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Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for explaining that there have been discussions. I was not aware of that. His answer is sufficient to enable me to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 85:


Page 20, line 28, at end insert:
(" and for the purposes of subsection (6) (a) above the recommendations do not comply with this subsection unless the patient is described in each of them as suffering from the same form of mental disorder (that is to say, mental illness or mental handicap), whether or not he is described in either recommendation as suffering also from the other form").

The noble Earl said: My Lords, in Committee I undertook to consider further the amendment proposed on this subject by the noble Lord, Lord Carmichael of Kelvingrove, as recorded at cols. 342 and 343 of the Official Report. It is important that the two medical recommendations which accompany the application for a community care order should be required to specify the

1 May 1995 : Column 1293

same form of mental disorder, just as that is required of medical recommendations accompanying an application for admission to and detention in hospital.

I note that the noble Lord, Lord Carmichael, has tabled an amendment to that end which appears on the Marshalled List as Amendment No. 90. I think we are at one on this matter, but we believe that the wording of Amendment No. 85 is more likely to achieve the desired effect. I therefore hope that the noble Lord will feel that on balance he will not need to move Amendment No. 90. I beg to move.

Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for having listened to what was said in Committee. I agree that it may be wiser for me to accept the amendment. When we come to Amendment No. 90, I may have something else to say, but at this point I agree with the Minister on Amendment No. 85.

On Question, amendment agreed to.

[Amendment No. 86 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 87:


Page 20, line 39, at end insert:
("(iv) the views of the patient and his or her carers as to such matters, as disclosed to the person making the application for the community care order during consultation; and").

The noble Lord said: My Lords, the effect of the amendment is to require the person making the report to inform the sheriff of the discussions that he has had with the patient and his carer. It is important for the sheriff to understand any problem with the community care order which the patient or his carers may have. The RMO will have consulted both before making the application. The amendment merely requires him to report on those discussions. Although the patient has a right to attend the hearing, he may be too ill to attend or feel intimidated by the process, which is much more likely for the average patient. The amendment will provide an additional safeguard to ensure that the patient's views are taken into account. I beg to move.

The Earl of Lindsay: My Lords, the amendment would introduce a requirement that the aftercare officer's report accompanying the application should include the views of the patient and his carers about the proposed order. As drafted it would be the patient's views as disclosed to the RMO.

Let me begin by pointing out that the Bill as drafted makes it a requirement that patient and carers are consulted by the responsible medical officer before the application is made. Logically, the application should reflect the views of those consulted.

As I am sure your Lordships are also aware, new Clause 35A(2) attracts the provisions of Section 113 of the 1984 Act to the application for a community care order. That means that the patient must be given the opportunity to be heard by the sheriff either in person or by means of a representative. I hope your Lordships will agree that an interested and vociferous patient will probably wish to attend the hearing and that that is the best safeguard. I have to say that we take the view that a patient who was

1 May 1995 : Column 1294

so ill as to be unable to attend a court hearing should probably not be being considered for a community care order.

However, I accept that a patient may choose not to attend the hearing, and we will use guidance to underline the importance to the application of the views of those consulted and to make it clear to the different professionals involved that patients should be encouraged to attend such hearings.

With those assurances, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove: My Lords, we are reassured by the fact that the patient will be encouraged and not intimidated in any way by the use of bold type or underlining in the letter, which may scare the wits out of him. It is important that patients be involved, and so encouragement is what we want. I thank the Minister for what he said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 88:


Page 21, line 1, leave out from ("inform") to ("to") in line 2 and insert ("any person, other than the patient, who has been consulted under subsection (3) (a) above of his right, by virtue of section 35A(2) of this Act,").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 71. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, in view of the fact that Amendment No. 88 was agreed to, I cannot call Amendment No. 89.

[Amendment No. 89 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 90:


Page 21, line 4, at end insert:
("( ) A community care application shall be of no effect unless the patient is described in each of the medical recommendations as suffering from the same form of mental disorder, whether or not he is described in either of those recommendations as suffering also from the other form.").

The noble Lord said: My Lords, the amendment deals with a community care application. It would require that each doctor should agree whether the patient's mental disorder is mental illness or mental handicap. If the amendment on page 10 of the briefing is accepted, Amendment No. 90 will not be needed. We strongly suggest that the new community care order should apply only to people with mental illness. If that amendment is not accepted, this amendment would ensure that the doctors have to agree what is wrong with the patient—mental illness or mental handicap.

This provision mirrors the provisions contained in Section 18(3) of the Mental Health (Scotland) Act which provides that a patient cannot be detained in hospital under the section if the doctors do not agree about which form of mental illness he is suffering from. I understand that the Government are to propose an amendment at a

1 May 1995 : Column 1295

later stage to cover that point. I may have that wrong, but if that is the case, I shall be happy to accommodate the Minister. In the meantime, I beg to move.

The Earl of Lindsay: My Lords, I hope that the noble Lord will accept that we covered some of the concerns he has raised when we dealt with Amendment No. 85. I can assure the noble Lord that the later amendment for which he is hoping will indeed be forthcoming.

I may have misled the House on that point. Amendment No. 85, to which the House has agreed, related to the medical reports being agreed in their conclusions and also to the possibility of a community care order being applied to someone with a mental handicap who simultaneously has some form of mental illness, or such circumstances. I hope that that is something that the noble Lord can accept, and I ask him to withdraw the amendment.

Lord Carmichael of Kelvingrove: My Lords, I thank the Minister for those assurances. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 91:


Page 21, line 4, at end insert:
("( ) A patient who is detained in hospital under this section shall have the right to appeal to the sheriff for his discharge from detention.
( ) Unless the sheriff is satisfied that—
(a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for assessment, or for assessment followed by medical treatment for at least a limited period; and
(b) he ought to be so admitted and detained in the interests of his own health or safety or with a view to the protection of other persons,
he shall order that the patient be discharged from hospital and he may revoke the community care order.").

The noble Lord said: My Lords, the amendment is misplaced in the Marshalled List. Having taken advice, I shall not move the amendment today but will bring it back on Third Reading. That is perhaps the best way of dealing with the difficulty, which is my fault. I apologise to your Lordships.

[Amendment No. 91 not moved.]

The Earl of Lindsay moved Amendments Nos. 92 and 93:


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