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Lord Mottistone: My Lords, I wish to make just one point. As I said, I am advised by a lawyer that any provisions in this area—I quoted those of relevance here—which are declared in statute have to be nullified in statute. My noble friend did not pick up that point. I do not expect her to do so now at short notice. However, she may like to give thought to the matter and make sure that the part of the Bill to which I referred does not prevent the RMO from doing what she says he can do, on the basis of advice from the BMA rather than statute.

At this stage I do not wish to pursue the argument further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Baroness Jay of Paddington moved Amendment No. 22:

Page 3, line 31, after ("officer,") insert ("who shall be a practitioner having special experience in the diagnosis or treatment of mental disorder,").

The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendments Nos. 129, 130, 133, 139 and 140. All the amendments are designed to ensure that the community responsible medical officer has special postgraduate experience in mental health work before assuming that new and important role.

Noble Lords will see, again, that some of the amendments in the group will be proposed by the noble Baroness, Lady Cumberlege, and another by the noble Lord, Lord Mottistone. All the amendments address the points to which we spoke in Committee about the essential nature of this postgraduate and specialist qualification for someone holding this new and difficult post who will undoubtedly deal with a very stringent caseload.

I am delighted that the Government have seen the force of the argument and have agreed that guidance to local health authorities and local social services departments—as they suggested at an earlier stage in Committee—should be reinforced by primary

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legislation. As I stated in Committee, I believe that it is entirely appropriate that the salient government amendment, Amendment No. 139, should be included in Schedule 1, rather than in Clause 1 of the Bill as we propose in Amendment No. 22. I am delighted that the arguments appear to have been accepted. I beg to move.

Lord Mottistone: My Lords, I speak briefly to Amendment No. 130, since it is Report stage of the Bill. In advance of the Minister moving her amendments, I thank her for having accepted what I and the noble Baroness, Lady Jay, said in Committee regarding ensuring that those community medical officers are properly qualified to deal with mentally ill patients. It is splendid that she has accepted the argument; and I thank her very much.

Baroness Cumberlege: My Lords, I am grateful for the kind comments from all sides of your Lordships' House. These amendments pick up the concerns expressed by a number of your Lordships at Committee. The noble Baroness, Lady Jay, referred to the need to have a medical officer with the necessary postgraduate training to enable a detailed understanding of the diagnosis and the treatment involved in caring for a difficult group of people. She received support from my noble friend Lord Mottistone, who returned to this issue on the second day of Committee, my noble friend Lord Haig and the noble Earl, Lord Longford.

We acknowledged that doctors approved under Section 12 of the 1983 Act had special expertise and our intention was to stipulate in guidance that we anticipated the community responsible medical officer should normally be approved. Having considered this further we are persuaded that the importance of the community RMO's duties justified making this a statutory requirement.

The amendments do this in a slightly different way from that which was proposed by my noble friend Lord Mottistone. For technical reasons, it is not proposed to add Section 12 approval to the definition of the community responsible medical officer, but to add to the duties of the health authority accepting the supervision application that someone with Section 12 approval should be in charge of the patient's medical aftercare at all times. This will have the same effect.

Amendment No. 139 also requires that there is a supervisor at all times while the patient is subject to supervision, and that the supervisor should be someone professionally concerned with providing the aftercare services. This means that a community psychiatric nurse, a social worker, or the community RMO himself or herself could fulfil that role. It has been pointed out to us that the Bill as drafted would have allowed, for example, an informal carer to be nominated as the supervisor. This is not what we intended, and we believe it is important to establish the principle that this is a professional function.

I am grateful to noble Lords for raising the matter. I hope they will now feel that their concerns have been met.

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The Deputy Speaker: My Lords, the Question is that the amendment be agreed to.

Lord Mottistone: My Lords, is Amendment No. 22 to be agreed to in view of what the Minister said?

