Previous Section Back to Table of Contents Lords Hansard Home Page


Earl Russell: I can only reply to the noble Baroness with the classic words of Chief Justice Bereford when quizzed by counsel about the meaning of a statute:


Baroness Miller of Hendon: I cannot say too much about the laws, in-laws and so on. We are talking here about Section 12(5) of the Mental Health Act and not Section 26. This is merely about those relatives who can make recommendations under Section 10.

4 Apr 1995 : Column 147

Those who cannot make a medical recommendation for the purposes of an application for the admission of a patient come under Section 12(5) of the Mental Health Act 1983. That does not preclude the uncle, aunt or grandparent. To do so in this Bill would be inconsistent with the existing provisions of the 1983 Act. The amendment raises an interesting point, but we believe that it needs to be considered in a broader context. I hope that the noble Earl will withdraw the amendment.

Earl Russell: I should not for a moment contemplate pressing the amendment. I thank the noble Baroness for her reply and I shall read it with care. I hope that the noble Baroness has noticed that there is a feeling that it may be worth looking again at the drafting. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 35:


Page 6, line 27, at end insert:
("( ) The responsible after-care bodies shall not make such requirements unless they have first heard and considered the views of the patient.").

The noble Lord said: The amendment is clear. Its purpose is to ensure that the patient is consulted about the requirement which the so-called aftercare bodies may impose. It would add the words at the end of Section 25D(2) on page 6 of the Bill which states:


    "In this Act 'the responsible after-care bodies', in relation to a patient, means the bodies which have (or will have) the duty under section 117 below to provide after-care services for the patient".

Section 117 of the Mental Health Act 1983 provides that:


    "It shall be the duty of the District Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies after-care services".

Therefore, we now have the health authority, the local social services authority and the relevant voluntary agencies all involved. The point is that the power of those aftercare bodies to impose requirements on the patient is wide and unprecedented. It would be contrary to the principles of natural justice to allow those public bodies to make decisions affecting the liberty of individuals without them having a full and proper hearing.

I believe that I am right in saying that under the Bill the only right of the patient to object is provided in Clause 1(8) (c), where the patient has the right to object about the information being given to the nearest relative.

In Scotland, there is a judicial process, precedents, case law and the opportunity for advocacy and representation. That is not present in England and Wales. For those reasons, we feel that, if there are to be those wide-ranging powers affecting the liberty of individuals, they should have a full and proper hearing and have the right to be heard and their views considered. I beg to move.

6.15 p.m.

Baroness Cumberlege: The requirements, if any, to be placed on the patient will have been considered by the care team, discussed with the patient and attached to

4 Apr 1995 : Column 148

the application before it is submitted to the health authority. A requirement that the patient should have another hearing at this level before the requirements can be imposed is unnecessary and unworkable. Professionals acting on behalf of the responsible bodies will already have been involved in setting up the aftercare before the application and its associated requirements are accepted. Therefore, we feel that we cannot agree to the amendment.

Lord Carter: I shall read what the noble Baroness said, which was brief, to see whether I am convinced by the argument. I am not sure that I am convinced, because there arises again the point about the rights of a patient, although I appreciate that the patient has rights, once the package has been designed with regard to how it will work. However, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Jay of Paddington moved Amendment No. 36:


Page 6, line 30, leave out ("a") and insert ("an agreed").

The noble Baroness said: In moving this amendment I should like to speak also to Amendment No. 38. These two amendments are extremely simple. They refer simply to the consensual nature which, as we have mentioned several times this afternoon, is at the base of the supervised discharge orders, in terms of agreeing where the patient should live once he is discharged into the community.

The question of the home, hostel or flat where the patient will reside once he is discharged from hospital will be absolutely crucial to his well-being. It seems to me that it is entirely appropriate that that should be agreed with the patient and, as my noble friend Lord Longford suggests in his amendment, agreed in advance with the patient. My amendment is slightly less specific.

