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Lord Jenkin of Roding: My Lords, my noble friend has gone a very long way towards achieving that. However, I am not sure that in the eyes of those who have been advising me, she has fully met their concerns. They will need to read what my noble friend said. It may be that this matter will need to be looked at again at a later stage in another place. I am grateful for the support I have received for the amendment from the Benches opposite but it would not be right to press the matter further at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Jay of Paddington moved Amendment No. 18:

Page 39, line 32, at end insert:

("Mental Health Act Commission

.—In section 121 of the Mental Health Act 1983, in subsection (4) leave out from ("review") to ("Act") and insert—
(a) the exercise of the powers and the discharge of the duties conferred or imposed by this Act so far as relating to patients received into guardianship or after-care under supervision under this Act; and
(b) the care and treatment, or any aspect of the care and treatment in hospitals and mental nursing homes of patients who are not liable to be detained.").

The noble Baroness said: My Lords, the purpose of this amendment is to make one final attempt to persuade the Government of the important role the Mental Health Act Commission should play in the working of the new supervised discharge system.

As noble Lords will remember, the Mental Health Act Commission is a special health authority which, since the implementation of the Mental Health Act 1983, has monitored the care and treatment of patients detained in hospitals. Commissioners visit at least once a year all the residential hospitals and nursing homes which care for legally detained patients. The commission also deals with about 500 complaints per year through its statutory complaints procedure.

In Committee the Minister said that the commission admirably fulfils its function. Amendment No. 18 simply seeks to extend that function to include patients living in the community under legally enforceable supervised discharge orders. That is something that could be achieved easily by amending the 1983 Act.

Noble Lords who are familiar with the Act will know that Section 121 deals with the Mental Health Act Commission and Section 121(4) makes provision for the Secretary of State to extend the remit of the commission to include residential patients who are being treated voluntarily; that is, they are not formally detained.

The subsection as it now stands in the Act reads:

    "The Secretary of State may, at the request of or after consultation with the Commission and after consulting such other bodies as appear to him to be concerned, direct the Commission to keep under review the care and treatment, or any aspect of the care and treatment, in hospitals and mental nursing homes of patients who are not liable to be detained under this Act".

Amendment No. 18 would extend the power of the Secretary of State to direct the commission to include patients living in the community who are subject to guardianship or aftercare under supervision.

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The House will have noticed that the central existing provision in the 1983 Act from which I quoted refers to a request by the commission to alter the scope of its authority and to consultation with the commission. On Report, in response to a similar amendment, the Minister said:

    "We consulted with the commission over our proposals"—

those proposals are the ones in the existing Bill—

    "and listened carefully to what it said".

But the Minister went on to reject the amendment.

It is extremely difficult to believe that the Government listened carefully to the commission because very recently, during our consideration of the Bill, the commission published its own position paper on supervised discharge orders which seems to support the extension of its remit which is the subject of the Amendment No. 18.

I make no apology for once more quoting directly from section 3 of the commission's published paper which states:

    "The Commission notes that the independence given to it by the Secretary of State is an important realisation of the principle that where individuals' rights are or can be abridged there must be adequate safeguards".

It goes on:

    "The powers of control and compulsion included in the Bill... in the Commission's opinion warrant consideration being given to the extension of its remit to patients under supervised after-care so as to enable it to ensure (so far as possible) that the new powers are correctly exercised and applied in strict accordance with the statutory requirements, and that, by a process of observation and monitoring over the years, the use of the powers is of benefit to the patients involved and to the community into which the patients have been discharged".

Those are extremely important principles which, in our opinion, should always be included in legislation dealing with the compulsory care of the mentally ill. However, on Report, the Minister seemed more concerned with the practical problems which the commission might have in extending its responsibilities. The Minister said in the same reply to which I referred earlier that,

    "bearing in mind the commission is undergoing a major structural change later this year, we do not propose to divert it from its central task of safeguarding the interests of detained patients".—[Official Report, 1/5/95; col. 1314.]

I understand that the internal changes at the commission will be completed by this autumn and, as the House knows, this Bill will not come into force until April 1996. Surely, if the commission, which is a responsible statutory body, proposes to take on that new function it must be confident of its ability to do so.

We are discussing new and untried powers which will be exercised over the lives of some of the most vulnerable and probably the most difficult members of our society. The legislation seeks to protect them and the communities in which they live. It is a complex area where the problems of practical health and social care are combined with anxieties about civil rights. We must have national monitoring and we must be able to evaluate the effectiveness of those significant changes. We should also have a nationwide system responsible for the well-being of patients.

The Mental Health Act Commission is the one statutory body that we have which can assume those tasks. The commission has proved its very great value in its work

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with detained patients. It now wishes to extend its authority to include patients on supervised discharge orders. That is the purpose of Amendment No. 18. I beg to move.

Lord Thurlow: My Lords, I should like briefly to express my support for the amendment. The noble Baroness explained very clearly its substance. I believe that it is universally agreed that in the operation of the powers of the Bill, especially the power to convey, great sensitivity should be exercised by those concerned. It seems to me that it would do nothing but good for those concerned to know that there was an authority which was able to keep an eye on the way that the powers were being exercised. I support the amendment.

Baroness Cumberlege: My Lords, as your Lordships are aware, the noble Baroness moved amendments at both the Committee and Report stages of the Bill to extend the Mental Health Act Commission's remit to include patients subject to aftercare under supervision. As I explained then in responding to the earlier amendments, we have reservations about this on two counts. The first is the question of priorities for the allocation of the finite resources at the commission's command. It seems to us that detained patients, having been deprived of their liberty, have a uniquely powerful claim on the commission's protection and that any extension of its remit to other groups certainly ought not to be at their expense. The second reservation has to do with timing. The commission is at present undergoing a major reorganisation of its structure and we think that that needs to be allowed to settle down before any widening of its remit could be considered.

That does not mean that the commission will have no locus at all in reviewing the use of the new power. Given its general responsibility to protect the rights of patients liable to be detained, it will be able to review the procedures for making a supervision application since the patient at that point must be liable to be detained. The commission's involvement will be similar to its monitoring of Section 117 aftercare procedures prior to a patient's discharge. But its remit does not at present extend to the services provided in the community once a patient has left hospital.

I can also assure your Lordships that the department will be keeping the use of the new power under review. It will form part of the NHS Executive's routine monitoring of health authorities and the Social Services Inspectorate will be keeping in touch with local authorities about their involvement in providing aftercare under supervision. The rights which all patients will have to appeal to a mental health review tribunal are also an important guarantee of their civil liberties.

I recognise of course that the amendment adopts a different approach from those which were moved in Committee and on Report in that it would not directly extend the commission's remit to include patients subject to aftercare under supervision but would instead give my right honourable friend the Secretary of State discretion to extend it to them and also to those received into guardianship. It would be very tempting to agree to that proposal on the basis that it would not actually commit us

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to an extension of the remit but would only give my right honourable friend the option of extending it at some later date when we were satisfied that the circumstances were right. I am afraid, however, that it is a temptation that I must resist. Although there is certainly a case for saying that those patients should fall within the commission's jurisdiction, the question of extending its remit beyond those who are detained in hospital raises an important point of principle. We think that it would be wrong to amend the primary legislation in that way without that point having been fully considered. It is certainly something that will need to be looked at as part of the more fundamental review of the Act which is likely to be needed before too long. By that time, we shall have some practical experience of the operation of aftercare under supervision on which to draw. Meanwhile, I ask the noble Baroness and the noble Lord not to press the amendment.

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