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

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

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

Earl Russell: Perhaps I may interject one more question before the Minister replies. The Law Society

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has made some interesting observations on the subject of guardianship. It suggests that the reluctance of local authorities in the past has been because:


    "they are unwilling or unable to devote sufficient resources to the care and supervision of people subject to guardianship".

In fact, the obstacle to the spread of guardianship is one of resources. That of course is the one obstacle which this Bill does not address.

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

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

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

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 15:


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

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

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

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

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

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

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

The procedure reflects the different Scottish legal framework and in particular the position occupied by the sheriff. In England and Wales, under the provisions of Clause 1 the application for aftercare under supervision is made to the health authority. That authority is responsible for providing one element of the aftercare services, and before it accepts the application it must consult the local authority. It is, of course, the local authority which will be responsible for the social care element of the services. As the Committee is aware, those two bodies have a statutory responsibility for providing services under Section 117 of the 1983 Act. Given the way in which the bodies will be directly involved in the application process, there should be no question of the application being accepted before the necessary arrangements have been made. On that basis, I do not believe that this is something for which the Bill needs to provide. I therefore ask my noble friend to withdraw his amendment.

Baroness Farrington of Ribbleton: Perhaps I may press the Minister on the situation in the event of there being difficulty. I fully understand the description that the Minister gave in her reply about what would happen if everything was working smoothly and everyone was in agreement. The difficulty is in cases of tragedies which have occurred so far and which we seek to

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prevent in the future. With them, there is a difference, not about whether there should be a range of aftercare provision, but the level and quality of the aftercare that is necessary to secure the safety of both the patient and other people in the community.

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

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

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


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