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Health and Social Care Bill

Under the provisions of Clause 123, a justice of the peace must be satisfied that four criteria are met before he can make an order. These are that the individual is or may be infected or contaminated; the infection or contamination is one which presents or could present significant harm to human health; there is a risk that the individual might infect or contaminate others; and it is necessary to make the order to remove or reduce that risk. Amendment No. 169 seeks to add a further criterion—that the infection or contamination must be one that can only be passed from person to person, or thing or premises to person, by casual contact. Risk does not only exist when a disease is highly transmissible by casual contact. Tuberculosis is highly infectious but it would be rare for an individual to catch it from one instance of casual contact with an infected person. Those most at risk from an infected tuberculosis sufferer tend to be their close family and friends, because they have prolonged or regular contact with the infected person, rather than casual contact. I understand that the intention behind the amendment is to ensure that the powers are not used against individuals with HIV or AIDS, and I absolutely recognise that as a valid concern. However, we believe that the existing provisions afford the safeguards sought in the amendment. In order for a justice of the peace to make an order, he must consider it necessary to make an order to remove or reduce the risk. I am happy to put on record in this Committee that having HIV or AIDS would not in itself be enough to justify a Part 2A order. That brings me to Amendments Nos. 175 and 192, which seek a statutory requirement for a central reporting mechanism for orders made by justices of the peace. We have considered the issue of monitoring which was raised in another place—and, indeed, has been raised by several noble Lords and the National AIDS Trust—and we agree with what has been said. The Department of Health has already agreed with the Health Protection Agency that it will set up a monitoring system within its standard operating procedures. However, to reassure the Committee, I will endeavour to find a way to make it explicit that a local authority must report the making of an order to the HPA in line with its existing duty to co-operate with the HPA as set out in Section 5 of the Health Protection Agency Act 2004. Amendment No. 183 would require local authorities to take reasonable steps to provide an individual subject to a Part 2A order with access to an independent advocate. This issue was raised by several noble Lords. Evidence from the Health Protection Agency regarding the use of Justice of the Peace orders under the existing legislation shows that they are most commonly used for individuals who have tuberculosis. Many have no fixed abode and it is because of their erratic lifestyle that they have been unable to follow a course of treatment which can take six months. However, such individuals are usually closely engaged with social workers, counsellors, housing officers and other relevant services which are already trying to help them. In addition, the whole point of placing orders in the hands of a Justice of the Peace is to put real weight behind the protection of the individual. Magistrates’ courts are bound by a duty to ensure that vulnerable individuals receive a fair hearing. As public bodies, they are also required to uphold the Human Rights Act. Our legislation ensures that, on top of this, there are rights of appeal to both magistrates and to a Crown Court. That said, I sympathise with the concerns that noble Lords have expressed today. I therefore commit to look again at how the regulation-making power in new Section 45M(5)(e) could be used to add to the list of affected persons, or persons nominated to act on their behalf, who can apply to vary or revoke an order. This would give an individual subject to an order an additional way of seeking assistance if they are unable, for any reason, to use their own right to apply for a variation or revocation, or their right to appeal to a Crown Court under Section 67 of the existing Act. However, I also recognise that there is a concern, as outlined eloquently by my noble friend Baroness Gould, that a person subject to an order may be newly arrived in this country and friendless and may therefore not know anyone to whom to turn for assistance if they feel the order is inappropriate or if they do not understand it. Therefore I will look at how we can best address an individual’s needs and ensure that they have appropriate assistance or representation to protect their interests. Amendment No. 173 seeks to ensure that detention, isolation or quarantine can be imposed only as a measure of last resort. We agree that detention, isolation and quarantine are serious measures and should be used only when absolutely necessary. However, in choosing what measure to include in an order the Justice of the Peace needs to consider the severity and urgency of the risk to public health and the effectiveness of any measure proposed. For example, isolation may not be the only measure a Justice of the Peace can order which reduces the risk of an individual spreading a disease, but it may be the only measure which would remove the risk entirely. Another measure may reduce the risk but could leave people exposed to significant danger. Amendment No. 174 seeks to require that evidence presented to a Justice of the Peace includes objective medical evidence. Once again, I can understand the logic behind the amendment but I cannot support it. The reason for this is that the meaning of the term ““objective medical evidence”” is vague and could lead to legal challenge. In addition, the issue that dictates whether an order is necessary may not always be a medical one; it may be a lifestyle issue, as I have already outlined, and a social worker or counsellor may be better placed than a doctor to explain that an individual’s erratic lifestyle, for example, is the reason why they cannot comply voluntarily with the six months’ course of treatment unless they are required to stay in one place for six months. It is our intention that the Bill should not allow anyone to have forced medical treatment. If this is not clear, we will bring something back on Report to clarify this and write to noble Lords to confirm that position. We have taken a provision to enable details of the evidence required to be set out in secondary legislation. We will carry out a full 12-week consultation on the regulations, which will also receive parliamentary scrutiny through an affirmative resolution procedure. Amendment No. 182 would remove the power of a justice of the peace to place restrictions or requirements—other than those listed in the Bill—in an order that they also consider necessary for the purpose of removing or reducing risk. Section 45K will, in some circumstances, be an essential tool needed to give effect to the measures that may be imposed. For example, an individual may suffer from multidrug resistant tuberculosis and have a tendency to drink to excess. That drinking may be a known cause of the individual’s lack of co-operation with treatment. So, as well as placing a requirement on the individual to attend regularly hospital for directly observed therapy, the magistrate may believe it necessary to add to the order a requirement that the individual should refrain from drinking for the duration of the treatment. This would be a sensible additional measure which would reduce or remove the risk of him infecting others. However, I hope that I can reassure the Committee by explaining that the criteria that must be satisfied for a justice to impose an order must also be met for supplementary measures. Therefore, it must be necessary—not just desirable—for such a measure to be included. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.