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Baroness Robson of Kiddington: My Lords, I should like to support Amendments Nos. 6 and 9 in particular. Without the provisos of those amendments, it is impossible to ask either the health authorities or the social services authorities to take on a responsibility which, willy-nilly, they will have to fulfil without the right to say, "We do not happen to have available the service that is required for that patient. We must refuse to accept him for the moment until we can organise being able to receive him into the community". Nothing
Lord Thurlow: My Lords, I should like to support the amendment on the ground that it helps health authorities which are in the lead position in relation to the Bill. Anything that can be done to give power to the elbow of health authorities in their consultations and discussions with local authorities seems to me to deserve support. I therefore support the amendment.
Earl Russell: My Lords, it is proverbial that the impossible takes a little longer but, like most good jokes, it became a good joke because the real situation that it describes is not quite so funny. A lot of people have done on occasion what appeared to be impossible, but if one sets out to do the impossible, it must be a precondition that one has nothing else that one has to do. The trouble is that when an obligation is placed on an authority which has very scant resources or perhaps no services in place at all, the attempt to do the impossible must lead to the neglect of something else. We do not know what that something else might be. It might turn out to be something equally urgent or serious.
I have noticed over the past few years an increasing tendency, especially when dealing with local authorities, to deal with the question of shortage of resources by placing more and more stringent obligations on those local authorities in the hope of bumping up to the top of the queue whatever issue we are dealing with. It is beginning to be a bit like a rush to escape from a fireand if we are not careful, it may end up the same as a rush to escape from a fire, with everybody falling over each other and a great deal more damage being done than need have been done. That is why I support this group of amendments.
The Earl of Mar and Kellie: My Lords, I rise to support Amendment No. 5. I believe that a detailed statement to prove that all the negotiations that should have taken place have taken place would be useful because I suspect that many of the authorities are still not very good at co-operating with each other.
Baroness Cumberlege: My Lords, most of these amendments were discussed in Committee and, as your Lordships are aware, the Government resisted them then. Although we have considered carefully the points that were made during that debate, we remain of our original view.
Section 117 ensures that the services will be specified because the detailed care plan drawn up by the multi-disciplinary team has to be attached to the application. There is nothing to be gained by insisting that the health and social services authorities repeat what is already in the care plan. As I have already explained, the Bill already allows that the health authority can refuse an application. Consultation with the local social services department will already have taken place before the application is made as part of the discussion with the care team whose duty it is to provide for the patient's care after he or she leaves hospital. The care plan must have been agreed by the local authority's representatives as far as it relates to the social care element. This is
We have already made it clear in the department's guidance to health and local authorities that the services required under Section 117 of the Act should be provided and organised in accordance with the care programme approach. The fact that the Bill defines aftercare under supervision by reference to the Section 117 duties should therefore ensure that the care programme approach is followed.
However, the care programme approach is not a statutory arrangement and we think there would be a risk of confusion if we tried to bring it more explicitly into the Bill. The form to which Amendment No. 16 refers is, we think, the aftercare check list which we have recently circulated to health and local authorities. The trouble about including this in the Bill is that its status is only advisory, so if an authority was using a different form the amendment would make it impossible for it to operate aftercare under supervision.
During the Committee stage noble Lords opposite pressed me on what would happen if the health authority rejected the application as they have done today, particularly the noble Baroness, Lady Robson, and the noble Lord, Lord Thurlow. The simple answer is that it would be "back to the drawing board". The patient would either remain in hospital if his or her period of detention had not yet expired or, if it had, he would be free to leave. If, however, the responsible medical officer in undertaking the necessary risk assessment before discharge, decided it would not be safe to release the patient then he or she would be detained once more. If the patient were discharged there would still be a duty to provide Section 117 aftercare, but it would be provided outside the framework of aftercare under supervision. In practice, I think a rejection by the health authority after consultation with the local authority will be very rare. The aftercare services will have been agreed by all concerned before the application is made and it is unlikely that any party will go back on its agreement unless there are exceptional circumstances. I hope the movers of these amendments will not press them.
Baroness Farrington of Ribbleton: My Lords, I have listened very carefully to the Minister's reply to the points raised. There still appears to be an unbridgeable gulf between the two positions in terms of what is necessary. It is very important that we continue to press the amendments. Therefore, I should like to test the opinion of the House on this amendment.
Resolved in the negative, and amendment disagreed to accordingly.