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The Earl of Mar and Kellie: My Lords, as the noble Earl rightly said, I have been much in favour of the continued use of leave of absence. It is ironic that this leave of absence system works well, and has worked well until now. There seems to be slight questions of whether the system is legally flawed as opposed to practically flawed. However, I shall go along with the noble Earl and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Short title, commencement and extent]:

Baroness Cumberlege moved Amendment No. 128:


Page 32, line 46, leave out ("January") and insert ("April").

The noble Baroness said: My Lords, I have already spoken to this amendment with Amendment No. 59. I beg to move.

On Question, amendment agreed to.

Schedule 1 [After-care under supervision: supplementary]:

Baroness Cumberlege moved Amendment No. 129:


Page 34, line 32, leave out from ("the") to end of line 36 and insert ("person who, in accordance with section 117(2A) (a) below, is in charge of medical treatment provided for him;".").

The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker: My Lords, in view of Amendment No. 129 having been agreed, I cannot call Amendments Nos. 130, 131 and 132.

[Amendments Nos. 130 to 132 not moved.]

Baroness Cumberlege moved Amendment No. 133:


Page 34, line 46, leave out from ("who,") to end of line 4 on page 35 and insert ("in accordance with section 117(2A) (b) below, is supervising him."").

The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Jenkin of Roding had given notice of his intention to move Amendment No. 134:


Page 35, line 1, after ("Authority") insert ("and local social services").

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The noble Lord said: My Lords, I beg to move the amendment standing in my name. I must say that I was somewhat taken aback by the abrupt way in which Amendments Nos. 131 and 132—

Baroness Cumberlege: My Lords, I understand that it is not possible to move the amendment because it has been pre-empted.

Lord Jenkin of Roding: My Lords, all I can say is that it is a great pity that no one took the trouble to tell me that before the debate started. These amendments were put down last week. I do not know when it was decided that it had been pre-empted. I have been sitting here all evening waiting to move three amendments and am now told at the last moment that they have been pre-empted. I think that that is shoddy treatment and I am extremely angry.

The Deputy Speaker: My Lords, I apologise to the noble Lord for that. Of course he should have been informed and I shall draw it to the attention of the appropriate authorities. However, the brief is that, as the previous amendment has been agreed to, I am not able to call the noble Lord's amendment.

[Amendment No. 134 not moved.]

[Amendment No. 135 not moved.]

Baroness Jay of Paddington moved Amendment No. 136:


Page 36, line 31, after ("are") insert ("not").

The noble Baroness said: My Lords, I beg to move this amendment and with it speak to Amendments Nos. 137 and 138. The purpose of the three amendments is to reverse the burden of proof before the mental health review tribunal so that the responsible medical officer must satisfy the tribunal that the grounds for aftercare under supervision are met rather than the other way round; that is, the patient having to show that supervision is not required.

By moving Amendment No. 11, the Government have now placed on the face of the Bill the explicit right to appeal to a mental health review tribunal. The amendments simply take the process a little further. As noble Lords will know, under the Mental Health Act 1983, the mental health review tribunal's current function is to review the detention of patients detained under the Act and to consider whether the patient should be discharged from hospital. The statutory criteria for discharge are drawn in what is colloquially known as a double negative: that the tribunal must be satisfied that the patient is not then suffering from a mental disorder or that the patient's detention is not justified for the protection of the patient or others. The burden of proof is on the patient, who has the difficult task of trying to prove this negative.

I am advised by the Law Society that Jill Peay in her study of the operations of the mental health review tribunal, which was published in 1989 and entitled A Study of Decision Making under the Mental Health Act—which itself was published in 1989—showed that many judicial members dislike having to employ the double negative formulation. They find it both grammatically inelegant and, perhaps more important, conceptually difficult. If the judicial members of tribunals find it a

1 May 1995 : Column 1310

difficult process, how much more so must it be for the patients? As the Bill stands, they have to prove not only that they do not have a mental disorder but also that they will not pose a risk to themselves or to anyone else.

As currently drafted, the Bill will require patients subject to aftercare under supervision to satisfy the tribunal that supervision is not required, and again the patient will have to prove the negatives. The grounds for aftercare under supervision set out in Section 25A(4) of the Bill are extremely widely drawn and we have discussed them before. It will therefore be extremely difficult for the patient to present evidence to the mental health review tribunal to show that the grounds are not met and that supervision is not necessary.

Baroness Cumberlege: My Lords, with the leave of the House, before I speak to this amendment I wish to clarify an earlier point that I made. I am afraid that I may unwittingly have misled the House on one point in my reply to the noble Baroness, Lady Jay, on the Government's Amendment No. 11. I have already given notice of it to the noble Baroness.

As your Lordships will recall, the proposal requires information to be given to patients about, among other things, their rights to a tribunal hearing. It is not true, as I suggested, that the Bill will explicitly require patients to be told of their rights to free legal representation at a mental health review tribunal. However, the amended Bill refers explicitly to informing patients of their rights to apply to a tribunal. It is unthinkable that anyone advising a patient of his or her rights would not make the position about legal representation clear. But, in any case, we will make sure that our guidance on the operation of the power spells that out. Although this does not go quite so far as I believe the noble Baroness would have liked, I hope that she will find it acceptable.

Amendments Nos. 136, 137 and 138 would reverse the wording of the Bill in relation to the way that a mental health tribunal has to consider appeals from patients who are, or will be, subject to aftercare under supervision and from those appealing against renewal of the power. Instead of saying that the tribunal will direct that the patient should cease to be subject if it is satisfied that the conditions for the imposition of the power in Section 25A(4) or a renewal in Section 25G(4) are not met, if this amendment were carried the tribunal could so direct if it was not satisfied that the conditions for cessation were met.

We must remember that this Bill amends the existing Mental Health Act 1983. The paragraphs in the schedule dealing with mental health review tribunals will slot into the existing provisions of the Act. The tribunal's powers in relation to aftercare under supervision have to be related to their powers on appeals from those liable to be detained or from those subject to guardianship, and the way in which they hear appeals from people subject to the new power must be framed in the same way as the hearing of appeals from people subject to the existing powers. For this reason I am unable to support this amendment. I hope that the noble Baroness will withdraw it.

Baroness Jay of Paddington: My Lords, I am grateful to the Minister for her reply, and particularly for her remarks at the beginning about the earlier discussion that

1 May 1995 : Column 1311

we had about whether the requirement to inform patients of their free rights to legal assistance before a mental health review tribunal was or was not included on the face of the Bill. I understand now exactly what she was saying and I am grateful for that clarification. I am still a little concerned, remembering the discussion that we had in Committee in which there was a variation of opinion among Members of this House about whether free access to legal aid was a right under the mental health review tribunal, and there was some confusion about that. But I hear what the noble Baroness says about making it absolutely clear in guidance and I am satisfied with that assurance.

On the question of the later amendments, to which we are speaking directly now, I understand what the noble Baroness says about this being in a sense an attempt to amend the Mental Health Act 1983 by a somewhat back-door method. The purpose of these amendments is indeed to make the whole situation of the mental health review tribunals clearer. I can only say that in listening to the noble Baroness, and indeed to myself, becoming somewhat confused over our double negatives, I still feel that the purpose of these amendments was precisely right. However, in view of what the noble Baroness said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 137 and 138 not moved.]


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