patient, his nearest relative (if practicable), his special medical officer and his after-care officer").
The noble Earl said: My Lords, I spoke to Amendments Nos. 122, 123, and 124 with Amendment No. 71. I beg to move.
On Question, amendments agreed to.
Clause 5 [Absence without leave]:
[Amendment No. 125 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 126:
Page 26, line 48, leave out ("six") and insert ("three").
The noble Earl said: My Lords, the purpose of Amendment No. 126 is to reduce the length of time that someone detained under civil procedure under Section 18 of the Mental Health (Scotland) Act 1984 may be detained after being recaptured after going absent without leave from the hospital. I am concerned that the Bill does not discriminate between those detained under civil procedures and those detained on a hospital order by order of a criminal court. The two client groups are distinctly different. That is exemplified by the right of the nearest relative to seek the discharge of a Section 18 patient while for the hospital order patient no such opportunity exists.
I believe that it would be correct to have a variation in the period allowed to elapse after absence without leave so as to avoid discrimination against civil procedure patients. I beg to move.
The Earl of Lindsay: My Lords, I am grateful for the explanation that the noble Earl, Lord Mar and Kellie, has given of his amendment.
We decided that patients who go absent without leave should be liable to be returned for a period of six months or for the period of their liability to detention, whichever is later, because we take the view that that balances our concerns about the patient's need for and right to treatment and our concerns about public protection. We believe that we have struck the right balance and that three months would be too short.
I should also point out in passing that the decision whether or not to return to hospital a person who is liable to be so returned must be made on a case-by-case basis. It is conceivable that a person who had absconded near the end of his liability to detention, for example, might not be returned to hospital if he was managing well in the community.
The noble Earl, Lord Mar and Kellie, also raised the question of the lack of discrimination between Section 18 and hospital order patients. On the subject of absence without leave, the 1984 Act makes no discrimination. It is the Government's view that we should not change that.

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In the light of that explanation I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of Mar and Kellie: My Lords, I thank the noble Earl for his explanation. I concur with him. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Leave of absence from hospital]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 127:
Leave out Clause 6.
The noble Earl said: My Lords, the purpose of my proposing the omission of Clause 6 is that I wish to probe a little deeper into the rationale underlying the reduction and use of leave of absence, and to question its future use.
In Committee, the noble Earl stated that the Government had taken legal advice. The conclusion was that a 12-month period of leave of absence was legally sound. Will the noble Earl tell me from where in the European Convention on Human Rights, or in its associated case law, the 12-month limit is derived? I understand that when Sheriff Younger gave his judgment he expressed the view that the words, "liable to be detained in a hospital" meant that some degree of hospitalisation was actually, as opposed to potentially, required. Does that not rule out any use of leave of absence for periods of weeks or months at a time, whether or not it was of a duration greater or less than 12 months? I beg to move.
9.15 p.m.
The Earl of Lindsay: My Lords, Clause 6 fixes at one year the total consecutive periods of leave of absence which may be granted in respect of a patient detained in hospital in Scotland under the 1984 Act.
I note what the noble Earl said about all leave of absence possibly falling foul of the European Convention on Human Rights. It seems rather odd to me that he should be arguing this point, since I had understood that he was rather fond of leave of absence—certainly when he expressed his views at an earlier stage of the Bill. We take the view that leave of absence as a concept meets the UK's obligations under the convention. It is clearly a useful and necessary part of treatment in some cases. I would further point out that it can be used for specified occasions, not just for specified periods.
The noble Earl also questioned the decision to introduce a 12-month limit to leave of absence in the light of the Sheriff Younger judgment. I point out to the noble Earl that the decision on the 12-month period was not based specifically within the European Convention on Human Rights but on legal advice emanating from it.
