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The Earl of Lindsay: My Lords, as explained by the noble Lord, Lord Carmichael, this amendment appears to seek to ensure that the person making a variation in the conditions of a community care order must notify the patient, his nearest relative and those professionally involved but who were not consulted about the variation. We believe that the amendment is unnecessary.

We have already rejected Amendments Nos. 97, 98, 100 and 108 which sought to allow a variation of conditions to be proposed by the aftercare officer in

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addition to the special medial officer. We agreed to government Amendment No. 102 which amends new Section 35D(2) and ensures that the special medical officer must send a copy of the proposed variation of conditions to the patient, the nearest relative if he was consulted, the aftercare officer and the sheriff of the sheriffdom in which the patient is resident.

Government Amendment No. 109 will also ensure that where a variation is approved the patient and any other person consulted shall receive a copy of the approved variation in conditions. We believe that that is sufficient. I hope that the noble Lord will also consider it sufficient. On that basis, I hope that he will consider withdrawing his amendment.

Lord Carmichael of Kelvingrove: My Lords, we have laboured the point in many of the earlier amendments. I am grateful to the Minister for elaborating even further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendments Nos. 116 and 117:


Page 23, line 34, at end insert:
("(za) if practicable and the patient does not object, his nearest relative;").
Page 24, leave out lines 24 and 25, and insert:
("(a) any person who has been consulted under subsection (2) (za) above;").

The noble Earl said: My Lords, I spoke to Amendments Nos. 116 and 117 when I moved Amendment No. 71. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 118:


Page 24, line 33, at end insert ("and shall not be further detained in a hospital by virtue of this section immediately after the expiry of the period of detention.").

The noble Earl said: My Lords, I hope that in speaking to the amendment I shall be able also to address some of the points that the noble Lords, Lord Carmichael, and Lord Macaulay, may raise in connection with Amendment No. 121.

In Committee we agreed that we would consider further the question of immediate re-use of the provision allowing reassessment in hospital. We take the view that where a person has been reassessed in hospital for seven days those caring for him should not have the opportunity on the expiry of the seven-day period immediately to redetain him for further assessment for a further period of seven days. The amendment would ensure that that would be the case.

If further detention is likely to be necessary after the expiry of the seven-day reassessment period then an application for admission under Section 18 of the 1984 Act should be submitted to the sheriff. That will permit the interim detention in hospital of the patient while the application is being processed. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 119 to 121 not moved.]

The Earl of Lindsay moved Amendment Nos. 122 to 124:

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Page 26, line 4, leave out from second ("the") to end of line 5 and insert ("patient, his nearest relative (if practicable), his after-care officer and the Mental Welfare Commission").
Page 26, line 8, at end insert:
("(za) the patient and, if practicable and the patient does not object, his nearest relative;").
Page 26, line 28, leave out from second ("the") to second ("of") in line 29 and insert ("patient, his nearest relative (if practicable), his special medical officer and his after-care officer").

The noble Earl said: My Lords, I spoke to Amendments Nos. 122, 123, and 124 with Amendment No. 71. I beg to move.

On Question, amendments agreed to.

Clause 5 [Absence without leave]:

[Amendment No. 125 not moved.]

The Earl of Mar and Kellie moved Amendment No. 126:


Page 26, line 48, leave out ("six") and insert ("three").

The noble Earl said: My Lords, the purpose of Amendment No. 126 is to reduce the length of time that someone detained under civil procedure under Section 18 of the Mental Health (Scotland) Act 1984 may be detained after being recaptured after going absent without leave from the hospital. I am concerned that the Bill does not discriminate between those detained under civil procedures and those detained on a hospital order by order of a criminal court. The two client groups are distinctly different. That is exemplified by the right of the nearest relative to seek the discharge of a Section 18 patient while for the hospital order patient no such opportunity exists.

I believe that it would be correct to have a variation in the period allowed to elapse after absence without leave so as to avoid discrimination against civil procedure patients. I beg to move.

The Earl of Lindsay: My Lords, I am grateful for the explanation that the noble Earl, Lord Mar and Kellie, has given of his amendment.

We decided that patients who go absent without leave should be liable to be returned for a period of six months or for the period of their liability to detention, whichever is later, because we take the view that that balances our concerns about the patient's need for and right to treatment and our concerns about public protection. We believe that we have struck the right balance and that three months would be too short.

I should also point out in passing that the decision whether or not to return to hospital a person who is liable to be so returned must be made on a case-by-case basis. It is conceivable that a person who had absconded near the end of his liability to detention, for example, might not be returned to hospital if he was managing well in the community.

The noble Earl, Lord Mar and Kellie, also raised the question of the lack of discrimination between Section 18 and hospital order patients. On the subject of absence without leave, the 1984 Act makes no discrimination. It is the Government's view that we should not change that.

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In the light of that explanation 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 explanation. I concur with him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Leave of absence from hospital]:

The Earl of Mar and Kellie moved Amendment No. 127:


Leave out Clause 6.

The noble Earl said: My Lords, the purpose of my proposing the omission of Clause 6 is that I wish to probe a little deeper into the rationale underlying the reduction and use of leave of absence, and to question its future use.

In Committee, the noble Earl stated that the Government had taken legal advice. The conclusion was that a 12-month period of leave of absence was legally sound. Will the noble Earl tell me from where in the European Convention on Human Rights, or in its associated case law, the 12-month limit is derived? I understand that when Sheriff Younger gave his judgment he expressed the view that the words, "liable to be detained in a hospital" meant that some degree of hospitalisation was actually, as opposed to potentially, required. Does that not rule out any use of leave of absence for periods of weeks or months at a time, whether or not it was of a duration greater or less than 12 months? I beg to move.

9.15 p.m.

The Earl of Lindsay: My Lords, Clause 6 fixes at one year the total consecutive periods of leave of absence which may be granted in respect of a patient detained in hospital in Scotland under the 1984 Act.

I note what the noble Earl said about all leave of absence possibly falling foul of the European Convention on Human Rights. It seems rather odd to me that he should be arguing this point, since I had understood that he was rather fond of leave of absence—certainly when he expressed his views at an earlier stage of the Bill. We take the view that leave of absence as a concept meets the UK's obligations under the convention. It is clearly a useful and necessary part of treatment in some cases. I would further point out that it can be used for specified occasions, not just for specified periods.

The noble Earl also questioned the decision to introduce a 12-month limit to leave of absence in the light of the Sheriff Younger judgment. I point out to the noble Earl that the decision on the 12-month period was not based specifically within the European Convention on Human Rights but on legal advice emanating from it.

When considering the Sheriff Younger judgment the options for change were carefully considered. We examined whether it might be possible to adapt the leave of absence provisions in such a way as to reduce the risk of legal challenge, but still allow the use of leave of absence in the long term. That appears difficult and would require a major rewrite of the 1984 Act. We are not even sure that that could be done in a way which would meet the concerns raised by Sheriff Younger's judgment. We therefore concluded that the best way forward was to limit

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use of leave of absence to consecutive periods totalling one year and to introduce proposals for community care orders.

The period of one year was chosen as the maximum total of consecutive periods of leave of absence because it is the maximum period for which a person may be liable to be detained under the 1984 Act, after two initial six-month periods. We believe that this reduces the risk of legal challenge to within acceptable limits.

We are aware that leave of absence is valuable. It is for that reason that we have retained it for consecutive periods of up to one year. We believe that to be the best solution. On that basis I hope that the noble Earl is able to withdraw his amendment.


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