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Lord Mottistone: As I understand it from my noble friend, the detailed description of the community RMO will be in guidance. I do not see why it cannot be included in Schedule 1. What is so magic about guidance? To me, guidance does not mean as much. My noble friend was able to tell us about the responsible medical officer because there is a definition in the 1983 Act. I do not see why a similar sort of definition of the community RMO should not be included in Schedule 1 of this Bill.

Baroness Cumberlege: I am sorry if I have not made that plain to my noble friend. To a large extent, the health service tries to work through guidance because it provides a degree of flexibility which may be extremely important, especially in relation to dealing with situations in the community.

Baroness Jay of Paddington: I agree with the noble Lord, Lord Mottistone, that the provision would be much more certain if such words were included on the face of the Bill. I heard what the noble Lord said about putting the wording he described into Schedule 1 rather than further on in the Bill as I proposed. However, it seems to me that it does not matter where it is placed as long as it is on the face of the Bill. I believe that the words that we have both used are very similar indeed.

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I am afraid that I cannot agree with my noble friend Lord Longford on the requirement for such a person to be "a registered psychiatrist". As far as I understand it, that would mean that he or she would need to be a consultant psychiatrist. From talking to people who organise such care, I believe that that would perhaps inhibit and slow down the procedures and the day-to-day care of people in that category.

There does not seem to me to be any legitimate argument for not using the words which are almost identical in the two amendments. As I said before, both sets of words come directly from the provisions in the Scottish clauses of the Bill. Although I entirely understand what the Minister said about the Scottish arrangements deriving from a different and original mental health Act, it does not seem to me that we need to be very much on our dignity at this stage about using such wording, which seems to be rather good.

Baroness Cumberlege: In respect of the proposed provisions, we believe that there may be cases in the future where it is justifiable for someone not approved under Section 12 to be the community RMO if in all other respects the care package is in the best interests of the patient. We are trying to build in that degree of flexibility by way of guidance rather than putting such provisions on the face of the Bill.

Baroness Jay of Paddington: I am afraid that I remain unconvinced by the force of guidance in the health service. However, at this stage of the proceedings, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

The Earl of Longford had given notice of his intention to move Amendment No. 9:

Page 2, line 18, at end insert ("who must be a registered psychiatrist.").

The noble Earl said: I cannot pretend to be utterly extinguished by the arguments of my most revered leader or to be particularly impressed by anything that was said against such a provision. But in the circumstances I see that I have no option other than to refrain from moving my amendment.

[Amendment No. 9 not moved.]

Lord Carter moved Amendment No. 10:

Page 2, line 22, at end insert:
("( ) The Health Authority and Social Services Authority shall in providing after-care services indicate how they propose to deal with the matters listed in section 117 and Schedule 1 below.").

The noble Lord said: In moving Amendment No. 10 I shall, with the leave of the Committee, speak also to Amendments Nos. 11 to 13, 16 and 21. The group is tabled in my name and that of my noble friends Lady Jay and Lady Farrington of Ribbleton and deals with aftercare.

Amendment No. 10 seeks to insert a new subsection into the legislation which states:

    "The Health Authority and Social Services Authority shall in providing after-care services indicate how they propose to deal with the matters listed in section 117 and Schedule 1",

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to the Bill. The point here is that subsection (6) of Clause 1 places a duty on the health authority to provide aftercare services. We understand that, but we feel that it is important that there should be some means of asking the two authorities concerned to indicate exactly how they propose to deal with the matters listed in Section 117. I remind the Committee that that is the section of the Mental Health Act 1983 which deals with aftercare.

I turn now to the other amendments which seek to improve the wording of Clause 1(7). It would be helpful if the Minister could deal with our concerns in this respect because we are somewhat puzzled. As the Bill is worded, we wonder whether in fact the health authority has the right to refuse an application. It is given a duty to provide aftercare services but, if it feels that it does not have the resources or if it does not agree with the supervision order, we believe that the legislation does not make it clear that the health authority can actually refuse.

It is important to probe the Government's mind on the matter. That is why we have tabled Amendment No. 11 which links into Amendment No. 16, which states:

    "A Health Authority or a Social Services authority shall have the right to refuse a supervision order".

The final amendment in the group is Amendment No. 21. Its purpose is, so to speak, to round up the arguments and to ensure that,

    "the services are available to make effective the care programme as set out in the Care Programme Approach forms required for the discharge of all patients".

We believe that the Committee will understand that the amendments are intended to probe the whole area of aftercare to see whether the Bill has the intention that it should have; in other words, whether the health authority, the local authority or the social services authority have the power to refuse an application. We seek to discuss around the whole area whether the duty that the health authority will have under Section 117 of the 1983 Act requires it to state in terms how it proposes to deal with such a duty. I beg to move.

4.15 p.m.

Earl Russell: I have one question to ask. I see the case very clearly for the health authority or the social services authority to be able to refuse a supervision order. However, I should like to ask both the noble Lord, Lord Carter, and the Minister what happens next if an authority does so.

Baroness Farrington of Ribbleton: In speaking to the group of amendments now before the Committee, I should like to speak especially to Amendment No. 13 which is tabled in my name. I listened most carefully at the informal meeting at which we had an opportunity to discuss some of the issues behind the proposed legislation; indeed, I found it to be extremely valuable.

However, from my experience as a member of a local authority responsible for social services, I remain concerned, especially in the light of the Minister's understanding that the provision will apply to a comparatively small number of people for whom

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particularly sensitive care has to be provided, that in such circumstances the duty to "consult with" may be inadequate. If we look at some of the recent tragic cases which have contributed to an understanding of the need for the legislation, it will be seen that "consultation with" fell down. The requirement to "reach agreement with" is much firmer, stronger and, therefore, more secure and reliable. I ask the Minister to consider the following. If all parties reach agreement upon the care package and the supervision that will ensue, then the patients' interests and those of the community will be most secure.

I turn now to Amendment No. 16. The circumstances in which a supervision order could be refused are obviously hypothetical. But I assume that such a refusal would carry with it the right of appeal at some stage for the patient. However, it is critically important that all those professional partners who are part of producing such a care package must be confident that all the needs of the patient and those of the community have been met. I support the amendment.

Earl Russell: Amendment No. 13 seems to me to be extremely good. I shall give the Committee just one more reason for it. A number of people suffering from mental illness of various sorts tend to be manipulative. As a symptom of some of the illnesses from which they may suffer, they tend to try to divide the authority which is dealing with them. If we do not insert such a provision into the Bill, we shall give them a wide open opportunity to do that, and that may well impede treatment. I hope that the amendment will be accepted.

Lord Carter: Before the Minister replies, I must apologise to the Committee for not speaking to Amendment No. 12. Perhaps I may do so now so that the Minister can include it in her response. Amendment No. 12 seeks to ensure that the patient is heard by the health authority before any decision is reached. In other words, because the decision that the health authority is required to make is a judicial one which will affect the rights of the patient, such a decision should not be made without giving the patient a hearing. I should have addressed the amendment when moving Amendment No. 10. I apologise to the Committee for failing to do so. I hope that the Minister will be able to deal with the whole group in her reply.

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