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Lord Campbell of Croy: I should like to say just a word or two about the Motion because, as I indicated on Second Reading, there is concern among those working in the field about doing away with the leave of absence system in Scotland. The noble Lord, Lord Carmichael, has assisted us by providing the current figures. When at the time of the publication of the Bill I raised this matter with my noble and learned friend Lord Fraser of Carmyllie, who is responsible for health matters in Scotland, he pointed out what had been suspected for some time, namely, that the system was

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subject to a legal challenge. Doubt had already been thrown upon it by a sheriff court as far back as 1987. I am very sorry that it has that threat of legal challenge hanging over it because, as I said at Second Reading, its great merit is that it works and all those concerned are in favour of it. However, I recognise that it may have to be changed.

If it were possible to continue the system but alter the legislation so that the threat of challenge was removed, I believe that that would be the best answer as far as Scotland is concerned. Whether that is possible I do not know, but I have suggested that it be done. It may be beyond the lawyers and parliamentary draftsmen to do it. However, I shall listen carefully to what my noble friend says in reply. I emphasise that this is something that really matters in Scotland.

Two days ago in Committee when we dealt with the clauses relating to England and Wales, continual reference was made to how much better the system was in Scotland. It was even said that the provisions of the Bill were better as far as Scotland was concerned. But apparently the one drawback as far as Scotland is concerned is the removal of the leave of absence system which has worked very well.

2 p.m.

The Earl of Lindsay: Clause 4 is an important one. It introduces into the 1984 Act the concept of formalised multidisciplinary care in the community for certain people with mental disorders. We do not deny that the development of these proposals has been a complex process. There has been a difficult balance to strike between the rights of the patient and the rights of the public. We believe that these proposals strike the right balance and will ensure that mentally ill people who need support and supervision in the community will be properly supported. This includes the possibility of reassessment in hospital, which is intended to prevent a major relapse of the patient. That event would be of great distress to the patient and those caring for him.

As your Lordships are aware from what has been said previously on this matter, we do not believe that it is wise or defensible to maintain the current open-ended leave of absence arrangements. However, it is clear that if leave of absence is to be limited, not removed, there is a need for a community-based care and treatment option to fill the gap that is created. It is to provide that option that we have proposed community care orders.

My noble friend Lord Campbell of Croy was quite right in outlining the background to our worries about leave of absence. Sheriff Younger's judgment delivered in 1987 raised doubts about the lawfulness of the use made of leave of absence as a long-term care and treatment option. The Government are convinced that if things are left as they are it will only be a matter of time before a legal challenge is made. The time-limiting of leave of absence creates a need, which we intend to fill by this Bill, for a community care programme.

The noble Lord, Lord Carmichael, suggested that CoSLA was unhappy with certain aspects of the Bill. We consulted at three different stages on the Bill and met a pretty wide diversity of aspirations and ambitions.

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The Government are convinced that in taking note of that consultation they have managed to strike a balance between the wide variety of views put to them.

The noble Lord also mentioned the possible greater use of guardianship. I stress that guardianship and community care orders are perhaps not as closely related or as interchangeable as some noble Lords may believe. Community care orders are designed to control behaviour patterns and enable somebody with medical treatment to live a fairly normal life. Guardianship is designed to look after the day-to-day affairs of somebody, perhaps because of learning difficulties or for other reasons. In the case of guardianship, there is no presumption about a recall to hospital, whereas in the case of community care orders, because medication is involved, there has to be such a presumption. Therefore, in brief, guardianship is personal management; a community care order involves controlled medication and treatment to ensure that somebody can live an otherwise normal life.

The noble Lord, Lord Carmichael, quoted specific figures for those on leave of absence. I do not wish to argue about the figures today. I know that they are comparatively small. It may well be that if I check them I will agree with him. However, these people need specific help, and the community care orders under the Bill are designed to target that help on those who need it. Although the numbers may be small, the effort that has been put into the creation of community care orders is justified because of the aid and support that they will provide.

I have said that Clause 4 is a crucial part of the Bill. We believe that it introduces valuable new powers to the 1984 Act and the powers have been considered carefully. We have listened carefully to what others have had to say on this potentially difficult subject. I also stress to the noble Lord, Lord Carmichael, that many of the points he has raised in Committee today have had a sympathetic hearing from the Government. We have given assurances that there are matters that we will reconsider and come back to. I commend the clause to the House.

The Earl of Mar and Kellie: I should like to offer my congratulations to the noble Earl for so clearly defining the difference between guardianship and community care orders. I believe that the whole Committee will find that very useful.

Lord Carmichael of Kelvingrove: I thank the Minister for his explanation. I believe that the noble Lord, Lord Campbell of Croy, and myself will be a little disappointed. He has put forward a case that is perhaps worth looking at to see whether anything can be done to change the situation; or we may be satisfied with it when we have looked at it with greater care. Therefore, perhaps we can increase the entente cordiale and discuss it together in another place before a final decision is reached. In the meantime, I am grateful to the Minister for his attention.

Clause 4, as amended, agreed to.

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Clause 5 [Absence without leave]:

Lord Carmichael of Kelvingrove moved Amendment No. 127:

Page 26, line 38, after ("patient") insert ("who is subject to a hospital order made under section 175 or section 376 of the Criminal Procedure (Scotland) Act 1975").

The noble Lord said: The amendment is an effort to extend the absence-without-leave provisions which will apply only to patients who are in hospital following the commission of a criminal offence. It is difficult to understand why a patient who might be hospital for only a three-day section could, if he escaped, be liable to be recaptured up to six months later. As I understand it, that is the case at present.

I understand also that the case which led to the amendment concerned a person who had killed his wife, who then escaped and remained at liberty for 28 days, and was thus no longer liable to detention. We do not believe that that case justifies such a drastic change for a vast majority of patients; in other words, we are back to taking a sledge-hammer to crack a nut. Although that was an appalling case, I hope that the Minister will give us a full explanation of why the amendment should not be accepted.

It is not an easy matter because, as I said, it seems bizarre that a person who has killed his wife and is at liberty for 28 days should no longer be liable to detention. I hope that the Minister can give us an explanation. I beg to move.

The Earl of Lindsay: The amendment purports to seek to restrict the application of the return and readmission to hospital provisions of Section 28 of the 1984 Act only to patients subject to hospital orders imposed by the courts who are absent without leave. We do not think the amendment achieves such a restriction.

In any event that would be a serious backward step for us to take. Our mental health legislation is founded on the principle that there should be no discrimination between patients based on their particular route to detention in hospital, except for persons on whom the court has imposed a hospital order with restrictions. A proposal to single out for special provisions in respect of absence without leave those mentally ill patients who have been involved in criminal proceedings but not made subject to restrictions is unacceptable.

If the noble Lord's intention in proposing the amendment is to target for return to hospital only those absconders who are thought to be dangerous, I suggest that he has missed the mark. There are ordinary detained patients—that is, detained under civil powers—who have committed criminal acts and who might be regarded as dangerous. Indeed, our policy is that mentally disordered people who come into contact with the law should be diverted from the courts or from custody to receive non-discriminatory care from the health and/or social work services.

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As with the general thrust of the Bill, there should be no discrimination in the absence-without-leave provisions; so with the background I have explained, I ask the noble Lord to withdraw the amendment.

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