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

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

Amendment, by leave, withdrawn.

4.45 p.m.

[Amendment No. 16 not moved.]

Lord Carter moved Amendment No. 17:


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

The noble Lord said: In moving Amendment No. 17, I shall also speak to Amendment No. 19 in the names of myself and my noble friend Lady Jay. The

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amendment is quite clear, it inserts the words "in writing" into the Bill at the end of subsection (8) (a) so that the provision would read:


    "inform the patient in writing".

That is obviously intended to improve the provision for informing the patient that a supervision application has been accepted by the health authority. One cannot imagine that the health authority would do it in any other way than in writing, so I cannot see why the Government should not be prepared to accept the amendment and have the provision on the face of the Bill.

Amendment No. 19 proposes to insert at the end of line 37 on page 2 the words:


    "and the Health Authority shall also inform the patient, both orally and in writing, of his right to apply to the Mental Health Review Tribunal and to be legally represented at the Tribunal hearing".

That is to ensure that patients are informed of their right of appeal against being subject to compulsory powers of supervision and of their right to receive legal advice and representation.

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

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

Some recent research suggests that patients are not properly informed of their right to appeal to the mental health review tribunal under the 1983 Act. There was an article in the British Medical Journal of 11th February this year. The research concluded that,


    "our results suggest that the appeals procedure for Section 2 of the Mental Health Act is not a satisfactory way of protecting civil liberties of patients. The procedure has two main flaws: firstly, the patient has to initiate the appeal and, secondly, there is an unsatisfactory method for informing patients of their right to appeal. As a result the procedure favours patients who are well educated or have had previous admissions, but it works against patients suffering from depression or dementia. If patients were fully informed of their rights there might be a considerable increase in the number of appeals".

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

The Earl of Balfour: I should like to take this opportunity to ask a question about Amendment No. 19.

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I am under the impression that one cannot get legal aid at a tribunal. I know that legal advice can be obtained through the citizens advice bureaux; but the person being represented at a tribunal of any kind has to pay the whole of the costs. I wonder in this case who would bear the costs for the person to be legally represented. I am not very familiar with the procedure.

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

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

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

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

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

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 18:


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

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

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

An application for aftercare under supervision cannot be made under the terms of the Bill by a responsible medical officer unless he consults various professionals and,


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

I quote from Clause 1—the new Section 25B(2) (d).

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

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

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

The Ritchie Report on the care and treatment of Christopher Clunis recommended that in any supervised discharge order the patient's relative should be named. Nearest relatives accept that sometimes patients do not wish them to be involved, and that it is reasonable, if they are not playing a substantial part in their care, to give patients the power to ask that they should not be consulted and informed about the supervision application. Indeed, that is very much in the Bill as it stands. Nevertheless, patients can sometimes make such requests on the spur of the moment and change their minds rapidly. The Ritchie Report illustrates that when it says,

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    "There were many times when Christopher Clunis would not tell those who were trying to help him the names and addresses of his family. But there were also many times when he did so ... Too often his refusal to allow access to his family to those who were caring for him was accepted without question or investigation".

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

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

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

5 p.m.

Lord Campbell of Croy: I want to add to what my noble friend said by pointing out that a sufferer from

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

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

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


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