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Baroness Cumberlege moved Amendment No. 17:

Page 2, line 46, leave out from beginning to end of line 12 on page 3 and insert:
("(2) This subsection is complied with if—
(a) the following persons have been consulted about the making of the supervision application—
(i) the patient;
(ii) one or more persons who have been professionally concerned with the patient's medical treatment in hospital;
(iii) one or more persons who will be professionally concerned with the after-care services to be provided for the patient under section 117 below; and
(iv) any person who the responsible medical officer believes will play a substantial part in the care of the patient after he leaves hospital but will not be professionally concerned with any of the after-care services to be so provided;
(b) unless the patient has otherwise requested, such steps as are practicable have been taken to consult the person (if any) appearing to be the nearest relative of the patient about the making of the supervision application; and
(c) the responsible medical officer has taken into account any views expressed by the persons consulted.").

The noble Baroness said: My Lords, I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, that amendment having been agreed to, I cannot now call Amendments No. 18 to 20 inclusive because of pre-emption. The next amendment to be considered is Amendment No. 21.

[Amendments Nos. 18 to 20 not moved.]

Lord Mottistone moved Amendment No. 21:

Page 3, line 12, at end insert:
("( ) Where the patient has requested that the person appearing to be his nearest relative should not be consulted about the supervision application but the responsible medical officer has reason to believe that it may assist the after-care under supervision of the patient if that relative is consulted, the responsible medical officer may consult that relative, especially where there is a history of violence.").

The noble Lord said: My Lords, we touched on this subject in Committee but I wish to return to the charge and ask my noble friend to consider once again the particular case of someone who has such a history of mental illness that it is necessary to inform his nearest relative about what is going on, even when the patient concerned says that he does not wish this to happen. I refer to the kind of circumstances which the noble Baroness, Lady Jay, has just mentioned. Sometimes it may be in the best interests of a patient that the nearest relative is involved in the matter. In Committee my noble friend Lord Lindsay spoke of the situation in Scotland (cols. 341 and 342 of Hansard). In Scotland there is such a provision. Let us not worry about the legal need for it to exist; it is a sensible measure to have.

My amendment seeks to provide similar arrangements in England and Wales with particular emphasis on cases where there is a history of violence. The Clunis case springs to mind. I think that Mr. Clunis himself said that it would have been helpful if his nearest relatives had

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known about his case. That kind of situation needs to be covered. Nearest relatives can themselves be the object of an assault and the National Schizophrenia Fellowship feels strongly about this matter because that body in the main consists of nearest relatives of the people we are discussing.

My noble friend wrote to me recently on this subject correcting something that she had said in Parliament. She wrote inter alia that guidance to doctors from the General Medical Council stated that they could override patients' objections if it was in the public interest. That might apply to the situation we are discussing. However, that is guidance. I am advised that the provisions of a statute can only be overruled by a statute. Therefore, my amendment is particularly necessary in view of the wording of the new Section 25A(8) at line 33 of page 2 of the Bill. For that reason it seems to me that there is room for an addition to the Bill on the lines of my amendment. I am quite ready to accept that there could be better wording. Indeed, in the splendid group of amendments which we have just agreed my noble friend used quite different wording from mine. She may do the same again.

The amendment is concerned with cases where patients have a record of violence which may not be immediately apparent to the people looking after them and which the nearest relative will be aware of, even if the nearest relative has been rejected by the patient and he or she does not want to see that relative. My amendment does not propose that the nearest relative should be made responsible for, or even be put in contact with, the patient. It proposes only that they should know what is happening so that they can contribute information concerning the historical background, to the general benefit of all the people who are trying to cope with that particular problem.

I hope that my noble friend will feel that the matter needs further consideration, perhaps not in this House but in another place. I beg to move.

The Earl of Mar and Kellie: My Lords, I support the amendment moved by the noble Lord, Lord Mottistone. I am concerned that where a relative has either been a victim or may become a victim there is probably a greater duty to inform that relative than to observe the patient's rights. I should not like us to create more victims unnecessarily. I hope that such information will be made available.

Baroness Jay of Paddington: My Lords, I support the general idea behind the amendment. However, I am still anxious about the issue I raised in relation to the previous amendment concerning who is the nearest relative and whether that understanding lies with the patient. I wonder whether we can find some way of identifying the nearest relative on the face of the Bill—and I understand what the Minister said about the wording of the Mental Health Act. Can we not try to find some way of using the words "nearest relative" or "appropriate person" in a manner which gives rights to the patient to say whether or not he wants that person to be informed but, as the noble Lord,

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Lord Mottistone, and other noble Lords have suggested, does not exclude the practical need to talk to the person who is involved with the patient's care in the community.

Lord Thurlow: My Lords, I support the amendment. I wish to emphasise that it is cast in very moderate language. It provides that the responsible medical officer may consult, leaving some discretion. Therefore, if there are compelling reasons for the clinically responsible officer to decide not to consult he may be guided by his own judgment.

I can conceive of a whole range of cases in which the patient would not wish the nearest relative to be consulted or informed because, as we all know, persecution mania, a familiar symptom of schizophrenia, concentrates on those nearest to the patient himself or herself.

I can imagine circumstances in which, if I were in a position of having to help with the care of a patient, that patient might wish to conceal information from me, even though it was agreed that it was in the interests of the patient himself that the nearest relative should be consulted or informed. I hope that the Minister will find some means of accommodating the principle covered by the amendment.

Lord Campbell of Croy: My Lords, again, I declare an interest as the nearest relative of a sufferer from schizophrenia, as I indicated in Committee. However, these provisions are very unlikely to apply in my case.

As I said in earlier debates, I believe that more interest should be taken in the relatives, and particularly the nearest relative, and their part in the procedure. Of course, various options should be available for different cases involving different families.

I believe that the arrangements are to be different in Scotland, as set out in the second part of the Bill. The nearest relative will be taken into account more than in England and Wales. I shall be grateful if my noble friend could comment on that point.

Baroness Cumberlege: My Lords, I should like to correct an error I made in the previous discussion on the definition of the nearest relative. I said that it was outlined in Section 23 of the Mental Health Act; it is, of course, Section 26. I do not wish to mislead your Lordships.

My noble friend's amendment repeats one he introduced when we debated the Bill in Committee. I agreed then to consider further the points he made about the involvement of the nearest relative throughout the Bill's provisions. My noble friend will find when we come to discuss his next amendment that we have agreed to take on board most of his underlying anxieties that the nearest relative should be consulted unless the patient objects. However, we do not feel that we can go quite as far as he suggests here.

I must reiterate my earlier explanation. The potential danger to the patient himself or that which he presents to others must be included in the risk assessment undertaken when supervised discharge is being considered. Doctors and other professionals considering the discharge of a patient have a special responsibility to consider carefully any history of violence, and that is emphasised in the guidance which the department issued last year. In the event of their being unable to make a confident

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assessment because the patient objected to the nearest relative being consulted they could be expected to err on the side of caution. Indeed, the refusal itself might be seen as a matter of some significance. On that basis, the potential value of the additional information does not seem to us to justify overriding the general principle of the patient's right to object.

If there is a serious risk of violence which could not be contained by supervision it is highly unlikely that a supervision application would be made. My noble friend prayed in aid the case of Christopher Clunis. The interesting point is that Christopher Clunis's family were not involved, not because Christopher Clunis objected but because nobody found out who the family were.

We are advised that the wording of the Bill would not prevent the responsible medical officer from contacting the nearest relative against the patient's wishes if he judged that there was an overriding public interest which justified doing so. In the light of those comments I hope that my noble friend will feel able to withdraw the amendment.

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