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Baroness Cumberlege moved Amendment No. 142:

Page 38, leave out lines 1 to 18.

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 15. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Community care orders: supplementary]:

The Earl of Mar and Kellie moved Amendment No. 143:

Page 39, line 5, at end insert:
(". In section 96 of that Act, after the word "Act" in line 8 insert "and any patient subject to a Community Care Order under this Act"").

The noble Earl said: My Lords, this amendment concerns the powers to deal with breaches of the conditions of a community care order. However, on the face of it, its purpose is to bring all those on community care orders under Part X of the Mental Health (Scotland) Act 1984, thereby insisting that they accept treatment. Without that the community care order will not be helpful in relation to the people for whom it is most needed—that is, those who, because of the severity of their illness and possible associated lack of insight, are not in a position to decide whether they wish to accept treatment on an informed basis.

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I am worried that without a continuing power to insist on the acceptance of treatment in the community after one year's leave of absence, unfortunate incidents will be more likely to occur in Scotland with immediate unfortunate consequences for those involved, especially for the immediate carers, and indeed may have consequences for the whole public acceptance of the policy of community care.

The fundamental behind the amendment is that the Bill, in Section 35(A) (1), indicates that the purpose of the community care order is to ensure that the patient receives medical treatment and aftercare services. I do not think that the Bill backs up the word "ensure". There are no measures to be taken in the event of the patient ignoring the conditions other than the possibility of readmission to a hospital. That could happen only if the patient's mental health had deteriorated. The central deficiency I wish to expose is the lack of authority to deal with any breach in the terms of the order. I beg to move.

The Earl of Lindsay: My Lords, as the noble Earl has explained, the effect of the amendment would be to allow treatment of a community care order patient in the absence of his consent when the community care order was in force. We do not find that acceptable. We believe that long-term use of leave of absence is based on what appears to amount to a fiction since the patient is clearly well enough to remain in the community on a long-term basis, yet at the same time he suffers as a matter of law from a mental disorder of a nature or degree which makes it appropriate for him to receive treatment while detained in hospital. As we understand it, it may have been a considerable time since those on long-term leave of absence have actually been inpatients in hospital.

There is a power to medicate compulsorily a patient who is liable to be detained in hospital but who is on leave of absence in the community. A patient who is in the community on a community care order is not liable to be detained in hospital. A community care order patient can be treated in the absence of his consent only when he is detained in hospital for reassessment under new Section 35F because he then becomes liable to detention in hospital.

We do not believe that a power to medicate compulsorily in the community would be acceptable. That is a view which we share with many of those who replied to our consultations. As we understand it, the power is not pressed for by the Scottish division of the Royal College of Psychiatrists. We would also be at risk of falling foul of our obligations under the European Convention on Human Rights by introducing such a power. I should add that we believe that the real answer to any problems of reluctance on the part of the patient to take medication while subject to a community care order is good, sensitive care with a clear framework of responsibilities.

If a patient's mental condition has deteriorated and gives cause for concern, or is likely to give cause for concern, as outlined in the Bill he may be detained in hospital under new Section 35F when he becomes liable to Part X of the 1984 Act. I hope that my explanation has

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gone some way to meeting the concerns raised by the noble Earl. In that light, I hope that he will be able to withdraw the amendment.

The Earl of Mar and Kellie: My Lords, I thank the noble Earl for his answer. I am still concerned that a patient who is on a community care order may choose to ignore some of the conditions. For example, if there is a condition that he should attend a particular sheltered employment programme but he just does not go it does not strike me that anything can happen. I am not yet aware of any breach of community care order provisions. I wonder whether the noble Earl can help me on that.

The Earl of Lindsay: My Lords, I draw the noble Earl's attention to new Section 35F, especially to subsection (1). It points to the circumstances in which his readmission to hospital for reassessment might take place. As well as referring to deterioration it states,

    "is, or is likely to become, such as to give grounds for serious concern regarding his health or safety or the protection of other persons".

If a community care order patient began to neglect some or all of the conditions by which he was meant to live within the community it would be up to those monitoring him and his progress to see whether or not he was falling within the ambit of the first part of new Section 35F and initiate a reassessment to hospital if any concern arose. It is a matter of good practice that that sort of monitoring continually takes place. Therefore, as the requirements of the community care order begin to be neglected by a patient, concern will rise among those who are monitoring his progress.

The Earl of Mar and Kellie: My Lords, I can see that if the patient does not go along with some of the conditions such as the one I mentioned, it will boil down to persuasion by the care team that there is no return to court on a breach of the community care order. Here I am obviously comparing it with a breach of probation.

The Earl of Lindsay: My Lords, I believe that the prospect of being submitted to hospital for reassessment might act as persuasion in its own right with many community care order patients.

The Earl of Mar and Kellie: My Lords, I accept that point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 144:

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: My Lords, this is the last amendment at the Report stage of the Bill. Sadly, we have come to the end just when we were beginning to get to know each other. It is rather an important amendment. It is to provide that a person on a community care order who has been readmitted to hospital shall not be subject to compulsory medical treatment for the first seven days of

1 May 1995 : Column 1317

his detention. We believe that for technical reasons the Bill as currently drafted does not obtain what is apparently set out concerning the compulsory medication of patients on being recalled to hospital.

The Bill envisages two types of detention. During the first seven days the patient will be detained for assessment and during the latter 21 days the patient may be detained for both assessment and medical treatment. The assumption is clearly that there will be no compulsory medical treatment for the first seven days of the patient's detention. That is a mirror of the conditions of Section 24 of the Mental Health (Scotland) Act 1984. The patient cannot be given compulsory medication during the three days of emergency and assessment detention.

The Bill provides that, in fact, a person who is admitted to hospital, even for assessment, can be given compulsory medical treatment. That seems to us to be a reversal of the intention of the Mental Health (Scotland) Act. The Bill says that the person recalled to hospital is a detained person. I refer to line 15 of the new Section 35F(4) (b). Section 96 of the Act states that any person who is liable to be detained under the Act can be compulsorily medicated although he was supposed to be there for assessment.

This amendment provides that people who have been recalled to hospital for assessment should not be subject to compulsory medical treatment found in Part X of the Act. We believe that it is in accordance with the stated intentions of the Bill and with the other assessment provisions of the Mental Health (Scotland) Act. Therefore, we believe that there is an inconsistency, which we hope is an accidental one and which will be corrected either here or at a later stage. I beg to move.

The Earl of Lindsay: My Lords, I fear there may be a misunderstanding of our intentions on this point. We are aware that as the provisions are currently, a patient detained in hospital could be treated without consent if necessary. This has always been our intention and is the basis on which we consulted in relation to the Bill.

1 May 1995 : Column 1318

We consider that where a patient's mental health has deteriorated to the point where it has been necessary, after a full multi-disciplinary review, to admit him to hospital for reassessment—particularly where that deterioration may have resulted from the patient's failure to take his medication and the patient may lack full insight into his condition—we are in no doubt that it is in the patient's best interests that the clinicians have the power to administer medication without the consent of the patient and within the terms of Part X of the 1984 Act in order to prevent or limit further deterioration. It is not appropriate to draw comparisons with Section 24.

As the patient is then liable to detention in hospital, he is subject to Part X as are other patients liable to detention. We believe this to be necessary and appropriate.

With that fairly comprehensive and detailed explanation of concerns raised by the noble Lord, I hope that he will feel able to withdraw the amendment.

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