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Lord Carmichael of Kelvingrove: I understand the point made by the Minister, but I have not had the same assurance as to whether the proposal is acceptable under the European Convention. There seems to be some doubt, but I am sure that the Minister has received sound legal advice on the point. However, lawyers could have a field day arguing the matter. It is also something that may be raised in another place. We shall read the Minister's reply and

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take advice on it. We will need to take advice from others in regard to many points in the Bill, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 73:


Page 17, line 14, at end insert:
("and
(c) a community care assessment under section 12A of the Social Work (Scotland) Act 1968 (in this Act referred to as a "community care assessment")").

The noble Lord said: It may be for the convenience of the Committee if we deal also with Amendments Nos. 77, 79, 89 and 95. The effect of Amendment No. 73 is to provide that a person who is subject to a community care order will have a full community care assessment under the National Health Service and Community Care Act 1990. It is essential that a person who is subject to a community care order should receive the benefit of the new community care system of assessment and care management. The amendment attempts to tie in the two systems to bring that about.

Amendment No. 77 attempts to ensure that the interrelationship between the new order and community care is borne in mind by the aftercare officer. It is a point of emphasis.

Amendment No. 79 gives the sheriff the power to defer making an order until he is satisfied that the patient's needs have been assessed. The Minister may say that that will always be the case but the amendment gives the sheriff the absolute power to determine that the care needs have been assessed. We believe that the sheriff should have the benefit of seeing a full community care assessment of the patient before he makes a community care order.

Amendment No. 89 provides that the person making the application must also consider the community care assessment of the patient. The Minister will have got the drift of the amendments; that there must be a multi-disciplinary approach towards the patient. The community care system has set up a new formal process for recording and determining the needs of people who require community care services. The procedures for establishing such needs are becoming well established. However, we believe that the patient who is subject to a community care order should receive the benefit of a proper community care assessment and be brought into the system. The amendments will ensure that the person considering whether to make a community care order will also consider the information about the patient's needs as set out in his formal community care assessment.

The Minister may tell me that that process will be undertaken but it is important that something is placed on the face of the Bill in order to make sure that it is. The words may not be correct but we must ensure that the total needs of the patient and the community are considered before the patient is committed. I beg to move.

The Earl of Mar and Kellie: We are dealing with a new emphasis and a new priority for this client group. Therefore, a full community care assessment should be carried out and that requirement should be put on the face

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of the Bill. I do not believe that the provision on page 17—that the patient should receive medical treatment and aftercare services under Section 8—is a sufficient description of what the patient may need. I support the amendment proposed by my noble friend Lord Carmichael, I am sorry, by the noble Lord, Lord Carmichael.

The Earl of Lindsay: I am glad that friendship is breaking out all over the Chamber. It must be due to the Easter season. The amendments give the aftercare officer the job of arranging for a needs assessment and make associated and consequential changes to the Bill.

Local authorities already have a duty under Section 12A of the Social Work (Scotland) Act 1968 to assess people's social care needs. We may wish to underline in guidance the circumstances in which this duty applies to community care order patients. We do not need to legislate for this, and we do not need to make the aftercare officer responsible for arranging the assessment. Local authorities may not find that appropriate and they must be left to deal with the administration of this as freely and as flexibly as possible.

We also do not believe that the community care order should be viewed by the patient as a lever to obtaining services. The duties on local authorities to provide aftercare are quite clear and are being made clearer in the Bill. If there are suggestions that there are problems in meeting those duties they should be addressed administratively and not by primary legislation.

I hope that with that explanation the noble Lord will withdraw this amendment.

Lord Carmichael of Kelvingrove: I am slightly worried by the use of the word "flexibly". Obviously, we do not want to bind people and remove their ability to look at the situation in different ways. However, one can have too much flexibility. We have examples of indecisive legislation, in particular in Scotland, relating to children. Too much flexibility can be a danger.

I am sorry that the Minister is not willing to agree to what I believe are helpful amendments. Perhaps I should say that all the amendments I have tabled are meant to be helpful and are aimed at clarifying the Bill. We may wish to return to this matter on Report. Perhaps the Minister will remember that flexibility can be overdone. I hope that he will have a different answer on the next occasion. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.15 p.m.

The Chairman of Committees: I should tell the Committee that if Amendment No. 74 is agreed to I cannot call Amendment No. 75.

Lord Carmichael of Kelvingrove moved Amendment No. 74:


Page 17, leave out lines 19 to 25 and insert:
("(3) If the sheriff hearing a community care application is satisfied that—
(a) the patient is suffering from a mental illness however caused or manifested of a nature or degree which makes it appropriate for him to receive medical treatment, but that

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the grounds set out in section 17(1) of this Act for admission to and detention in a hospital do not apply to the patient;
(b) that the patient requires to be subject to a community care order—
(i) with a view to ensuring that he receives medical treatment, the after-care services to be provided for him under section 8 of this Act and a community care assessment, or
(ii) in the interest of his health or safety or with a view to the protection of other persons; and
(c) that the community care order and the conditions set out in it or such other conditions as the sheriff considers appropriate are necessary in order to ensure that he receives such treatment, services and assessment,
he shall make a community care order in respect of the patient, subject to the conditions set out in the application or to such other conditions as he considers appropriate: provided that if he is not so satisfied, he shall refuse the application.").

The noble Lord said: This is a probing amendment. The Bill sets out the ground on which the sheriff may decide to make or refuse an application. A community care order can be made only in respect of a person with a mental illness. The wording of the amendment mirrors that of Section 1 of the Mental Health (Scotland) Act 1984. The sheriff must be satisfied that the community care order will achieve its stated aims.

The amendment would introduce the need to state grounds for deciding applications. A great deal of anxiety has been expressed that the present clause gives no grounds on which the sheriff might refuse or accept an application. There is no clear basis for the sheriff to accept or to refuse an application. As in the other sections of the Mental Health (Scotland) Act, that should be an administrative decision taken by the sheriff when, and only when, he is satisfied that the order is appropriate on the facts supplied to him and that he has all the facts relating to the application.

The amendment sets out the grounds on which the sheriff should take the decision. It mirrors the working of new Section 35B(7) on page 20 of the Bill. It provides that a community care order shall be used only in the case of a person with a mental illness. We are aware of no suggestions that the Government's proposals are intended to cover people with a learning disability. However, the term "mental disorder" used in the Mental Health (Scotland) Act includes mental handicap. We are not sure that the new Bill is appropriate or necessary for people with learning disabilities and we urge much wider consultation with organisations representing people with learning disabilities before imposing a new order on such people. Paragraph (c) of the amendment provides that the sheriff can impose or alter the conditions of the order only if he believes that it is necessary to ensure that the person receives the help he needs. Such an amendment is necessary to direct the sheriff's mind as to what he should bear in mind when considering variations of the order.

The Bill does not spell out in detail the kind of conditions the sheriff has the power to impose. The amendment makes clear that the only orders the sheriff can impose are those which ensure that the patient has access to medical treatment aftercare. I accept that the amendment is long and complicated but its purpose is

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clear. The wording may be unsatisfactory and considered to be too wide but we should be happy to discuss the matter with the Minister. I hope that he will give serious consideration to the proposal and if necessary take it back for discussion. I beg to move.


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