When considering the Sheriff Younger judgment the options for change were carefully considered. We examined whether it might be possible to adapt the leave of absence provisions in such a way as to reduce the risk of legal challenge, but still allow the use of leave of absence in the long term. That appears difficult and would require a major rewrite of the 1984 Act. We are not even sure that that could be done in a way which would meet the concerns raised by Sheriff Younger's judgment. We therefore concluded that the best way forward was to limit
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use of leave of absence to consecutive periods totalling one year and to introduce proposals for community care orders.
The period of one year was chosen as the maximum total of consecutive periods of leave of absence because it is the maximum period for which a person may be liable to be detained under the 1984 Act, after two initial six-month periods. We believe that this reduces the risk of legal challenge to within acceptable limits.
We are aware that leave of absence is valuable. It is for that reason that we have retained it for consecutive periods of up to one year. We believe that to be the best solution. On that basis I hope that the noble Earl is able to withdraw his amendment.
The Earl of Mar and Kellie: My Lords, as the noble Earl rightly said, I have been much in favour of the continued use of leave of absence. It is ironic that this leave of absence system works well, and has worked well until now. There seems to be slight questions of whether the system is legally flawed as opposed to practically flawed. However, I shall go along with the noble Earl and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Short title, commencement and extent]:
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 128:
Page 32, line 46, leave out ("January") and insert ("April").
The noble Baroness said: My Lords, I have already spoken to this amendment with Amendment No. 59. I beg to move.
On Question, amendment agreed to.
Schedule 1 [After-care under supervision: supplementary]:
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 129:
Page 34, line 32, leave out from ("the") to end of line 36 and insert ("person who, in accordance with section 117(2A) (a) below, is in charge of medical treatment provided for him;".").
The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, in view of Amendment No. 129 having been agreed, I cannot call Amendments Nos. 130, 131 and 132.
[Amendments Nos. 130 to 132 not moved.]
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 133:
Page 34, line 46, leave out from ("who,") to end of line 4 on page 35 and insert ("in accordance with section 117(2A) (b) below, is supervising him."").
The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Jenkin of Roding Lord Jenkin of Roding had given notice of his intention to move Amendment No. 134:
Page 35, line 1, after ("Authority") insert ("and local social services").
The noble Lord said: My Lords, I beg to move the amendment standing in my name. I must say that I was somewhat taken aback by the abrupt way in which Amendments Nos. 131 and 132—
Baroness Cumberlege: My Lords, I understand that it is not possible to move the amendment because it has been pre-empted.
Lord Jenkin of Roding: My Lords, all I can say is that it is a great pity that no one took the trouble to tell me that before the debate started. These amendments were put down last week. I do not know when it was decided that it had been pre-empted. I have been sitting here all evening waiting to move three amendments and am now told at the last moment that they have been pre-empted. I think that that is shoddy treatment and I am extremely angry.
The Deputy Speaker: My Lords, I apologise to the noble Lord for that. Of course he should have been informed and I shall draw it to the attention of the appropriate authorities. However, the brief is that, as the previous amendment has been agreed to, I am not able to call the noble Lord's amendment.
[Amendment No. 134 not moved]
[Amendment No. 135 not moved.]
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 136:
Page 36, line 31, after ("are") insert ("not").
The noble Baroness said: My Lords, I beg to move this amendment and with it speak to Amendments Nos. 137 and 138, The purpose of the three amendments is to reverse the burden of proof before the mental health review tribunal so that the responsible medical officer must satisfy the tribunal that the grounds for aftercare under supervision are met rather than the other way round; that is, the patient having to show that supervision is not required.
By moving Amendment No. 11, the Government have now placed on the face of the Bill the explicit right to appeal to a mental health review tribunal. The amendments simply take the process a little further. As noble Lords will know, under the Mental Health Act 1983, the mental health review tribunal's current function is to review the detention of patients detained under the Act and to consider whether the patient should be discharged from hospital. The statutory criteria for discharge are drawn in what is colloquially known as a double negative: that the tribunal must be satisfied that the patient is not then suffering from a mental disorder or that the patient's detention is not justified for the protection of the patient or others. The burden of proof is on the patient, who has the difficult task of trying to prove this negative.
