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The Earl of Balfour: From my limited experience in this field I thought it was only for the rather longer

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periods that a sheriff was involved. If a patient is taken into care for, say, a three day or a 28 day order, that is something which the hospital or the psychiatric persons concerned can deal with without going to the sheriff. Therefore, I feel that as regards some of these sections—I have not had all the time I would have wished to do my homework—I really do not think that the sheriff would be involved in all of these. Therefore I do not think these amendments are necessary.

The Earl of Mar and Kellie: I would be inclined to agree with the noble Earl, Lord Balfour, but I am trying to achieve a wider target group for these orders so that more people who are mentally disordered but able to live in the community are able to benefit from statutory services.

The Earl of Lindsay: The amendment moved by the noble Earl, Lord Mar and Kellie, would appear to be intended to provide for community care orders for persons detained under different specific sections of the 1984 Act. Patients who may be made subject to community care orders are those liable to be detained under Part V of the Act and, in accordance with new Section 35B(1), not within the first 28 days of their admission to hospital in pursuance of an application. This makes community care orders possible for civilly detained patients —so-called Section 18 patients—and, by virtue of Schedule 2 to the 1984 Act as amended by the Bill, they are also possible for patients under a hospital order without restrictions, following criminal proceedings.

It is only proper that community care should be available for such patients just as leave of absence is available for them at present. I am grateful to my noble friend Lord Balfour for saying that the sheriff is not involved in all emergency cases. His analysis is indeed accurate on that point. However, on the basis of what I said to the noble Earl, Lord Mar and Kellie, I hope that he will feel able to withdraw his 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Amendment, by leave, withdrawn.

[Amendments Nos. 86 to 90 not moved.]

The Earl of Mar and Kellie moved Amendment No. 91:


Page 19, line 37, leave out ("is") and insert ("has agreed ").

The noble Earl said: For the convenience of the Committee, in moving Amendment No. 91, I shall speak also to Amendment No. 92. The amendments seek to clarify that the psychiatrist who will be the special medical officer and the social worker who will be the aftercare officer have both personally consented to undertake their respective roles within the proposed community care order and have not been allocated the work simply by their line manager, as I rather fear will happen. The provision would be in line with the consent that is required from the patient, the nearest relative or his appointee and the carer.

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I believe that it is an important provision. Serious consequences are laid down in the Bill in Schedule 2 for not providing effective supervision for the patient. I beg to move.

Lord Mottistone: I agree in principle with the amendments. Paragraph (b) of Amendment No. 136, which stands in my name, makes the same point about having the agreement of the person involved. I hope that there can be some such provision in the Bill.

The Earl of Lindsay: The amendment moved by the noble Earl, Lord Mar and Kellie, and supported by my noble friend Lord Mottistone covers an important part of policy. I can gladly give the clarification that the noble Earl seeks.

The intended special medical officer and aftercare officer will have been consulted by the responsible medical officer before an application for a community care order is made. The person who is to be the aftercare officer will also have to submit a report to accompany the application. We do not see how a sheriff could approve an application without the named persons agreeing to carry out their professional duties. I stress that.

We shall, of course, consider whether the matter might be mentioned in any sheriff court rules. However, given the clarification and reassurance that I have given on these points, I hope that the noble Earl will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove: The Minister will realise that the amendment stands also in my name and that of my noble friend Lord Macaulay of Bragar. I did not intervene earlier because the noble Earl, Lord Mar and Kellie, is much more expert than most of us on this matter. There should be particular understanding of the fact that he said that he spoke from positive experience. Sometimes there is a muddle. Therefore, the agreement is important. If the noble Earl is satisfied, I shall be satisfied. I wish to emphasise again in this case the noble Earl knows clearly what he is speaking about.

The Earl of Mar and Kellie: I thank the noble Lord for those words. I am a little disappointed with what the noble Earl, Lord Lindsay, said. However, in the belief that what has just been said may well strike chords in the Minister's mind later, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 92 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 93:


Page 20, line 5, after ("by") insert ("the patient's general practitioner or").

The noble Lord said: One of the medical recommendations may be made by the patient's GP. In most cases, the patient's GP would be the appropriate person to support an application for a community care order. The amendment makes that clear. It mirrors the wording of Section 20(1) (b) of the Mental Health (Scotland) Act which states that one of the recommendations accompanying an application for detention shall be by the patient's GP or another doctor

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who knows him. From experience in constituency work, I can say that frequently the GP may have known the patient for 20, 30 or 40 years, whereas, with all the great skill that the psychiatrist has, he may have met the patient for only half an hour. Therefore, some weight and understanding should be given to the recommendation that the GP makes. That is the purpose of the amendment.

The Earl of Balfour: From a practical point of view, as I understand the position, before someone can be compulsorily taken into care or held in a hospital a certificate needs to be signed by two doctors. That is usually someone such as a medical officer with considerable experience and the patient's own doctor who has that lengthy past history. Therefore the person's own GP needs to be brought into the situation. It is a good point.

The Earl of Lindsay: I believe that we are all at one on the point described by the noble Lord, Lord Carmichael. The Bill as drafted allows for the second report to be made by any medical practitioner with previous acquaintance of the patient. That would, of course, include the patient's GP. We think that the Bill has covered that probability in the circumstances. On the basis that we all seem to agree that the patient's GP may be involved, I ask the noble Lord to withdraw the amendment.

Lord Carmichael of Kelvingrove: The Minister seems to accept the basis and thrust of my point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 94 and 95 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 96:


Page 20, line 39, at end insert:
("(iv) the views of the patient and his or her carers as to such matters, as disclosed to the person making the application for the community care order during consultation; and").

The noble Lord said: The amendment stresses the fact that the person making the report must inform the sheriff of the discussions that he has had with the patient and with his carers. It is important that the sheriff should understand any problems with the community care order which either the patient or his carers may have. The patient may not attend the hearing, and the amendment provides an additional safeguard to ensure that his views are taken into account. I beg to move.

The Earl of Lindsay: The amendment introduces a requirement that the aftercare officer's report accompanying the application should include the views of the patient and his carers about the proposed order. As drafted, it would be the patient's views as disclosed to the RMO.

It is important to bear in mind that we have made it a requirement that the patient and the carers are to be consulted by the responsible medical officer before the application is made.

I also draw the Committee's attention to the fact that in new Section 35A(2) we are attracting the provisions of Section 113 of the 1984 Act to the application for a

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community care order. That provides that the patient must be given the opportunity to be heard by the sheriff either in person or by means of a representative. I hope that the noble Lord will agree that that is the best safeguard in the circumstances.

On that basis, I hope that the noble Lord will feel able to withdraw the amendment.


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