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Baroness Jay of Paddington: Perhaps I may briefly express my support for the amendment. The noble Lord, Lord Mottistone, referred to my Amendment No. 28 which the Committee discussed on Tuesday and which, indeed, reflected much the same concerns about the particular responsibilities and qualifications of the community responsible medical officer. As we agreed when we discussed the matter earlier, it is a new post and one which is not encompassed by existing legislation under the Mental Health Act.

Further, I should add that I agree with the response of the noble Lord, Lord Mottistone, to the earlier reply as regards the nature of guidance in the matter. Like the noble Lord, I feel that this is an inappropriate area for guidance. As I also said on Tuesday (at col. 114 of

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Hansard), I really have little confidence in the "force of guidance" in something as complicated and necessary and where such clarity is needed as is the case here.

Earl Haig: My noble friend Lord Mottistone mentioned Amendment No. 137 which is tabled in my name which I shall speak to later. However, in the meantime, I should like to express my support for my noble friend's amendment. There should be no questioning the fact that the care of the patient will be in the hands of a doctor who, because of his experience in treating the mentally ill, is qualified to supervise treatment. The RMO should be able to understand the patient's current condition so that he can give confidence to patients and to relatives. He should be able to respond where there are signs of regression in an illness and, if necessary, should symptoms indicate the need for a change in treatment, take such steps as are necessary without delay. In some cases, there can be grave consequences from wrong diagnosis or delays over treatment. Therefore, the amendment is of great importance.

Baroness Cumberlege: In the first part of his amendment my noble friend Lord Mottistone identified the principle of good practice. Doctors approved under Section 12 of the Mental Health Act 1983 have a special knowledge of how the legislation works and an expertise in dealing with the kinds of patients to whom it may need to be applied. That would fit them very well to act in the role of the community responsible medical officer. We shall certainly want to take account of that in the guidance that we shall be issuing on the implementation of the Bill. I understand that the noble Baroness, Lady Jay, does not have a great deal of faith in guidance. However, I believe that I am more resolute in believing that guidance can actually be very effective. We believe that there may be cases where it is justifiable for someone not approved under Section 12 of the 1983 Act to be the community responsible medical officer if, in all other respects, the care package is in the best interests of the patient.

The amendment would also require the community RMO to be appointed rather than nominated by the health authority concerned and to have given his agreement to being appointed. In that regard, we believe that the term "nominated" correctly reflects the nature of the CRMO's responsibilities. A provision in the schedule for the RMO to agree is not needed because, under the new Section 25B(8) (a)—which is to be found at line 11 on page 4 of the Bill—he has to make "a statement in writing" that he is to be in charge of the patient's medical treatment. Although I appreciate that my noble friends will not find that explanation to be totally satisfactory, I hope that they will seek to withdraw their amendments on this occasion.

2.30 p.m.

Lord Mottistone: I thank my noble friend up to a point. She has gone no further than the reply that was given on Tuesday. I shall certainly return to the matter at the next stage of the Bill to try to improve the situation because I do not accept the argument that there

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will be exceptional cases—or whatever were the words my noble friend used—when it will not be necessary for the person to have the experience of mental illness that we are seeking. I do not believe that that is a good argument. If I may say so, it is a little stubborn on the part of all those concerned to insist on it. As to whether we return to the matter of whether a CRMO agrees in advance to the provision, that is not to my mind quite so important. However, I shall certainly return to the first part of my amendment at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Haig moved Amendment No. 137:

Page 34, line 33, after ("who,") insert ("having been approved by the Secretary of State for the purposes of section 12 above, and").

The noble Earl said: As my noble friend Lady Cumberlege explained on Tuesday, the Mental Health Act Commission's remit is limited to detained patients. This is a probing amendment whose purpose is to extend the role of the Mental Health Act Commission to include patients subject to Clause 1 of the Bill who are receiving care in the community. The proposal is in keeping with the existing role of the commission with regard to reviewing those patients subject to Part IV of the Act which concerns consent to treatment. Furthermore, this would enable the commission to develop amendments to the code of practice, in accordance with the proposal contained in paragraph 16 of Schedule 1 based upon actual instances investigated by commissioners.

Such a policing role must help in the development of good practice in the operation of aftercare supervision, and perhaps aftercare provision in general. I share the concern expressed by some Members of the Committee about giving too much power to doctors and supervisors. Given the possibility of considering the rights of patients through the mental health commission over questions of discharge and readmission, I believe the opportunity should be taken advantage of. That would keep a balance between medical needs on the one hand and civil liberties on the other. I beg to move.

Baroness Cumberlege: Because the Secretary of State's duties under Section 120 of the 1983 Act are delegated to the Mental Health Act Commission this amendment would effectively extend that body's remit. The commission plays a valuable role in protecting the rights of detained patients. At the point when a supervision application is made the patient will be detained in hospital and the commission will be able to review the way procedures are operating. Once they have left hospital and are living in the community we do not see the need for a body to protect their rights in the same way as those who are formally detained in hospital. We believe there are sufficient safeguards built into the Bill.

The commission's remit has never included those subject to guardianship and for the same reasons we do not favour extending it to them now. Scotland's mental welfare commission has a role in relation to community care orders but this reflects the very different legal set-up in Scotland. The mental welfare commission effectively combines the role of the Mental Health Act

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Commission and mental health review tribunals in England and Wales. Patients subject to aftercare under supervision will, as we have remarked on earlier amendments, have access to mental health review tribunals. I understand this to be a probing amendment by my noble friend. I hope that his efforts have been rewarded by my reply.

Earl Haig: I thank my noble friend for her explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 138 not moved.]

Schedule 1 agreed to.

Schedule 2 [Community care orders: supplementary]:

Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 139:

Page 39, line 23, at end insert:

("Consent to treatment

( ) In section 96(1) of that Act (consent to treatment) there shall be inserted the following paragraph—
"(d) a patient under a community care order who has been detained in hospital for assessment under section 35F(4) (a) of this Act.".").

The noble Lord said: I have to confess that I have been re-reading this amendment. I should like more confirmation from both the medical and legal people who have been advising me because the matter is not clear. However, I want to give the Minister an indication that I may return to the matter at the next stage. I shall not move Amendment No. 139 at this stage.

[Amendment No. 139 not moved.]

The Earl of Mar and Kellie moved Amendment No. 140:

Page 39, line 27, leave out ("wilfully").

The noble Earl said: The amendment aims to make the offence of ill-treating or neglecting a community care order patient more meaningful and to raise the priority level given to such patients. By eliminating the word "wilfully" it would be easier to determine whether an offence had been committed. To retain the word would allow a plea that the neglect had been accidental or, for example, that it was the result of there being a shortage of staff. By striking out "wilfully" it becomes a simple matter of establishing that the patient has been neglected, with dire consequences for medical and social work managers.

I believe that this draconian-sounding measure would be helpful in establishing the priority to be given to this particular client group. I acknowledge that Section 105 of the 1984 Act would need to be consequentially amended if the amendment were accepted. I must admit to be seeking to protect the position of the staff who will be involved in community care orders in future. I beg to move.

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