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The Earl of Longford moved Amendment No. 25:

Page 3, line 12, at end insert:
("( ) a registered psychiatrist who will not be involved in the provision of after care services to the patient; and
( ) an independent solicitor.").

The noble Earl said: The noble Lord, Lord Mottistone, brought before us the wisdom of the National Schizophrenia Fellowship and rightly said that it knows what it is talking about. I do the same for a more recently formed but equally effective body, the Matthew Trust, which attaches great importance to both parts of this amendment.

One has to ask oneself whether there are sufficient safeguards as things are. I am not expecting a definite assent to my amendment from the Minister this afternoon; I am simply asking her to think it over. Before the next stage, it may be possible for us to persuade her that there is widespread support among your Lordships for the amendment. In practice, it amounts to saying that if someone is to be put under supervision, it is necessary to have a second psychiatric opinion and, if possible, to ensure that an independent solicitor is brought in. I appreciate that in an earlier decision today the need to consult a psychiatrist in the first place was not accepted; so some modification of what is proposed might be needed. However, I am moving the amendment now to give the noble Baroness the opportunity to say that she will consider the matter. If she finds that there is widespread support in the Committee for the need for further safeguards, I am sure that she will be the first to admit it. I beg to move.

Earl Russell: I sympathise with the motives behind the noble Earl's amendment, but it is perhaps unduly prescriptive. Also, I am not sure that it allows for the fact that there may be a need for haste in some cases. When one is dealing with someone with acute mental illness, particularly schizophrenia, it is often possible that the patient may commit suicide within the next few hours. Therefore, one needs a power which will not have

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to wait until a consultant psychiatrist and a solicitor can be called in. If one waits, the patient may not be alive at the end of it.

In this Bill, we are dealing with a conflict between arguments of safety and arguments of liberty. We on these Benches have always been second to none in the respect that we give to arguments of liberty. I am not quite sure how well applied they are to this Bill. In the words of John Stuart Mill:

    "Liberty consists in doing what one desires, and one does not desire to fall into the water".

He was arguing that you could forcibly restrain somebody from crossing a broken bridge when they did not know that it was broken. That passage also applies to the case of mental illness. Obviously, libertarian considerations can be important, and things have been done in the past upon which one looks back with dismay. But mistakes can be made both on one side and on the other; so I think that we have to be careful when following the libertarian criticisms of the Bill to the point where they may present a real risk to the safety of the patient. In this area I think that the Bill has come as near as it reasonably can to getting it right.

Baroness Jay of Paddington: I agree with the noble Earl that it is precisely that balancing act that is the most difficult to achieve—

The Earl of Longford: Which noble Earl?

Baroness Jay of Paddington: I apologise to my noble friend Lord Longford. I was referring to the noble Earl who had just spoken—the noble Earl, Lord Russell. A plethora of noble Earls is involved in this amendment.

I agree with the noble Earl, Lord Russell, that the Bill has achieved a balancing act, although it has sometimes fallen down on one side and sometimes on the other as between questions of civil liberties and safety. However, perhaps I may ask the noble Earl to address one specific point. Although I understand what he is saying about the need for speed when dealing with the severely mentally ill, surely that concern would be more appropriate when the patient is to be admitted to hospital. The amendment, which stands in the name of my noble friend Lord Longford, refers to the time when the patient is about to be discharged when presumably the question of his imminent self-harm or the threat of suicide must be reduced, otherwise the supervised discharge order would not have been considered.

Earl Russell: Perhaps I may answer that briefly. I have known people who have changed from one of those states to the other within the space of half an hour, and you cannot see it coming.

Baroness Jay of Paddington: Surely that is an argument for delay. It would be useful if an independent solicitor and another psychiatrist were found before such a terrible clinical situation happened.

Lord Mottistone: Who is to pay for those eminent gentlemen—

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Baroness Cumberlege: Or women?

I have already said that consultation is a thread running through the provisions of this Bill and have drawn your Lordships' attention to the requirements for consultation with the patient and others at the various stages of aftercare under supervision.

The noble Earl, Lord Longford, wishes to add another doctor, a registered psychiatrist, to this list of people the responsible medical officer must consult. As I have already pointed out on the noble Earl's earlier amendment, there is no legal provision for psychiatrists to be registered as such. I am sorry to disappoint the noble Earl, but in any case we think such a requirement is unnecessary. The additional doctor would not be involved in the provision of aftercare services. If the purpose is to have an independent voice, speaking up for the patient, there are already proper safeguards for the patient in the Bill. The RMO must not only consult the various people listed under new Section 25B(2) but his application must be supported by two recommendations—one from an approved social worker, the other from a registered medical practitioner who will be professionally concerned with the patient's medical treatment after he or she leaves hospital. That mirrors the procedure for applications for detention under the Act.