I am advised by the Law Society that Jill Peay in her study of the operations of the mental health review tribunal, which was published in 1989 and entitled A Study of Decision Making under the Mental Health Act—which itself was published in 1989—showed that many judicial members dislike having to employ the double negative formulation. They find it both grammatically inelegant and, perhaps more important, conceptually difficult. If the judicial members of tribunals find it a
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difficult process, how much more so must it be for the patients? As the Bill stands, they have to prove not only that they do not have a mental disorder but also that they will not pose a risk to themselves or to anyone else.
As currently drafted, the Bill will require patients subject to aftercare under supervision to satisfy the tribunal that supervision is not required, and again the patient will have to prove the negatives. The grounds for aftercare under supervision set out in Section 25A(4) of the Bill are extremely widely drawn and we have discussed them before. It will therefore be extremely difficult for the patient to present evidence to the mental health review tribunal to show that the grounds are not met and that supervision is not necessary.
Baroness Cumberlege: My Lords, with the leave of the House, before I speak to this amendment I wish to clarify an earlier point that I made. I am afraid that I may unwittingly have misled the House on one point in my reply to the noble Baroness, Lady Jay, on the Government's Amendment No. 11. I have already given notice of it to the noble Baroness.
As your Lordships will recall, the proposal requires information to be given to patients about, among other things, their rights to a tribunal hearing. It is not true, as I suggested, that the Bill will explicitly require patients to be told of their rights to free legal representation at a mental health review tribunal. However, the amended Bill refers explicitly to informing patients of their rights to apply to a tribunal. It is unthinkable that anyone advising a patient of his or her rights would not make the position about legal representation clear. But, in any case, we will make sure that our guidance on the operation of the power spells that out. Although this does not go quite so far as I believe the noble Baroness would have liked, I hope that she will find it acceptable.
Amendments Nos. 136,137 and 138 would reverse the wording of the Bill in relation to the way that a mental health tribunal has to consider appeals from patients who are, or will be, subject to aftercare under supervision and from those appealing against renewal of the power. Instead of saying that the tribunal will direct that the patient should cease to be subject if it is satisfied that the conditions for the imposition of the power in Section 25A(4) or a renewal in Section 25G(4) are not met, if this amendment were carried the tribunal could so direct if it was not satisfied that the conditions for cessation were met.
We must remember that this Bill amends the existing Mental Health Act 1983. The paragraphs in the schedule dealing with mental health review tribunals will slot into the existing provisions of the Act. The tribunal's powers in relation to aftercare under supervision have to be related to their powers on appeals from those liable to be detained or from those subject to guardianship, and the way in which they hear appeals from people subject to the new power must be framed in the same way as the hearing of appeals from people subject to the existing powers. For this reason I am unable to support this amendment. I hope that the noble Baroness will withdraw it.
Baroness Jay of Paddington: My Lords, I am grateful to the Minister for her reply, and particularly for her remarks at the beginning about the earlier discussion that

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we had about whether the requirement to inform patients of their free rights to legal assistance before a mental health review tribunal was or was not included on the face of the Bill. I understand now exactly what she was saying and I am grateful for that clarification. I am still a little concerned, remembering the discussion that we had in Committee in which there was a variation of opinion among Members of this House about whether free access to legal aid was a right under the mental health review tribunal, and there was some confusion about that. But I hear what the noble Baroness says about making it absolutely clear in guidance and I am satisfied with that assurance.
On the question of the later amendments, to which we are speaking directly now, I understand what the noble Baroness says about this being in a sense an attempt to amend the Mental Health Act 1983 by a somewhat back-door method. The purpose of these amendments is indeed to make the whole situation of the mental health review tribunals clearer. I can only say that in listening to the noble Baroness, and indeed to myself, becoming somewhat confused over our double negatives, I still feel that the purpose of these amendments was precisely right. However, in view of what the noble Baroness said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 137 and 138 not moved.]
