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The Earl of Lindsay: I am grateful to the noble Earl and to the noble Lord, Lord Carmichael, whose name is also to the amendment, for spotting an error which we also had spotted. Indeed, we all arrived at the finishing post at the same time.

The amendment corrects an error in drafting of which the Government are aware and, as intended, properly ensures that the appropriate new sections refer to the special medical officer in place of the responsible medical officer, where the special medical officer is obliged to consult a number of people, including the patient's informal carer or carers, on the renewal, variation or revocation of a community care order or on the patient's proposed admission to hospital for reassessment. I am most grateful for the effort that everyone has put into chasing down that little inaccuracy.

However, the Government have gone further. We believe that the same error appears in the Bill on page 22 at line 10: page 23 at line 41 and page 26 at line 15. I have now spoken to Amendments Nos. 104, 118 and 125. They deal with the same matter. I hope that all those correcting amendments will be accepted by the Committee.

The Earl of Mar and Kellie: I am extremely grateful to the noble Earl for his remarks. This amendment has such a pedigree that I thought that we should have at least one amendment accepted.

On Question, amendment agreed to.

[Amendments Nos. 100 to 103 not moved.]

The Earl of Lindsay moved Amendment No. 104:


Page 22, line 10, leave out ("responsible") and insert ("special").

The noble Earl said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 105 not moved.]

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Lord Carmichael of Kelvingrove moved Amendment No. 106:


Page 22, line 18, after ("form") insert ("(which shall include an explanation to the patient and his nearest relative of their right to make representations to the sheriff about such proposed variations and the time limit for making such representations)").

The noble Lord said: This amendment is grouped with Amendments Nos. 107, 108, 111, 113, 114 and 116. The effect of the amendment is to ensure that the prescribed form explains the patient's rights. We should like to have confirmation from the Government that it is intended that any form used under the new subsection will contain details for the patient of his rights under paragraph (3).

Amendment No. 107 requires that the nearest relative be notified of a variation in the community care order.

Amendment No. 108 provides that if the sheriff who made the original order is not available, another sheriff from the same "sheriffdom"—that word does not look Scottish to me! —should be informed of the proposed variation and the Mental Welfare Commission should also be informed.

Amendment No. 111 also requires that the nearest relative should be given the right to object to any variation of the community care order.

Amendment No. 113 requires notification of variation to go to the nearest relative. We are concerned that the nearest relative should be kept informed at all times.

With regard to Amendment No. 114, while the doctors and social workers have the right to apply to the sheriff to vary the conditions of the community care order, no such right is given to the patient who has to live with the conditions on a day to day basis. We feel that that is wrong. This amendment gives the patient the right to require the sheriff to reconsider his case. Obviously there would have to be some restriction on the number of times a patient could ask a sheriff to reconsider the case. But the purpose of the amendment is to give the patient at least the right to request it.

Finally, Amendment No. 116 provides that the person making the application must notify the patient, his nearest relative and the aftercare officer, or the special medical officer, whoever was not involved in the application for variation. The notification has to be given promptly. If the amendment is accepted, either the special medical officer or the aftercare officer may apply for a variation and each of them will have to notify the other. That is so that if something is done with the patient, the people involved will all be aware of what is happening. It is essential that the patient and his nearest relative be informed and also that it is done promptly. I beg to move.

The Earl of Lindsay: As the noble Lord explained, these amendments would make various changes to the procedure that we have proposed for a variation in the conditions of a community care order. We note what has been proposed about notifying the Mental Welfare Commission of a variation and the technical point about sheriff clerks. Those are matters that we wish to consider further.

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We also note that the amendments attempt to prescribe what should be included on the form relating to variation of conditions. We note what has been proposed, and would point out that the prescription of forms under the 1984 Act is a matter for regulations, the content of which we shall consider carefully.

These amendments would allow the nearest relative to object to the proposed variation and be heard on this subject. I have to say that we do not consider that appropriate. If the nearest relative is also an informal carer, he will already have been consulted about the proposed variation. The conditions are a matter for the patient and those caring for him. It is for the patient to decide whether or not he wishes to object to what is proposed.

The amendments also extend the right of appeal by the patient to the sheriff to include an appeal against a variation of conditions. I should point out that we have already included a right for the patient to object to a proposed variation, and that the variation may not be approved without a hearing in front of the sheriff if he does so object. There is no equivalent appeal, for example, for patients detained in hospital, if they object to being transferred from one hospital to another, provided that it is not a transfer to a state hospital, which is of course a matter of particular gravity.

We therefore believe that, in this case, the right to be heard, which we have proposed, is adequate. On the basis of the various assurances that I have given on the large number of amendments in this group, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Carmichael of Kelvingrove: I am grateful to the Minister for having gone so far as he could go. However, there is a nagging worry that the patient may not be fit—although not in any way psychotic —to discuss this matter. It may be a transfer for the convenience of the hospital rather than for the convenience of the patient. It may be important therefore that someone is told that the patient is being moved and why. That person can then make an evaluation on behalf of the patient, who may not be in a fit state to make the decision himself. I am not suggesting that there would be anything underhand about the move, though that has happened when space was required in a specific hospital and patients were moved without anybody being told. If the patient is not able to understand, it would be wrong for a close and responsible relative not to be informed of the move.

I shall consider my position for a moment to allow others to make any points they wish before I decide what to do with the amendment.

Baroness Seear: Before the noble Earl replies, can he confirm—I may be out of order in asking this—that the carer has a right to object to the variation and the objection may be upheld? I know that the carer has a right to be consulted, but if the carer believes that the variation is bad either from the point of view of the patient or of the carer—I speak from the Carers National

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Association point of view—what is the position of the carer when a variation is being proposed? What rights does the carer have as distinct from consultation?

The Earl of Lindsay: If, on reviewing my reply, I feel that I have said anything inaccurate, I shall write and correct it. The noble Baroness, Lady Seear, asked about the rights of carers. On the face of the Bill, informal carers are not specified as statutory consultees but, given the multidisciplinary background to any application either for a variation or renewal, it would be impossible for the two medical officers and the aftercare officer to bring forward an application to the sheriff which did not simultaneously consult the caring arrangements available for the patient. In practice therefore the informal carer is almost certainly to be consulted on any change or variation.

Baroness Seear: The point is that the variation can substantially change the obligations laid on the carer. I am asking whether the carer has a right to refuse those variations. The Minister may not know the answer.

The Earl of Lindsay: The guidance being issued before the Bill comes into force will cover much of the ground that makes up the care that results from the Bill. The Bill sets up the framework, and the guidance will seek to add to the framework with the requirements needed for good sensitive care.

Carers will be consulted. In Scotland there is also the Mental Welfare Commission which may receive a request at any time from a patient in the community to explore the circumstances of a variation or renewal. There are therefore safeguards in this instance that are specifically outlined, in that the carer, probably through the patient, ensures that the Mental Welfare Commission is alert to the circumstances of variation which may be against the patient's best interests.

In response to the noble Lord, Lord Carmichael, I should add that patients subject to community care orders will be capable of living in the community, subject to their medication. That is an important point to make both now and in relation to other points raised earlier. Community care patients are able to live normally subject to their medication and treatment.


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