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Baroness Cumberlege: My Lords, as I understand the amendments tabled by my noble friend, they seek to address what professionals have advised him are anomalies in the Bill. My noble friend wishes to emphasise that aftercare under supervision depends on the operation of Section 117 of the Act, and I understand that he has been advised that this applies only to patients who have actually been detained, as opposed to those who are liable to be detained. As I understand it, my noble friend wishes to change the definition of eligible patients to reflect this.

These amendments would allow the application to be made only after the patient had ceased to be detained. It is a basic principle in the Bill that the application is made while the patient is still detained or liable to be detained so that aftercare under supervision can take over from detention without a break. In practice, a patient may remain in hospital informally after the application has been accepted, but if he or she then leaves, supervision immediately comes into force.

The term "liable to be detained" is needed so that the definition includes detained patients who are on leave of absence, as well as those who are actually detained in hospital. Section 117 aftercare does in fact apply to those who are on leave of absence. That is made clear in the Mental Health Act code of practice. We wish to ensure that someone who is on leave of absence may be made subject to aftercare under supervision when their period of liability to detention ends.

It is very unlikely that anyone who is liable to be detained will not actually have been detained at some time. Even if there were such people, paragraph (b) would limit the scope to those who had actually been detained because the application could be made only if the patient was entitled to receive aftercare services under Section 117.

The whole purpose of the Bill is to formalise aftercare services for the most immediately vulnerable patients—those who have been recently detained because of the severity of their mental condition and those who, on discharge, must receive aftercare under Section 117 of the Mental Health Act 1983. I believe that my noble friend and I are at one in ensuring that all those who are entitled to Section 117 aftercare receive it. Health and social services authorities have a duty to provide aftercare services to those who have been detained or who are liable to be detained under Sections 3, 37, 47 or 48 of the Act.

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The Bill as drafted will ensure that those patients who are eligible for aftercare under supervision will receive the necessary services provided the criteria are met.

I can assure my noble friend that the Bill as drafted secures what he hopes to achieve. If these amendments are pressed it could lead to some unfortunate and unintentional results. I therefore ask him to reconsider his amendments in the light of my explanation.

Lord Jenkin of Roding: My Lords, I am very grateful to my noble friend for that very full explanation. In the course of her reply she used the phrase,

    "who have been detained or who are liable to be detained".

If the Bill stated that, it would meet my case absolutely. I wonder whether between now and Third Reading my noble friend would consider whether, given the notes that I quoted, it could be made perfectly clear that this clause applies only to patients who have been in hospital and it does not apply to somebody who has not been detained—though I take the point about those who may be about to be detained and for whom the order needs to be considered. If it referred to patients who "have been detained or are liable to be detained", that would make it abundantly clear to those who have to operate the legislation. As I said in my opening remarks, as with all mental health legislation it is a matter of enormous concern to everybody involved that they follow the legislation meticulously. There is plenty of litigation if they do not. I hope that perhaps my noble friend might be prepared to consider that point before the final stage of the Bill. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord Campbell of Croy moved Amendment No. 3:

Page 2, line 5, after ("suffering") insert ("or has suffered").

The noble Lord said: My Lords, Amendment No. 3 and my later amendment arise from questions raised by a leading psychiatrist based at a well-known hospital and dealing particularly with schizophrenia. These questions arrived after Committee stage. As we know, this Bill was brought forward quickly and obtained a place in the legislative Session. I was glad about that, but it meant that some of those working in the field were not able to comment at the early stages. These questions also reflect queries from some of his colleagues. I have been able to reply to him on some of the points, which were anyway answered by my noble friend Lady Cumberlege in Committee.

The intention of the Bill is to provide care and supervision for the mentally ill who become incapable of rational actions, cannot look after themselves and may also be dangerous to themselves and others. As it stands, the wording is "is suffering from mental disorder". It does not appear to take into account the ups and downs of mental illness, especially with schizophrenia. A sufferer may have days or weeks in a good state but could then have a serious relapse and indeed he may have a history of relapses. There could be substantial risk if such a patient on discharge from hospital could not be placed under a supervision order.

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I am encouraged by the Government's acceptance recently in another place of an amendment on the Disability Discrimination Bill. In that Bill the definition of disabled people includes someone who has suffered from mental illness. That appears to recognise the point that I am making.

Perhaps I may illustrate that point in another way. Several days ago a television programme was presented by Marjorie Wallace, who has campaigned for understanding and suitable and sensible treatment for mental illness. About 10 years ago in your Lordships' House I drew attention to the excellent series of articles on the subject written by her and published in The Times. In that well constructed television programme appeared Mr. Ben Silcock, who had jumped into the lions' enclosure at the zoo. He testified personally to the varying conditions of his schizophrenia and how he could be normal for periods and then have dark periods of insanity which caused him to perform crazy and dangerous acts, such as his escapade at the zoo. After all, that is the origin of the word "schizophrenia". It refers not so much to a split personality as to changing moods, impulses and conduct at different times.

Therefore, I hope that in her reply my noble friend will be able to indicate whether the Bill as now drafted will cater for those situations or whether it needs to be altered.

I hope that the House will not be surprised to see me sitting with my leg up on the Bench and not consider that I am being casual or in any way disrespectful to the House. I should explain that at the end of last week a thrombosis was diagnosed in a disabled leg, for which I am being treated and on medication. I am supposed to keep the leg horizontal as much as possible. I am sure that those in the medical profession will understand what that means. I am trying to obey doctor's orders, unlike some of the mental patients whom we are considering. Over the weekend, my doctors in Scotland, rather than forbidding me to come to your Lordships' House, encouraged me to come when they heard that I would be speaking again on this Bill. But they requested me to observe their advice about the position of the leg. I beg to move.

3.30 p.m.

Baroness Cumberlege: My Lords, I am very sorry that my noble friend suffered a thrombosis. I wish him a very speedy recovery. As I understand his wishes, he is anxious to broaden the scope of the aftercare under supervision to include those patients who have suffered from one of the forms of mental disorder which are set out at new Section 25A(4) (a). That would mean patients who are no longer adjudged to be mentally disordered at the time of the application. I appreciate that it would still mean that the other conditions of new Section 25A(4) would have to be satisfied before the supervision application could be accepted.

My noble friend drew a correlation with the disability Bill which is currently in another place. That Bill brings in provisions whereby disability for the purposes of protection against employment discrimination would include forms of mental impairment, including severe mental illness such as schizophrenia.

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The impairment in this context would have to have a long-term daily substantial effect on the ability to carry out normal activities. There is, I believe, no intention of including those who are deemed to have suffered from, say, schizophrenia in the past. Nor is that our intention under this legislation.

My noble friend's amendment would conflict with a basic principle of the 1983 Act. The existing compulsory powers of the Act—detention in hospital or a nursing home; and guardianship—are employed only while someone is suffering from a mental disorder, and the patient has basic rights to have the case reviewed by a mental health review tribunal, which will need to be satisfied that the basic criteria for the use of the power is met. We propose the same regime for aftercare under supervision. Indeed, to do otherwise would risk contravening the European Convention on Human Rights.

I should also point out that the threshold for receiving aftercare under supervision is different from that to being detained in hospital. Under the present Bill the patient's mental disorder does not have to be of a nature or degree justifying his or her detention. So we are already making the new power available to a wider group of patients, but we think it would be going too far to extend it to people who currently are not suffering from mental illness at all.

Perhaps I may add that the Bill was based on proposals which were published in August 1993 and were the subject of wide consultation. Full account was taken of the comments made. In the light of those remarks, I hope that my noble friend will feel able to withdraw his amendment.

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