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Baroness Jay of Paddington: Perhaps the noble Lord, Lord Mottistone, or the Minister can say who will decide who is the nearest relative. That may sound like an odd question and, as has been shown by the noble Lord, Lord Campbell of Croy, there is no question about that. But we all know what my children would call "dysfunctional families" where the nearest relative is someone with whom the patient involved has long since fallen out. Perhaps the noble Lord, Lord Mottistone, will consider whether or not the patient should be consulted as to whom they will nominate as their nearest relative rather than simply going down the list as it is presently drawn up under the Mental Health Act.

Baroness Cumberlege: I would hate to shoot my noble friend's fox and perhaps he would like to respond a little later. In reply to the general debate I am very much aware of my noble friend's anxieties in relation to the position of the nearest relative. We acknowledge the vital part played by families in providing support to patients and their natural wish to know what is

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happening to a close relative, especially when they have been seriously ill or even regarded as potentially dangerous.

At the same time not all relatives are on good terms and family relationships may have broken down for any one of a number of reasons and over a number of years before the discharge of a patient would be considered in these circumstances. In the Bill as it was introduced we have sought to strike a balance by requiring an informal carer who is going to be actively involved in looking after the patient—and who may be the nearest relative—to be consulted about the making of a supervision application and other matters, and otherwise requiring the nearest relative to be informed of these matters, unless the patient objects, once they have been decided. I understand that the definition of "nearest relative" is contained in Section 26 of the 1983 Act. It is there if the noble Baroness wishes to look it up.

Baroness Jay of Paddington: I suspect that it is simply a list—if it is not the parent, it is the grandparent. I cannot remember the precise order. There is a substitution list, as it were, but there is not an indication that the patient may say, "If it is not the parent, I would prefer my great aunt or my second cousin".

Baroness Cumberlege: The noble Baroness is correct. It sounds like something out of Gilbert and Sullivan—his sisters, his cousins and his aunts. I take the noble Baroness's point. It is one which we may consider.

I recognise that my noble friend has a number of arguments for extending the scope of consultation to include the nearest relative, even if he or she is not acting as an informal carer, and I am ready to consider very carefully the points which my noble friend, the noble Baroness and my other noble friend have made during the debate.

What I do not find so immediately persuasive is the argument that any objection by the patient should have to be recorded in writing. The Bill as it stands provides that the nearest relative, whether he or she is identified, will be given information unless the patient objects. The word "unless" is important because it means the presumption is that the nearest relative will be informed. We are not, however, convinced that this should have to be in writing. Patients may well make irrational or inconsistent demands, but we are not convinced that requiring them to put pen to paper—if indeed they can—will provide any further proof of their wishes. We think that these should be respected unless there are compelling reasons for not doing so.

Finally, in the context of the other amendment proposed by my noble friend, I understand his intentions when he proposes that, should a patient refuse to agree that his nearest relative should be consulted about making a supervision application, the responsible medical officer may ask the health authority for approval to do so. The patient's dangerous behaviour is one of the risk factors to be taken into account before recommending discharge under supervision. If, having consulted those directly involved —whether or not this ultimately includes the nearest relative, as my noble friend proposes—the responsible medical officer, along

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with those supporting his application, is satisfied that the risk can be contained with the help of supervision, arrangements should proceed without the addition of further procedures.

As I have said, we are prepared to give further consideration to the general question of consultation with relatives which is raised in these amendments. On that basis I hope that my noble friend will agree not to press the amendment.

The Earl of Mar and Kellie: Before we leave the subject of the nearest relative, perhaps I may draw one point to the Committee's attention. The noble Lord, Lord Mottistone, is right to differentiate between the roles of the nearest relative and the carer, although sometimes they are the same person. It is important not to diminish the role of the nearest relative even if the patient cannot stand the nearest relative. The reason is that in the context of inherited wealth—this is relevant to this House—the nearest relative may reluctantly have to safeguard and administer property, investments or business interests which belong to the patient. In compulsory mental health measures in Scotland a social worker working as a mental health officer or aftercare officer must see to the affairs of the patient. While that is wholly appropriate with regard to safeguarding a tenancy, we do not really expect a social worker to be running an estate, a business or the like. It is very important that we keep the nearest relative well involved. They will be performing what is no doubt a reluctant duty, backed up by a power of attorney.

5.15 p.m.

Lord Mottistone: I thank my noble friend for her reply and in particular for saying that she will look further at how we can involve the nearest relative more closely than is currently the position. I am most grateful for that. I am also most grateful to my noble friend Lord Campbell of Croy, who speaks as an expert, for his support.

With regard to the point made by the noble Baroness, Lady Jay, Section 26 of the 1983 Act goes a little further than just giving a list of relationships. It gives some advice on how they might be picked out, one against the other. There are seven subsections which are quite helpful in this general area. As I understand it, it is not on the whole difficult to identify the nearest relative. However, there are special cases. I have not had time to read Section 26 properly but it no doubt gives us enough guidance to deal with that.

I got the slight impression from what my noble friend the Minister said that she is sympathetic to the phraseology of my Amendment No. 27; or was she saying to me that what is proposed there is already in the Bill? Amendment No. 27 is slightly different from the other amendments because it specifically says that, even when the patient does not want the nearest relative to know, the responsible medical officer can, with approval, override that. If that is so, is she saying to me that that is set out elsewhere in the Bill or is she saying that she will include that in what she might herself

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propose when she sees whether she can go a step further in bringing the nearest relative into the Bill? Perhaps she can give me a line on that before I conclude.

Baroness Cumberlege: Where a patient refuses to agree that the nearest relative should be consulted about making a supervision application the responsible medical officer may ask the health authority for approval to do so.

Lord Mottistone: I thank my noble friend. I am most grateful to her for her undertaking to look further at this area. With the proviso that I may come through with some more amendments, too, just to make sure that we cover all the lost ground, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Lord Carter moved Amendment No. 20:

Page 2, line 37, at end insert:
("( ) On the acceptance by the Health Authority of the supervision application in respect of a patient, he shall cease to be liable to be detained in a hospital under the provisions of this Act").

The noble Lord said: Amendment No. 20 is intended to clarify that aftercare under supervision applies only to patients who have been discharged from hospital into the community and who are therefore no longer liable to be detained. As it is currently drafted, the first part of the Bill does not make clear that patients subject to aftercare under supervision should no longer be liable to be detained under the 1983 Act and hence liable to recall to hospital. As always, this point is, however, made clear in relation to community care orders in Scotland. Clause 4—Section 35A(8)—states clearly:

    "On the coming into force of a community care order in respect of a patient, he shall cease to be liable to be detained in a hospital under this Part of this Act".

Every time we look at the Bill and we see how much better things are in Scotland, I cannot help feeling that devolution should perhaps come the other way.

This amendment would also bring the Bill into line with provisions for guardianship under the Mental Health Act 1983. Section 8(5) of that Act clarifies that patients received into guardianship are no longer liable to be detained. Subsection (5) states:

    "Where a patient is received into guardianship in pursuance of a guardianship application, any previous application under this Part of this Act by virtue of which he was subject to guardianship or liable to be detained in a hospital shall cease to have effect".

So if it is made clear in that part of the 1983 Act and in the latter part of the Act which deals with Scotland, we cannot see why that provision should not also be in the first part of the Bill as this amendment suggests. I beg to move.

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