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The Earl of Lindsay: I saw on the amendment groupings list that the noble Lord had grouped Amendments Nos. 80, 100 and 101 together with Amendment No. 83. Therefore, it may be for the convenience of Members of the Committee if I speak to all four amendments. The amendments have been proposed in the spirit of making changes to the explanations given to patients, as outlined by the noble Lord.

The requirement is already there that the patient will receive an explanation orally and in writing when the order is made. We believe that that is sufficient. Guidance as to how that is to be done will include reference to rights of appeal and representations to the Mental Welfare Commission.

I am also sure that we can deal with the explanations made at the time of renewal more efficiently, and perhaps more tidily, by including them in guidance which is to be brought forward, rather than on the face of the Bill. The difference between renewal and the initial making of the order is that, at the time of making, everything is new to the patient and it is appropriate that

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we frame in statute the explanation that he should receive. Things are not new to the patient when the order is renewed.

However, we can see the value in seeking to ensure that the patient is aware of, and is reminded of, his rights to appeal to the sheriff, and to make representations to the Mental Welfare Commission. We shall bear in mind the point made by the noble Lord while speaking to Amendments Nos. 100 and 101 when we draft guidance and also when we prescribe forms. I hope that the noble Lord will accept our understanding of what he is seeking to achieve and also our assurance on that point and that he will, therefore, feel able to withdraw the amendment.

The Earl of Mar and Kellie: I am somewhat worried about the matter because we are dealing with compulsory measures. Perhaps I may draw an analogy with a probation order. One of the first and quite useful tasks during the primary interview with someone on probation is that one goes through the order with that person, explaining the standard conditions of the probation order and any other conditions which may have been imposed. Eventually, the interview concludes with, among other things, the new probationer actually signing the order to the effect that it has been explained to him.

I do not know whether the document is yet available as regards what a community care order will actually look like when it is being signed and has been made available to the aftercare officer and the patient. However, I definitely believe that any variations should be in documentary form so that they can be discussed. That is a very positive part of the process of supervision.

The Earl of Lindsay: It may be convenient if I speak again on the matter. But if I am incorrect about anything that I say, I shall certainly write to the noble Earl. Variations in a community care order will be produced in written form. I believe that what we are talking about by way of the amendments is the extent to which the rights of a patient at either renewal or variation are re-explained to him both orally and in writing.

We believe that the noble Lord, Lord Carmichael, has made a point; indeed, it is something that we should like to reconsider. We shall be drafting guidance in that respect and we shall need to lay out the forms in such a way that will perhaps bring emphasis to the noble Lord's points. As I said, at the making of an order, an explanation will be given. The documents are not yet available. However, I should stress once again to the noble Lord that Amendments Nos. 100 and 101 will be considered.

Lord Carmichael of Kelvingrove: I am most grateful to the Minister for taking that point of view and for expressing that acceptance. Of course I realise that there is still a great deal of thinking to go into the matter. Generally speaking, I believe that guidance can sometimes be just as important; indeed, it is rather more flexible than putting provisions into the Bill.

When the Minister is thinking about the guidance, could he perhaps consider saving time at the next stage by letting us know, when it is published, whether the guidance will be available to the nearest relative of the

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client. The latter is not always fully aware of what is happening and, therefore, there must be some person responsible for him who must also be made aware of the facts. I hope that the Minister will be able to assure us that there will be no great secrecy involved. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Baroness Serota): If Amendment No. 84 is agreed to, I should point out to the Committee that I will not be able to call Amendment No. 85. I now call Amendment No. 84.

Lord Carmichael of Kelvingrove: Not moved!

The Earl of Mar and Kellie moved Amendment No. 84:

Page 18, leave out lines 35 to 40.

The noble Earl said: I thank the noble Lord for his interjection, but I shall not accede to it yet. This is a probing amendment to try to find out why the patient has to be on a Section 18 order for the particular period of 28 days or more. It seems to me administratively restrictive to insist on Section 18 (that is the six months' detention order) when a suitable candidate for a community care application might already be on Section 25—that is, the informal to formal patient order—or Section 26, an extension of the Section 24 emergency admission order. I ask this with especial reference to the idea that the target group for community care orders are patients already on one year's leave of absence in the community. In fact, their Section 18 admission, if the target group is the correct one, was more likely to be a year and 28 days ago. Could community care orders not be extended to people who are in the community without their having to be hospitalised, or does this make the target group too large? I think that access to statutory services has much merit. I beg to move.

The Earl of Balfour: I was under the impression that the maximum order that a sheriff could make was just six months. I am rather intrigued that the noble Earl, Lord Mar and Kellie, has suggested that a court order can extend to a year. I do not think that that is right.

The Earl of Mar and Kellie: The noble Earl, Lord Balfour, is correct. I thank him for reminding me of that.

12.45 p.m.

The Earl of Lindsay: The amendment moved by the noble Earl, Lord Mar and Kellie, purports to remove the qualification that patients must have been in hospital for at least 28 days before their RMO can make an application for a community care order in their case. The provision in new Section 35B(1) is to allow the responsible medical officer to carry out a review of the person's detention under Section 22 of the 1984 Act within 28 days of his or her admission to hospital. It is therefore considered appropriate that detained patients should benefit from hospital for at least 28 days before an application for a community care order can be made.

The noble Earl also raised the question of patients on leave of absence going directly onto a community care order without returning for 28 days in hospital. While I

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believe that this will be possible I should perhaps write to the noble Earl to make sure that I lay out the facts accurately. I hope that the noble Earl will feel able to withdraw the amendment.

The Earl of Mar and Kellie: The noble Earl has misunderstood me. I do not believe that a patient currently on leave of absence has to be returned to hospital. I fully accept that the likely patients to be admitted to a community care order will already be on leave of absence. If that is the target group, why are we saying that they must be in hospital when we intend to put people on community care orders who have already been in hospital and are already out on leave of absence?

The Earl of Lindsay: It may be helpful if I explain that while the leave of absence has patients in the community who, as it were, at any time may be liable to be returned and detained in hospital, the community care order arrangements are very different. They set up a much longer term programme of care and treatment within the community. Therefore, the 28-day hospital period is a period which would largely be used by the different elements in the community care application, either on the medical side or on the social side. That is the logic behind the period in hospital while the application is being preferred. With the assurance that I shall write to the noble Earl if I feel I have misled him, I hope that he will feel able to withdraw the amendment.

The Earl of Mar and Kellie: I thank the noble Earl for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 85:

Page 18, line 37, after ("Act") insert ("under sections 18, 24, 25, and 26").

The noble Earl said: This amendment follows on in some ways from the previous one. In this amendment I seek to add the words,

    "under sections 18, 24, 25, and 26".

of the Mental Health (Scotland) Act 1984 to clarify that the patient who is being considered for a community care order may be detained on any of these different compulsory measures. I accept that Section 24 emergency admissions are only for 72 hours and that that is too short for a full assessment to be done. However, it could be done if Section 26—the 28 day extension order—was applied, or indeed if the patient was already on a Section 26 extension order. Similarly, an informal patient who becomes in need of compulsory measures may be held for two hours under Section 25 to allow for a Section 24 emergency admission to be arranged, or indeed for a Section 18 six months' order to be arranged. For this amendment to become relevant, there would need to be an extension of the target group for community care orders to include the less vulnerable group of patients for whom a guarantee of medical and social work aftercare seems to me to be of considerable help. I beg to move.

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