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The Earl of Lindsay: My Lords, we agreed to consider whether an amendment was required to make clear the effect of an emergency admission on a community care order. Our consideration is continuing. But there is no doubt that emergency detention under Section 24 would be available in respect of a patient detained under a community care order. I hope that with that assurance the noble Lord will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove: My Lords, as before, the Minister has been helpful, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 11:

Page 27, line 22, 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.
(2) Unless the sheriff is satisfied that—
(i) 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
(ii) he ought to be so admitted and detained in the interests of his own health or safety or with a view to the protection of others persons,
he shall order that the patient be discharged from hospital and he may revoke the community care order.").

The noble Lord said: My Lords, the amendment gives a patient detained in hospital the right to appeal against that detention. If the amendment were carried, the sheriff

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would have to stop the detention if he was not satisfied that the case for it had been made out, and he may also revoke the community care order.

While a patient on a community care order generally has the right to appeal against it, he does not have that right during the first six months of the making of the order. So new Section 35F(1) allows for appeal only after the first renewal of the order—Section 35F being the appeal provisions in relation to detention in hospital.

Deprivation of a patient's liberty without the right of appeal to a judicial forum may be in breach of the European Convention on Human Rights. We raised that issue before, and I hope the Minister has been able to check and double check. He said that he thought they were safe enough with regard to the terms of the Convention on Human Rights. I hope that the Minister will accept the amendment or give us an assurance that there is no conflict. I beg to move.

3.45 p.m.

The Earl of Balfour: My Lords, before my noble friend the Minister replies, I should like to point out from a practical point of view that when mentally disturbed people are first taken into hospital they are often unhappy and distressed because they are in a different environment. After about a month or eight weeks —they would need that time even to be able to appeal—they have usually settled down. While I sympathise with the noble Lord, Lord Carmichael of Kelvingrove, in moving the amendment, when someone is taken into hospital they need to be held there for some time, partly to allow the medical people to carry out research to their satisfaction. Although I sympathise with the idea of an appeal, I do not believe that an appeal should be permitted at too early a stage.

The Earl of Lindsay: My Lords, the amendment seeks to introduce a right of appeal to the sheriff by the patient against reassessment in hospital.

The detention in hospital under new Section 35G is for the purposes of reassessment, or reassessment followed by medical treatment. The procedure prior to admission under new Section 35G requires much consultation. The reports are also copied widely, including to the Mental Welfare Commission. We do not, therefore, think that a right of appeal is necessary at this point.

The proposed reassessment period is for a maximum of seven days and is drawn from an existing provision in Section 2 of the Mental Health Act 1983. At the end of the seven days the patient will have returned to the community on his community care order (with its existing rights of appeal); or the community care order will have been revoked (when no appeal is necessary); or an application will have been made to a sheriff for the patient's detention in hospital. That may answer the point made by my noble friend Lord Balfour. If seven days is too short to make a proper reassessment, there is always the option to apply for a Section 18 order for that patient.

We are convinced, having looked carefully at this matter—it having been pointed to by the noble Lord, Lord Carmichael of Kelvingrove, at an earlier stage of the Bill—that the existing provisions are sufficient. We are

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also advised—I stress this—that this provision does not fall foul of the UK's obligations under the European Convention on Human Rights. With those reassurances, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for the trouble that he has gone to. I am grateful also to the noble Earl, Lord Balfour, for his intervention. I accept the point that a patient may need a certain amount of time to become acclimatised to a hospital regime and to find his way around. But I was worried that the six months may be too long. The Minister's reassurances and the possibility of a review in any case, without one being demanded, are such that I feel satisfied and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

The Earl of Lindsay moved Amendment No. 12:

Page 29, leave out lines 17 to 24 and insert:

("Special provisions as to patients sentenced to imprisonment etc.: community care orders.

35J.—(1) This section applies where a patient who is subject to a community care order is detained in custody in pursuance of any sentence or order passed or made by a court in the United Kingdom (including an order committing or remanding him in custody).
(2) For so long as the patient is so detained the period for which, under section 35C of this Act, the community care order has effect shall continue to run but the conditions to which he is subject under that order shall not apply in relation to him.
(3) If the patient is so detained for a period of, or successive periods amounting in the aggregate to, 6 months or less and, apart from this subsection, the community care order—
(a) would have ceased to have effect during the period for which he is so detained; or
(b) would cease to have effect during the period of 28 days beginning with the day on which he ceases to be so detained,
the order shall be deemed not to have ceased, and shall not cease, to have effect until the end of that period of 28 days.
(4) Where the period for which the patient is subject to a community care order is extended by subsection (3) above, any examination and report to be made and furnished in respect of the patient under section 35C(3) and (4) of this Act may be made and furnished within the period as so extended.
(5) Where, by virtue of subsection (4) above, a community care order is renewed for a further period after the day on which (apart from subsection (3) above) the order would have ceased to have effect, the further period shall be deemed to have commenced with that day.").

The noble Earl said: My Lords, I spoke to the amendment when I moved Amendment No. 7. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 13:

Page 29, line 24, at end insert:

("Patients moving from England and Wales to Scotland.

35K.—(1) A community care application may be made in respect of a patient who is subject to after-care under supervision under the Mental Health Act 1983 and who intends to leave England and Wales in order to reside in Scotland.
(2) Sections 35A to 35J of this Act shall apply in relation to a patient in respect of whom a community care application is or is to be made by virtue of this section subject to such modifications as may be prescribed.").

The noble Earl said: My Lords, my noble friend the Minister introduced a similar amendment to cover arrangements in the provisions for England and Wales.

11 May 1995 : Column 181

The amendment will allow an application for a community care order to be made for people subject to aftercare under supervision in England and Wales who intend to move to Scotland. It is vital that people who require their care to be provided within such a legal framework continue to receive that care when they move from one area to another, if that is considered necessary.

The most straightforward way for that to occur in this case is to allow applications for community care orders to be made available in such cases. However, it will be necessary for the new provisions contained in the Bill to be modified slightly for that to occur. That modification is to be by way of regulations made by the Secretary of State.

It may be helpful if I reassure the House that the regulations will not produce a "fast-track" procedure by which a community care order can be made. The sheriff will continue to be involved, and we envisage that the application will require to be made by a medical practitioner approved for the purposes of Section 20 of the 1984 Act. We also envisage that the care team in England or Wales will wish to discuss the proposed transfer with those likely to be concerned with the patient in Scotland some time prior to the making of the application and that there will be the appropriate full consultation about the application.

We believe that these provisions are adequate. I beg to move.

On Question, amendment agreed to.

Clause 5 [Absence without leave]:

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