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Lord Kirkhill: I hope that my noble friend Lord Carmichael will seriously consider his position in regard to the amendment in the light of the Minister's comments. They fall considerably short of the type of assurance that he seeks.

Perhaps I may make a personal remark which has no validity other than to justify my usual prejudices. I am unusually suspicious of the psychiatric profession. I regard it at arm's length, certainly in relation to those with whom I have been concerned who have had to deal with that professional body. In allying my prejudices to the fine mind of my noble friend Lord Carmichael and his interesting amendment, I urge my noble friend to consider his position seriously.

Baroness Jay of Paddington: I hesitate to come into this extremely distinguished Scottish company on a broader issue. I wish to respond to the points made by the noble Baroness, Lady Seear, regarding carers. I

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know that her concern in this matter extends beyond Scotland, which we are discussing this morning. It is worth pointing out both to her and to the Committee that the assurances given by the noble Earl, which are somewhat insecure, would not apply in England and Wales. As we found on Tuesday, the Government are not prepared to accept the intervention of the Mental Health Act Commission, which would be the equivalent of the Mental Welfare Commission in relation to these patients. There are therefore no safeguards for carers in England and Wales.

Lord Carmichael of Kelvingrove: I am trying to cover my blushes after the kind comments of my noble friend Lord Kirkhill. The Minister must realise that there is a fair amount of anxiety in the Chamber at this point. While he made clear that we were talking about people living in the community—I believe he was exclusively dealing with people living in the community—the point made by the noble Baroness, Lady Seear, reminded me of the inconvenience that may be involved.

Carers go to a great deal of trouble. Moving a patient to another reference hospital could add enormously to the difficulties of the carer, and that is the type of thing about which the noble Baroness was speaking. Therefore, unless the Minister has something else to say, I shall provisionally withdraw the amendment. We shall want to look at it with great care and possibly bring it back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 107 and 108 not moved.]

The Earl of Mar and Kellie moved Amendment No. 109:


Page 22, line 24, at end insert:
("(d) the Mental Welfare Commission for Scotland").

The noble Earl said: Amendment No. 109 is similar to Amendment No. 108. It seeks to add the Mental Welfare Commission for Scotland to the list of those notified about any variation in the conditions of the community care order. As the Mental Welfare Commission for Scotland has to be informed about the making of the community care order, quite rightly, and as it has powers and duties to perform in respect of community care orders, I see it as essential that it should also be informed of any change to the orders.

The powers and duties of the Mental Welfare Commission for Scotland revolve around visits for quality assurance purposes. It also handles appeals and can ultimately order the discharge of people who are subject to community care orders. I believe therefore that it should be informed of any variation and I hope that the noble Earl will be able to accept the amendment. I beg to move.

1.30 p.m.

The Earl of Lindsay: As I said when responding to a similar amendment proposed by the noble Lord, Lord Carmichael, we would be grateful to have the opportunity to consider this point further. It is indeed important that the Mental Welfare Commission should be able to undertake its protective role while being in

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full possession of the facts. On that basis, I should be grateful if the noble Earl would consider withdrawing his amendment.

The Earl of Mar and Kellie: The noble Earl is quite right. The Mental Welfare Commission for Scotland has statutory duties in this area. I shall certainly withdraw the amendment at this point to allow him to consider the matter further.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 110:


Page 22, line 24, at end insert:
("( ) If any person consulted under this part of this Act is replaced by another person that change shall be reported to—
(a) the patient;
(b) the patient's after care officer; and
(c) the sheriff clerk for the sheriff who made the community care order.").

The noble Earl said: It is essential that any staff changes in the community care team for a community care order patient should be notified formally to the patient, the aftercare officer and the sheriff clerk. This amendment would ensure that any changes in personnel were documented. I suspect that such notification should be made informally as well to the special medical officer, to the Mental Welfare Commission for Scotland and to the carer and nearest relative. I beg to move.

