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Lord Carmichael of Kelvingrove: My Lords, the Minister has been very flexible, particularly in the Scottish part of the Bill. I read carefully his reply to the amendment moved earlier which corresponded to this one. I was not totally convinced, but I hope that there will be a chance perhaps in the other place to deal with this matter. I am grateful to him for the time that he has taken over it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 6:


Page 19, line 15, at end insert ("and the consequences of non-compliance;").

The noble Earl said: My Lords, the purpose of this amendment is to ensure that the patient is fully briefed on his situation as soon as he has been made the subject of a community care order.

The patient is not required to be present when the community care application is being heard by the sheriff and the order granted. The amendment places an explicit duty on the aftercare officer—the social worker—to ensure that the patient fully understands his new situation: not only the purpose, effect and conditions of the order, his right of appeal to the sheriff on renewal of the order and his opportunity to make representations to the Mental Welfare Commission for Scotland, but also the consequences upon the patient for non-compliance with the conditions of the order.

Non-compliance comes broadly in two forms. First, the failure to take medicine or other treatment will probably lead to renewed mental illness and admission to hospital for reassessment under Section 35G. Secondly, failure to co-operate with the conditions of the order must also have consequences—for this is a compulsory measure of care. Here I have in mind, for example, a refusal to meet with the care team or moving address without prior agreement or not attending workshop or leisure programmes or day centres.

That may seem to be a rather negative approach to the fundamentally beneficial mental health measure of the community care order. But I am keen to point out that, although the community care order gives the patient

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priority access to services, it is still a compulsory measure of care imposed on a citizen by the state. I suspect that the compulsory nature of the order may often lie more heavily on a patient's mind than the benefit of priority access to services.

Therefore, I hope that the noble Earl will see the merit of this amendment and be able to accept it. It clarifies the aftercare officer's immediate task and ensures that the patient's immediate future is fully understood. I beg to move.

The Earl of Lindsay: My Lords, as I understand it, the noble Earl, Lord Mar and Kellie, seeks further clarification about what might happen if a person subject to a community care order did not go along with the conditions specified in the order.

Let me say at the outset that, although the patient may not be present at the hearing when the community care order is decided, the explanation of the community care order will be given to him both orally and in writing. The effect of any failure to comply with conditions depends on the nature of that failure. We do not see how it can be predicted and explained to the patient in advance. It will depend on which of the conditions he fails to comply with.

We discussed this matter in some detail at Report stage. I noted that the noble Earl then drew comparisons between community care orders and probation orders. We do not believe that that is appropriate, given that probation orders are a penal disposal included in the criminal justice system, whereas community care orders are a care and treatment option included within the mental health system. We do not believe that it would serve any useful purpose to bring before the sheriff a person subject to a community care order who did not keep to the conditions of his order. We feel that, although that may be appropriate in the case of probationers where the sheriff is enforcing an order made by the court following a criminal act, it is totally out of keeping with the role of the sheriff in the community care order process.

The community care order proposals provide a framework within which care and treatment can be provided. If a patient fails to meet the conditions in his order, that will clearly be of concern to the care team. But it must be addressed administratively. The care team will have to decide whether the conditions remain appropriate or whether a reassessment in hospital might be necessary because of a deterioration in the patient's mental health. If the patient met the criteria for reassessment, he could be returned to hospital for that purpose, as the noble Earl pointed out.

With that explanation to the background of the amendment, I hope that the noble Earl will feel able to withdraw the amendment at this stage.

The Earl of Mar and Kellie: My Lords, I thank the noble Earl for explaining the Government's thinking on this matter. I am certainly quite pleased with the liberal approach that has been taken within the context of a compulsory measure of care. We discussed this matter at Report and continue to do so. I shall accede to his request to withdraw the amendment in the hope that he will continue to have discussions on this subject with his

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ministerial colleagues and possibly come back with something along these lines in another place. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 7:


Page 21, line 45, leave out from beginning to ("have") in line 46 and insert ("Subject to section 35J of this Act and the following provisions of this section, a community care order shall").

The noble Earl said: My Lords, in moving this amendment, it may be for the convenience of the House if I speak also to Amendment No. 12.

As my noble friend the Minister explained a few minutes ago when she spoke about the provisions for England and Wales, and as I mentioned at Report stage, we have reconsidered the position of those who are subject to community supervision and are subsequently imprisoned. I am grateful to the noble Earl, Lord Mar and Kellie, for bringing this matter to our attention in Committee (as recorded as col. 356 of the Official Report of 6th April).

We have concluded that what we had previously provided should remain; that is, that if a person who is subject to a community care order is imprisoned and the community care order expires while he is in prison, the conditions are suspended while he is in prison. If the community care order is still in force when he is released, the conditions re-enter into force.

However, as I understand it, the noble Earl raised the question of a patient whose community care order expired while he was in prison and the steps which might be taken to revitalise the order when he was released. We take the view that in order to maintain a feasible causal link with the making of the community care order, such a revitalisation should only be possible in cases where the period served in prison was six months or less.

If a person is imprisoned for such a period, or successive periods which amount in the aggregate to six months or less, and his community care order expires while he is in prison or within 28 days of his release from prison, then it will be artificially extended and deemed to expire 28 days after his release from prison. We believe that that will allow adequate time for a renewal of the community care order under new Section 35C if that is considered necessary and allow time for the necessary consultation and a proper assessment of the patient in a community rather than a prison setting.

I hope that those provisions meet fully the concerns expressed in Committee by the noble Earl. I beg to move.

The Earl of Mar and Kellie: My Lords, I am grateful to the Minister for bringing forward the amendments. The few vulnerable prisoners who are subject also to community care orders will benefit from the fact that there will be a 28-day guaranteed resettlement period. Social workers and probation officers working in prisons in England and Wales will find it helpful to know that there is a community care team outside the prison waiting to receive the ex-prisoner who will once again be their patient.

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On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 8:


Page 25, line 28, at end insert:
("( ) An appeal under subsection (1) above shall be by way of summary application and shall be made to the sheriff of the sheriffdom within which the patient is resident.").

The noble Earl said: My Lords, I mentioned on Report, as recorded at col. 1304 of the Official Report, that we were considering this matter.

This is a technical amendment. It ensures that appeals to the sheriff against a community care order are in line with other appeals under the Mental Health (Scotland) Act 1984—that is, that they are by summary application to the sheriff of the sheriffdom within which the patient is resident. I beg to move.

On Question, amendment agreed to.

[Amendment No. 9 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 10:


Page 27, line 22, at end insert:
("( ) This section is without prejudice to the emergency admission provisions of section 24 of this Act and in the event that a patient under a community care order is admitted to hospital under section 24 of this Act, his community care order will cease to have effect.").

The noble Lord said: My Lords, I put down the amendment in order to ask the Minister whether he had finished his consultation. He was helpful during earlier stages of the Bill and said that he would take away this section and look at it. The amendment is designed merely to give him the opportunity to report to the House and to say what his thoughts now are. I beg to move.


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