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It is to the credit of the noble Lord, Lord Carlile, and of everyone who has taken part in the debate that these issues are always taken very seriously by your Lordships’ House. I hope that my comments this evening will go some way to reassure contributors to the debate that, although they might not agree with us, we do at least take these issues seriously and we listen and try to learn from previous experience.

Several noble Lords referred to some of the tragic instances in the youth custody arena and, in particular, to the tragic death of Gareth Myatt, whose inquest is currently in progress. Tempting though it is, it would be inappropriate for me to comment on that inquest, and we should all await the coroner’s inquiry and the outcome of the jury’s deliberations. The comments that will no doubt flow from the inquiry will be of great value to the department and to the Youth Justice Board and others in fashioning a response and in understanding better the circumstances surrounding Gareth Myatt’s tragic death. It is vital that we respect that process.

I shall begin by giving my understanding of the problem that faces the custodial part of the youth justice system and those who work in it. I shall then go on to describe the measures that the Government have taken and those that we have in hand to safeguard children and young people in custody and to ensure that their behaviour is managed effectively

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and humanely. In doing that, I shall try to respond to some of the points raised during the debate. I do not expect to cover all the questions that were asked, but I assure noble Lords that I will provide them with a fuller response to the points that I have been unable to cover than I would have been able to give from the Dispatch Box.

For most of those who go there, custody is the end-point of what we all accept is a lengthy journey through the youth justice system. Except for the small minority who, out of the blue, commit very serious crimes, most of those going into custody will have been the subject of several community interventions designed to help them to change their lives and to stop offending. They end up in custody because, for one reason or another, as all noble Lords who have taken part in the debate recognise, those interventions have not worked.

That may sound like a simple case of failure on the part of the system but, when one considers the complex problems that many of these young people have, it is really not at all surprising. Study after study has shown a similar picture: family breakdown; inadequate parenting; lack of schooling; low educational attainment; and alcohol and substance misuse. By any standard, that is a formidable combination of difficulties. It is regrettable but, as I say, hardly surprising that community youth justice interventions do not always provide the answer. What is clear is that these are neglected or, at best, inadequately cared-for young people whom society as a whole has failed. Sending them to custody is the last resort, when the courts have decided that other types of intervention have not succeeded and are not going to succeed.

I do not wish to suggest that custody is the solution to all those problems—far from it. At best, it provides the community and the young people themselves with some respite or a breathing space, but it should be recognised that for very disadvantaged children such as these, custody can have some positive benefits. It can remove them from a bad or unsafe environment, and it provides education and healthcare—not infrequently to higher standards than the young person has previously experienced. However, unavoidably, custody brings together a group of volatile young people whose behaviour is very difficult to manage. Some of them are very large and strong; some are aggressive; and few have any understanding of discipline or the need for self-discipline. Without the most careful management, the way that they behave will pose a risk to themselves and to others. Managing that behaviour will never be easy and, however well it is managed, there will be occasions when it is necessary to use physical intervention to prevent a young person harming himself or herself or others.

So we are asking those who work in under-18 establishments whose essential task is to care for and support these challenging young people to take on the great responsibility of managing their behaviour, which sometimes involves some risk of injury to themselves. It is right that our concern should focus on the welfare of the young person, but we also owe it

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to the people who do this difficult job to recognise how much is being asked of them. It is essential that they receive clear guidance and are properly trained to undertake it. But I wonder how many of us, however good the training and the guidance, would have been able and willing to undertake this demanding and often unrewarding work.

What are we doing to ensure that restraint, strip-searching and single separation are used as sparingly as possible? That has been a theme of this debate. The Youth Justice Board’s code of practice: Managing Children and Young People’s Behaviour in the Secure Estate, which was published in February last year, set the framework for a great deal of work in this area. I will give some examples.

Hassockfield secure training centre is piloting the use of a technique known as therapeutic crisis intervention to help staff defuse tense situations without having to use physical intervention. Restorative justice approaches are being piloted at Ashfield young offender institution, and a review of restorative justice work throughout the secure estate is due to report shortly.

The behaviour management code of practice has been integrated into the Youth Justice Board’s effective regimes monitoring framework, and each establishment that is not already fully compliant with the code has an action plan for achieving full compliance. The Youth Justice Board is closely monitoring implementation of those plans.

