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Page 2, line 25, at end insert:
("( ) If, on the date when a patient ceases to be liable to be detained in a hospital under this Part of this Act, a supervision application has been made in respect of him but the Health Authority have not yet accepted the application, his liability to be so detained shall continue until the Authority either accept or refuse it.").

The noble Lord said: My Lords, with this amendment, I am taking part of the subject that we have just debated, because I wanted, if possible, to persuade the Minister that this aspect of the problem needs to be reconsidered. She made a few remarks which I did not think took us very much further.

As everyone knows, this matter was debated thoroughly in Committee. On these general subjects, my noble friend (at col. 123 of Hansard for 4th April) sought to persuade the Committee that there was no need for safeguards such as those contained in the amendment because of differences in law and procedure between Scotland and England. As your Lordships will know, the provisions contained in Amendment No. 8 are in the Bill for use in Scotland.

I wish delicately to suggest to my friend that that argument is a smokescreen. The important point is—this was touched upon by those noble Baronesses who spoke

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from the Benches opposite—that when people need to be in hospital, they must be retained there if there are no facilities to look after them in the community. In England and Wales, the health authority is required by the Bill to consult the social services authority about the provisions necessary. That may well take a great deal of time.

My noble friend said that there would be no question—she has just repeated it—of an application for a supervised discharge being accepted by the health authority before appropriate arrangements had been made. But in Committee she made no mention of the need for the patient to be detained, if otherwise due for release, until the arrangements for care were provided fully. She did, it is true, touch upon that point in relation to the previous group of amendments, but that does not convince me that there is no need for a safeguard in the form of my amendment, which would make certain that if the care arrangements cannot be achieved by the time the patient's liability to be retained runs out, the liability would be extended to allow more time for services to be organised, thus enabling the application to be accepted, or for the health authority to decide that it must be refused.

It is an important safeguard not just because it prevents the type of situations that have led to these amendments, but because it gives a simple and definite way in which the relevant authorities can take the action necessary to retain the patients who need to be retained, as, indeed, is the case in Scotland. It is marginally different from the amendments moved by the noble Baroness, Lady Farrington, in that it does not, of itself, put an extra cost on the care-in-the-community budget. The extra cost, such as it is, will lie with the hospital retaining the patient. That is a different matter.

Perhaps my noble friend could move slightly towards accepting the principle that her noble Scottish friends have accepted, to ensure—that is all it is—that people who should not be released into the community because there are not the facilities to accept them, shall be retained in hospital until such facilities can be provided. I hope that the amendment will be accepted. I beg to move.

4.15 p.m.

Lord Desai: My Lords, I support the amendment. The noble Lord mentioned the cost to the care-in-the-community service. There may be some additional financial cost; but we should mention against that that the cost of letting the person go if there are no facilities, will be much greater. We must balance the visible costs (financial) as against those which are contingent and which could be much greater. That would be sound economics.

Lord Milverton: My Lords, I hope that my noble friend the Minister will respond favourably to the amendment, because there is something in it. As others have said, it is not right that people should be sent out into the community without there being proper and full arrangements at hand to receive them.

Earl Russell: My Lords, this is a constructive and helpful amendment. I believe we all agree with what the noble Lord, Lord Milverton, has just said: we do not want patients discharged into the community if they have

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nowhere to go. That, I think we would agree, is the worst eventuality. What is needed here, which I believe the noble Lord, Lord Mottistone, has provided, is a safety valve.

Every now and then, Parliament, in its wisdom, enacts things which it is difficult to make happen. In 1563, for example, Parliament enacted that anyone who refused twice to take the Oath of Supremacy should be guilty of treason. That meant, in effect, that any Roman Catholic in the country was guilty of treason. The Queen merely instructed the Archbishop not to tender the Oath a second time. That is the sort of let out that the noble Lord, Lord Mottistone, has supplied to us. It is in a long and honourable English tradition. I am very glad to see it.

Lord Thurlow: My Lords, I support the amendment. As the noble Lord, Lord Mottistone, said, it may be that we are dealing with a marginal issue; but if I understood the Minister's comments on the previous group of amendments, it is likely that in any circumstances patients who fall into the category covered by the amendment would probably be retained in hospital. I am not sure about the procedures for that in certain cases. So to plug the gap, I hope that the Minister will feel able to support the amendment; but, if he cannot do so, to go some way towards bridging the gap by saying something about the principle.

Baroness Farrington of Ribbleton: My Lords, I too support the amendment, and ask the Minister to accept it. The situation for which the legislation is intended is not easy, and will inevitably take time to resolve. There must be confidence on the part of those who are afraid of people who may be released into the community without the right support. But much more important is that there must be confidence on the part of those people who are worried about members of their family or friends, and there must be the security of knowing where responsibility lies regarding who will care for the patient and continue to have that responsibility until the package is accepted, agreed, and in place.

Baroness Cumberlege: My Lords, as my noble friend Lord Mottistone said, the amendment was fully debated in Committee. As both he and I explained at the time, it reflects what is contained in Clause 4 for Scotland. New Section 35A(6) extends a patient's liability to be detained in cases where an application for a community care order has been made but the patient's liability to detention has meanwhile run out. In these cases, a patient's liability to detention shall be continued until a community care order is accepted or until the application for the community care order is turned down by the sheriff. The powers in England and Wales are framed differently from those in Scotland, reflecting the different legal arrangements in the two jurisdictions. This is not just a technical point; two important issues are involved.

First, it is possible to apply for aftercare under supervision while a person is liable to detention but for it to come into effect after the period of liability to detention has ceased. Section 25A(1) enables the supervision application to be made while a patient is liable to be detained and Section 25G(1) states that a period of six months (the initial duration of supervision) begins when the patient leaves hospital. If a patient were to leave

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hospital after the application had been made but before it was accepted, it would simply mean that there would be a gap during which the patient had left hospital but the provisions of aftercare under supervision had not yet actually operated. In practice, we believe that, having been consulted about the aftercare services he is to receive, the patient is more likely to remain as a voluntary patient for a short period until the application has been accepted, and aftercare under supervision will take effect as soon as he is discharged.

Secondly, we must remember the role of the body considering the application. In England and Wales the application will be made not to the equivalent of a sheriff, for none exists—or, to use the noble Earl's words, not in an honourable and noble tradition of this country—but to the health authority. Unlike the sheriff, the health authority, under its Section 117 aftercare duty, will be one of the bodies which is actually responsible for providing the services. The responsible medical officer in the hospital will have to ensure that those involved in the provision of the aftercare services have been consulted before making the application. Therefore, we cannot envisage a situation whereby there should be any delay in accepting the application because the services are not in place, which is the aspect which understandably concerns your Lordships.

I should add that my noble friend's amendment has, however, set us thinking about another issue in this area; that is, the effect of a custodial sentence on aftercare under supervision and upon community care orders. We may need to bring forward an amendment about this at Third Reading.

Aftercare under supervision is rooted in joint working, good communications and the understanding of all concerned of their role. I believe that the amendment is unnecessary and I ask my noble friend to reconsider the matter.


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