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The Earl of Lindsay moved Amendment No. 80:

Page 19, line 3, at end insert ("and, if practicable and the patient does not object, his nearest relative").

The noble Earl said: My Lords, I spoke to this amendment when I moved Amendment No. 71. I beg to move.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 81:

Page 19, line 30, at end insert ("; and
( ) the community care assessment of the patient.").

The noble Lord said: My Lords, this amendment was discussed with Amendment No. 65, which was not accepted by the Government. Accordingly, I shall not move the amendment.

[Amendment No. 81 not moved.]

The Earl of Mar and Kellie moved Amendment No. 82:

Page 19, line 37, after ("name") insert ("and the written agreement").

The noble Earl said: My Lords, this amendment relates to the position of the special medical officer in relation to an application. The responsible medical officer—that is, the consultant—and the aftercare officer are both able to give their consent to their part in the future care of the patient who is to be the subject of the community care order. However, the special medical officer, a more junior doctor, may find that the case is simply allocated to him or her. As the special medical officer plays a leading role in the community care order and is also subject ultimately to punishment for failure to care adequately, I believe that it is essential that the sheriff should be able to read the written consent of the future special medical officer when the application is before him.

For once, I shall plead that the English provisions are more adequate in this respect because line 9 on page 4 states:

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The Scottish phrase for "community responsible medical officer" is "special medical officer". Given all the lavish praise that was heaped on the Scottish provisions earlier, I am sure that the noble Earl will see the advantage of accepting this amendment. I beg to move.

The Earl of Lindsay: My Lords, I note from cols. 338 and 339 of the Official Report that we considered a similar matter in Committee. Although I appreciate the sentiment behind the amendment, I am afraid I can do little more than underline the explanation I gave then. The intended special medical officer and the intended aftercare officer must be consulted by the responsible medical officer before an application is made. We do not see how a person would become the proposed special medical officer or proposed aftercare officer and be consulted about the proposed application yet not be aware of this. If he is not happy about the distribution of work by his line manager, he should address this in the usual manner.

I should underline once more that we do not see how a sheriff could approve an application without the named persons agreeing to carry out their professional duties.

In response to the noble Earl's suggestion that the SMO might be a more junior doctor, I should stress that that is not necessarily the case. Therefore, we disagree with the assumption behind the noble Earl's remarks. With the assurance that I have given him, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Mar and Kellie: My Lords, I have listened to the noble Earl and note that he resisted the idea of adopting English practices—I probably agree with him on that! I believe that it was worth raising this issue because social workers will have their say. Nevertheless, accepting the noble Earl's word, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 83:

Page 20, line 5, after ("by") insert ("the patient's general practitioner or").

The noble Lord said: My Lords, this amendment suggests that one of the medical recommendations be made by a patient's general practitioner. In most cases, a patient's GP would be the appropriate person to support an application for a community care order. It is important that the second opinion is given by a doctor who knew the patient while he was living in the community. A patient's GP would, or should, be able to speak about any problems which the patient might have had while living in the community. If the amendment is not accepted, the second opinion could be given by another hospital doctor who knew the patient. Such an opinion would not be acceptable if the plan is to prepare the patient for life in the community again.

The amendment merely mirrors the wording of Section 20B of the Mental Health (Scotland) Act which states that one of the medical recommendations accompanying an application for detention should be made by the patient's GP or another doctor who knows the patient. In the view

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of most people in Scotland, that is equally important for patients who are being considered for community care orders.

Many GPs will say off the record that they have no doubts at all about the great skill, ability and devotion to duty of the specialists, but in many cases a GP will have known a patient for 20 or 30 years, whereas a specialist, who sees a patient for only a short time, will be able to offer a diagnosis on the symptoms only. From personal experience, I can cite a number of examples of a GP knowing how a patient would be in five years' time because he knew the patient's previous history intimately and over a long period. I hope that the Minister will view the amendment with a certain amount of understanding and recognise that a GP could be a back-up to a specialist in being one of the people empowered to make medical recommendations to a specialist. I beg to move.

The Earl of Lindsay: My Lords, I can show the noble Lord a certain amount of understanding as regards the sentiment behind his amendment. We accept that a patient's GP will normally know a patient very well and may therefore be the best person to provide the second medical report to accompany the application for a community care order. However, I am sure we can all think of circumstances where this may not be so. A patient may not, for instance, have been registered with a GP prior to being detained in hospital. The Bill retains the flexibility to cover such circumstances. The Bill seeks to cover all options in the event of a patient's GP not being available or it not being practicable for a GP to provide a second opinion. On that basis, I hope that the noble Lord will accept the Bill as drafted on this point and that he will feel able to withdraw his amendment.

Lord Carmichael of Kelvingrove: My Lords, I see the problems. Indeed, I saw them while I was moving the amendment: not everyone has a GP for life and some people may not be with a GP for very long. I find the Minister's sentiments satisfactory, however. If only we could get GPs occasionally to spend a little time reading the Minister's wise words in Hansard, everything would be all right. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 84:

Page 20, line 15, leave out ("disorder") and insert ("illness however caused or manifested").

The noble Lord said: My Lords, this amendment limits the making of community care orders to people with mental illness. There was no suggestion on consultation that the Government's proposals were intended to cover people with a learning disability, but the term "mental disorder" in the Mental Health (Scotland) Act includes mental handicap. We have been over some of this ground before, but it is important to get it straight. I am not aware of any discussions or consultation about whether the new provisions are appropriate or necessary for people with learning disabilities.

I urge the Minister to consider the possibility of wider consultation with organisations representing people with learning disabilities before he imposes a new order on that group of people. There is time. The Bill will be under

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consideration in the other place for several weeks. If the noble Earl could simply give us an idea of his thinking on the matter, that would save a certain amount of time in the other place. I believe that the amendment merits considerable attention and discussion. I beg to move.

8.30 p.m.

The Earl of Lindsay: My Lords, the amendment would restrict the use of community care orders to people with a mental illness. As the noble Lord said, the detention criteria are framed by reference to "mental disorder", which means both mental illness and mental handicap. The community care order criteria, which must relate to liability to detention in hospital, must therefore be framed by reference to "mental disorder".

The consultation papers on this subject referred clearly to the legal powers of the care in the community for people with a mental disorder, which includes both mental illness and mental handicap. As the noble Lord will know, the consultation was widespread and was carried out over three separate periods. I can assure the noble Lord that among the organisations consulted was Enable, formerly the Scottish Society for the Mentally Handicapped. Such organisations were given the opportunity to put their ideas into the consultation process.

That said, I have no difficulty in accepting that the vast majority of the intended client group would be mentally ill. However, there may be cases in which a community care order would be appropriate for a person with a learning disability; for example, if such a person also had a mental illness.

The noble Lord used the word "imposed" in connection with the community care order. It is merely an option where the patient has both a mental handicap and a mental illness or there are some such circumstances. It is important that we do not close off that avenue as it might be of use in a small number of cases. With that in mind, I ask the noble Lord to withdraw the amendment.

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