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Lord Carmichael of Kelvingrove: The Minister has given assurance that the purpose of the amendment will be fulfilled with the provisions already in the Bill. It is a matter that some of those who advise noble Lords on this side of the Chamber will wish to consider carefully. I accept his interpretation at this point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 97:

Page 21, line 1, after first ("the") insert ("patient, and if he does not object, his").

The noble Lord said: The effect of the amendment is that the patient must be told of any application for a community care order. We are concerned that there will need to be provision for notice of all applications, variations, and so on, to be notified to the patient and his nearest relative. In some cases it would be "or" his nearest relative because the patient was not aware of what was happening, although I hope that such cases would be few. The amendment highlights one occasion when the patient himself or herself needs to be notified.

Generally, under the Mental Health (Scotland) Act, most notices are given under the provisions of an act of sederunt. A new act of sederunt will be necessary for community care orders. I can see that that would not be overcomplicated, but for the sake of the safety and the future of the patient I hope that the Minister will accept the amendment. Alternatively, perhaps he could find more appropriate wording which expresses the same sentiment as the wording that I used. I beg to move.

The Earl of Lindsay: The amendment seeks to do two things. First, it seeks to make it explicit that the patient must be informed about the proposed community care order. Secondly, it seeks to give the patient discretion about whether his nearest relative is to be informed that a community care order is being considered.

It appears to us impossible that an order could have reached that stage without the patient's knowledge, since his responsible medical officer will have to have consulted him under the new Section 35B(3). That part of the amendment therefore appears unnecessary.

We have made it clear that we believe that the patient subject to a community care order has the right to withhold information from his nearest relative. However, I wish to point out to the noble Lord that at that stage no community care order exists and the patient is liable to be further detained in hospital. We think it appropriate that the nearest relative of a patient detained in hospital should be informed that it is proposed that the patient should not be detained in

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hospital for much longer and that the patient should not be able to overrule that. After making that point, I ask the noble Lord to withdraw his amendment.

Lord Mottistone: I am grateful for those remarks by the Minister. That is the kind of provision that I sought to have inserted in earlier parts of the Bill. Once again, the Scots have produced very good legislation. Let us leave it that way.

Lord Carmichael of Kelvingrove: We always appreciate compliments when we receive them, but after a while we become embarrassed! There is only one point which I wish to raise with the Minister in order to improve what is already accepted. It is that the patient could be in an acute state at that stage. Therefore, it would be important for the nearest relative to be told about that, and to allow time for the patient to be told later when he is feeling better. I appreciate the importance of the Minister's remarks, however, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 98:

Page 21, line 4, at end insert:
("( ) A community care application shall be of no effect unless the patient is described in each of the medical recommendations as suffering from the same form of mental disorder, whether or not he is described in either of those recommendations as suffering also from the other form.").

The noble Lord said: This amendment seeks to insert a new subsection on page 21. The effect would be that each doctor should agree whether a patient's disorder is mental illness or mental handicap.

When we discussed the matter on a previous amendment, it was decided that the provision would not be necessary. However, we strongly suggest that the new community care order should not only apply to people with mental illness. Since the previous amendment was not accepted, this amendment would ensure that doctors have to agree whether the patient suffers from mental illness or mental handicap. The provision under Amendment No. 98 mirrors the provision of Section 18(3) of the Mental Health (Scotland) Act which states that a patient cannot be detained in hospital under a section if doctors do not agree on the form of mental disorder from which the patient suffers. The point has already been made that medical officers should agree whether the patient suffers from mental illness or mental handicap. I beg to move.

The Earl of Balfour: I wish to ask the Government to consider seriously a purely practical point. Before any patient is taken into the community, it should be decided whether, once he is back in the community, that person can be relied upon to boil an egg or to ensure that he eats properly and can carry out similar basic activities. One of the problems with mentally impaired people is that they cannot be trusted to light the gas once it has been turned on, to switch on an appliance or to switch off a light. It takes a long time to ensure that patients can do that. The amendment moved by the noble Lord, Lord Carmichael,

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has reminded me of an important practical point. Therefore, that should be taken into account, not necessarily in primary legislation but perhaps in the guidelines which are to be issued. There needs to be someone in the background, watching the patient recovering and recuperating, and ensuring that he can cope properly.

The Earl of Mar and Kellie: I support the amendment. We are dealing with a compulsory measure of care, when a citizen has had an order imposed on him effectively by the state. It is important that, since the basis of the compulsory order is a medical recommendation, we should require doctors to agree that the patient is schizophrenic, psychotic or has aggravated learning difficulties. It is not unreasonable to make that requirement.

The Earl of Lindsay: The Government very much agree with the sentiment behind the amendment. It is quite reasonable to expect that both medical reports should specify the same form of mental disorder. However, we believe that, for drafting reasons, the amendment will not alone achieve the desired effect. I should therefore be grateful if the noble Lord would consider withdrawing the amendment, to allow us to examine the matter further and introduce an amendment at a later stage.

My noble friend Lord Balfour rightly focused our anxieties on what happens to patients when they have returned to the community. I can give him the following assurances on the point. A community care order application is a multidisciplinary application which is made after a period of observation and analysis. It may be initiated by the responsible medical officer, but it draws in the mental health officer or the aftercare officer. Considerable thought is given to how the patient will survive in the community.

Secondly, other aspects of the patient's life in the community may be included in the process of planning, such as any informal carers or relatives who may be involved in his day-to-day life. The community care order is not the only option available at that stage of the patient's progress. It may be that guardianship is seen as a better option for a particular patient. It may be that even with medication to sort out a mental disability, because the person is liable to turn on the gas but not to light it, something more like a personal management plan is needed. That is, guardianship. I give the assurances both to Members of the Committee opposite and to my noble friend Lord Balfour that the anxieties that they have raised on the amendment will be met.

However, I return to the point that I made to the noble Lord, Lord Carmichael, that we agree with what he is trying to achieve. If he will withdraw the amendment, we shall return with some wording at a later stage.

Lord Carmichael of Kelvingrove: That statement makes it impossible for me to say other than that I beg leave to withdraw the amendment. I note that three people have spoken to this very small amendment. We shall be interested to see the wording of the new one. We acknowledge that the Minister accepts the spirit of the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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The Earl of Mar and Kellie moved Amendment No. 99:

Page 21, line 29, leave out ("responsible") and insert ("special").

The noble Earl said: At this point we move on to the procedures for renewing a community care order. The amendment relates to a technical drafting error. The new subsection 35C(3) deals with the special medical officer's duties in the run up to the renewal of an existing community care order. To my mind, the new paragraph (3) (b) (iii) should read:

    "any person who the special medical officer believes plays a substantial part in the care of the patient".

By the time that the community care order is renewed—after four months in the first instance, and after 10 months subsequently—the responsible medical officer, who is the person whom I regard as the consultant psychiatrist, may well have become a rather remote figure in the care of the patient. The special medical officer—the psychiatrist who is dealing with the patient in the community—will be completely involved. He will know who in fact is concerned in the process of caring for the patient rather than who ought to be involved. I beg to move.

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