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Earl Russell: These are heartbreakingly difficult areas. I have already argued that I do not think one can really apply libertarian arguments in the area of mental illness in quite the way one would in some others. The essence of those libertarian arguments is freedom of choice and the use of the will. It is of the essence of mental illness that one's control over the operation of one's will is, to put it no higher, extremely imperfect. Therefore it is difficult to construct the classic libertarian argument of free choice in favour of mental patients. I think one might say what Locke said about the rights of children—that they are not born in this state of equality though they are born to it. As one considers in libertarian arguments about children not what the child wants but what is in the child's interest, so I think one has to ask the same question in areas of mental illness. Like the noble Lord, Lord Mottistone, I have known cases where the use of a power to convey was capable of bringing a patient back to what he told us afterwards he really wanted. That must command attention though it is not conclusive.

On the point about the European convention, the briefing I have had is that this is a grey area. I understand that the Government have already taken

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advice on this subject. I am prepared on this to give the Government the benefit of the doubt provided that the Government will admit that a doubt genuinely exists. I am sympathetic to the Bill as it is; I am also sympathetic to the arguments in favour of the amendment. I do not think we shall ever get it right but I do not think we shall get much nearer than the Bill has at present.

Baroness Cumberlege: I am grateful to the noble Earl, Lord Russell, for supporting this proposal, although I understand the caveat that he has introduced. I am also, of course, grateful to my noble friend Lord Mottistone. Perhaps I could just take Article 5 of the European Convention on Human Rights first. We have taken legal advice and we are advised that there is no conflict between the provisions of the Bill and the obligations under the European convention. Although we envisage the comparatively rare use of the power to convey a patient, we do see it as an important feature of the new provisions. It will enable a supervisor, or any person authorised by the supervisor, to take the patient to the place where he or she is required, under the terms of the supervision arrangements, to live or attend for treatment or rehabilitation.

While it is true that ultimately supervision will succeed only with the patient's participation, the power to convey will give useful backing to the care team, for example where there is a temporary reluctance to co-operate. We have followed the form of the existing Mental Health Act power for conveying a patient to hospital following an application for detention. I do not believe that this power will be misused because to do so would be so obviously self-defeating.

With regard to Amendment No. 42, we believe that this amendment—I see the noble Baroness rise. I am sorry; I thought she was taking them together.

Baroness Jay of Paddington: I am sorry. I think the Minister misunderstood me. I only replied to the Chairman who said that, if Amendment No. 40 was accepted, it would be inappropriate to call Amendment No. 42. I said I thought that Amendment No. 40 would not be accepted, as it has proved not to be.

I agree with the noble Earl, Lord Russell. My advice also is that the legal position on the European convention is still a grey area. I have heard what the Minister said about Article 5. I can only hope that the Government will not find themselves in embarrassing situations with patients bringing successful cases on the basis of that convention, because I still do not think we have absolutely hard and fast assurances that that will not be possible.

My concern with this provision in the Bill is—unlike the concern of the noble Earl, Lord Russell, which is of a philosophical, libertarian nature—a practical one. I am concerned about whether or not it will be effective. What happens if a patient is conveyed to a place where he or she is required,

    "to reside or to attend for the purpose of medical treatment, occupation, education or training"

and he or she simply walks out again? It seems to me that this provision sounds as if it gives great powers and will persuade people to comply with care programmes with which they may not be entirely in agreement, but

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it has no teeth. It has no teeth and the Government in a sense have not been prepared to go as far as some of the medical advisers have suggested. I would say to the noble Lord, Lord Mottistone, that, although I obviously respect the authority of the National Schizophrenia Fellowship, I hope that he will equally respect the authority of the Royal College of Psychiatrists and the British Medical Association in this field.

I do not argue for a medical solution to the problem. I simply inquire whether the power to convey, as drafted, will be a remotely effective tool in the armoury of the supervisor in the community, who will obviously have a very difficult task in any case. As I said, this is a probing amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Jay of Paddington moved Amendment No. 42:

Page 6, line 40, leave out (", or by any person authorised by,").

The noble Baroness said: This amendment develops the discussion about who should have the authority to take and convey the patient if that duty is required. The amendment would delete the words:

    "or by any person authorised by",

the supervisor. The relationship which it is hoped will be built up between the person who is the subject of the supervision order and the supervisor is bound to be undermined if, in the extreme circumstances which we discussed in relation to the previous amendment, the person with responsibility devolves that responsibility to somebody else.

The other reason for pursuing the amendment is that it is not clear whether there will be the same powers under this Bill as exist under the Mental Health Act 1983, which enables the police to be brought in in such a situation. If it is the case that the police may be "any person authorised by" the supervisor then that should be stated. However, that will seriously undermine the consensual and co-operative nature of the agreement which, as we have said repeatedly, is supposed to be the basis of a supervised discharge order.

It may be that the person authorised by the supervisor is somebody who has physical strength, for example. It has been suggested to me that a 5 ft. psychiatric nurse may have to deal with a large, muscular 6ft. 4 ins. patient and may need somebody else to help if there is any question of physical force being involved in conveying the patient to the place where he resides or needs to undergo medical treatment. In that case there might be a practical argument for the provision.

As drafted, the provision is unclear. It suggests that the position could be the same as under the Mental Health Act 1983 and the police might be involved. That would be very unfortunate. I beg to move.

Baroness Cumberlege: We believe that the amendment would be impractical. The supervisor may not be personally on hand at a time of emergency, nor in a position for other reasons to take a patient to where

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he or she should be. Authorising another person to fulfil that function would be a reasonable response in those circumstances. We do not accept the amendment.

Baroness Jay of Paddington: That reply was brief and to the point. However, the Minister did not respond to my anxieties about the role of the police as authorised under the 1983 Act. Can she help the Committee on that point?

Baroness Cumberlege: Clearly this power to convey would be used only in times of emergency. In the discussion earlier this afternoon the noble Baroness said that she felt that guardianship was the way to go. The criticism that we have received of guardianship is precisely that it does not have this type of provision. When a patient chooses not to comply there is no means whereby someone who is responsible for the patient's care can ensure that the patient is conveyed to a place where it is felt that the treatment given to that patient would be beneficial. That is exactly the same argument as put by the noble Earl, Lord Russell, in relation to the previous amendment.

Baroness Jay of Paddington: In relation to the previous amendment I did not say that I thought that guardianship was the way to go. I asked the Minister whether the guardianship supervision order, as it is described and used, is not an exact parallel of the new supervised discharge order. The Minister replied that, because the guardianship order was conducted largely as a social services measure, it was different from the supervised discharge order, which is a health authority measure. We did not at any stage discuss the question of whether guardianship, because it does not involve the question of taking and conveying, is relevant to this particular amendment. I drew the Committee's attention to the fact that the Law Commission had suggested that guardianship could be extended to include this power in the revision of the Mental Health Act.

I am sorry to persist, but I do not believe that the Minister answered the question about the precise force of the take and convey provision and whether the same strenuous types of authority could be invoked as are invoked under the Mental Health Act 1983. That is not specified on the face of the Bill. We may have to return to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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6.45 p.m.

The Deputy Chairman of Committees: I point out that there are two words missing from the last line of Amendment No. 43. The words "the duty" should be inserted between "discharge" and "under".

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