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The Earl of Lindsay moved Amendment No. 64:


Page 17, line 3, leave out ("under this Part of this Act") and insert ("in pursuance of an application for admission").

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The noble Earl said: My Lords, it may be for the convenience of the House if I speak also to Amendments Nos. 69, 70 and 77 at this stage. It became evident in Committee that it was not necessarily clear exactly which patients might be candidates for community care orders. I note in particular the discussion which took place then about Amendment No. 85, proposed by the noble Earl, Lord Mar and Kellie, as recorded at columns 337 and 338 of the Official Report.

We have therefore proposed these amendments of a drafting and technical nature to seek to clarify exactly who is, and who is not, a candidate for a community care order. The text of these amendments states that it shall be a person who is liable to be detained in hospital under the Mental Health (Scotland) Act 1984,


    "in pursuance of an application for admission".

This is the wording used in the Act to refer to a person who is liable to be detained in hospital as a result of an approved application for admission, that is, a person detained in hospital under Section 18 of the Act. Patients subject to a hospital order without special restrictions are also included by virtue of paragraph 5 of Schedule 2.

We further require that the person should have been liable to be detained under Section 18 or under the hospital order for a period of 28 days before an application for a community care order can be made. This allows the review of the patient's liability to detention required by Section 22(4) of the 1984 Act. We seek to clarify that in Amendment No. 77.

We take the view that community care orders should be for people who have been detained in hospital because of their mental disorder under Section 18 or under a hospital order. Patients who are detained under Sections 24, or Section 24 followed by Section 26, and who then require no further liability to detention in hospital are covered by the care management arrangements. We have made it clear in guidance that patients with a mild mental illness may be discharged only following agreement of a multi-disciplinary care plan which will ensure that they receive a good standard of clinical and aftercare services. This is set out in the circular, Community Care in Scotland, Assessment and Care Management. I beg to move.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 65:


Page 17, line 14, at end insert ("and
(c) a community care assessment under section 12A of the Social Work (Scotland) Act 1968
(in this Act referred to as a "community care assessment").").

The noble Lord said: My Lords, this amendment seeks to provide that a person who is subject to a community care order will have a full community care assessment under the National Health Service and Community Care Act. We believe it is essential that a person who is subject to a community care order receives the benefits of the new community care system of assessment and care management. This amendment attempts to tie in the two systems to bring this about. In an earlier part of the discussion on this Bill the noble Earl said,


    "Local authorities already have a duty under Section 12A of the Social Work (Scotland) Act 1968 to assess people's social care needs"—[Official Report, 6/4/95; col. 329.]

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This amendment would make it clear that such an assessment should be carried out before the community care order was granted. The sheriff should have the benefit of seeing the full assessment before he grants a community care order. I have not been able to tie up what the Minister said earlier with this amendment, but I believe that it takes his amendment a little further than he would perhaps wish. However, I should like to hear his reply to Amendment No. 65 and, incidentally, to Amendment No. 81 which is also in the group we are discussing. I beg to move.

The Earl of Lindsay: My Lords, as we understand it, these amendments, spoken to by the noble Lord, Lord Carmichael, seek to introduce a statutory requirement that the patient should receive a needs assessment, and make an associated change to the Bill. I have to say in passing that we are not convinced that the drafting would achieve their aim. We do not need to legislate for this. As the noble Lord remembered from the Committee stage, local authorities already have a duty under Section 12A of the Social Work (Scotland) Act 1968 to assess people's social care needs.

We believe the duties on local authorities to provide aftercare under Section 8 of the 1984 Act are quite clear and are being made even clearer in this Bill on page 39, at paragraph 3 of Schedule 2. We will also underline in guidance the circumstances in which this duty applies to community care order patients.

The noble Lord also mentioned that the sheriff should see an assessment in place before he grants a community care order. However, I would stress that, as it is, the sheriff must be fully satisfied with the arrangements which have been made both for the medical and the social aftercare of a particular patient before he grants an order. As matters stand, the sheriff has to be convinced that the necessary arrangements are in place. If there are problems in meeting these duties, these should be addressed administratively and not by primary legislation. I ask the noble Lord to consider withdrawing his amendment.

Lord Carmichael of Kelvingrove: My Lords, if the Minister can assure me that the consultation with the sheriff will be the equivalent of the sheriff having the benefit of a full assessment, and it is not merely an untutored or an unstructured discussion, I would be happy with that. However, we wanted the sheriff to be required to have a full assessment established so that in future the sheriff would be able to say, "I saw everything and I agreed with it". If the noble Earl can assure us that what he is suggesting would be the equivalent of a full assessment, I would be quite happy to withdraw the amendment.

The Earl of Lindsay: My Lords, I can reassure the noble Lord. The sheriff must be convinced that the appropriate community facilities are in place, and that the structural support is in place. Until he is convinced that that is the case, he will not be in a position to grant a community care order.

Lord Carmichael of Kelvingrove: My Lords, I am satisfied now with what the Minister has said. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendment No. 66 not moved.]

The Earl of Mar and Kellie moved Amendment No. 67:


Page 17, line 24, after ("appropriate") insert ("and which are agreed to by the special medical officer and the aftercare officer").

The noble Earl said: My Lords, my concern here is that the wording of the Bill allows the sheriff to introduce conditions of his own. I want to guard against the rare situation where a sheriff might introduce unrealistic conditions based upon idiosyncratic views. I note that in Committee we learnt that the sheriff should be able to approve conditions which are newly suggested during the course of an application hearing. We all applauded the news that applications would be held in chambers rather than in the more formal setting of open court. In Committee I withdrew an amendment which denied the sheriff the opportunity to make any additional conditions on a community care order without prior consent of the special medical officer and the aftercare officer. After learning of the informal judicial setting of the application, I believe that this amendment would enable the sheriff to propose new and additional conditions achieving consent from the special medical officer and the aftercare officer as the application was being dealt with. I beg to move.

The Earl of Lindsay: My Lords, the amendment moved by the noble Earl, Lord Mar and Kellie, would require the special medical officer and the aftercare officer to agree to any additional conditions which the sheriff decided were appropriate when he made the order. We discussed related points at the Committee stage of this Bill. The sheriff has discretion to make conditions at the point of making an order as he considers appropriate. Also, sheriffs must exercise powers reasonably. We have no grounds for assuming that they would not exercise their powers reasonably. The noble Earl thought there might be some rare circumstances where they might indulge in idiosyncratic whims. If they do, the making of any such order on such idiosyncratic whims would be open to legal challenge. It is unlikely that a sheriff could regard as appropriate a condition which was opposed by either the special medical officer or the aftercare officer.

The sheriff has a power under new Section 35A(5) to defer the making of an order until arrangements have been made. If a sheriff decided in a particular case that he wished to use that power to satisfy himself that arrangements had been made, and that as part of this he wished to be satisfied that the conditions to be imposed were acceptable to the care team, that would be a matter for him.

I should emphasise that such other conditions as the sheriff considers appropriate are, in the terms of new Section 35A(1) also conditions pertaining to the objective of the community care order, and they would have to fall within the scope of all conditions imposed under a community care order; that is, they must be imposed with a view to ensuring that the patient receives medical

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treatment and aftercare under Section 8 of the 1984 Act. On the basis of that explanation, I hope that the noble Earl will feel able to withdraw his amendment.


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