Obviously the House, home or hostel where the patient resides will be crucial to his well-being. It seems that it would be appropriate to put on the face of the Bill the word "agreed" or the words "agreed in advance" with the patient in order to emphasise yet again the co-operative and consensual nature of the arrangements which will be put in place under the care package. I beg to move.

The Earl of Longford: My amendment is in accordance with the spirit of the amendment moved by my noble friend Lady Jay. Once again, my amendment is based on a great deal of experience of the Matthew Trust. It embodies a very simple proposition that the arrangements, which may be extremely difficult and painful, should be carried out as far as possible in harmony with the patient.

Baroness Cumberlege: We are aware of your Lordships' concerns for the rights of patients and in particular the proud record of the noble Earl in safeguarding their interests. I can understand the wish to keep as unrestrictive and reasonable as possible the requirements which could be made for ensuring that patients receive the support that they need in the community. But I cannot agree to what is suggested.

4 Apr 1995 : Column 149

The Bill allows those responsible for a patient's aftercare under supervision to require him, if they think it is justified, to attend for treatment, rehabilitation or related purposes at specified times and places. Another requirement is that the patient should live at a specified address. To require the patient to agree beforehand would make the requirements unworkable. If the patient were to withdraw his agreement, the provisions would fall entirely and become meaningless. As presently drafted, if he fails to attend when specified, he has failed to comply with the terms of his discharge and a review of his case might ensue. That reflects the overall purpose of the Bill and I therefore ask the Committee not to accept the amendment.

Baroness Jay of Paddington: I am disappointed by that reply. It seems to me that there is a very clear difference between specifying where a patient should attend for training or treatment, which will obviously be an identifiable clinic, rehabilitation centre of whatever it may be, and specifying, without the agreement of the patient, where he should live. Obviously there will be requirements for the person to attend a centre for the other services that are specified in the section. However, to insist that he should have no say in the place where he lives seems to me to be entirely different. It is simply a rather authoritarian attitude which is unfortunate in the context of what the Minister often described during the earlier discussions on the Bill as being a consensual relationship if it is to be successful.

The Earl of Longford: I share the disappointment and echo the sentiments just expressed by my noble leader.

Baroness Jay of Paddington: I can do no more than underline what my noble friend Lord Longford has just said. I shall take away and consider what the Minister said, but I suspect that we may need to return to the matter at a later stage. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 37 to 39 not moved.]

Lord Carter moved Amendment No. 40:


Page 6, line 38, at end insert:
("( ) Where the responsible after-care bodies decide to impose requirements on the patient, they shall—
(a) inform the patient, in writing, of the requirements, if any, they have decided to impose; and
(b) explain, orally and in writing, the legal effect of imposing the requirements.").

The noble Lord said: If there is a decision to impose certain requirements, the purpose of the above amendment is to include in the Bill an obligation on the responsible aftercare bodies to inform the patient in writing of such requirements and explain to him,


    "orally and in writing, the legal effect of imposing the requirements".

The proposed wording really looks back to Amendments Nos. 17 and 19 which were dealt with earlier and which the Minister said she was minded to take away, consider and, perhaps, return with the Government's own

4 Apr 1995 : Column 150

amendment. Those amendments dealt with the position of the health authority and sought to ensure that it should,


    "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".

If there is a decision to "impose requirements" under Section 25D(3), there is a feeling that the same rights should apply; in other words, that the patient should be informed in writing and have explained both orally and in writing the legal effects of the imposition of those requirements.

As the Bill is drafted, there is no requirement to inform the patient of the requirements that the aftercare bodies decide to impose. The amendment is designed to ensure that the patient is both told of the requirements and given a legal explanation of their effect. As the Government were sympathetic to the earlier amendments, surely they can agree that there should be a duty to inform and explain the requirements placed on a patient by the aftercare bodies. I beg to move.


Next Section Back to Table of Contents Lords Hansard Home Page