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Baroness Cumberlege: I thank the noble Lord for those comments. As the Committee will be aware, there is already a requirement to specify what services are to be provided under Section 117. New section 25B(8) states that a statement of the aftercare services to be provided for the patient under Section 117 must be submitted with or attached to the supervision application. This will be the detailed care plan drawn up by the multi-disciplinary team, which will outline the services to be provided to the patient following consultation with the appropriate parties—that is dealt with in new Section 25B(2)—and consideration of the appropriate matters as laid down in new Section 25B(2) and new Section 25B(3). We believe there is little point in requiring the authorities to reiterate what will anyhow be in the care plan.

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I wish to pick up the earlier question of the noble Lord, Lord Carter. Given that the supervision application will only take effect when it is accepted by the health authority, we do not think it is necessary to spell out that the application may also be refused, since this is clearly so. Nor do we think that the health authority needs to be specifically required to reach agreement with the local authority. As the Committee will remember, the responsible medical officer before he or she makes an application, has to consult those who will be concerned in the patient's care after he or she leaves hospital. In practice the statement of services to be provided, which has to be submitted with the supervision application, will need to have been agreed with the local authority's representatives so far as the social services element is concerned. I think that takes care of the points made by the noble Baroness, Lady Farrington. This is reinforced by the requirement on the health authority to consult the local authority before it accepts the application, and we do not think it necessary therefore to add to that a specific requirement that the two authorities must reach agreement.

So far as consultation with the patient is concerned, as the Committee is aware, the RMO must consult him or her before the application is made in the first place, and we do not think a further requirement to consult the patient is needed at the point when it is being considered by the health authority. Finally, a person who is subject to aftercare under supervision is no longer liable to be detained. A patient may well have ceased to be so liable in what should usually be the short period after the application is made and before it is accepted.

In the light of those remarks that I have brought to the Committee's attention, I hope very much that the movers of these various amendments will not press them.

Baroness Farrington of Ribbleton: I hope I may press the Minister on the specific use of the term "to consult". In her answer, which I look forward to reading in detail, I understood her to imply that that consultation would lead to an agreed package which would be presented as part of the order. My understanding, following the informal meeting, is that the role played by the responsible medical officer in the case of England and Wales is the equivalent role to that played by the sheriff in the different legal framework in Scotland. Is the Minister saying that it is only in the event of an agreed package being explicitly written down, which has been agreed and consented to by all parties, that consultation will be deemed to have been carried out, or would it be possible for one of the parties to take a unilateral decision in the absence of such consensus?

Baroness Cumberlege: I think it would be very unwise for any single party to take unilateral decisions because the whole purpose behind this Bill is that the different parties have to co-operate in order to meet the total needs of the patient. I should reiterate that the responsible medical officer, before he or she makes an application, has to consult those who will be concerned in the patient's care after he or she leaves hospital. I think it is in no one's interest not to have a care plan to

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which everybody has signed up; otherwise, it will, I think, be impossible to supervise effectively the discharge of the patient in the community.

Lord Carter: I am grateful to all Members of the Committee who have spoken to this group of amendments. It is helpful that the Minister has now made clear that the health authority has the right to refuse an application. That leads on to the question which was put by the noble Earl, Lord Russell. If there is this ability to refuse, what happens next? We tabled the amendments to find out what happens next. I am not quite sure that the Minister has explained what happens if a health authority refuses an application.

Baroness Cumberlege: I would imagine it is a point of detail concerning the health authority. I would very much doubt that it is a matter of principle because there would have been a lot of consultation taking place with the responsible medical officer prior to any proposals being made for the discharge of the patient supervised in the community. I think the noble Lord perhaps has a point that is really not very worthwhile pursuing, because if all parties are not agreed, then, clearly, the scheme cannot go ahead. If it is a point of detail, then it is up to the health authority to put forward—I would have thought—some alternatives and to work around the problem. My experience is that professionals, both in social services and in the health service, are very caring, responsible people and they actually try to find solutions to sometimes almost intractable problems.

Earl Russell: I think this is slightly more complicated than the noble Baroness suggests. I agree with what she says about the attitudes of professionals, but refusal may happen for a number of reasons. Suppose, for example, a social services authority says, "If we do one more of these, we shall be capped", then it has to refuse. We really need to know what will happen to the patient next. This is not an imaginary question.

Baroness Cumberlege: I fully agree with the noble Earl. In fact, I have been in that position as the chairman of a health authority. We had an extremely difficult patient who needed not this sort of care but care in an institution and the only supplier of that was a private hospital and it cost a great deal of money. As anyone knows who is in charge of a budget, it is a question of having to be realistic. Sometimes it is a question of ensuring that priorities are reassessed; and sometimes it is a question of having to wait a month or two before one can activate a plan.

Lord Carter: The Minister has been extremely helpful. We may need to come back to this matter on Report because I think there is a danger as regards an absolute right to refuse without any criteria attached to that. The Minister says optimistically this would be a point of detail. If it is not a point of detail, it is still not clear what will happen next. However, we shall not go into that now. We shall read what has been said, perhaps take advice and return in due course. Finally, as regards consultation with the patient, of course there will be consultation with the patient before the package is designed. However, I should have thought it would make sense to have a consultation procedure—and for

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this to be written into the Bill—after that process. After all, the patient is at the receiving end of all this. Obviously the RMO will have to discuss this matter with the patient at the beginning of the process. However, not to discuss this matter with the patient when the package has been designed seems a little odd. However, for the moment we have said enough. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11, 12 and 13 not moved.]