Baroness Cumberlege Baroness Cumberlege moved Amendments Nos. 139 and 140:
Page 37, line 20, leave out from ("that") to end of line 25 and insert ("at all times while a patient is subject to after-care under supervision—

(a) a person who is a registered medical practitioner 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 is in charge of the medical treatment provided for the patient as part of the after-care services provided for him under this section; and

(b) a person professionally concerned with any of the after-care services so provided is supervising him with a view to securing that he receives the after-care services so provided.").

Page 37, leave out lines 28 and 29.
The noble Baroness said: My Lords, I have spoken to both of these amendments. I beg to move.
On Question, amendments agreed to.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 141:
Page 37, line 33, at end insert:
("General Protection of Detained Patients
—(1) Section 120 of that Act (General Protection of Detained Patients) shall be amended in accordance with sub-paragraphs 2 and 3 below.
(2) In subsection (1), for the words "detained under this Act and shall make arrangements" there shall be substituted "detained or received into guardianship or after-care under supervision under this Act".
(3) In subsection (1) (b) (ii), for the words "has been so detained" there shall be substituted "has been detained or liable to be detained or received into guardianship or after-care under supervision".").
The noble Baroness said: My Lords, this amendment seeks to extend the remit of the Mental Health Act Commission to cover those patients placed on supervised
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discharge orders and living in the community. Such patients are the main subject of this Bill. With the leave of the House, I should like to discuss the ancillary issues which arose in relation to Amendment No. 20, which was not discussed earlier in the day. As the noble Lord, Lord Jenkin, discovered, the amendment was pre-empted without notice being given. I understand that I cannot now move Amendment No. 20. However, with the leave of the House I should like to discuss and include some of the issues related directly to Amendment No. 141 which I would have raised in relation to Amendment No. 20 had I spoken to that amendment in its place on the Marshalled List. We discussed these questions briefly in Committee, but I should like to return to them in greater depth now.
I remind noble Lords that the Mental Health Act Commission is a special health authority which, on behalf of the Secretary of State, keeps under review the uses of the Mental Health Act in England and Wales as it relates to patients detained in hospital. The commission now visits at least once a year every hospital and mental nursing home caring for detained patients. I understand that that is currently about 634 units. It deals with approximately 500 complaints each year under its statutory complaints remit. In other words, this is the one national statutory authority which is able to monitor and evaluate both mental health services and mental health patients across the country.
As I said at the Committee stage, if we are to be able in the future to make an accurate nationwide assessment of the success or failure of this new supervision order, it will best be carried out by the Mental Health Act Commission. It is equally important that, if the health and social services are to be able to keep track of patients as they move about the country, it could best be done also by the Mental Health Act Commission. Noble Lords will remember the examples which were quoted extensively in earlier debates. They showed how patients like the schizophrenic, Andrew Robinson, turned up in different places, and doctors and social workers had only his account of his problems and background to go on. At the moment there is no central reference point or central monitoring of mental health patients who are living in the community. I remind your Lordships that the public inquiry into the Robinson case noted that as a serious failure in the existing system.
At the Committee stage the Minister said that these matters would be dealt with by the social services inspectorate or the National Health Service executive. I refer noble Lords to col. 141 of the Official Report dated 4th April. I wonder whether, on reflection, the Minister believes that that is rather unrealistic and impractical. I am afraid that I have to say that I do. Since we had the Committee stage discussion, the Mental Health Act Commission itself last week published a position paper on the Bill. That paper appears to argue in support of Amendment No. 141 and indeed for the earlier Amendment No. 20.
