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Mental Health Bill [Lords]

I have tabled amendment No. 74, and amendments Nos. 75 to 78, which relate to child patients in the community. I have also tabled amendment No. 79, which deals with appeal rights. The amendments seek to give effect to paragraphs 1.18 to 1.25 in the recommendations of the 15th report by the Joint Committee on Human Rights. Clause 32 governs the treatment of CTO patients in the community, without recalling the person to hospital. The basic principle is that a patient with capacity, or competence in the case of a child under 16, may be given treatment in the form of medicine for mental disorder only if they consent and if there is a certificate authorising the treatment from a SOAD. If the patient is capable but refuses treatment, that treatment may only be given without consent by recalling the person to hospital. The JCHR received evidence from the Children’s Commissioner for England and from the Royal College of Psychiatrists expressing concern about the provisions of clause 32 and their potential impact on child community patients. The principal broad criticisms were that the provisions provide insufficient safeguards in relation to treatment without consent, that they are complex, cumbersome and confusing, and that there is insufficient guidance in the draft code on how they are intended to work. More specifically, a child patient may be given medicine for mental disorder without consent in the community if they lack ““competence””. The same applies to an adult patient if they lack ““capacity””. The Bill specifically provides that decisions about capacity are to be made in accordance with the test in the Mental Capacity Act 2005, but there is no guidance as to how the competence of a child community patient is to be determined. Adult patients have greater protection in relation to non-emergency treatment than children, as the treatment of an adult must not conflict with an advance decision which the person giving the treatment is satisfied is valid and applicable. Equally, for adults, but not for children, the treatment may not be given if it conflicts with a decision of a donee, of a deputy, or of the Court of Protection. The Children’s Commissioner and the Royal College of Psychiatrists argue that that should be addressed by giving those with parental responsibility the right to be consulted over the treatment of a child who lacks competence. The European Court of Human Rights, in the case of Glass v. the United Kingdom, recognised the rights of the mother of an incapacitated child patient as his treatment proxy when he lacked competence. The JCHR therefore recommends that provision should be made for the involvement of those with parental rights in decision making about the community treatment of child patients who lack competence. It recommends that individuals with parental rights should have the same rights as donees with lasting powers of attorney or deputies to refuse non-emergency treatment on behalf of an incompetent child patient. The Children’s Commissioner and the Royal College of Psychiatrists have expressed deep concern, too, about the power forcibly to treat children and young people in the community when they actively resist treatment. They insist that guidance on the circumstances in which emergency treatment and the use of force are authorised should be clarified, and they say that further guidance is essential. We share those concerns. Treatment given without consent engages article 8 of the European convention on human rights, especially if there is an objection, and in order for such interferences to be in accordance with law, a person’s position should be more clearly ascertainable than is currently the case, given the lack of specific guidance on competence. Again, my right hon. Friend the Minister helpfully wrote to the Committee about the matter, but I am a little concerned about her approach. The position that the Government seem to be adopting, as set out in paragraph 26 of her letter, is that the effect of allowing a parent to refuse treatment would be to veto community treatment for that child, which may not be in the child’s best interests, but she goes on to say that without the co-operation of the parent, supervised community treatment will not work. The Government seem to want to have their cake and eat it, saying that the parent should not have rights in these circumstances, yet expecting them to co-operate. Without parental co-operation, it is unlikely that a treatment order in the community would be made in the first place. There is some inconsistency in the Government’s position on the matter. When she replies to the debate, perhaps my right hon. Friend will give us more information about why she thinks parents should not be involved in the decision making about community treatment for their children. Amendment No. 79 relates to paragraphs 52 to 56 of our fourth report. A patient subject to a community treatment order can appeal to a mental health review tribunal against the order as a whole, but not against specific conditions of the order. We think that that risks interference with articles 5, 8 and 13 of the European convention. The Government’s response was that the need to obtain the agreement of an authorised medical health professional as to the making of the CTO and as to the nature of the conditions to be imposed provides protection against arbitrariness. We do not think that that offers much of a safeguard. Will my right hon. Friend be more specific? The Mental Health Alliance supports the amendment because of the need for better safeguards against unreasonable conditions. It states that despite the Government’s amendment, CTOs give clinicians wide powers to impose conditions on patients’ behaviour and lifestyle—for example, that the patient should live in a certain institution, should be subject to curfew and should not engage in specified conduct. The MHA says, and I agree, that it is important that any conditions are reasonable and that the patient has the power to challenge any requirements that are unreasonable. It makes the valid point that the responsible clinician and the approved mental health professional may not have met the patient before their crisis, and may not have in-depth knowledge about the patient’s home life or the needs of their carers. That could lead to assumptions about the patient and unreasonable expectations of their carers as to supervision of the patient, transportation for treatment, police conditions and even housing for the patient. The Mental Health Alliance gives a series of examples of conditions that could be unreasonable. A person could be required to live in a certain place where they might experience abuse or stigmatisation from neighbours. A person under a curfew might find that too restrictive if they find a job requiring them to work after specified curfew time. Although the supervising clinician may be sympathetic, the right to challenge such restrictions would hinge upon the good will of the clinician. That goes to the heart of the European convention. I hope my right hon. Friend will read our report on the matter in detail. It is not good enough to be able to challenge the order as a whole. It should be possible to challenge the conditions if they are specifically unreasonable. I urge her to consider the human rights implications of not providing such a right of appeal.