Clause 32
Mental Health Bill [Lords]
2:30 pm
Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)
May I make your clarity a little clearer, Lady Winterton? What we are proposing, and what I hope you are agreeing to, is that we will talk specifically and briefly to amendments Nos. 63 and 65, and amendments Nos. 64 and 66, and then when we come to the third raft of Government amendments, led by Government amendment No. 23, you will permit a more wide-ranging debate on the principle of community treatment orders in place of a clause stand part debate at the end. I think that everybody might find that useful. In the absence of a “no”, I shall carry on talking about amendment No. 63, if that is all right, Lady Winterton. That has taken 10 minutes out of the time for debate, anyway.
Amendments Nos. 63 and 65 relate to the effect of CTOs on children and why children should be excluded altogether. CTOs are controversial, as we know and as we will come on to in detail later. We are not clear about why the Government have decided that such powers should be applicable to children and young people, particularly given that powers that currently apply to individuals living in the community, such as guardianship and supervised discharge, have a lower age limit of 16. I gather, from the research commissioned by the Government from the Institute of Psychiatry about the international experience of CTOs, that children and young people were not included in the review of the literature.
Under the United Nations Convention on the Rights of the Child,
“the best interests of the child shall be a primary consideration”
In “all actions concerning children”. The amendments would limit CTOs to those aged 16 and over and are intended to find out why the Government feel that they should be applicable to under-16s. What evidence is there to suggest that children and young people will be disadvantaged if CTOs are not available to them? As the Government have made clear, the Bill is not about ensuring that people receive services. Being subject to a CTO is not the only route to receiving appropriate services in the community.
The provisions relating to treatment in the community are complex and confusing. Furthermore, there is insufficient guidance in the draft code to explain how those are intended to work in practice. There are three keys areas of particular concern in the treatment in the community of children and young people. First, there are fewer safeguards for incompetent children than for adults who lack capacity. For example, there is no requirement to involve a person with parental responsibility for making treatment decisions for a child who lacks competence to make such decisions for himself or herself. Secondly, there is no definition of competence or any detailed guidance in the Bill or any draft code on how to assess that. Thirdly, there is no definition for the use of force. That is why amendment No. 63 would add “aged 16 or over” to the considerations.
Amendment No. 65 would ensure that, where non-emergency treatment is proposed for a child community patient—in other words, a child under the age of 16 who has been assessed as lacking the competence to consent to treatment—treatment will not be given if a person with parental responsibility objects to it. We think that the amendment is needed, because individuals subject to CTOs cannot be treated in the community if they have capacity—or, in the case of a child community patient, competence—to make treatment decisions and to refuse such treatment. However, if the person lacks capacity, in the case of patients over 16, or competence, in the case of a child community patient, treatment can be given if certain conditions are met.
The Bill states that treatment cannot be given to an adult community patient if it conflicts with decisions made by individuals authorised to make decisions on the patient’s behalf where the patient is not capable of making such decisions for him or herself. We believe that that is an important safeguard, given that the Bill allows treatment to be given, even if the patient objects, as long as it is not necessary to use force against the patient to give it. However, there is no provision for any person to be consulted as to whether the child community patient should be given the proposed treatment. The amendment would introduce such a requirement.
These are probing amendments to find out the Government’s view on the use of community treatment orders for children. What safeguards exist for children comparable to those proposed for adults? I am sure that the Minister will be delighted to answer those queries.