Amendment No. 20, which was not called, asked that the Mental Health Act Commission should be notified when a supervision order was made. Paragraph 2.4 of the commission's paper states:
"We consider that careful observation and monitoring of the use of these new powers will be necessary, particularly in the early years. Although the commission has no wish to be directly involved in the

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consultation process itself, which has to be carried out before a particular discharge takes place, it may be considered sensible and desirable for the Bill to include a provision which obliges the applicant RMO to copy the application, whether or not it is successful, to the commission".
It was also noted that the Bill already provides for similar proposals in Scotland. I remind your Lordships that the RMO there shall, within seven days of making a community care order, send a copy to, among others, the Mental Welfare Commission for Scotland. That is found in Clause 4(1). When we debated that matter at an earlier stage, noble Lords around the House raised the question of the inconsistency between the Scottish and the English provisions. We did not have a very satisfactory reply as to why they were different south of the Border. Perhaps the Minister could help us with that point in her reply tonight.
Going further, in Section 3 of its comments on the Bill, the commission discusses the general extension of its statutory remit through amendments to the 1983 Mental Health Act, as proposed by Amendment No. 141. The commission states that the new powers of control and compulsion of patients proposed by the Bill warrant consideration being given to the extension of its remit to patients under supervised aftercare, and to make its new proposed position consistent also to patients discharged under guardianship orders.
The commission argues—I quote directly from its document:
"This would ensure that the new powers are correctly exercised and applied in strict accordance with the statutory requirements and, by a process of observation and monitoring over the years, the use of the powers is of benefit to the patients involved and to the community into which the patient is being discharged".
I should also add that that was another of the recommendations from Jean Ritchie's report on the Christopher Clunis case, which—despite the general undertakings that we discussed earlier from which it appeared that the Government had undertaken to adopt all the recommendations—has not yet been agreed on. Surely, given those authoritative opinions on the situation related to the Mental Health Act Commission, the Government should accept the amendment, which must safeguard both the effective operation of the new orders and the well-being of the patients concerned. I beg to move.
Baroness Cumberlege: My Lords, the second of these amendments was tabled by the noble Baroness at Committee stage and I explained then our reservations to extend the remit of the Mental Health Act Commission to cover those subject to legislation in the community. I know that the noble Baroness had some sympathy with the arrangements proposed north of the Border. But the Mental Welfare Commission for Scotland has a different statutory function to that of its nearest equivalent in England and Wales.
In keeping with the second amendment, the first would empower the Mental Health Act Commission to keep under review, on the Secretary of State's behalf, the way both guardianship and supervised discharge were being applied in the community. It would enable the commission to investigate complaints accordingly. I
1314
understand the case being made; but in terms of priority, the commission must concentrate on the special position of those who are detained in hospital.
We consulted with the commission over our proposals and listened carefully to what it said. At present, and bearing in mind the commission is undergoing a major structural change later this year, we do not propose to divert it from its central task of safeguarding the interests of detained patients. Patients receiving aftercare under supervision will have their rights protected by access to the Mental Health Act review tribunal, as those subject to guardianship do now. We shall be looking at the use and effectiveness of the new power as practitioners become familiar with its application.
I can assure your Lordships therefore that monitoring and evaluation will take place both locally and nationally. Again, I ask the noble Baroness to withdraw the amendment.
Baroness Jay of Paddington: My Lords, I am grateful for that reply, but I am rather disappointed by it. If an effective national evaluation of these new and complicated procedures is to take place, then it should be done by a national body. I simply repeat the Minister's words at Committee stage when she said that the Mental Health Act Commission admirably fulfils its function. I should have thought it would be a necessary extension of that function to include patients in the community.
I should have thought also that if the commission itself argues in its position paper on the Bill that it should take on these new functions, then the Government's anxieties about them having inadequate resources or capacity are ill-founded and the commission's position must be taken at face value. However, I hear what the Minister says. I shall think about the matter again and perhaps return to it later. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 142:
Page 38, leave out lines 1 to 18.
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 15. I beg to move.
On Question, amendment agreed to.
