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Baroness Walmsley moved Amendment No. 213:

"(c) that his dependency upon, or propensity to misuse, drugs is related to his offending behaviour, such that it is relevant and proportionate for the court to require treatment, and
(d) that the option of voluntary treatment provided concurrent to the order would be unsatisfactory"

The noble Baroness said: I shall speak also to the other five amendments in this group. These six amendments fall into three pairs. The purpose of Amendments Nos. 213 and 216 is to ensure that the power to attach drug treatment and testing requirements to action plan and supervision orders would be used by the courts only if alternatives of voluntary treatment had been considered and rejected as unsatisfactory. Also, they would build in safeguards to ensure appropriate and proportionate responses to young people.

The children's organisations that have briefed us on these amendments, as well as the Howard League, NACRO and the National Association for Youth Justice, believe that any compulsory medical or psychological treatment by court order should be taken as a very serious prospect and recognised as one that incurs many civil and children's rights issues. They and we are concerned in principle at the prospect of children are being compelled on pain of criminal offence of breaching a court order to undergo the treatment that they need.

We are deeply concerned that the provisions contained in Schedule 20 do not include safeguards to ensure that the very serious step of using court compulsion to treatment would be used only when absolutely necessary and when voluntary options had already been considered and tried. In Committee in another place, the Minister said that,

    "the court would include a treatment requirement in the orders if it was satisfied that that would be a relevant and proportionate intervention. That test is very important".—[Official Report, Commons Standing Committee B, 11/3/03; col. 976.]

Surely, it is therefore valid and vital to incorporate such an important test into the legislation providing for the powers.

Proposed government amendments to Schedule 28 include criteria to ensure that residential course requirements in a parenting order should be imposed only when they would be effective in preventing further offending and would be,

    "proportionate in all the circumstances".

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It is equally important to have such safeguards in the Bill with regard to compulsory drug treatment for children.

I shall say a few words about voluntary treatment. Although there has recently been rapid growth in young people's community treatment services, there are, in many areas, few new services. Often, they are unknown to many young people in the area. For many children who get involved in offending and drug use, involvement with youth offending team drug specialists will be the first time that they have been made aware of the availability of youth-centred drug services. Children's organisations believe that, as a matter of course and good practice, the possibility of voluntary treatment should be proactively encouraged by youth offending team agencies and the courts and should be the preferred option before the necessity for court compulsion. The amendments would ensure that there were additional safeguards to ensure that voluntary treatment was explored by the courts prior to the attachment of treatment and testing requirements for children and young people.

Amendments Nos. 214 and 217 would ensure that, prior to the attachment of a requirement for drug treatment to a supervision and action plan order, the court would have regard to the child's understanding of and willingness to comply with a programme of treatment. The treatment requirements in Schedule 20 could be included in an order for any person aged 10 or over. The proviso that the court should be satisfied that the young person's consent has been obtained, if he or she is 14 or older, implies that a child over 14 would automatically be competent to consent on his or her own to the inclusion of a requirement and that it would not be equally important for the court to establish the views and willingness of a young person under 14 to comply with the requirement. Children's organisations believe that both those implications are problematic. The amendments would ensure that each child who is assessed for such an order had the opportunity to express his or her views and intentions with regard to the proposed treatment, whether it is they or their parents who will need to give express consent to the inclusion of the requirement in the order.

The schedule raises the question of valid consent, which is already established in statute and common law. For any person under the age of 16, it should generally be presumed that a parental responsibility holder must give consent on behalf of the child. However, under what we know as the Gillick principle, if there is unwillingness or inability to involve parents, the young person may be assessed as competent to give their own consent only if they are mature enough to understand the nature of the situation and the proposed course of action.

I agree with the Minister in another place who said:

    "It is for the court to determine the maturity of the child and to consider both the child's and the parent's response to the inclusion of the treatment provision".—[Official Report, Commons Standing Committee B, 11/2/03; col. 979.]

