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Baroness Jay of Paddington: My Lords, I am very grateful to the Minister for that reply. As I hope I made clear in my introductory remarks, my noble friend and I were introducing these amendments, which we recognise to be mutually exclusive, in a probing way. I am very grateful to all noble Lords who have taken part in this short debate because it has illustrated how complex and difficult this whole area is.

I say to the noble Lord, Lord Mottistone, that if the patient does not agree to take medication and, as he was suggesting, that hospital would then be the place for them, the difficulty is that it would mean totally revising the supervised discharge order under which they were living in the community, as I understand the Bill as it now stands. That may not be quite as easy as the noble Lord suggested it was. That again illustrates the complexity of this area which the amendments were designed to address.

Finally, the noble Earl, Lord Russell, said that the amendment was perhaps not compatible with real life. My concern is that so many of the people who are dealing practically with patients in the community suggest that their work would be made much easier if Amendment No. 31 was adopted. However, in real life so many members of the civil liberties community and many patient bodies, are opposed to the provisions about taking and conveying which would have been left out if Amendment No. 33 had been accepted.

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As I say, it has been made very clear from these discussions that real life, particularly as it deals with the whole issue of treating the mentally ill successfully in the community, is enormously complex and stretches way beyond the simple issues of social care and probably far into areas of jurisprudence and ethics. I thank all noble Lords who have taken part in this short debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 and 33 not moved.]

Baroness Jay moved Amendment No. 34:


Page 6, leave out line 39 and insert:
("( ) An application for a patient subject to after-care under supervision to be taken and conveyed (in this Act referred to as a "conveyance application") duly completed in accordance with subsection (4A) below, shall be sufficient authority for the patient to").

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 36. In a sense these two amendments are in contrast to the previous group. They seek to introduce a rather practical provision into the power to take and convey and to ensure that it is used only in emergencies, as has been suggested by the Minister at Committee stage and which has been discussed in our debates on earlier amendments this afternoon.

These amendments would establish that this power was required in the interests of the health and safety of patients or for the protection of others. It would also establish that the appropriate procedures making a conveyance application had been duly completed. In this way the amendments would bring the Bill into line with the existing powers to take and convey which are in the Mental Health Act 1983.

Many concerns have been expressed, as the noble Lord, Lord Rea, said, as regards the earlier amendment, about the power as drafted and particularly that it does not include the same explicit criteria for taking and conveying as exist in the Mental Health Act 1983. For example, the Law Society has written to me saying,


    "A power of this nature is only necessary when the person is refusing to comply with the requirements imposed on them. Since this involves depriving the person of the liberty and freedom of movement against their will, it is therefore a power with considerable weight normally reserved only for police officers when taking a person into custody. Powers of this nature are in any other situation only allowed to be used with numerous safeguards to protect both the person being conveyed and the person effecting the conveyance".

As we know, the Mental Health Act 1983 already contains some provisions for an unwilling patient to be taken and conveyed to hospital although these provisions are limited to what is necessary to effect an admission to hospital. Under the existing provisions, which I understand are in Sections 6 and 137, a properly completed application for admission to hospital provides the necessary authority to take the patient and convey him to hospital. The application includes the recommendations of two medical practitioners that the patient is suffering from mental disorder of a nature or degree which warrants detention. The Act also confirms that the power to convey a person to hospital includes all the powers of a police officer when taking a person

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into custody. Reasonable force may be used to effect the conveyance and the person is deemed to be in legal custody.

During the debate in Committee the noble Baroness, Lady Cumberlege, said,


    "We have followed the form of the existing Mental Health Act power for conveying a patient to hospital following an application for detention".—[Official Report, 4/4/95; col. 154.]

But the Bill as currently drafted does not set out the circumstances in which it is envisaged that the power may be used nor does it require the supervisor to obtain any form of authority before using the power or before delegating the power to anybody else.

At col. 156 the noble Baroness also said in response to an earlier debate on this subject,


    "Clearly this power to convey would be used only in times of emergency".

However, the circumstances which constitute such an emergency are not on the face of the Bill. They should be clarified to give the legislation the force and to give the people involved in it the protection which they have under the Mental Health Act.

These two amendments would achieve that clarity by specifying the circumstances in which the power may be used and by clarifying the authority required by the supervisor before using this power or delegating it to someone else. I beg to move.

