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Lord Carmichael of Kelvingrove: The Minister will realise that he has given an extremely complicated reply. As I said at the beginning, the question was a complex one. I still feel that there is a great deal of muddle in some of the definitions. For example, the idea that the RMO and the MHO will ultimately come together and present their case but originally only one of them can raise the matter seems to me to be unnecessarily exclusive, since in any case they will need to join forces at a certain point. I am convinced that the social work officer who will be the one most in touch with the day-to-day experience of the patient. Therefore, I think that they should have the right at least to vary these orders. I need to get advice on this matter because it is so complicated and in some ways slightly contradictory. I will take the matter away. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 71:

Page 17, line 4, after ("officer") insert (", or nearest relative, or the after care officer").

The noble Earl said: Amendment No. 71 is fairly similar to the previous amendment. Before I explain the purpose of the amendment, I should say that I am a little disappointed to hear from the noble Earl that the RMO need not be a Section 20 doctor. I find that a little surprising. By Amendment No. 71 I hope to extend the range of applicants to include the nearest relative or the aftercare officer, along with the RMO, whom I will normally expect to be a consultant psychiatrist. The logic of the amendment is that the nearest relative or aftercare officer may personally have made the earlier application for compulsory admission under Section 18.

6 Apr 1995 : Column 325

I believe that it would be reasonable and in the spirit of Scottish mental health practice to allow those two persons to make an application for a community care order.

My second argument in support of the amendment is that the RMO will not be the lead agency in the community care order. That role belongs to the social work department. On the face of the Bill there is little involvement by health board employees, unlike the provisions in Part I. I beg to move.

The Earl of Lindsay: We have already discussed the question of widening the scope of the application to allow other persons to make it, as proposed in the amendment moved by the noble Earl, Lord Mar and Kellie. At the outset perhaps I may again stress a matter that I dealt with in reply to the noble Lord, Lord Carmichael, in relation to RMOs. I emphasise that in practice it will be very rare for the responsible medical officer not to be approved for the purposes of Section 20.

I should like to make clear that the decision in relation to an application for a CCO is one that must be taken within a multi-disciplinary framework, but ultimately the patient is being discharged from liability to detention in hospital and therefore the responsibility for this decision must lie with the doctor. The aftercare officer must support an application by providing a supporting report. This ensures that the application is agreed by doctor and social worker.

At the stage of the making of an application, the legal person of the aftercare officer does not exist. Until the order is made there is only a person who is to be the aftercare officer. Therefore, it would be technically difficult to suggest that the aftercare officer should make the application.

We do not agree that the nearest relative should be empowered to make the application for a community care order. Of course, he is empowered to make an application for detention in hospital, but that is not really a part of the patient's rehabilitation. Decisions on the time at which a community care order is appropriate must clearly be taken by professionals at the appropriate time and not precipitated by the nearest relative. However, if the nearest relative is an informal carer, he will be consulted at that stage.

On the basis of that reassurance, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Mar and Kellie: While I have listened to what the noble Earl said about the proposed amendment, I am very concerned about the transfer of the lead role in responsibility for the patient from the health board to the social work department. I am afraid that I am unable to accede to the Minister's request that I withdraw the amendment and wish to test the opinion of the House.

11.57 a.m.

On Question, Whether the said amendment (No. 71) shall be agreed to?

Their Lordships divided: Contents, 52; Not-Contents, 96.

Division No.
Division No. 1


Acton, L.
Addington, L.
Airedale, L.
Ashley of Stoke, L.
Avebury, L.
Blackstone, B.
Carmichael of Kelvingrove, L.
Cocks of Hartcliffe, L.
David, B.
Dean of Thornton-le-Fylde, B.
Dubs, L.
Falkland, V.
Foot, L.
Gallacher, L.
Graham of Edmonton, L. [Teller.]
Halsbury, E.
Harris of Greenwich, L.
Haskel, L.
Healey, L.
Hilton of Eggardon, B.
Hooson, L.
Houghton of Sowerby, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Judd, L.
Macaulay of Bragar, L.
McGregor of Durris, L.
McIntosh of Haringey, L.
McNair, L.
Mar and Kellie, E. [Teller.]
Merlyn-Rees, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L.
Murray of Epping Forest, L.
Nicol, B.
Prys-Davies, L.
Redesdale, L.
Richard, L.
Sainsbury, L.
Serota, B.
Simon, V.
Strabolgi, L.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Wigoder, L.
Williams of Elvel, L.
Williams of Mostyn, L.