We have recognised—this point was referred to by a number of noble Lords—that statistical data that we collect on the use of restraint can be improved. A set of common definitions and new accounting rules have been agreed to enable statistical data to be collected in a way that allows clearer comparisons of practice across the three sectors of the estate. The new data reporting and recording system will come into effect from April.

The Youth Justice Board is working with the Children’s Workforce Development Council to agree core competencies for all staff working in the secure estate, so that we can raise standards of care. A review of family liaison work in relation to young people in the secure estate is under way, and that, too, is due to report shortly.

That is a snapshot of just some of what is being undertaken. I have heard it suggested that the Government have not taken these issues seriously enough. I hope that that brief resumé at least demonstrates and goes some way to convincing those who carry that view that we are very serious indeed about these issues.

I know and understand from previous debates and Questions on this subject—to some of which I have had to respond—that there are concerns about the use of handcuffs in secure training centres and the sensitive issue of the practice of strip-searching girls on arrival in custody. As far as handcuffs are concerned, practice varies. Two of the secure training centres—Medway and Rainsbrook—report that they do not use them. A third centre—Oakhill, to which the noble Baroness, Lady Stern, referred— has a

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policy of reducing the use of handcuffs and reports that it has not used them since April last year. Hassockfield continues to use handcuffs, but reported use has reduced considerably and the centre is piloting the use of “soft cuffs”—made from Velcro. No one likes the idea of applying handcuffs to young people. If it is possible to reduce their use, that is clearly a good thing. Clearly we shall have to give further consideration to that. Perhaps the noble Lord, Lord Carlile, could give some further consideration to it. His report did not focus in a major way on that, but I know that he is very concerned about it. I can also tell your Lordships that the Youth Justice Board is looking at the use of handcuffs more generally and hopes to report on that this year.

Young offender institutions and secure training centres, as a matter of policy, conduct a full search—a strip-search—of all young people arriving in custody. Again, that is not something we would wish to subject a young person to if it was not absolutely necessary, but we believe that it is necessary to prevent weapons and drugs being brought into establishments. The noble Lord’s report suggested that that was not the practice in secure children’s homes, but it is important to note that secure children’s homes are much smaller and take younger children. We cannot simply replicate practice that may be workable there in establishments taking large numbers of more volatile and physically mature 17 year-olds. We are, in effect, being criticised for placing too much emphasis on security but if, heaven forbid, a trainee or member of staff were to be seriously injured by a weapon smuggled into an establishment, the criticism from every quarter would be that security had not been tight enough. We have the difficult job of striking a balance that achieves the highest level of safeguarding. Weighing too heavily on either side can, of course, lead to increased risk. As I said at the outset, these are not easy or straightforward issues.

Many questions were asked; I shall try to run through some of them quickly. The noble Lord, Lord Carlile, asked about the change of departmental responsibility. The cross-government arrangements in place around Every Child Matters and Youth Matters ensure that the DfES, the Home Office and the Youth Justice Board work together to support young people and prevent offending, whether they are in or outside the youth justice system. The current view is that the system works well, and we have no plans to change the division of responsibilities.

I was impressed by the contribution of the noble Baroness, Lady Bottomley, and welcome her to this debate. The suggestion of a levy on social services was interesting and potentially attractive. There have been some discussions between the Home Office and the DfES about it, but before we could introduce such a levy we would have to be clear that a workable process was in place to enable funds to be transferred quickly and effectively. It is not something we have ruled out, however.

My time is up. There are many other questions I would like to respond to. I do not have the time to do so, but I repeat my undertaking to respond to those points that I have not managed to cover. I apologise in

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particular to the noble Lord, Lord Avebury, who gave me notice of his questions. I have full responses which I shall ensure are prepared for him.

Lord Carlile of Berriew: My Lords, time has run out. I simply thank all noble Lords who have taken part in the debate. It is not a debate of last resort; I suspect that it will be a regular resort in the future. I thank all noble Lords, especially the Minister for his response.

Mental Health Bill [HL]

8.38 pm

Consideration of amendments on Report resumed on Clause 8.

