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

HL Deb 01 May 1995 vol 563 cc1285-318

8.7 p.m.

Consideration of amendments on Report resumed on Clause 4.

[Amendment No. 72 not moved.]

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 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 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 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 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 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 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 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 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 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". 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 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 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 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 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 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 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 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 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 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 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 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 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—

1. (a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for assessment, or for assessment followed by medical treatment for at least a limited period; and
2. (b) he ought to be so admitted and detained in the 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 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 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 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 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. 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 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 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 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 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 moved Amendment No. 105:

Page 22, line 24, at end insert ("whom failing a sheriff of the same sheriffdom; and

1. (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 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 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 moved Amendment No. 109:

Page 22, line 37, leave out ("the patient and") and insert:

1. ("(a) the patient and any other person who has been consulted under subsection (1) (a) above;
2. (b) the Mental Welfare Commission; and
3. (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 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 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 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—

1. (a) the patient and, if practicable and the patient does not object, his nearest relative;
2. (b) the other persons concerned or to be concerned with the patient's medical treatment (including the new special medical officer);
3. (c) the patient's after-care officer;
4. (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
5. (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—

1. (a) the patient and, if practicable and the patient does not object, his nearest relative;
2. (b) the patient's special medical officer;
3. (c) the other persons concerned or to be concerned with the patient's medical treatment;
4. (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
5. (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—

1. (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;
2. (b) the Mental Welfare Commission; and
3. (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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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—

1. (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
2. (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 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 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 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 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 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 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 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 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—

1. "(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 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.

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.