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The Earl of Lindsay moved Amendments Nos. 73 and 74:


Page 18, line 32, leave out (", if practicable and the patient does not object,").
Page 18, line 33, leave out ("the nearest relative of the patient") and insert ("any other person who has been consulted under subsection (3) (a) of section 35B of this Act").

The noble Earl said: My Lords, I spoke to Amendments Nos. 73 and 74 when I moved Amendment No. 71. I beg to move.

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On Question, amendments agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 75:


Page 18, line 34, at end insert:
("( ) Where the performance of a condition attached to an order requires the provision of a facility or a service by a statutory agency, it shall be the duty of that statutory agency to provide that duty or service.").

The noble Lord said: My Lords, this amendment requires the social work department and health board to provide the services spelt out in the community care order. If the patient must comply with the community care order we believe that the statutory agencies must also abide by the rules of the order. This amendment merely underpins that duty. It may be for the convenience of the House if Amendments Nos. 72 and 76 are dealt with at the same time. They merely stress the fact that information given to the patient should be given orally and also in writing. I beg to move.

The Earl of Lindsay: My Lords, perhaps I may respond to Amendment No. 75. It is important to understand that the conditions specified in the order are imposed with a view to ensuring that the person concerned receives medical treatment and aftercare services. The amendment appears to do nothing more than underline statutory duties which already exist. Health boards have a statutory duty under Section 37 of the National Health Service (Scotland) Act 1978 to provide healthcare, regardless of whether this is part of the conditions of a community care order. Similarly, if a person is detained in hospital, the health board is obliged under the same general duty to provide for that person.

It was nevertheless considered necessary as a consequential amendment for this Bill in Schedule 2, paragraph 3, to amend Section 8 of the 1984 Act to ensure that the statutory duty on local authorities to provide or arrange for the provision of aftercare services includes those persons subject to a community care order, without prejudice to the general duty under that section.

It appears that health boards and local authorities are the only statutory bodies which could be affected by the amendment. Statutory duties already exist for these bodies.

I hope that this explanation goes some way to reassure the noble Lord and that he is able to withdraw his amendment.

Lord Carmichael of Kelvingrove: My Lords, I take it that the very full explanation given by the Minister means that the patient will be given the statutory orders that are required. As I said when speaking earlier, we merely intend to underpin the duties of the statutory agencies. I believe that the Minister has satisfied us in that respect. As regards giving the orders orally and in

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writing, that is something which the Minister has not quite covered. Perhaps that is part of the duties imposed on the statutory bodies. Can the Minister answer that?

The Earl of Lindsay: My Lords, it may be for the benefit of the House if I say that we are coming to that specific point in a later amendment. Perhaps we can deal with that matter at that time.

Lord Carmichael of Kelvingrove: My Lords, with that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76 not moved.]

The Earl of Lindsay moved Amendment No. 77:


Page 18, line 36, leave out from ("time") to ("the") in line 37 and insert ("after the expiry of").

The noble Earl said: My Lords, I spoke to this amendment in moving Amendment No. 64. I beg to move.

On Question, amendment agreed to.

The Earl of Mar and Kellie moved Amendment No. 78:


Page 18, line 36, leave out from ("time") to the end of line 40.

The noble Earl said: My Lords, this is a probing amendment. Its purpose is to allow an application for a community care order to be made on behalf of a mentally ill person who would benefit from the provisions of a community care order without the need for compulsory admission to hospital. There seems to be an anomalous situation looming ahead of us here. The Bill as written dictates that the patient has to have at least 28 days' compulsory detention in hospital under Section 18 before a community care order can be considered. To do that in every case would be against the philosophy of community care and indeed might not be possible if a person at that point did not meet the criteria for compulsory admission under Section 17 of the 1984 Act.

Indeed, to become acceptable for a community care order a person has to be stated not to meet the criteria for compulsory admission to hospital as set out in new Section 35B(7) (a). People already living in the community are therefore denied the benefit of a community care order, and that seems wrong and unduly restrictive. The amendment suggests that any relevant person would be eligible for a community care order and not just those coming towards the end of a period of detention in hospital.

While we are rescheduling priorities for the care of the mentally ill, I believe that a broader approach is appropriate and would be most beneficial, especially as this kind of group may need the co-ordinated help of a local authority and health board workers. I beg to move.

8.15 p.m.

The Earl of Lindsay: My Lords, as I understand it, the noble Earl is seeking to broaden the group with access to community care orders. As I made clear when speaking to Amendment No. 64, we are firmly of the opinion that community care orders should be available only for people whose mental disorder has, as a result

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of meeting the criteria in Section 17(1) of the 1984 Act, led to detention in hospital under Section 18 or under a hospital order. We have sought to clarify this. As we have also previously pointed out, we envisage that many candidates for community care orders will have been on leave of absence from hospital for a long period.

We do not believe that those detained under Sections 24 and 26 should be candidates for community care orders. Their detention in hospital is quite short. We have made it clear in guidance that if a patient's needs are mild, he should not be discharged until a multi-disciplinary care plan has been developed. This will ensure that he receives a good standard of clinical and aftercare services. I referred before to the circular Community Care in Scotland, Assessment and Care Management.

It appears to us that those who have not been detained in hospital at all should most certainly not be candidates for community care orders. It is not our intention to make a person who has been in hospital voluntarily, or who has been living in the community, subject to the legal framework of a community care order. A step down in the legal controls over a person, from liability to detention in hospital to a community care order, is quite different from a step up, from no control to a community care order.

Local authorities and health boards have statutory duties to provide care and treatment. This is true regardless of whether people are subject to community care orders. There may be prioritisation of mental health services, but we believe that this is proper. But we do not believe that providing a legal framework of the type proposed by community care orders will result in those not subject to the orders being denied access to services.

Bearing all these points in mind, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Mar and Kellie: My Lords, I thank the noble Earl for his answer. I wish to make two points. I am disappointed that those who are mentally ill and in the community cannot be afforded the same high priority care as will be granted to those on community care orders. The second point is that I accept that the noble Earl has laid down that those who are eligible are only those who are on Section 18 orders. Did I understand him correctly to include those on hospital orders? The noble Earl nods his head in acceptance of that. I thank the noble Earl for that and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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The Earl of Mar and Kellie moved Amendment No. 79:


Page 18, line 40, at end insert ("under section 18 or 26 of this Act").

The noble Earl said: My Lords, the purpose of this amendment is to establish whether it is the noble Earl's intention that only Section 18 patients should be eligible for community order applications. I beg to move.

The Earl of Lindsay: My Lords, I hope that the noble Earl will accept that the explanation given on the earlier amendments covers many of the points which he raises as regards this amendment. I hope that he will feel able to withdraw it.

The Earl of Mar and Kellie: My Lords, I thank the noble Earl. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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