The amendment would also require an independent solicitor to be consulted. We do not think that is justified. Patients will have the right to appeal to a mental health review tribunal against the imposition and renewal of supervised discharge. At tribunals they have full access to legal representation which is free. We have made additional financial provision for the anticipated extra tribunal hearings because of the introduction of supervised discharge, as noted in the financial memorandum. Against that background, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Longford: I enjoyed the exchange between one of the other noble Earls and my noble Leader. I am bound to say that that master of logic, the father of the noble Earl, Lord Russell, would have felt that the balance of the argument on this occasion lay with my noble friend Lady Jay. It may well be that before the next stage there will be a great volume of support for this amendment. I cannot say. If there is, I shall return to it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Jay of Paddington moved Amendment No. 26:

Page 3, line 12, at end insert
("and ( ) the Mental Health Act Commission.").

The noble Baroness said: Amendment No. 26 seeks to extend the remit of the Mental Health Act Commission to include patients who will be receiving aftercare under supervision; that is, the patients we have been discussing this afternoon. In Scotland the Bill extends the role of the Mental Welfare Commission to cover patients who are subject to community care orders. I can only echo the words of my noble friend Lord Carter about the extraordinary advantages of reverse devolution in this case.

4 Apr 1995 : Column 139

I am advised by, among others, the immediate past chairman of the Mental Health Act Commission that to introduce this extension of the MHAC's role in this way will be a very effective way of monitoring and evaluating the supervised aftercare provisions. For example, one of the problems about guardianship, which has been discussed this afternoon, is that little is known centrally about the number of people who are dealt with under the different forms of order in the community, and it is very difficult to maintain records of them. I refer back to the case of Andrew Robinson, the subject of the public inquiry chaired by Sir Louis Blom-Cooper, QC. One of the problems that arose in that case was the absence of a central register of the different types of care that he had received in different communities as he moved about the country. I go back to the point that I made on the previous amendment. So many of the people who will be subject to these orders may be described broadly as the homeless and rootless. To try to keep tabs on where they are and what they are doing is advantageous both from the point of view of maintaining contact with them and from the point of view of evaluating the services they receive to see whether they are effective.

One of the arguments advanced by several noble Lords at Second Reading was that this Bill should have been brought forward in the context of a general revision of the mental health Acts. The noble Lord, Lord Fraser of Carmyllie, said in reply:

    "I wish to conclude by acknowledging the case for considering whether the Acts still reflect current practice ... Our view is that we wish to take stock of the new powers that we propose should be introduced in the Bill before considering any further fundamental changes." [Official Report, 16/3/95; col. 979.]

It is possible to take proper and appropriate stock of precisely what will happen under supervised discharge if these new powers include referral to the Mental Health Act Commission. The reports will form a much more authoritative basis for considering both of the issues we have discussed about the relative merits of guardianship and supervised discharge orders, and many other forms of community care.

Of course, the Mental Health Act Commission is subject to the statutory requirement to report every two years through the Department of Health to Parliament. I believe that requirement to be important if in future we are to consider, as Ministers have suggested we may have the opportunity to do, a thorough revision of the mental health Acts as they now stand. I beg to move.

5.45 p.m.

Lord Campbell of Croy: I rise because of the references that have been made to what appears to be a superior system in Scotland proposed in Part II of the Bill. I only wish that those in Scotland thought so too. As I said at Second Reading, the great concern in Scotland is mainly about changing the leave of absence arrangements. They are separate and different in Scotland.

I should point out that the Scottish Mental Welfare Commission was in existence for many years before the body for England and Wales. I cannot help but be

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gratified by what has been said so far during the debate, having presided over the National Health Service as Secretary of State in Scotland for four years, although that was some time ago. When the Bill for England and Wales, which became the 1983 Act, passed through this House, some doubts were expressed as to whether the Mental Health Act Commission was necessary, whether it would do any good and so on. It was I who spoke up and said that there had been one in Scotland for several years, and I commended it. From what the noble Baroness, Lady Jay, has said, I believe it can be said that since 1983 the commission in England and Wales has served the purposes for which it was established. Therefore, I shall listen with particular interest to what the Minister says in reply.

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