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Baroness Cumberlege: We agree with the general spirit of the amendment, but do not think that the issue it raises is one that needs to be spelt out in the Bill. If any requirements are to be placed on the patient—as to residence, or attendance at specified times and places for treatment, occupation and so forth—then, before they are placed on him, the hospital RMO will have consulted the patient and in the process explained to him what the requirements will mean. A statement about that must be submitted with the application to the health authority.

If the requirements are to be subsequently modified by the responsible aftercare bodies, then the Bill already specifies that further consultation must take place with the patient before the requirements are changed—Section 25D(6). The patient is informed after they are changed under Section 25D(7). The patient will be left in no doubt both as to the requirements and what they mean. The team responsible for the patient's care will want to ensure that he keeps to the requirements and no doubt the team will consider whether they should be put down in writing. But we do not think that that is something that needs to be spelt out on the face of the Bill. For those reasons, we feel that the amendment proposed is unnecessary.

Baroness Farrington of Ribbleton: I should like to press the Minister to explain why it is logical to say, if I understood her correctly, that there should be notification in writing if there is a change of requirements but no notification in writing of the original requirements. The reason that I raise the point is that one of the issues which runs through the Bill is that of people's right to appeal in the event of a breakdown in arrangements whereby people do not feel satisfied that the patient is safe for himself or, indeed, for others. Surely the process of appeal is made that much easier if it is demonstrable that, in all cases, the

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patient was made fully aware at the beginning of the requirements in writing so that no difficulty or argument could arise.

Baroness Cumberlege: An explanation will be in the care plan which, of course, is a written document and is attached to the application for supervised discharge.

Lord Carter: When the Minister began her response, I thought that I was going to be as fortunate with this amendment as I was with the previous two that I mentioned. The Government agree with the general spirit of the amendment; in other words, they feel it is important. I accept that there is an emphasis upon more consultation. However, as I understand it, the patient does not have any right to object. He can listen and be consulted but, at the end of the day, such requirements can be imposed. For that reason, I believe that there should be an obligation to explain, inform and, above all, ensure that the patient is fully aware of the implications of all that is to be imposed on him. I shall read the Minister's response and take further advice. I believe that we may wish to return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord McColl of Dulwich): Before I call Amendment No. 41, I must point out that, if the amendment is agreed to, I cannot call Amendment No. 42.

Baroness Jay of Paddington moved Amendment No. 41:

Page 6, leave out lines 39 to 43.

The noble Baroness said: At this stage, the above is a probing amendment. Therefore, I imagine that we will also be considering Amendment No. 42. It is a probing amendment designed to question both the legality and the effectiveness of the power to take and convey a patient subject to a supervised discharge order as proposed in the Bill.

I am advised by the Law Society that the power to take and convey may breach Article 5 of the European Convention on Human Rights, which is connected with the liberty and security of the person, and that it may also breach Article 8, which is concerned with respect for private and family life. There is also concern that, while the Bill gives wide-ranging powers to the supervisor to take and convey a patient, there are no specific authorisations such as exist in Sections 6 and 137 of the Mental Health Act 1983 concerning removal to hospital or a place of safety. The powers in the Mental Health Act include all the powers of a police officer taking someone into custody. But those powers are not specifically included in the Bill. There seems to be potential for serious legal challenge.

However, I must tell Members of the Committee that other lawyers—not members of the Mental Health and Disability Committee of the Law Society—have advised me that it is unlikely that successful proceedings could be taken on the basis of the European convention. But if it is possible that lawyers will argue in the future and also possible that the Government could be seriously embarrassed by a negative ruling, I think it is

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appropriate at this stage for the Minister to be more precise about the belief that the powers in Section 25D(4) are legally watertight.

Apart from the legal issues, my main concerns regarding the power to take and convey are about its effectiveness as it is proposed. For example, the Mental After Care Association has written to me saying:

    "As this significant new power lies at the heart of the Bill, we are keen to learn [what Ministers] hope to achieve by this measure. How, in practice, will this new power ensure that patients comply with aftercare arrangements? If a patient fails to arrive at a day-centre or training course, will the Community Psychiatric Nurse be expected to convey the individual there? Or will the power be delegated to another agency, for example the police? Whatever the case, is the attendance at a place of 'occupation, education or training' considered so important as to necessitate [these] far-reaching legal powers?"

The Mental After Care Association, and other bodies working with the mentally ill in the community, suspect that the true force of the provision lies in the power to convey a patient to a place of treatment. But, of course, there is no power compulsorily to treat a patient once he is conveyed. The Royal College of Psychiatrists questions the purpose of the power to convey reluctant patients when there is no power to treat. It appears to that body that the expectation of the Government is that such coercion will induce some patients subject to this order to have their treatment, which might include medication. However, if patients refuse any item of treatment, there is no provision in the Bill as presently drafted either to treat them in the community or recall them to hospital.

The British Medical Association has also described the Bill as limited in this respect because doctors cannot compulsorily treat. The BMA would like to see the ultimate ability to treat a patient compulsorily in extreme circumstances. In other words, the provision as drafted at the moment—to take and convey—seems to be a classic case of taking a horse to water but not being able to make it drink.

The Committee will remember that the Royal College of Psychiatrists earlier suggested a community treatment order which included of course compulsory treatment. That was rejected both by the Department of Health and the Health Select Committee in another place. But, as the provision is drafted at the moment, it seems to satisfy no one. The clinicians who want the power compulsorily to treat patients in the community do not have that power and those concerned primarily with the consensual nature of care under a supervised discharge order are dissatisfied because they feel the power to convey is on its own a coercive threat to the therapeutic alliance between patient and professionals. I hope the Government will consider carefully the drafting of new Section 25D(4) so that it meets one or other of these concerns and does not—as it does at the moment—fall precisely between the various stools of concern: the concerns of the clinicians and the concerns of those primarily involved with the civil rights of patients. I beg to move.

6.30 p.m.

Lord Mottistone: As the Committee is aware, I am advised by people who are involved in this matter. I

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myself questioned this particular part of the Bill. I am told that our advisers are strongly in favour of retaining new Section 25D(4) as it now stands. That is the subsection which Amendment No. 41 seeks to remove. One must remember that the subsection does not refer to treatment only but also to where the person lives, or resides, as is stated in the provision. That does not necessarily mean the patient will also receive treatment at the same time. Therefore the issue as to whether the treatment is not compulsory does not really enter under those circumstances. The important matter is that the people who know about these issues have all said they think the measure should stay in the Bill. That includes someone who has schizophrenia. He believed equally strongly that the measure should be retained in the Bill. I hope that my noble friend the Minister will not lightly give it away.

Baroness Farrington of Ribbleton: I wish to speak in support of my noble friend Lady Jay. There appears to be a conflict between the assessment that the patient will be capable of conforming to, agreeing to, consenting to, and participating in a package of measures designed to enable him or her to live in the community, and the concept of people being forcibly taken—conveyed, by implication, against their will—to a place where, for example, they will receive education. There does not seem to be a logic behind that sort of concept. On the other hand there is a situation where, for the sake of the safety of the patient or other people, the need to convey the patient to a place for diagnosis as a matter of urgency and emergency would appear to be logical. I hope I may press the Minister on this point. I believe that would occur in extreme circumstances when the whole pattern of care was in danger of breaking down and there was genuine anxiety. The idea of conveying against someone's will, at this particular stage, as envisaged in this part of the Bill, would appear not to be in conflict with the whole spirit of the measure.

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