Baroness Jay of Paddington moved Amendment No. 14:

Page 2, line 25, at end insert ("and that consultation shall include a consideration of using the procedure for guardianship established by section 7 above.").

The noble Baroness said: Amendment No. 14 is designed to probe the possibility that guardianship, which is already available in the 1983 Mental Health Act, could be used to achieve much the same results as the new rather cumbersome supervised aftercare provision which is the main element of this part of the Bill we are discussing. Members of the Committee who were present at Second Reading will recall that I briefly discussed guardianship then. I wish to return to it in a little more detail today. At Second Reading the noble and learned Lord, Lord Fraser of Carmyllie, who replied to the debate for the Government, said,

    "Guardianship is essentially an arrangement which is oriented to social care"—[Official Report, 16/03/95; col. 979.]

and that this new arrangement is differently centred from the health service.

I am advised that there is nothing which precludes guardianship from being used through health rather than social services. All that would be necessary would be for the order of discharge and guardianship to be dealt with by the health services rather than social services, as is suggested by Amendment No. 14.

Since Second Reading, my attention has been drawn to the detailed report on the case of Andrew Robinson, a severely mentally ill patient who in 1993 fatally wounded a care worker. Andrew Robinson had been looked after by mental health services both as an in-patient and in the community for the previous 15 years. South Devon Health Care Trust, which was responsible for him at the time of the fatal incident, instituted a public inquiry into Robinson's case, which was chaired by Sir Louis Blom-Cooper. The results were published earlier this year.

The report noted that one of the relatively successful periods of Robinson's care in the community was when he was subject to a guardianship order between 1989 and 1992. That order was initiated by the consultant psychiatrist in charge of Mr. Robinson, and through it the health team and the social services negotiated a care plan with which Andrew Robinson complied in general. He achieved a period of comparative stability, largely because the guardianship order allowed a sustained relationship with his key worker and other members of the community care team. He voluntarily and regularly accepted medication during that period, although there

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is nothing in the guardianship order to compel that, any more than there is in the proposed new supervised discharge order.

In that particular case, after three years the guardianship order was lifted and the consultant psychiatrist and key worker both left the district. But as the public inquiry report concludes:

    "If the guardianship order had been is at least probable that the subsequent tragic events would have been avoided".

It seems to me that Mr. Robinson would have been a clear candidate for the kind of supervised discharge order that we are now discussing. The general points about the Robinson case are: first, the guardianship order to which he was subject was initiated and driven by a health team; secondly, it achieved a structured framework for a severely ill patient to live in the community; but, thirdly, because guardianship has commonly been used as a short-term measure, the order was lifted after three years without any clear or definite reason being given. However, as I understand it, there is nothing in the existing legislation to suggest that guardianship need be an exclusively short-term arrangement. As the Robinson report states, guardianship orders remain "woefully underused" and they appear to be used more often for older patients with dementia and those with learning difficulties.

I remind the Committee that the powers of guardianship include the power to require the patient to reside at a place specified by the authority or person named as guardian; the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education and training; and the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved social worker or other person so specified.

The code of practice on the Mental Health Act 1983 on which guardianship is based states in paragraph 13.1 that:

    "The purpose of guardianship is to enable patients to receive community care where it cannot be provided without the use of compulsory powers. It enables the establishment of an authoritative framework for working with a patient with a minimum of constraint to achieve as independent a life as possible within the community. Where it is used, it must be part of the patient's overall care and treatment plan".

It seems to me that that describes precisely the supervised discharge order, and it is almost identical to the proposals before us in the new legislation. If the Government's argument for not using guardianship more widely is simply that it has commonly been used by social services rather than health authorities for people other than those who are severely mentally ill, then the case of Andrew Robinson proves that that need not necessarily be the case. Robinson was indeed unusual but not unique. If the argument is that the procedure is rarely used because it is cumbersome and requires the commitment of many resources to be successful, then surely that same argument will apply to the supervised discharge orders in the future.

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It is worth noting that the use of guardianship has been slowly growing in the past few years. There were only 66 such orders in 1983-84; in 1993-94, there were 326.

This probing amendment is designed to discover why the Government feel it necessary to bring in a new order of aftercare under supervision which must run in parallel with the guardianship order. Indeed, the new order could be totally redundant if the use of guardianship was expanded to cover more patients with severe mental illness. I beg to move.

4.30 p.m.

Baroness Cumberlege: I agree with the noble Baroness that it is right and proper to consider what power is in the patient's best interests. That consideration should surely come before the application to supervised discharge has been made. Essentially, it is a clinical decision about what is best for the patient.

Before a supervision application is made by the responsible medical officer there will have had to have been full multi-disciplinary consultation and a package of services drawn up and agreed between the health authority and the social services. It will surely be the case that before that process is under way, and long before the application reaches the health authority, consideration will have been given as to whether this is really the right power for the patient. Guardianship is available and will be considered as an alternative.

That is the Government's case for resisting the amendment, and I hope that the noble Baroness will not seek to press the amendment.

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