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The Minister made that statement with reference only to those under the age of 14. I cannot understand why the age for such assessment by the court should be lowered from 16 to 14. The Bill gives the impression that a person of 14 would always be expected to be competent to give consent to the inclusion of a treatment requirement. In doing so, it confuses considerably the existing legal position on under-16s and Gillick competence.

Among such young people, who will, by definition, be involved in offending and heavy drug use, there is a high likelihood that levels of understanding and maturity will be lower than those of many of their peers. We also know that reading and learning difficulties are more prevalent among young offenders as a group, which raises again the likelihood that such a 14 year-old would not be considered competent to consent to the inclusion of the requirement.

By inserting the fact that "appropriate consent" must be obtained, the amendments would ensure that the Government do not create further confusion in the already difficult legal area of young people's consent. The amendment would leave it as a matter for the court and for professional assessors to make judgments about each child's competence to give consent.

Amendments Nos. 215 and 218 are intended to remove the testing requirement in action plan and supervision orders that can be applied where a treatment requirement has already been made. The amendments would also ensure that testing is rooted in treatment and is not seen as an intervention in and of itself. Children's organisations believe that the requirements are entirely unnecessary given that drug testing, where professionals believe it to be necessary as part of treatment monitoring, could already be detailed within a treatment plan under the treatment requirement.

Failure to comply with treatment, including therefore any testing that forms part of a treatment programme, would already result in breach. Therefore, the measure is unnecessary. We are concerned that the addition of testing requirements, on top of treatment requirements, as separate breachable conditions of sentence will rack up the conditions imposed by an order, in turn heightening the risk of the young person's failure to comply with an order.

These measures are disproportionate and unnecessary. It is of concern that there appears to be no consideration given to the question of proportionality in creating layers and layers of additional requirements on the young person. In human rights terms, the overall level of personal restriction and compulsion required by the sentence must still be consistent with, and proportionate to, the seriousness of the offence of which the young person has been convicted. These testing requirements would add an extra layer and thereby make the whole sentence disproportionate. I beg to move.

Lord Hylton: I agree that something like Schedule 20 is desirable. Nevertheless, I strongly support what the

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noble Baroness, Lady Walmsley, said about the voluntary principle for treatment. If that can be built in, it would make the treatment very much more effective in the great majority of cases. The words,

    "indicated his willingness to comply, and the appropriate consent",

in Amendment No. 214 are of great importance. Perhaps the Government would consider whether, in the case of under 18 year-olds, the consent of the parents should also be required.

Whether or not these amendments are accepted, Schedule 20 will have major resource implications. Can the Minister reassure the Committee that the necessary resources are already available and have already been budgeted for? I hope that is so, but if it is not—there may be a risk there—perhaps the commencement of the schedule could be delayed, as compared with other parts of the Bill. Perhaps, too, the implementation of the schedule could be varied from one area of the country to another as the necessary resources become available.

Lord Bassam of Brighton: Schedule 20 amends the Powers of Criminal Courts (Sentencing) Act 2000 to enable a requirement for drug treating and testing to be included in an action plan order or a supervision order. As drafted, the clause allows the court to include a treatment requirement in the event that it is satisfied that the offender is dependent upon or has the propensity to misuse drugs and that his or her dependency or propensity is such as requires and may be susceptible to treatment.

Amendments Nos. 213 and 216 tabled by the noble Baroness, Lady Walmsley, would further require the court to be satisfied that the offender's dependency or propensity to misuse drugs is related to their offending behaviour and that the option of voluntary treatment is considered unsatisfactory.

We believe that if a young offender has a dependency on or a tendency to misuse drugs, it is important for the courts to have the option of including a treatment requirement in an action plan order or supervision order in order to ensure that the young offender has access to the treatment and support that they need as part of their community sentence. That is the case regardless of whether the dependency or propensity is specifically related to the offence of which they have been convicted.

