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The Earl of Lindsay moved Amendment No. 14:


Page 31, line 49, at end insert:
("(3A) In section 32 of that Act (special provisions as to patients sentenced to imprisonment etc.: hospital)—
(a) in subsection (2) (detained person in whose case application for admission does not cease to have effect), for the words "and 31" there shall be substituted ", 31 and 31A"; and
(b) after that subsection there shall be inserted the following subsection—
"(3) In its application by virtue of subsection (2) above section 28(3) of this Act shall have effect with the substitution of the words "end of the period of 28 days beginning with the first day of his absence without leave." for the words from "later of" onwards.".").

The noble Earl said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 15. In a similar vein to Amendment No. 4 to the England and Wales provisions, these technical amendments seek to rectify an unintentional effect of the new provisions for those absent without leave. They amend Sections 32 and 49 of the 1984 Act.

They ensure that where a person is imprisoned for six months or less and his liability to detention in hospital or guardianship expires while he is in prison, then on release he is for a period of 28 days liable to be taken into custody to establish whether a renewal is necessary. It was never our intention for that period to be six months for such a person. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 15:


Page 34, line 24, at end insert:
("(6A) In section 49 of that Act (special provisions as to patients sentenced to imprisonment etc.: guardianship)—

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(a) in subsection (2) (detained person in whose case guardianship application does not cease to have effect), for the words "and 48" there shall be substituted ", 48 and 48A"; and
(b) after that subsection there shall be inserted the following subsection—
"(3) In its application by virtue of subsection (2) above section 44(2) of this Act shall have effect with the substitution of the words "end of the period of 28 days beginning with the first day of his absence without leave." for the words from "later of" onwards.".").

On Question, amendment agreed to.

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

Lord Jenkin of Roding moved Amendment No. 16:


Page 36, line 34, after ("treatment") insert ("as defined in paragraph 15.4 of the Code of Practice").

The noble Lord said: My Lords, Amendments Nos. 16 and 17 and probing amendments. It may seem slightly odd to move probing amendments at this stage of the Bill. However, noble Lords who were in the Chamber at the end of the Report stage will remember that I was badly bitten by a gremlin which leapt out at me and prevented me moving the amendments then, which may have been a more appropriate occasion. I can deal with the matter shortly.

On Report I moved a number of amendments and made the general point that it would be desirable if draftsmen of such legislation could be prevailed upon to use language which has been used in previous legislation, and with which many practitioners in the field are familiar, and not try to invent a new language. If people have been working a system for a number of years and have been used to a particular definition it is important that if a word appears in later legislation they know that the same definition applies. Paragraph 4 of Schedule 1 defines the community responsible medical officer and refers to a person who:


    "is in charge of medical treatment provided for him".

My amendment refers to the code of practice, which defines medical treatment as being provided not only by doctors. It includes, for instance, nursing, care, habilitation and rehabilitation under supervision. That is a broad range of activities aimed at anticipating or preventing a deterioration of the patient's mental disorder. Of course, it includes physical treatment such as ECT or the administration of drugs and it includes psychotherapy.

The same point arises in new Section 2A, which is added to Section 117 of the 1983 Act. It states:


    "It shall be the duty of the Health Authority to secure that at all times while a patient is subject to after-care under supervision... a person who is a registered medical practitioner... is in charge of the medical treatment".

That appears to suggest that the use of the term "medical treatment" is confined to the kind of treatment that only doctors can give. However, everyone recognises that when one is dealing with mental patients in circumstances provided for by the Bill medical treatment goes much wider. Therefore, is it not necessary to include as part of the definition of "the community responsible medical officer" the words which appear in my amendment? It refers to paragraph 15.4 of the code of practice, which ensures that the phrase is defined in the widest possible terms.

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The point has been raised by people who are concerned with the provisions. For instance, it has been raised by the chief executive of an NHS trust who believed that it was likely to give rise to confusion and uncertainty. I do not say that my words are correct but it may be necessary to add such words in order to clarify the position. I beg to move.