Schedule 2 [Community care orders: supplementary]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 143:
Page 39, line 5. at end insert:
(". In section 96 of that Act, after the word "Act" in line 8 insert "and any patient subject to a Community Care Order under this Act"").
The noble Earl said: My Lords, this amendment concerns the powers to deal with breaches of the conditions of a community care order. However, on the face of it, its purpose is to bring all those on community care orders under Part X of the Mental Health (Scotland) Act 1984, thereby insisting that they accept treatment. Without that the community care order will not be helpful in relation to the people for whom it is most needed—that is, those who, because of the severity of their illness and possible associated lack of insight, are not in a position to decide whether they wish to accept treatment on an informed basis.
I am worried that without a continuing power to insist on the acceptance of treatment in the community after one year's leave of absence, unfortunate incidents will be more likely to occur in Scotland with immediate unfortunate consequences for those involved, especially for the immediate carers, and indeed may have consequences for the whole public acceptance of the policy of community care.
The fundamental behind the amendment is that the Bill, in Section 35(A) (1), indicates that the purpose of the community care order is to ensure that the patient receives medical treatment and aftercare services. I do not think that the Bill backs up the word "ensure". There are no measures to be taken in the event of the patient ignoring the conditions other than the possibility of readmission to a hospital. That could happen only if the patient's mental health had deteriorated. The central deficiency I wish to expose is the lack of authority to deal with any breach in the terms of the order. I beg to move.
The Earl of Lindsay: My Lords, as the noble Earl has explained, the effect of the amendment would be to allow treatment of a community care order patient in the absence of his consent when the community care order was in force. We do not find that acceptable. We believe that long-term use of leave of absence is based on what appears to amount to a fiction since the patient is clearly well enough to remain in the community on a long-term basis, yet at the same time he suffers as a matter of law from a mental disorder of a nature or degree which makes it appropriate for him to receive treatment while detained in hospital. As we understand it, it may have been a considerable time since those on long-term leave of absence have actually been inpatients in hospital.
There is a power to medicate compulsorily a patient who is liable to be detained in hospital but who is on leave of absence in the community. A patient who is in the community on a community care order is not liable to be detained in hospital. A community care order patient can be treated in the absence of his consent only when he is detained in hospital for reassessment under new Section 35F because he then becomes liable to detention in hospital.
We do not believe that a power to medicate compulsorily in the community would be acceptable. That is a view which we share with many of those who replied to our consultations. As we understand it, the power is not pressed for by the Scottish division of the Royal College of Psychiatrists. We would also be at risk of falling foul of our obligations under the European Convention on Human Rights by introducing such a power. I should add that we believe that the real answer to any problems of reluctance on the part of the patient to take medication while subject to a community care order is good, sensitive care with a clear framework of responsibilities.
If a patient's mental condition has deteriorated and gives cause for concern, or is likely to give cause for concern, as outlined in the Bill he may be detained in hospital under new Section 35F when he becomes liable to Part X of the 1984 Act. I hope that my explanation has
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gone some way to meeting the concerns raised by the noble Earl. In that light, I hope that he will be able to withdraw the amendment.
The Earl of Mar and Kellie: My Lords, I thank the noble Earl for his answer. I am still concerned that a patient who is on a community care order may choose to ignore some of the conditions. For example, if there is a condition that he should attend a particular sheltered employment programme but he just does not go it does not strike me that anything can happen. I am not yet aware of any breach of community care order provisions. I wonder whether the noble Earl can help me on that.
The Earl of Lindsay: My Lords, I draw the noble Earl's attention to new Section 35F, especially to subsection (1). It points to the circumstances in which his readmission to hospital for reassessment might take place. As well as referring to deterioration it states,
"is, or is likely to become, such as to give grounds for serious concern regarding his health or safety or the protection of other persons".
