Previous Section Back to Table of Contents Lords Hansard Home Page


The Earl of Lindsay: These amendments would restrict the use of community care orders to people with a mental illness. I have no difficulty in accepting that the vast majority of the intended client group would be mentally ill. Therefore, I understand exactly the point which the noble Lord makes. Detention criteria are framed by reference to "mental disorder", which means mental illness and mental handicap. The community care order criteria are also framed by reference to mental disorder.

There may be cases in which a community care order might be appropriate for a person with a learning disability as well as a mental illness, as the noble Lord has mentioned. Therefore, we do not propose to close off an avenue which might be of use in an admittedly small number of cases. I should add that in framing the Bill, there was extensive consultation with learning disability organisations, so that we are aware of some of the anxieties which have been expressed.

We note that the purpose of the other part of the amendments appears to be to specify the matters about which the sheriff must be satisfied before making an order. Those are statements of opinion which must appear in the reports which accompany a valid application. Therefore, the criteria referred to in the amendment will already have been satisfied. A sheriff would not make an order if they were not satisfied.

The noble Lord suggested that the sheriff may have no clear grounds on which to make the decisions. But he went on to say that the sheriff had to be satisfied that he has had all the facts presented to him. Therefore, that in itself comprises clear grounds on which the sheriff is able to make the decision. I hope that, on that basis, the noble Lord will withdraw the amendment.

Lord Carmichael of Kelvingrove: This is a difficult point and I hope that the noble Earl may give some further thought to the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 75:


Page 17, line 23, leave out from ("application") to ("or") in line 24.

The noble Earl said: This amendment is rather similar to the previous amendment. I should like to strike out the words:


I hope to reduce the power of the sheriff for the sake of clarity and for operational reasons.

I am concerned that the sheriff may believe that he may make conditions which the community care team cannot supply or administer. If the sheriff decided to generate new conditions at the hearing in addition to those planned by the community care team, the sheriff would have to adjourn the hearing until the community care team were able to agree to the conditions and then

6 Apr 1995 : Column 332

return to the sheriff court with what amounts to a fresh application. The sheriff's power of deferral in Section 35A(5) is a more practical way in which to amend the community care application. I beg to move.

The Earl of Lindsay: I am not sure that the amendment moved by the noble Earl, Lord Mar and Kellie, achieves quite what he intends, but I may be wrong about that. It would appear to result in the sheriff making a community care order only with the conditions originally included in the application. The amendment means that that discretion available to the sheriff to add further conditions, which it had become clear during the hearing were necessary to be included, would be removed.

The sheriff has an important role to play in the making of the orders and he should retain full discretion in relation to the imposition of conditions. That is in the interests of the patient, the professionals and the public. During a hearing it is quite possible that new information may come to light or new conclusions or a new analysis may emerge. It is quite proper that the sheriff should retain a discretion to act on any new information or conclusions arising during the hearing. On the basis that, as the Bill is drafted, the sheriff's discretion is in the interest of the patient, the professionals and the public, I ask the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie: I am pleased to hear from the noble Earl that the hearings will be extremely informal and, indeed, will be in chambers. I still wonder whether it will be possible for the community care team to take on board the sheriff's ideas if they have not been discussed in advance.

Section 35A(5) states:


    "The sheriff may defer the making of a community care order until such arrangements as appear to him to be necessary for the provision of medical treatment and after-care services".

I believe that it may be unwise to give the sheriff discretion in relation to matters that have not been raised previously. However, I accede to the noble Earl's request to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 76:


Page 17, line 35, after ("disorder") insert ("and who may be the responsible medical officer").

The noble Lord said: The effect of the amendment is to make it clear that the special medical officer may be the RMO who is making the application. We believe that in many cases the special medical officer will be the consultant psychiatrist at the hospital. The amendment makes it clear that that is appropriate. This is a simple amendment which I hope the Minister will be able to accept. I beg to move.

The Earl of Lindsay: I am grateful to the noble Lord, Lord Carmichael, for moving this simple amendment. If I do not accept the amendment that is not because I disagree with it but because it may not be necessary. My feeling is that the amendment is unnecessary, although we agree with the aims behind it.

6 Apr 1995 : Column 333

There is nothing in the Bill as drafted which would prevent the special medical officer, the responsible medical officer or the after-care officer and the patient's mental health officer from being the same person. Indeed, we had envisaged that that might be so in most cases. However, we must also allow for the possibility that they will be different persons and that is why the Bill is framed in those terms.

I believe that the noble Lord, Lord Carmichael, and I agree with each other, and the Bill already covers the ground which the noble Lord seeks to cover with his amendment. With that assurance, I hope that the noble Lord will withdraw the amendment.

Lord Carmichael of Kelvingrove: I am grateful to the Minister for his reply, which I shall read with great care. Perhaps he will also read my remarks to be sure that he understands what I have said. I do not know why these matters are not written on the face of the Bill to provide the flexibility which may be necessary. I know a little about mental health hospitals from the outside, and I can imagine that a number of jealousies may arise in certain circumstances among medical staff. I believe that it would be better to write such matters on the face of the Bill. It is a very small point, at which I shall look carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 77 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 78:


Page 17, line 42, at end insert ("and who may be the mental health officer making the application").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 86 to 88, 90, 102, 103, 105 and 112. Amendment No. 78 makes it clear that the aftercare officer may be the MHO who is making the application. In many cases, it would be appropriate for the aftercare officer to make the application. The sheriff will then be able to question him about the aftercare services provided to the patient. The amendment would make it clear that that is the appropriate process.

Amendment No. 86 is consequential to the above amendment and states that either the RMO or the MHO may make the application. The other amendments in the group are also consequential to the above amendment. I beg to move.

12.30 p.m.

The Earl of Lindsay: While dealing with Amendment No. 70, we discussed—and indeed rejected—the question of widening the scope of the application to allow other persons to make it, as these amendments seek to do. I have also explained that joint applications raise doubts as to who would be ultimately responsible for the application. However, as I explained in my response to Amendment No. 70, by the time an application reaches the sheriff, it has in effect become a joint application. It has involved both the special medical officer and the aftercare officer. I believe that that is a most important point. On that basis, and with

6 Apr 1995 : Column 334

the assurances given both as regards Amendment No. 70 and the present group of amendments, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove: Again, this is a matter which we shall need to reconsider. However, in view of the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 79 to 82 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 83:


Page 18, line 34, at end insert:
("( ) The steps to be taken under subsection (10) above shall include giving the requisite information both orally and in writing.").

The noble Lord said: The above amendment seeks to add a new subsection (11) to Section 35A of the Mental Health (Scotland) Act 1984. It reads:


    "The steps to be taken under subsection (10) above shall include giving the requisite information both orally and in writing".

The effect of the amendment would be to increase the duty of the aftercare officer to explain the workings of the community care order to the patient. Section 110 of the Mental Health (Scotland) Act sets out the duty to ensure that the patient understands the provisions under which he is sectioned. That is a greater duty than that in the present section, which merely provides that there must be an explanation whether the patient understands. It is a slightly tricky point. In other words, it is not enough to get the patient in and "rabbit" on about it; time must be taken to discuss the matter with the patient so that he will understand.

It is essential that the patient understands his or her rights under the community care order. We do not believe that a lesser standard of information-giving than that given for detention is appropriate. It is a most important amendment which, however it is worded, must somehow or other be inserted into the Bill and also into the heads of those who are dealing with patients, which is probably even more difficult. I beg to move.


Next Section Back to Table of Contents Lords Hansard Home Page