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Baroness Miller of Hendon: My Lords, these amendments would make it possible for a health authority to become guardian to a vulnerable patient under the Mental Health Act and would also introduce to guardianship for the first time the power to convey for treatment and rehabilitation.

We believe that there may be scope for improving the use of guardianship. Indeed, we have just finished a consultation exercise about how it is used and how this could be improved. But we also believe it is there for a different type of patient—one with perhaps a lower risk factor and fewer medical needs—than the patient we think would benefit from supervised discharge. My noble friend has explained at earlier stages our reasons for believing that a new power is needed which will have a different focus from guardianship and can work alongside it. What these amendments would do is to change guardianship to make it more like supervised discharge. We believe that this can only cause confusion and that it will be better to keep the two powers distinct until we are better able to take stock of the effectiveness of the new one.

Similarly, we would not want to introduce a power to convey someone subject to guardianship at this stage. But we will certainly be prepared to look at this again when we have analysed the comments that we have received from our recent consultation exercise and when we are in a position to see how supervised discharge works as an entirely different provision to guardianship. I hope that under those circumstances the noble Baroness will feel able to withdraw the amendment.

Baroness Jay of Paddington: My Lords, I am grateful to the noble Baroness, Lady Miller, for that helpful reply. In particular, I am pleased to hear that the Government are considering a new approach to guardianship and are closely considering the results of their consultation. I look forward to hearing about the results of that and to any appropriate amendments subsequently made to existing or future legislation. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

Clause 2 [Absence without leave]:

Baroness Jay of Paddington moved Amendment No. 62:

Page 12, line 43, leave out ("later") and insert ("earlier").

The noble Baroness said: My Lords, the amendment is designed to ensure that a person is not liable to be taken into custody for longer than the period for which he or she was liable to be detained under the Mental Health Act. Once again, the amendment is designed to ensure that the provisions of the new legislation are consistent with the 1983 Act; in particular, that the protection of the rights of the patient is not undermined by a failure to make explicit the understanding of some of the new arrangements —in other words, not to leave crucial matters to good practice when bad practice may mean that very vulnerable and difficult patients suffer.

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As we understand it, Clause 2 has been introduced because under the Mental Health Act the power to take a patient who is absent without leave back into custody and then into hospital ceases after 28 days. It is also my understanding that this provision attracted considerable negative public attention after the highly publicised case of a man who was detained under a hospital order—that is, it was made after a criminal conviction—but not a restriction order. It is worth repeating that most of those detained in hospital—I believe about 87 per cent.—are detained under civil provisions, which means that they are not detained following conviction.

Several of the organisations which deal with patients in the community and which act as their informal advocates are anxious that, for example, if patients are absent without leave and liable to detention for much longer than the original sectioning under which they were detained, it is likely that they will stay away from mental health services even though they might otherwise have sought help. It has been suggested that the decision to detain someone must be free from arbitrariness.

It is also suggested that under the proposals as drafted someone could be taken to hospital more than five months after the original authority to detain had expired and detained without the procedures that are otherwise provided for by the 1983 Act. I remind your Lordships that those include an application by a social worker supported by two medical opinions. I am sure that that cannot be the intention of the Bill as drafted and I believe that the amendment would help to make more explicit the understanding of some of the new arrangements. I beg to move.

Baroness Cumberlege: My Lords, the amendment would significantly shorten the period of time in which a patient who went absent without leave would be liable to be taken into custody. Indeed, should a patient go absent without leave within the last 28 days of his or her authority for detention, his or her liability to be taken back into custody would be shorter than the 28-day period in the 1983 Act which this clause was introduced to address. Should a patient abscond the day before his or her authority for detention expired, the period in which he or she was liable to be returned to hospital would be little more than a matter of hours. I am sure that your Lordships would agree that this would not be an acceptable situation. The fact that at present a patient who absconds cannot be returned to hospital after more than 28 days has aroused widespread public concern. I believe that the public would be a little surprised to see us shortening this further.

I also remind your Lordships that if a patient had been at liberty for more than 28 days, he could not simply be returned to hospital without further ado. The new Section 21B then requires the responsible medical officer to examine the patient. He will then only continue to be detained if the RMO, who must consult others including an approved social worker, so recommends.