Lord Carlile of Berriew moved Amendment No. 9:

The noble Lord said: My Lords, moving back into Mental Health Bill mode, I also speak to Amendments Nos. 10 and 75. These amendments refer to matters brought to my attention since Committee by a distinguished consultant physician in Surrey and a barrister colleague of mine. With Amendment No. 73, they mainly deal with issues arising from what has become known as the Bournewood gap.

The three amendments are mainly intended to deal with two sets of circumstances; first, the provision of medical treatment to those who are mentally incapacitated—temporarily, in many cases, or permanently—but who are not suffering from mental disorder; secondly, persons who suffer from mental disorder and need non-mental health medical treatment. Those who have brought these matters to my attention say strongly—and, having considered the matter, I agree—that some clarification is needed in the law. The purpose of these amendments is to draw the matter to the attention of the Government, and to probe and, one hopes, secure a response from them, perhaps not this evening but in due course.

It is important to distinguish mental health treatment from medical treatment, or “treatment” as used in the Mental Capacity Act 2005. It would be less confusing to use the term “mental health treatment” rather than “medical treatment” in the Mental Health Bill, reserving the term “medical treatment” for medical and surgical therapy and medical treatment going beyond mental health treatment. The complexity of the issue becomes self-evident on listening to that section of my remarks.

In the Mental Health Act 1983, medical treatment refers to the treatment of the primary mental disorder and its consequences. Medical treatment for the treatment of purely surgical or medical conditions is not regulated by the Mental Health Act 1983. As an example, I refer to the case of St George’s Healthcare NHS Trust v S, a 1998 case that was reported at page 673 of Volume 3 of the All England reports of

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that year. In that case, it was held that a pregnant woman could not be forced to undergo a Caesarean section without her consent merely because she was undergoing compulsory psychiatric treatment under the Mental Health Act 1983. When one considers the facts of that case, it becomes evident that those providing the non-mental health medical treatment were placed in an extremely difficult position and had to make some extraordinarily complex decisions at high speed. Against that, in the case of anorexia and other eating disorders, compulsory feeding of all kinds is regarded as medical treatment under the Mental Health Act because it is correcting the malnourishment that is a direct consequence of the mental disorder causing the primary eating disorder. Conversely, the Mental Capacity Act 2005 does not provide authority for compulsory treatment for a psychiatric disorder.

That statutory disorderliness is bound to cause difficulties for clinicians seeking to provide medical treatment, in a general sense, and mental health treatment, also in a general sense. Modern psychiatric treatment involves a range of modalities and is performed by a variety of mental health professionals. It is no longer confined to drug therapy, ECT and other traditional treatments. The term “mental health treatment” is preferable to “psychiatric treatment” since the range of modern therapies and multi-disciplinary skills is now much wider. However, if one was to replace “medical treatment” with “mental health treatment”, many unpredictable consequential amendments to the Bill would be necessary and an amendment of the Bill along the lines of this amendment might well meet the need for clarification.

Amendment No. 10 clarifies the definition of treatment in the Mental Capacity Act 2005 so that it is clear that it means an intervention performed by a registered medical practitioner, not merely an intervention by, say, a nurse in a nursing home providing a catheter or insulin. Amendment No. 75, which is tabled in my name and that of my noble friend Lady Neuberger, is self-explanatory. It ensures that patients receive the same standards of healthcare whether they are compulsory or voluntary patients and whatever the setting. I concede that these are difficult and complex issues. They are part of the consequences of separate legislation dealing with separate and difficult issues. However, it is clear from what I have been told by experts working in the field—clinicians and lawyers—that there is a need for clarification and I hope that the Government can answer the cry for help. I beg to move.

8.45 pm

Lord Williamson of Horton: My Lords, I seek clarification on one point. Those of us who come new to this material find a provision in Amendment No. 75, which refers to the possible,

Obviously such a provision attracts attention because no one wants to get into a situation where there could

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be a withdrawal or a withholding of ordinary nursing care. What I am not sure about is why the amendment is necessary. Is it because there is no provision in the Bill, or is it because there is a risk that such a situation could arise? It is something one would not expect to find. Therefore, I should like to know why it is necessary to put it into an amendment to the Mental Capacity Act 2005. I am not sure why it is required.

Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Carlile, has, in a sense, moved a Committee-type amendment on Report. In that spirit he has asked for clarification of the law. I will give what advice I can tonight, but I also offer to write further to the noble Lord and other noble Lords, as he has raised some interesting points that will inform later debate on the Bill.

It may be helpful if I start by outlining the changes we intend to make by Clause 8 and the reasons for them. We are changing the definition of medical treatment in the Act primarily to reflect the fact that we are opening up the role currently played by the responsible medical officer to a wider group of professionals. We debated that issue just before the dinner break. Because of that change it no longer makes sense for the definition of medical treatment to refer to care, habilitation and rehabilitation under medical supervision, as “medical supervision” in this context of a definition of treatment could be interpreted as requiring the supervision of a registered medical practitioner. As we have made clear, we want medical treatments that fall within the ambit of the Act to go beyond those that can be provided by or supervised by doctors.

We are also taking the opportunity to make it explicit that the definition of medical treatment includes psychological intervention. Practical examples of psychological intervention might include cognitive therapy, behaviour therapy and counselling. Questions have been asked about issues that arise from physical conditions that can then give rise to mental disorders. Clearly, many of those disorders will be transitory and will pass with the physical disorder. So the question of using the Mental Health Act will often not arise. I say to the noble Lord, Lord Carlile, that my understanding is that A&E departments are well used to checking for instances of, for example, urinary tract infections and other common problems, which may potentially cause mental disturbance in older patients. If such an infection is found, treatment will be offered accordingly. But, clearly, when assessing patients in order to decide whether it is necessary to use the powers in the Mental Health Act, it is important to consider whether their mental health problems are a direct consequence of a physical ailment. The fact that the mental disorder can be expected to be alleviated by tackling the underlying physical condition may be decisive in deciding whether to use the Act as there will be an effective and more appropriate alternative. Overlooking such factors is a matter of poor practice rather than the law.

Conversely, I do not think that it should be assumed that it will never be appropriate to use the Act. It surely must depend on the particular circumstances of the case, the severity of the mental

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health problems the patient is experiencing, the persistence of the symptoms and the risk to their own safety and that of others. Our starting point is that if the person’s mental condition, whatever its cause, is putting them or others at risk sufficient to warrant detention in hospital for treatment, then there should be no arbitrary obstacles to the Act being used.

As regards case law, I have been advised that in the 1995 case of B against Croydon Health Authority medical treatment for medical disorders can include a range of acts ancillary to the core treatment a patient is receiving. That can include treatment that is a necessary prerequisite to such treatment. Each case must be judged on its merits, but it would probably be a mistake to attempt to draw rigid lines and say that treatment for an underlying physical condition could never legitimately be considered as part of treatment for mental disorder.

Amendments Nos. 10 and 75 are equally interesting. It is clearly very important to ensure that ill, frail or vulnerable people being looked after in a hospital or care home receive satisfactory—more than satisfactory—care. In a sense, the noble Lord takes us back to the amendment moved by the noble Baroness, Lady Knight, in Committee, when she raised some important matters of concern. Noble Lords will know that I have agreed to meet the noble Baroness because, although we do not think that the legislative framework is wrong, she has identified matters which, if there is hard evidence, suggest an extraordinary failure in practice in some care institutions. We need to do very much better if the poor practice that she identified is in fact happening in either the NHS or care homes.

The Mental Capacity Act has established in statute a clear and robust framework for actions and decisions to be taken for people who lack capacity to take decisions for themselves which would otherwise be unlawful. It provides a framework. Its purpose is not to set out what decision is or is not appropriate in any given place.

On the relationship between medical treatment, mental health treatment and the confusion that the noble Lord describes between the Mental Health Act and the Mental Capacity Act, I will see whether issues need to be confronted. As I said, I shall write to him. Our initial reaction is that the law is clear. The Mental Health Act provides for compulsory treatment for mental disorder. The Mental Capacity Act provides a basis for treatment of any kind for people without capacity to consent to it. However, as I said, I shall look further at the matter and, in the first instance, write to the noble Lord.

Lord Carlile of Berriew: My Lords, I am very grateful to the Minister for dealing with the matter in such a constructive way. I should be happy to discuss the matter with him outside the Chamber subsequently if that is convenient and possible.

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