Aberdare, L.
Addison, V.
Alexander of Tunis, E.
Allenby of Megiddo, V.
Annaly, L.
Annan, L.
Balfour, E.
Belhaven and Stenton, L.
Blaker, L.
Blyth, L.
Boardman, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Brougham and Vaux, L.
Butterworth, L.
Cadman, L.
Carnegy of Lour, B.
Carnock, L.
Charteris of Amisfield, L.
Chelmer, L.
Chesham, L.
Clanwilliam, E.
Cochrane of Cults, L.
Coleridge, L.
Crathorne, L.
Cross, V.
Cumberlege, B.
Davidson, V.
De Freyne, L.
Dixon-Smith, L.
Downshire, M.
Elliott of Morpeth, L.
Faithfull, B.
Ferrers, E.
Fraser of Kilmorack, L.
Gainford, L.
Gardner of Parkes, B.
Geddes, L.
Gisborough, L.
Gridley, L.
Haig, E.
Hailsham of Saint Marylebone, L.
Harding of Petherton, L.
Harmsworth, L.
Hayhoe, L.
Holderness, L.
HolmPatrick, L.
Howe, E.
Hylton-Foster, B.
Inglewood, L. [Teller.]
Ironside, L.
Lauderdale, E.
Lindsay, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Marlesford, L.
Miller of Hendon, B.
Milverton, L.
Mottistone, L.
Mountevans, L.
Moyne, L.
Munster, E.
Nelson, E.
Newall, L.
O'Cathain, B.
Orr-Ewing, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Pender, L.
Perry of Southwark, B.
Peyton of Yeovil, L.
Pike, B.
Rawlings, B.
Renton, L.
Romney, E.
Saint Albans, D.
Seccombe, B.
Sharples, B.
Skelmersdale, L.
Strange, B.
Strathcarron, L.
Strathclyde, L. [Teller.]
Sudeley, L.
Swinfen, L.
Swinton, E.
Tenby, V.
Teviot, L.
Teynham, L.
Trefgarne, L.
Vaux of Harrowden, L.
Wakeham, L.
Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

6 Apr 1995 : Column 327

12.6 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 72:

Page 17, line 7, leave out ("care") and insert ("treatment").

The noble Lord said: This is a minor but significant amendment. It is designed to clarify what is a significant distinction between care in the community in terms of the National Health Service and Community Care Act 1990 and the current proposals which are rooted firmly in mental health legislation. If the order is to be entitled a "community care order", there is likely to be significant confusion at all levels as to the status and involvement of the relevant professions.

It is proposed that application for a community care order is to be made by the RMO to the sheriff, which procedure is at odds with all other aspects of mental health legislation in Scotland and is based on medical opinion only. The title "community care order" is misleading. It is a small but important amendment. If the Minister cannot give a definitive answer now, it may be a matter that we can bring back on Report. I beg to move.

The Earl of Lindsay: The community care order is not an order to receive treatment but a way of ensuring that people receive the offer of, and are encouraged to receive, the care that they need. There is a necessarily high level of medical involvement, and the application process is initiated by a psychiatrist. But we have repeatedly made it clear that the proposals engender a multidisciplinary approach; we have accorded the aftercare officer an important role.

We feel that as part of the care it is important that there should be a possibility of reassessment in hospital. The decision to reassess in hospital is not one which we envisage being taken lightly. We have included in the reassessment in hospital the power to administer medication without the consent of the patient. That is a power which may be considered necessary, where insight is lacking, to prevent or limit the patient's relapse.

Our legal advice is that the proposals meet the UK's obligations under the European Convention on Human Rights. With the emphasis firmly on care and not on treatment, I ask the noble Lord to withdraw the amendment.

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