Setting a time limit on the return of absconding patients is not a straightforward task. It involves a careful balancing act taking account both of the civil rights of patients and their safety and that of the public. We are

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confident that the provisions in Clause 2 as they currently stand have got this balance right. Therefore, I ask the noble Baroness not to press the amendment.

Baroness Jay of Paddington: My Lords, I am grateful to the Minister for that reply. As the noble Baroness said, this is an issue where the balancing act which we all have to follow is extremely difficult. Obviously, there is legitimate public concern about some of the incidents to which I referred when introducing the amendment.

What the Minister said about explicit undertakings and her explanation of them in relation to new Section 21B in terms of the distinct co-operation and collaboration between the RMO and an approved social worker will remove many of the anxieties that have been expressed about the lack of consistency in the present proposals and the 1983 Act. In view of that and what the Minister rightly described as a certain public disquiet about this issue, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Community care orders]:

Lord Carmichael of Kelvingrove moved Amendment No. 63:

Page 17, line 2, leave out from beginning to ("the") in line 3 and insert:
("Where a patient who is liable to be detained in a hospital under section 18 or Part VI of this Act, and has attained the age of 16 years,").

The noble Lord said: My Lords, I understand that the Government intend that the new orders should apply only to people who have serious mental health problems and who are the subject of long-term sections or who have come to hospital through the criminal justice system. I understand that that is the intention of new Section 35B on page 18 at lines 37 to 40.

However, new Section 35B does not achieve that result. Under Sections 24 and 26 of the Mental Health (Scotland) Act, a person may be detained in a hospital for a total of 31 days. It is then possible to make an application for a community care order during the last three days of the patient's detention. The amendment removes that possibility.

If one looks at the position of children and young people, the English provisions of Clause 1 limit the supervision and discharge of young people who have attained the age of 16. The reason would appear to be that such young people are dealt with more appropriately under the Children Act. Similar concerns apply to children in Scotland who could have the benefit of supervision from social work departments and reference to a children's panel.

Those would seem to be the appropriate bodies for exercising control and supervision over the lives of young people. They have the experience and the procedures in place for considering the special needs of young people. In general, we are very pleased with the work of our children's panels. I hope that the Minister will be able to reassure the House that those panels will be used, in particular for those aged under 16. I beg to move.

The Earl of Lindsay: My Lords, this amendment appears to make community care orders available to those

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detained under Section 18 and Part VI of the 1984 Act, and to patients who are over 16 years. I regret that, although we understand what the amendment seeks to provide, we are not able to accept it.

It is only proper that community care orders should be made available in respect of any patient detained in hospital under Section 18 and those detained under Part V, which includes patients sent to hospital by a court under a hospital order without special restrictions following their involvement in criminal proceedings. The discharge arrangements of such patients are a matter for the responsible medical officer. It is only appropriate that community care orders should therefore be available, as indeed leave of absence already is, as a further stage in rehabilitation.

By including a reference to Part VI of the Act, the amendment could also make community care orders available to restricted, or "state", patients. As the noble Lord will know, for public safety reasons responsibility for the case management of these patients ultimately rests with the Secretary of State. The powers available under Sections 64(2) and 68(2) of the 1984 Act, which allow for the conditional discharge of these patients, work well. Consequently, we do not consider that community care orders should be available for restricted patients.

The noble Lord is, I understand, seeking clarification in the Bill that community care orders are not available for patients detained under Section 24, then Section 26. I hope that we have provided that clarification by tabling government Amendments Nos. 64, 69, 70 and 77.

On the question of an age limit, and as we discussed in Committee, we all appreciate that the detention of children under the age of 16 years in psychiatric hospital is a disturbing topic. However, the existing position is that it is possible for a child to be detained in hospital, but it is recognised that detention should not be used for children unless absolutely necessary.

If there is the possibility of a person under 16 being detained in a hospital, it is also fair that that person should have the same rehabilitation opportunities as all others so detained, including community care orders. It is for this reason that the age limit of 16 years should not be imposed. In the light of that explanation, I ask the noble Lord to withdraw this amendment.

6.45 p.m.

Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for that very full explanation, although I do not pretend to agree with it. For example, will children in hospital in those circumstances be detained in conditions different from those for the other general patients? Will there be a wing for patients aged under 16 or will they be in wards with adults? I am sure that the noble Earl will recognise that that would be a very retrograde step. I shall look at what he said and take advice on the technical points which were raised. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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