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The Earl of Mar and Kellie: If I may go back to my previous analogy about the probation order, I hope that when this document is drawn up one of the conditions of a community care order is that the patient must take his or her medication or other prescribed medical treatment in the same way as condition 1 of a probation order states that the probationer shall be of good behaviour. I fully accept that any hint of compulsory medication in the community is unacceptable. However, I believe that early readmission to hospital would have benefits in the sense that the amount of time taken up in a hospital bed would be diminished. After all, under my reckoning the patient would have breached his order by not taking his prescribed treatment.

The Earl of Lindsay: For the noble Earl's interest, perhaps I may stress again that if a patient ceases to follow the conditions laid down in his order, that would immediately trigger interest among those people who are caring for that patient. But the fact that he is not complying with the condition laid down in his order that he must take his medication is not by itself a sufficient trigger for automatic reassessment in a hospital. That trigger should surely be a deterioration in his mental health.

The Earl of Mar and Kellie: I go along in some way with what the noble Earl has said. I should just like slightly to short-circuit the need to wait until mental health has deteriorated again. The person is subject to a community care order, which is a compulsory measure of care, because we recognise that part of his illness relates to thinking that he is well when he is not.

The Earl of Lindsay: It can be done in anticipation of deterioration and not before deterioration itself.

The Earl of Mar and Kellie: I am extremely pleased to hear what the noble Earl said, although I suspect that we may return to this matter at Report stage. I withdraw the amendment at this point.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 118:

Page 23, line 41, leave out ("responsible") and insert ("special").

The noble Earl said: I spoke to this amendment earlier. I beg to move.

On Question, amendment agreed to.

[Amendment No. 119 not moved.]

6 Apr 1995 : Column 352

Lord Carmichael of Kelvingrove moved Amendment No. 120:

Page 24, line 38, at end insert:
("( ) A patient who is detained in hospital under this section shall have the right to appeal to the sheriff for his discharge from detention.
( ) Unless the sheriff is satisfied that—
(a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for assessment, or for assessment followed by medical treatment for at least a limited period; and
(b) he ought to be so admitted and detained in the interest of his own health or safety or with a view to the protection of other persons,
he shall order that the patient be discharged from hospital and he may revoke the community care order.").

The noble Lord said: The purpose of this amendment is that a patient on a community care order should always have the right of appeal if he is returned to hospital. Whereas a patient on a community care order generally has the right to appeal against it, during the first six months of that order he does not have that right. New Section 35E on page 22 of the Bill allows for appeal only after the first renewal of the order, echoing the appeal provisions for detention in hospital.

Deprivation of the patient's liberty without appeal to a judicial forum may be in breach of the European Convention on Human Rights. We strongly urge that the Minister takes this matter away for further consideration. He says that advice has been taken as regards an earlier amendment on European rights. Obviously, if he can tell us that there is no question of any contravention of those rights, that would clear things up to some extent. However, it would still leave us concerned about the patient's rights quite apart from the European situation. It is only reasonable to say that I have been informed that there could be a breach of the European Convention. I beg to move.

The Earl of Balfour: From a purely practical point of view, based on my experience of two persons whom I looked after very carefully while they were in hospital, there were only two occasions when they were thoroughly and completely upset. They were a real worry to the nurses and nursing staff. In the first instance the ward was being redecorated. The fact that they were moved and their routine disturbed seriously upset them.

The next occasion was when they were considered to be well enough not to be held any longer in a mental hospital and were moved to a geriatric hospital. For about the first week they were very upset and in a very distressed state of mind. I am glad to say that at the end of the week, my wife, one of the patients, said to me, "It is very nice now being in the south of France" when in fact she was in a hospital in Scotland.

The Earl of Lindsay: This amendment seeks to introduce a right of appeal to the sheriff by the patient against reassessment in hospital. We do not think that that is appropriate. There is to be no right of appeal at this point because the detention in hospital is for the

6 Apr 1995 : Column 353

purposes of reassessment. We recognise that it may be also for the purposes of reassessment and treatment, and that treatment may be without the patient's consent.

However, the reassessment period is quite short. It is for a maximum of seven days. I am not sure whether the noble Lord, Lord Carmichael, grasped that point. This is why we believe no right of appeal to be necessary. At the end of seven days, the patient will be returned to the community on his community care order, or the community care order will be revoked; or an application for detention in hospital will have been made in respect of him. If he is returned to the community, he is no longer detained in hospital and there appears to us to be no need for an appeal. If an application for detention is made, then the patient has a right to be heard by the sheriff as any patient would in the same situation. This appears to us to be sufficient.

To answer the point raised by the noble Lord, Lord Carmichael, our legal advice is that the proposals meet the obligations of the United Kingdom under the European Convention. On that basis I hope that the noble Lord is able to withdraw his amendment.

Lord Carmichael of Kelvingrove: I thank the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.45 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 121:

Page 24, line 38, at end insert:
("( ) This section is without prejudice to the emergency admission provisions of section 24 of this Act; and in the event that a patient under a community care order is admitted to hospital under section 24 of this Act, his community care order will cease to have effect.").

The noble Lord said: The effect of this amendment is to allow a patient under a community care order to be admitted to hospital in an emergency without going through the procedures of new Section 35F. If that happens the community care order will come to an end. The procedures under the section are complex and unwieldy. In an emergency it may be a too-lengthy process to comply with all the procedures. Doctors should retain the ability to bring a patient to hospital and the community care order should come to an end. Generally, if doctors feel that the community care order is working they will rely on new Section 35F, but the retention of Section 24 would give them flexibility.

If this amendment is not accepted it may be possible to argue that new Section 35F has replaced Section 24 for patients on community care orders. Despite the civil liberties implication we feel that that is an acceptable risk. Many psychiatrists who responded to the Scottish Office consultations on the new measure are concerned about how that would work in practice. The psychiatrists showed sufficient interest to approach the Scottish Office. I shall be interested to hear the Minister's reply having been given time to look at it with care. I beg to move.

The Earl of Lindsay: I am grateful to the noble Lord, Lord Carmichael, for introducing this amendment and

6 Apr 1995 : Column 354

for explaining it. We agree that when the emergency powers to detain a community care order patient under Section 24 are exercised, the community care order should fall and should not be suspended only to re-enter into force at a later date. We will, therefore, consider whether an amendment is required to make that clear. On that basis I hope that the noble Lord is able to withdraw his amendment.

Lord Carmichael of Kelvingrove: I am very grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 122:

Page 25, line 24, at end insert ("patient, and if practicable and the patient does not object, his nearest relative and the").

The noble Lord said: This is a short amendment. The patient and his nearest relative will be told that the patient will stay in hospital for another 21 days under new Section 35G(4). That is the effect of the amendment. The reason, as we have tried to emphasise throughout this Bill, is that the patient and his nearest relative must be kept informed of developments. I hope that the Minister will be as kind with this amendment as he was with the previous one. I beg to move.

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