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Lord Carmichael of Kelvingrove: I know that the Minister has received immediate authoritative confirmation of the case that he has just put to me. I shall read with care what he said. The case that was mentioned struck me as being horrendous, but it may not have been enough to change the whole tenor of the law. The Minister's explanation went further than I had expected. I am grateful to him for that. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 128:


Page 28, line 19, at beginning insert ("Subject to subsection (8) of this section and section 33(2) and (4) of this Act,").

The noble Lord said: It may be for the convenience of the Committee if I deal also with Amendment No. 129. The effect of the amendments would be to allow the patient the right to appeal against a decision that he should be detained in hospital after he had been recaptured. I believe that the failure to insert this provision in the Bill must have been an oversight. The wording of the provision is that of Section 36 of the Mental Health (Scotland) Act, which allows a patient to appeal if his detention is renewed. It is a variation of the provision relating to the fact that if a patient is at liberty for 28 days he cannot be detained. The amendment merely gives the patient the right to appeal if the authorities wish him to remain in hospital. I beg to move.

The Earl of Lindsay: The right of appeal sought by the noble Lord in his amendments is already provided for at Clause 5(2) and (5). That amends Section 30(6) and Section 47(6) of the 1984 Act. Given that we are providing what the noble Lord seeks, I hope that he will withdraw his amendment.

Lord Carmichael of Kelvingrove: I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 129 to 131 not moved.]

2.15 p.m.

The Earl of Lindsay moved Amendment No. 132:


Page 31, line 42, leave out subsection (8).

The noble Earl said: We discussed the substance of this amendment when debating the corresponding amendment to Clause 2 in the England and Wales part of the Bill. The amendment rectifies the same inconsistency relating to Scotland in Clause 5. I beg to move.

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 [Leave of absence from hospital]:

The Earl of Mar and Kellie moved Amendment No. 133:


Page 32, line 29, leave out ("12") and insert ("24").

6 Apr 1995 : Column 362

The noble Earl said: This is a probing amendment to discover whether the conditions of any period of leave of absence under Section 27 of the 1984 Act are lawful. It has been suggested to me that the so-called Sheriff Younger judgment raises questions about the powers of treatment during any period of leave of absence. As was suggested by the noble Lord, Lord Campbell of Croy, that leave of absence could be amended in order to take on board the anxieties raised by Sheriff Younger in 1987. That would allow community care orders to be abandoned. Will the Minister say whether the conditions relating to leave of absence are legally sound unamended for any period of time? I beg to move.

The Earl of Lindsay: As well as attempting to reduce the risk of legal challenge to leave of absence, we have had to consider what constitutes a reasonable period for the patient, who remains liable to detention, to remain living in the community. We have concluded that a period of up to 12 months is the maximum period under the Act for which a person may remain on leave of absence. That is the same maximum period for which the authority for a patient's liability to detention is renewed after two initial six-month periods. It is anticipated that such patients who are on leave of absence for up to 12 months will be candidates for community care orders.

The noble Earl asked whether we might simply amend leave of absence and save ourselves the problem of Clause 4. The Government never wish large pieces of legislation on themselves. If amending the provision had been a possible route that is the route we should have taken. However, advice was taken and it appeared that a simple amendment to existing legislation would not work. Furthermore, as regards legitimacy of the 12 months' leave of absence, that is based on advice as to compliance with European convention. I hope that with those assurance the noble Earl will withdraw the amendment.

The Earl of Mar and Kellie: I believe that the Minister said that 12 months' leave of absence was legally sound. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 [Short title, commencement and extent]:

Lord Carmichael of Kelvingrove moved Amendment No. 134:


Page 33, line 4, leave out ("1st January 1996") and insert ("1st April 1997").

The noble Lord said: This is an important amendment because of the day to which it relates. It defers the introduction of the new order to bring the provisions of the Act into force at the beginning of a financial year.

The present system of Scottish local government is to be reorganised with effect from 1st April 1996. That is an important day because it is when the new elections will take place for the new councils. It makes little sense to introduce new responsibilities for existing regional councils as social work authorities for the three-month period prior to the introduction of 29 unitary authorities which will assume the function.

