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Baroness Cumberlege: We expect a health authority to accept a supervision application as soon as the authority—or the provider to whom acceptance will in practice be delegated (a trust)—is satisfied that the application has been properly made. That is that everyone who should have been has been consulted and has agreed the provision of the services the patient needs.

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In the ordinary way we would expect the patient to be discharged as soon as possible after the application had been accepted, and at that point he or she would cease to be liable to be detained. However, if for any reason there was a time lag between acceptance of the application and the patient's discharge—for example, because some practical problem had arisen with the aftercare arrangements—we can see no advantage in ending the liability to be detained at an earlier point. I believe that to be the explanation, and I hope that the noble Lord will not press the amendment.

Lord Carter: It is not entirely clear why there should be this difference. On the other side of the Border a patient in Scotland, under this Bill, would cease to be liable to be detained, whereas a patient a few miles away in England would still be liable to be detained. Is that correct or is there a difference in the force of a supervision order and a community care order as there is in Scotland?

Baroness Cumberlege: As I understand it, the Scottish Act is very different from ours. It involves sheriffs and courts in a way that our Act does not. Therefore, we are always going to find differences between the way in which we promote our Bills and Scottish Bills. I appreciate that some people feel that in Scotland matters are dealt with better, but not always.

Lord Carter: I shall need to take advice on this matter. I shall read what the Minister has said, but I am still not entirely clear about the difference. There was also the point about the Mental Health Act which I raised. At this point I shall consider the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

Baroness Jay of Paddington moved Amendment No. 22:

Page 2, line 48, at end insert ("and any person authorised by the patient to act as their representative").

The noble Baroness said: In moving this amendment I shall speak as well to Amendment No. 23. Both these amendments are designed to achieve as far as possible a consensual approach to aftercare in the community which is to be organised on behalf of the patient being discharged under a supervised discharge order, and that it should be discussed not simply with the professionals involved, both in the hospital and in the community, but with someone whom the patient personally trusts to act as his representative. It is important that that should be done whenever arrangements about the discharge order are to be discussed.

Amendment No. 22 seeks the informal involvement of someone trusted by the patient at the time the supervised discharge is being planned. It has been pointed out to me that that should probably be done while the patient may still be in an acute phase of mental illness as an in-patient in hospital because, given the number of consultations and agreements which need to be discussed before a patient can be properly discharged, probably it should be done some time before that discharge is appropriate. As the Bill currently proposes, the patient is being detained in hospital under

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a treatment order, which by definition means that he is not judged to be able to make a rational judgment about his health or safety needs at that time.

The Mental Health After Care Association has suggested that it would at that point perhaps be sensible to allow the patient to be accompanied at any discussion, or that he should be represented there by someone from the legal profession, a user advocacy group or an experienced agency such as the citizens advice bureaux. That is allowed for in Amendment No. 23 where the responsible medical officer could make what from the patient's point of view would seem to be an arbitrary decision about who was likely to be the significant informal carer with whom the patient would relate once discharged into the community.

We have heard this afternoon, particularly from the noble Lord, Lord Mottistone, about the important recommendations which were made in the report by Jean Ritchie QC and her colleagues on the care and treatment of Christopher Clunis. Perhaps I may read briefly from the recommendations in this area. The patient should have a befriender or advocate. That is before the supervised discharge order was being proposed and this provision was suggested under Section 117 of the Mental Health Act. The report states:

    "We are concerned that the patient very often considers that the .... aftercare plan is made at his expense rather than for his benefit. Although it is vital that the patient should, himself, participate in the formation of the plan, we consider that the patient needs someone to be his ally/befriender/advocate in relation to .... aftercare. That befriender should attend all S 117 meetings with the patient, should champion his cause, and should ensure that action which is supposed to happen under the plan, does in fact happen".

That goes back to some of the earlier amendments which we have discussed this afternoon.