The Earl of Lindsay: I am grateful to the noble Earl for having introduced the amendment. We had recognised that there might be some difficulty in varying the named persons. This matter is currently under consideration. While I appreciate the noble Earl's intentions, the matter is quite detailed. I can assure him that we intend to propose amendments on this point at a later stage in the Bill. With that assurance, I hope that he will consider withdrawing the amendment.

The Earl of Mar and Kellie: I like what the noble Earl says. I shall certainly withdraw the amendment at this point.

Amendment, by leave, withdrawn.

[Amendments Nos. 111 to 114 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 115:


Page 23, line 14, at end insert ("to ensure that he receives such medical treatment and after-care services").

The noble Lord said: Any variation to a community care order which the sheriff makes must be necessary to secure the general aims of the community care order. The sheriff would not be free to make variations to an order on too wide a basis. The variation should be made in order to achieve the objects stated in the Bill. The amendment would make clear the basis on which the sheriff was to exercise this discretion. This is a precautionary measure but it is essential that there should be certain prescribed controls. I beg to move.

The Earl of Lindsay: This amendment specifies that when the conditions of a community care order are varied by a sheriff following the refusal of an appeal against the order these conditions must be,

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    "to ensure that he receives such medical treatment and after-care services".

We believe that this is unnecessary and probably restrictive. Variation of conditions would continue to relate to the need for conditions imposed with a community care order to be with a view to ensuring that the patient receives medical treatment and aftercare services. In addition, the discretion of a sheriff to vary the conditions, which must of course be exercised reasonably, is preserved in new Section 35E(2) (b). As an example of how the sheriff might vary the condition, a separated spouse may find contact with her ex-husband distressing and the sheriff may find it appropriate to make a condition restricting the patient to visiting her house only by prior arrangement. With the assurance I have given the noble Lord on this point, I hope that he will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove: I thank the Minister for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 116 not moved.]

The Earl of Mar and Kellie moved Amendment No. 117:


Page 23, line 30, after ("deteriorated") insert ("or the patient has ceased to take his prescribed treatment").

The noble Earl said: This amendment seeks to deal with the question of a patient not taking his medication. The amendment recognises that there is a time delay between the patient ceasing to take his medication—obviously against advice—and the deterioration of his mental health. The amendment would allow for the community care team to react positively before mental health had broken down completely. The patient could be admitted to hospital for a much briefer period to resume taking his medication in a hospital setting and so be restabilised and returned to his home quickly and without taking up a hospital bed for a substantial period. I believe that the amendment would therefore be very useful is such circumstances. I beg to move.

The Earl of Lindsay: The effect of this amendment would be that a patient could be considered for reassessment in hospital on the grounds that he had stopped taking his medication and that his mental state was, or was likely to become, such as to give grounds for serious concern regarding his health or safety, or the protection of other persons.

I think that this goes much further than what we have proposed, which is that there must have been a deterioration in the patient's mental state, and his mental state must be such as to give grounds for serious concern regarding his health or safety or the protection of other persons. It may be that the patient's mental health deteriorates because he ceases to take his treatment.

The amendment does concern us, because we have provided that evidence of deterioration of the patient's mental state is to be the point which triggers examination under the new Section 35F(3) and we do not accept that the trigger point should be ceasing to take prescribed treatment. But I can assure the noble Earl that ceasing to take prescribed medication will

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certainly be of interest to those caring for the patient. They may then wish to consider the patient's situation as a result of any such failure.

I think that there is a difference here which may appear subtle at first but which is actually quite great. The amendment could result in people being detained in hospital when their long-term medication is still working and they are not actually suffering symptoms of mental illness. We also remain unconvinced that an amendment such as that proposed by the noble Earl is acceptable because of the implications for consent to treatment. On the basis of that and the assurances I gave earlier, I hope that the noble Earl will feel able to withdraw the amendment.


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