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Lord Carmichael of Kelvingrove moved Amendment No. 105:

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Page 22, line 24, at end insert ("whom failing a sheriff of the same sheriffdom; and
(d) the Mental Welfare Commission.").

The noble Lord said: My Lords, this amendment provides that if the sheriff who made the original order is not available, another sheriff from the same sheriffdom should be informed of the proposed variation and the Mental Welfare Commission should also be informed.

The sheriff who made the original order is obviously the best person to consider a variation. However, if he is no longer alive, or has retired, someone else will have to be appointed. We believe that the Mental Welfare Commission should be involved in that at all stages.

It may well be argued that a sheriff is a sheriff is a sheriff and that a different sheriff has all the wisdom of the previous sheriffs. However, I believe that we should have an explanation as to why such a reasonable amendment cannot be incorporated into the Bill.

The Earl of Lindsay: My Lords, we undertook in Committee to consider the question of ensuring that any proposed variation in conditions would be sent by the special medical officer to the sheriff clerk for the sheriffdom in which the patient is resident, rather than to the sheriff clerk of the sheriff who made the order. We made the necessary technical amendment in Amendment No. 104.

Amendment No. 105 also seeks to ensure that a copy of the proposed variation is copied to the Mental Welfare Commission. We undertook in Committee to consider this further and I think we shall be meeting the concern in this part of the amendment when I move Amendment No. 109. Therefore, I ask the noble Lord to consider withdrawing these amendments.

Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for his assurances and flexibility. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 106 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 107:


Page 22, line 25, after ("patient") insert ("or his nearest relative").

The noble Lord said: My Lords, this amendment seeks to provide that the nearest relative shall be given the right to object to any variation in relation to a community care order. The Mental Health (Scotland) Act gives the nearest relative the right to advocate on the part of the patient. He is given the right to appear at all hearings. If he is concerned about a proposed variation of a community care order, he should be given the right to express his concern directly to the sheriff. As I said, that mirrors the provisions in the Mental Health (Scotland) Act. I beg to move.

The Earl of Lindsay: My Lords, this amendment would allow the nearest relative to object to the proposed variation, and be heard on this subject. I have to say that we do not consider that appropriate. We understand that there is concern that a floridly ill person may not understand or be able to discern the purpose of a variation of conditions. If a person is so floridly ill we

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would suggest that those caring for him might feel the need to consider whether a reassessment in hospital was necessary, and not a variation of conditions.

If the nearest relative is the informal carer, he will be consulted about the proposed variation. We believe that this is reasonable because there is no statutory duty on anyone other than the health board and the local authority to provide health care or aftercare for a person subject to a community care order. We would not expect that the moral duty of care which so many informal carers feel they have should be disregarded, and we do not think that those statutorily involved in caring for a patient will override the feelings and wishes of informal carers. As I said in Committee, we shall want to ensure that the position of carers is fully recognised in guidance.

I should also make it clear that it appears to us that it would not be for a variation of conditions to "increase" the burden of care on an informal carer. Any condition imposed on a patient under a community care order is with a view to ensuring the patient receives the care and treatment he needs, and the statutory duty to provide what is necessary falls on the health board and local authority. With those reassurances, I hope that the noble Lord will consider withdrawing the amendment.

Lord Carmichael of Kelvingrove: My Lords, again, I am grateful to the Minister for giving such a lengthy explanation. However, I believe that there is still a problem. I admit that sometimes the nearest relative is not the best person to give advice or with whom to discuss the matter but, on the other hand, in most cases the nearest relative will be the person who has the greatest interest in the welfare of the patient.

I do not know that there is an easy solution to the problem. Therefore, I must accept the Minister's good will. I hope that that will be carried forward into the institutions and officials so that they appreciate that the nearest relative should also be involved in helping to make the decisions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 108 not moved.]

The Earl of Lindsay moved Amendment No. 109:


Page 22, line 37, leave out ("the patient and") and insert:
("(a) the patient and any other person who has been consulted under subsection (1) (a) above;
(b) the Mental Welfare Commission; and
(c)") .

The noble Earl said: My Lords, I hope that this amendment addresses the point about the Mental Welfare Commission which the noble Lord, Lord Carmichael, and the noble Earl, Lord Mar and Kellie, have sought to highlight in Amendments Nos. 105 and 106 respectively.

I should remind your Lordships that consultation with the nearest relative only takes place if practicable and if the patient does not object. We believe that it is important that the patient and his nearest relative, if he has been consulted, along with the aftercare officer, should be informed of the variation of conditions when it has been approved by the sheriff.

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That is also an appropriate stage for the Mental Welfare Commission to be informed, since it needs to be aware of any change to the conditions as part of its role in exercising protective functions over the community care order patient. The Mental Welfare Commission does not need to be informed of a proposed variation of conditions. Clearly, once the variations are approved, the commission may, for example, make appropriate inquiries into any particular set of facts, or visit a patient on a community care order, in exercise of its protective functions. The commission's role tends to be reactive. I beg to move.

The Earl of Mar and Kellie: My Lords, I wonder whether the noble Earl will help me as regards the drafting. I believe that the name of the organisation should be the Mental Welfare Commission for Scotland. Am I right about that?

The Earl of Lindsay: My Lords, I believe that the suggestion made by the noble Earl is correct. We shall certainly seek to act on any consequences of his observation.

On Question, amendment agreed to.

9 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 110:


Page 22, line 37, after ("patient") insert ("and, if practicable and the patient does not object, to the patient's nearest relative").

The noble Lord said: My Lords, this amendment could perhaps have been grouped with others. It may be a déjo vu situation but the amendment is concerned again with the matter of the nearest relative being given notification. I am sure I shall receive an assurance from the Minister that best endeavours will be made to keep the nearest relative informed at all times. Perhaps that could be put on the face of the Bill. I have moved the amendment to ascertain what help the Minister can give on the matter. I beg to move.

The Earl of Lindsay: My Lords, as the noble Lord explained, this amendment seeks to ensure that, if the patient does not object, his nearest relative will be sent a copy of the approved variation of the conditions of a community care order. I addressed the concerns behind this amendment in government Amendment No. 109 which ensures that a copy of the variation of conditions approved by the sheriff is sent to the nearest relative if he has been consulted on the variation. I hope the noble Lord will feel satisfied with that explanation and feel able to withdraw this amendment.

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

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 111:


Page 22, line 42, at end insert ("but with the substitution of a reference to subsection (1) (a) of this section for the reference to subsection (3) (a) of section 35B").

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

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 112:


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