6 Apr 1995 : Column 363

Furthermore, budgets have already been set for 1995-96 without any financial provision having been included in terms of the new provisions. Therefore, in order to avoid chaos it is only sensible to delay the introduction of the order until 1st April 1997. It is a purely technical matter. I hope that the Minister will accept the amendment.

The Earl of Mar and Kellie: I hope that the noble Baroness will be able to accept the amendment. Social work departments will be reorganised, and I strongly support what the noble Lord, Lord Carmichael, said.

Baroness Cumberlege: I understand what both noble Lords have said but we cannot agree to defer implementation until the date proposed because we do not believe that it is necessary or desirable. We believe that to defer implementation until April 1997 would be too long a period to wait before introducing the important safeguards which the Bill provides for protecting patients and the public.

I understand why the noble Lord believes that a deferral would be beneficial. However, I assure him that people with hands-on responsibility for the delivery of services will transfer to the new Scottish authorities without any change in their working patterns or practices. That will be true of those who have the duty to operate the new community care orders. In any event, I assure the Committee that we propose to issue full guidance to those concerned with the new provisions. We propose also to issue full information for patients before the provisions are put into force. Therefore, I hope that the noble Lord will withdraw the amendment.

Lord Carmichael of Kelvingrove: I welcome the noble Baroness to our Scottish Committee today. We have had very good responses from the Minister and a number of amendments have been accepted or taken away for consideration.

I am sorry that the noble Baroness is not able to help us in this regard. I agree that the timing and introduction of the new local authorities causes difficulties. But we believe that it is nonsense to introduce such changes because no reorganisation is needed. In the wee small hours of the morning, it may be that we have a very nice story to tell the country from Scotland. It would be wrong not to withdraw the amendment, in the spirit of camaraderie which exists with the noble Baroness. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135 not moved.]

Clause 7 agreed to.

Schedule 1 [After-care under supervision: supplementary]:

Lord Mottistone moved Amendment No. 136:


Page 34, line 33, leave out from ("who") to end of line 35 and insert ("—
(a) having been approved for the purposes of section 12 above by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and

6 Apr 1995 : Column 364


(b) having been appointed with the agreement of the practitioner by the Health Authority which have the duty under section 117 below to provide after-care services for the patient,
is in charge of the medical treatment").

The noble Lord said: I have already spoken briefly to the amendment. Now is perhaps an opportunity to speak to it rather more fully, although I shall not detain the Committee for very long.

The aim of the amendment is to ensure that the community responsible medical officer accepts the appointment in that capacity—that is the second part of the amendment—and that he is appropriately qualified to look after patients who are subject to aftercare under supervision. I believe that a GP with no special training in psychiatry would not be equal to the job. Amendment No. 28, in the name of the noble Baroness, Lady Jay, and Amendment No. 137, in the name of my noble friend Lord Haig, which we discussed earlier, said much the same. Therefore, we all agree about the importance of the special qualifications and such a provision already exists in Scotland.

At present, under Section 12(2) of the Mental Health Act doctors recommending the admission of patients to hospital are required to be approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder. I believe, as does the National Schizophrenia Fellowship, that the community responsible medical officer should meet those standards.

When we briefly discussed the matter on Tuesday 4th April, my noble friend the Minister said that the guidance would be necessary. I questioned whether guidance was really the right place for it and whether it was not more appropriate to include such a provision in Schedule 1, as my amendment seeks to do. My noble friend the Minister then said that guidance is a good thing,


    "because it produces a degree of flexibility".—[Official Report, 4/4/95; col. 113.]

In that particular area, for this particular amendment and for the particular qualifications involved, flexibility is what I seek not to have. In that sense, I should not have thought that guidance was really the right answer. It is much better to have such a provision on the face of the Bill so as to make it quite clear to everyone concerned that the community responsible medical officers will be properly qualified and experienced in looking after mentally-ill people. I beg to move.


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