There is plenty of well established anecdotal evidence that links illegal drug use with offending, but there is also a substantial body of research on the matter. I would point the noble Baroness to Home Office Research Findings 192 and Home Office Research Study 261 entitled Substance use by young offenders, a publication authored by Richard Hammersley, Louise Marland and Marie Reid. This examined the prevalence of substance use and offending among a sample of 293 young people who were clients of 11 youth offending teams in England and Wales. Forty per cent or more of the cohort felt that there was some relationship between their

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substance use and their offending. A further 44 per cent said that they sometimes committed crimes to get money for drugs or alcohol.

Although not all drug users go on to commit crimes related to their drug use, we think that it is important to take every opportunity to identify and address, as early as possible, dependency on or the propensity to misuse drugs so as to minimise the chances of a young drug user entering a cycle of drug misuse and offending.

The clause as drafted ensures that the courts can include a treatment requirement in these orders only if it has been recommended as suitable for the offender by an officer of a local probation board or by a member of a youth offending team, and if it was satisfied that a treatment requirement was both a relevant and, to use the term of the noble Baroness, a proportionate intervention.

In respect of the possibility of voluntary drug treatment running concurrently with an order, of course it is open to any drug misuser to seek voluntary treatment at any time. If the offender has done so, and the courts are made aware of previous or continuing treatment, this would be taken into account when considering whether to include a treatment requirement in an order.

However, the purpose of this schedule is to allow treatment to be included as a component of a community sentence. If an offender consented to treatment as part of an order and subsequently dropped out of that treatment, or withdrew their consent, this would be taken into account in deciding how best to deal with that offender in the context of a continuing aim to help them address their drug-using behaviour. If treatment was separate from the order, there would be less incentive for the offender to continue with treatment. If they were to drop out of treatment after the making of an order, there would be no way for the court to then make provision for the drug-using behaviour to be effectively addressed. For those reasons, we would resist Amendments Nos. 213 and 216.

Amendments Nos. 214 and 217 require offenders aged 14 or over to indicate a "willingness to comply" with the requirement and give "appropriate consent" to its inclusion in the order. The schedule as drafted already requires the consent of those aged 14 and above to the inclusion of a requirement in the order. With regard to a "willingness to comply", as I have already mentioned, at present the court cannot include these requirements unless they have been recommended as suitable for the offender by an officer of a local probation board or a member of a youth offending team. Before making such a recommendation, the probation officer or youth offending team member would of course take into account the willingness of the offender to comply with the order. We therefore feel that these amendments do not add anything to the clause as drafted and propose that they should be resisted.

We also resist Amendments Nos. 215 and 218, which seek to remove the ability of the court to include a drug-testing requirement alongside the treatment

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requirement for those aged 14 and over. Allowing a testing requirement to be included in the orders is necessary to assist the officer responsible for treatment in ascertaining whether or not the treatment the offender is receiving is effective. It is also a useful tool for the treatment provider to tailor the treatment according to the needs of the offender. Treatment without testing could make the treatment order completely irrelevant. The two are very clearly linked.

The best response I can give to the points raised by the noble Lord, Lord Hylton, is that we believe we have got the resources necessary to implement the scheme. The orders will be made on the recommendation of a probation officer or a recommending officer only if they have fully investigated whether the parent and child are supportive of, and in agreement with, the requirement being attached as a condition. We recognise that the issue of consent is important. The parents should be involved and will be consulted as part of the process. I hope that that answers the noble Lord's point.

I understand the points raised by the noble Baroness but we believe that there should be a degree of compulsion. It will not undermine the way in which the orders will work; it will enhance them. Clearly it is most appropriate that the way in which the scheme works should involve the active participation of offenders and a recognition on their part that they face profound problems. Ultimately, it may well be in their best interests that the element of compulsion is there and is retained, but we would hope to achieve our objective without it.

12.30 a.m.

Lord Hylton: Before he sits down, can the Minister say anything about the availability of treatment resources and, depending on that, the implementation of the clause?

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