Baroness Jay of Paddington: My Lords, I believe that there was a slight confusion with the Deputy Speaker. I moved Amendment No. 22. In view of what the Minister said, I am pleased to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker: My Lords, should Amendment No. 23 be agreed to, I shall be unable to call Amendment No. 24 owing to pre-emption.

Lord Campbell of Croy moved Amendment No. 23:

Page 3, line 31, leave out (", and of the person who is to be the supervisor,").

The noble Lord said: My Lords, in moving the amendment, I say straight away that it is simply a probing amendment. In my view, there is no question of it affecting later amendments.

It is a matter on which clarification is sought. It is another amendment which I have put down because I received comments from a leading practising psychiatrist based at a well known hospital. The comments were too late for Committee stage, although I have been able to deal with many of the other points he raised.

Attention was drawn to the point by the wording of the Explanatory and Financial Memorandum in the original version of the Bill. It stated that supervision will be the personal responsibility of a nominated supervisor. We all know that that memorandum has no validity; it is not part of the Bill. However, within the medical profession it has raised a need to know what responsibilities the supervisor is expected to assume.

At present, does the Bill imply that the legal responsibility for doctors, which hospital trusts have taken on in cases of litigation, will not cover the nominated supervisor? Will the nominated supervisor be responsible for any failings of the social services, hospital services, GP services and others which are needed to provide the treatment for the mental patient? I am sure that there is an explanation. Clarification is sought by those who asked me to raise the matter.

If that were to be the case, there would be an impossible burden. It would also seem unacceptable to force someone to be a nominated supervisor against his will. For example, I am informed that a doctor accepting that responsibility might expect to face huge increases in his personal medical liability insurance premium. That is the kind of point which may arise unless the responsibilities that the supervisor will take on are clear.

Another point has been raised: what happens when the supervisor is away on holiday or in some other part of the world? Who is then responsible? These matters have been

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raised by the profession. I do not know the answers but I hope that my noble friend will be able to give some clarification and assurance. I beg to move.

Baroness Cumberlege: My Lords, I think that my noble friend wishes to remove the name of the supervisor from the application form.

Lord Campbell of Croy: No, my Lords, this is purely a probing amendment. I have no intention of trying to remove the phrase, merely to draw attention to the point I raised. I hope that my noble friend realises that I am asking for clarification and not trying literally to take the words out of the Bill. I contacted the Minister's office last week to tell her the object of the amendment.

Baroness Cumberlege: My Lords, I am grateful to my noble friend. The supervisor will, of course, play a crucial role in the successful working of the new power. It is he or she who will keep closely in touch with a patient, co-ordinating the care which the patient is to receive, convening meetings of the care team, alerting colleagues to any modifications that may be necessary and checking that any requirements laid upon the patient are followed. If found to be necessary, it will be the supervisor in the first instance who will invoke the power to convey the patient.

It is essential that the person who is to play this important role is identified early on and before the patient is discharged from hospital. The whole application process is founded on the understanding that there has been full consultation between the hospital RMO and the future care team and that one of the multi-disciplinary team has agreed to act as a supervisor for the patient. Indeed, the health authority could not accept an application without that degree of clarity. The nomination of the supervisor must follow from the consultation and discussion which have preceded the application and upon which the care plan has been based.

Having explained how we see the supervisor's role and how important it is to have it identified and formalised at the outset, I believe that my noble friend may have concerns about what legal liabilities this key role will attract, as he mentioned this afternoon. I think I can reassure him on that point. While the supervisor will have professional liabilities and responsibilities along with other professionals in the care team, there will be no additional liability of the kind I think my noble friend has in mind. The supervisor would, of course, be personally liable in cases involving, for example, serious professional negligence, indiscipline or the abuse of patients. But, in general, liability would fall on the bodies responsible for providing the Section 117 aftercare services, not the supervisor personally, just because he or she fulfils that role. This is the normal relationship between public bodies and the professional staff they employ, and in this respect the supervisor is in the same position as other professionals. I hope that in the light of that elucidation my noble friend will be satisfied.

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