Baroness Jay of Paddington: My Lords, I support the amendment. Throughout the passage of the Bill we have tried to obtain precise definitions about the qualifications and responsibilities of the various officers involved. As noble Lords will know, we have succeeded in obtaining a definition of the precise professional qualifications of the community responsible medical officer. The amendment would help to define that even more clearly.

Baroness Cumberlege: My Lords, I recognise the purpose of my noble friend's amendment but we believe that the objectives are already met. The term "medical treatment", which occurs throughout the Act, is defined in Section 145(1). It includes nursing and also care, habilitation and rehabilitation under medical supervision. The meaning would be the same here. The code of practice does not add to or extend the meaning of "medical treatment" but merely explains it more fully.

We do not believe that quoting the code of practice explanation of the meaning of "medical treatment" will add anything here. We believe that its meaning in the Act is unambiguous. Apart from that, the Mental Health Act provides for the code to be made and it would be circular for the Act to rely on definitions in the code.

I understand that Amendments Nos. 16 and 17 are probing amendments and I am pleased that on this occasion my noble friend has slain the gremlin and been able to put them forward. However, although he may not have found my explanation entirely satisfactory I hope that he found it explanatory.

Lord Jenkin of Roding: My Lords, I am grateful to my noble friend. It will be helpful to have that explanation on the record and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Jenkin of Roding moved Amendment No. 17:


Page 39, line 17, after ("authority") insert ("in conjunction with the local social services authority").

The noble Lord said: My Lords, there appears to be a departure from the standard terms of the 1983 Act and it has given rise to a query. Are we talking only about health authorities or are we also talking about local authority social services? It is well understood that the type of treatment that a patient will receive in the circumstances envisaged by the Bill is bound to involve at least those two statutory authorities and may well involve voluntary bodies.

Section 117 of the 1983 Act refers to aftercare. Subsection (2) states:


    "It shall be the duty of the District Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies".

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However, the new community supervision order that we are adding refers only to the health authority. Why does it not refer to the local authority social services? Such provisions raise doubts in people's minds. Is it intended to mean something different or is there somewhere tucked away a form of words which says that it means the same thing? It is quite clear that the Bill will not work unless the local authorities are involved, as has been discussed throughout the passage of the Bill. This is a matter of drafting. I hope that my noble friend will be able to set our minds at rest. I beg to move.

4 p.m.

Baroness Farrington of Ribbleton: My Lords, I support Amendment No. 17. It is quite clear and it was agreed by the Minister during the earlier stages of the Bill that this legislation can work only when a complementary approach is adopted by the appropriate social services and health authorities. I hope that the Minister will accept the amendment.

Baroness Cumberlege: My Lords, as my noble friend said, the amendment would place a shared duty on the health and local social services authorities to ensure that there are always a suitably qualified medical officer and supervisor in place throughout the period of supervision. The Bill as it stands makes this the duty of the health authority alone.

We believe it is important that the duty to see that a patient has a community RMO and a supervisor at all times should be vested in a single agency. We have made it clear that the new power is health led but with a firm requirement for the social services to be fully consulted and involved. It is the health authority which accepts the application but it does not act in isolation. Before accepting the application, the health authority will need to be satisfied that the requirements of the Bill have been fully met. As a double check on that, the health authority is also required to consult the local social services authority. That will ensure that there has been full consultation with the care team in the community and anyone else directly involved with the patient's care. A doctor must have been identified for the purposes of being a community responsible medical officer. One of the professionals in the care team in the community must have agreed to act as supervisor. When the health authority accepts the application it also accepts the responsibility of ensuring that there are always professionals in place to fulfil these roles.

Section 117 of the Mental Health Act 1983 already makes clear that the provision of aftercare is a joint health and local authority responsibility. The imposition of any requirements on the patient in the community is also a joint health and local authority responsibility, as is keeping the aftercare services under review. Those provisions should avoid any risk of a health authority going ahead independently of the local social services authority and we shall also be emphasising the need for full consultation in our guidance on the operation of the new powers. With those assurances, I hope that I have set my noble friend's mind at rest.

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