Baroness Cumberlege: My Lords, the noble Baroness, Lady Jay, and the noble Lord, Lord Rea, now propose that the power to convey should feature as a way of helping a patient to comply with the requirements of his care plan in the community. However, I cannot support the approach they have adopted here. It would introduce a provision whereby on each occasion that a supervisor thought it was in the best interests of the patient to convey him to where he was supposed to be, a "conveyance application" should be made to the health authority. If a patient is on supervised discharge, the health authority would have accepted a supervision application at the outset and, under our proposals, the authorisation of a power to convey is implicit in that original acceptance.

That power would be used under only very limited circumstances, but I understand that it may be particularly valuable in emergencies. As the noble Earl, Lord Russell, illustrated clearly in response to an amendment tabled by the noble Earl, Lord Longford, when we discussed our proposals in Committee last month, where someone has a severe mental illness—possibly a person with schizophrenia who is not adhering to his care plan and might cause himself or others harm if not supported urgently—an immediate power is needed. It would not be practical or in the best interests of the patient to wait for the bureaucracy of an application to take its course. We do not believe that the amendments are practical and I hope that the noble Baroness will not press them.

Baroness Jay of Paddington: My Lords, I thank the Minister for that reply. I am sorry that the noble Lord, Lord Jenkin of Roding, is not in his place at the moment because, following his earlier amendments about making things clear to those in the community who will

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have to deal with these complicated provisions, he might have said what I feel—that the amendments would help to spell out precisely the circumstances and authorities needed to apply to what we have all described as a very important and rather difficult power.

Surely, however, the Minister's point about the provisions involving unnecessary bureaucracy in an emergency has already been met under Section 6 of the Mental Health Act, where emergencies are acknowledged and where the powers to take and convey are provided for, as suggested in my amendment. In fact, I believe that the wording of my amendment is drawn almost precisely from that of Section 6 of the Mental Health Act. Presumably, those who apply that part of the Mental Health Act to emergency admissions to hospitals do not find the bureaucracy overwhelming and difficult. I see no logical reason why it should not be the same in the community.

As I said, these are practical amendments as compared with our earlier amendments which were designed to provoke precisely the discussion that we had so successfully. I am disappointed that the Minister does not feel able to accept them because, as I said, I believe that the provisions would help those who are working in the community in this extremely difficult area to understand both their powers and responsibilities. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 and 36 not moved.]

Lord Rea moved Amendment No. 37:


Page 7, line 35, at end insert:
("( ) Where the patient is admitted to hospital for treatment following a referral to an approved social worker under sub-section (4) (b) above, the hospital manager must refer the case to the Mental Health Review Tribunal for a hearing within 4 weeks, without prejudice to the patient's right to apply to the Mental Health Review Tribunal under the provisions of this Act.").

The noble Lord said: My Lords, the purpose of this amendment is to ensure a speedy review of any patient's detention in hospital should that patient fail to comply with aftercare under supervision. The only sanction—the ultimate sanction—that is available to the responsible medical officer in the community and the associated aftercare body with which he or she is working, in cases where a patient under supervision refuses or neglects to comply with all the requirements imposed upon him or her, is to consider readmission to hospital.

There are likely to be many reasons why a patient may refuse or neglect to comply with the requirements of his aftercare under supervision. Preparation for aftercare and taking the patient's views into account may, as we said earlier, improve the success rate of the care plan. However, since readmission to hospital is to be the main sanction for non-compliance, particularly now that the decision not to require medication in the community has definitely been made, it is important that the need for detention is reviewed by the mental health review tribunal at the earliest possible opportunity to

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protect the patient's rights and to ensure that the power is not abused. That is a brief description of what the amendment is about. I beg to move.

6.15 p.m.

Baroness Cumberlege: My Lords, this amendment seeks to require that where a patient who has been subject to aftercare under supervision is readmitted to hospital for treatment under the Act, he will have his case automatically referred by the hospital managers to a mental health review tribunal within four weeks. Such a referral would be independent of his right to appeal to a tribunal on his own behalf.

Patients who have been subject to aftercare under supervision will have been closely monitored and their progress towards rehabilitation will be known to the supervisor and other members of the care team. Therefore, if unfortunately their mental condition deteriorates to such an extent that they require detention once more, several professionals will be well acquainted with their condition and readmission can be organised speedily. They will have an immediate right to appeal to a mental health review tribunal against their detention.

The effect of the amendment would be to treat those patients differently from those who were detained for treatment without having been subject to aftercare under supervision. I can see no justification for that. All patients have the right to apply for a tribunal as soon as they are detained under the Act. We see no reason why, in the case of these patients, it has to be reinforced by an additional duty on the managers. I hope that the noble Lord will withdraw the amendment.


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