If a community care order patient began to neglect some or all of the conditions by which he was meant to live within the community it would be up to those monitoring him and his progress to see whether or not he was falling within the ambit of the first part of new Section 35F and initiate a reassessment to hospital if any concern arose. It is a matter of good practice that that sort of monitoring continually takes place. Therefore, as the requirements of the community care order begin to be neglected by a patient, concern will rise among those who are monitoring his progress.
The Earl of Mar and Kellie: My Lords, I can see that if the patient does not go along with some of the conditions such as the one I mentioned, it will boil down to persuasion by the care team that there is no return to court on a breach of the community care order. Here I am obviously comparing it with a breach of probation.
The Earl of Lindsay: My Lords, I believe that the prospect of being submitted to hospital for reassessment might act as persuasion in its own right with many community care order patients.
The Earl of Mar and Kellie: My Lords, I accept that point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 144:
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: My Lords, this is the last amendment at the Report stage of the Bill. Sadly, we have come to the end just when we were beginning to get to know each other. It is rather an important amendment. It is to provide that a person on a community care order who has been readmitted to hospital shall not be subject to compulsory medical treatment for the first seven days of

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his detention. We believe that for technical reasons the Bill as currently drafted does not obtain what is apparently set out concerning the compulsory medication of patients on being recalled to hospital.
The Bill envisages two types of detention. During the first seven days the patient will be detained for assessment and during the latter 21 days the patient may be detained for both assessment and medical treatment. The assumption is clearly that there will be no compulsory medical treatment for the first seven days of the patient's detention. That is a mirror of the conditions of Section 24 of the Mental Health (Scotland) Act 1984. The patient cannot be given compulsory medication during the three days of emergency and assessment detention.
The Bill provides that, in fact, a person who is admitted to hospital, even for assessment, can be given compulsory medical treatment. That seems to us to be a reversal of the intention of the Mental Health (Scotland) Act. The Bill says that the person recalled to hospital is a detained person. I refer to line 15 of the new Section 35F(4) (b). Section 96 of the Act states that any person who is liable to be detained under the Act can be compulsorily medicated although he was supposed to be there for assessment.
This amendment provides that people who have been recalled to hospital for assessment should not be subject to compulsory medical treatment found in Part X of the Act. We believe that it is in accordance with the stated intentions of the Bill and with the other assessment provisions of the Mental Health (Scotland) Act. Therefore, we believe that there is an inconsistency, which we hope is an accidental one and which will be corrected either here or at a later stage. I beg to move.
The Earl of Lindsay: My Lords, I fear there may be a misunderstanding of our intentions on this point. We are aware that as the provisions are currently, a patient detained in hospital could be treated without consent if necessary. This has always been our intention and is the basis on which we consulted in relation to the Bill.
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We consider that where a patient's mental health has deteriorated to the point where it has been necessary, after a full multi-disciplinary review, to admit him to hospital for reassessment—particularly where that deterioration may have resulted from the patient's failure to take his medication and the patient may lack full insight into his condition—we are in no doubt that it is in the patient's best interests that the clinicians have the power to administer medication without the consent of the patient and within the terms of Part X of the 1984 Act in order to prevent or limit further deterioration. It is not appropriate to draw comparisons with Section 24.
As the patient is then liable to detention in hospital, he is subject to Part X as are other patients liable to detention. We believe this to be necessary and appropriate.
With that fairly comprehensive and detailed explanation of concerns raised by the noble Lord, I hope that he will feel able to withdraw the amendment.
Lord Carmichael of Kelvingrove: My Lords, I accept the noble Earl's good intentions, but this is a matter we shall have to consider with care and on which we need advice. The provisions could be the beginning of a slippery slope with medication being given too conveniently when someone who has absconded is returned and readmitted. As I said, we shall take advice. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Civil Evidence (Family Mediation) (Scotland) Bill [H.L.]
Returned from the Commons agreed to.

Requirements of Writing (Scotland) Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at ten minutes before ten o'clock.