The report goes on to make specific and formal recommendations, including:

    "Every patient, subject to S 117 Mental Health Act 1983 aftercare, should have a nominated relative, friend or volunteer to act as his befriender/advocate, unless the patient expressly states to the contrary. Statutory Authorities and Voluntary Agencies working in the field of mental health should recruit, train and support members of the public who wish to be S 117 befrienders. A copy of the current aftercare plan should be given to the befriender".

It seems to me that it is irrelevant to discuss which terminology or name we prefer for that person. There may be some people in this Committee who regard the word "befriender" as somewhat elaborate and inappropriate. But the idea behind the support and advocacy on behalf of the patient by someone in whom the patient has trust goes a long way towards reinforcing the consensual nature of the agreement on the supervised discharge order which has been the underlying part of our discussions throughout this afternoon. It again emphasises that, as far as possible, a discharge supervision order should be made with the explicit co-operation of the patient and be determined by a very non-coercive approach. I beg to move.

Lord Mottistone: I caution great care in this area. I am advised that it is quite possible for people belonging to organisations which are perhaps not the ones which the noble Baroness has quoted to cash in on this sort of thing. They may come in and perhaps put themselves

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forward as befrienders, but in fact they may be people who are not going to be all that friendly. They may take advantage of the situation for themselves.

At the moment the Bill deals with the nearest relative, and my noble friend says that it may do so a little more than it does at present. It deals with people who will look after the patient in supervised aftercare. To have this extra body which may come from a rather sinister source needs to be kept very carefully out of the Bill, if possible, without wishing to say that someone who is genuine needs to be excluded, too. I suggest caution.

Baroness Cumberlege: Consultation is a thread running through the provisions of this Bill. We believe that at each stage of the process—before application, before renewal and before termination—there should be full consultation with all those who will be involved in the aftercare services: the patient and those who have the closest part to play in providing the services. That is spelt out clearly in the Bill.

As I understand this amendment, the noble Baroness, Lady Jay, seeks an advocate—a patient's representative, befriender or whatever term is chosen—to be included among those consulted. If the patient has an advocate, the responsible medical officer may well discuss the application with him or her in the presence of the patient. But I think it would be onerous to require the RMO to consult such an individual as well as the other persons he must consult.

It is hard to envisage a situation whereby a patient could be consulted about the possibility of supervised discharge without establishing who the relatives, friends or others who would have to play a substantial but non-professional part in his support in the community would actually be. We are talking about those with whom he would live, or be visited by, or who would support him in some other important way. That will be part of the care package that is worked out with the patient and, having established that with the patient's help, it should not be necessary to seek the patient's formal agreement to consulting any such person about his discharge under these provisions. As my noble friend Lord Mottistone said, we do not think that the amendments are necessary, and I hope that the noble Baroness will not press them.

5.30 p.m.

Baroness Jay of Paddington: I am impressed by the theory of what the Minister has said, but I am less certain about whether it will work in practice. I am also a little concerned by what I have come to believe is the rather romantic view that is held by the noble Lord, Lord Mottistone, of the existence of the family network of many of the people about whom we are talking. I suspect that many of them are what are colloquially known as the "homeless and rootless", people for whom the identification of the "closest relative" about whom we were speaking previously would be difficult.

The recommendations are drawn directly from the explicit case of Christopher Clunis that was considered by Mrs. Ritchie and her colleagues. Members of the

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Committee will remember that that was the most recent violent example of how the system can go wrong in practice, however good the intentions.

I entirely take the point made by the noble Lord, Lord Mottistone, about keeping the advocacy role away from those who may seek to promote themselves or their own views in that context. However, I believe that there are in this world enough people with a genuine concern about establishing a good care package for patients and about meeting their wishes who could be, as the Ritchie Report suggested, trained by the statutory agencies. That is the relevant point. Therefore, I do not accept the view of the Minister and the noble Lord, Lord Mottistone, that it is a redundant role. As I have said, I quibble slightly with the word "befriender", but I accept that there is a case for having a neutral voice of advocacy, particularly just before discharge, when the patient may well still be ill and confused. That is important. I shall read what the Minister has said and, at this point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 and 24 not moved.]

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