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Clause 26 will allow the responsible clinician to require a patient on a CTO to abstain from a particular conduct. I suggest that this provision is misplaced, possibly even dangerous. My concern, which has been very widely expressed, is that this particular condition of a CTO could make supervised community treatment into some form of psychiatric ASBO. I can do no better here than quote the Mental Health Act Commission, which has argued:
Our serious concern would be that perhaps over time those clauses would start to be used in a way that would provide controlling arrangements, perhaps for young black people who are thought to be drug addicts and they are placed on what would be the equivalent of an Anti-Social Behaviour Order but run under the Mental Health Act.
Part of the problem is that the Bill does not go into detail about what sort of conditions might be thought reasonable. One condition might be that the person must not go down to the pub; another might be that he must not be outside his house between certain hours; another might even be that he is not to leave his house at all and that he is to be kept there effectively under house arrest.
The potential for a very serious interference with a patients private life is considerable. There is no guidance in the Bill to say to the responsible clinician, You must exercise your powers in line with public law principles and the patients convention rights under the Human Rights Act and the ECHR. Of course the code of practice will be there, and I am sure that the Minister will point that fact out, but it will have a limited legal effect and cannot be thought sufficient to provide protection to patients in this regard.
There are other concerns as well. Carers' organisations are worried that they would be left to police these conditions. Even the National Forum for Assertive Outreach, which is a strong supporter of CTOs, has agreed that it would be morally wrong to place conditions on a CTO such as preventing a patient visiting a pub or begging.
Let me turn to the other two amendments. These would allow a patient on a CTO to appeal to the mental health review tribunal against any of the conditions imposed. They would also allow a tribunal to recommend that any of the conditions could be varied or suspended when an application has been made to the tribunal for the patient to be discharged. In both cases, the tribunal would have the power to recommend that the responsible clinician should make changes to the conditions. If this is not done, the tribunal would have the power to order a further hearing.
We are dealing with a human rights issue of considerable significance. The Bill does not permit the tribunal to review the conditions imposed on a CTOit can only discharge someone from a CTO altogether. In my submission, that is simply not acceptable. We can easily imagine a situation in which very restrictive conditions have been applied to a CTOrestrictions that are so great as to amount to a breach of the patients Article 5 rights. Why should the tribunal not be able to review them?
There could be a slightly different situation in which a patient does not dispute the need for a CTO but objects very much to a particular condition which might amount to a breach of a convention right. It could be argued that there is a breach of Article 13 in that there is no effective remedy available.
The remedy that the Minister will no doubt refer to is the independence of the approved mental health practitioner. I have considerable doubts about the degree to which the AMHP will be able to exercise true independence as a member of a clinical team which includes the responsible clinician. Are we really saying that proper training will do the trick? The Government clearly did not think that that would be enough when they published the 2004 draft Bill, which made provision for the tribunal to approve conditions and treatment plans. Again, the Minister may say that the code will ensure that the conditions are kept to the minimum necessary. However, the code will not prevent the imposition of a curfew or similar restrictions which, cumulatively, might amount to a deprivation of liberty.
There is a real lack of external safeguard, which contrasts with other areas where Article 8 of the convention is engaged, such as the Regulation of Investigatory Powers Act 2000 and the Prevention of Terrorism Act 2005. I am sure that the Minister will not disagree that restrictions on conduct should be proportionate and that conditions should not be imposed which collectively amount to a deprivation of liberty. The question is whether we can rest content if these requirements do not appear on the face of the statute. I do not believe that we can. Therefore, I beg to move.
Lord Carlile of Berriew: My Lords, I support these amendments for all the reasons which have been so cogently expanded by the noble Earl. I just want to emphasise one part of what he said; namely, the legal issue which it seems to me arises if there is not a remedy before the mental health review tribunal. The analogy with the Prevention of Terrorism Act 2005 is good. It was recognised when control orders were introduced that it was essential that a due process be provided; that is, a judicial procedure which would be regarded as a remedy under Article 13 of the convention. That due process has been found to be useful. There have been casesfor example, R v E, in which judgment was received in the past few daysin which the judge reviewing the control order conditions declared that some of them were unlawful and therefore invalid, and a new control order had to be issued.
If the Government do not include the power to go to the mental health review tribunal for a review of community treatment order conditions, what will follow is inevitable. Someone, or a group of people, whose conditions are fairly stringent will apply to the High Court for judicial review on the grounds that they are disproportionate. That will result in an expensive and time-consuming set of litigation, which will eventually lead us to the conclusion that the Act is insufficient in the remedy it provides. It is far better to deal with that now than after a war of attrition through the courts.
Lord Hunt of Kings Heath: My Lords, obviously these amendments reflect concerns raised in Committee and at Second Reading. The short-term phrase psychiatric ASBOs has been used, which we refute. I have concerns about the impact that the amendments would have and want to make it clear that the conditions attached to a community treatment order set a framework for the patients life in the community. One is not being defensive about thisthat is what they are there to do. They make clear what the patient needs to do or not in order to manage his or her mental disorder and to remain stable.
As noble Lords have suggested, they will be greatly dependent on the professional views of the responsible clinician and the improved mental health practitioner because the conditions must relate to the patients mental disorder and its management. They must also be acceptableeven if not agreeableto the patient at the outset. Inevitably, the establishment of the community treatment order will take place after discussion between the patient concerned and the clinician. It is hardly likely to work if the patient is not in a position to take advantage of the community treatment order. If the patient does not agree at least to try to keep to the conditions, what are the chances that supervised community treatment would succeed in the first place?
That is not their purpose. We do not propose to recall a patient to hospital merely because he has failed to comply with a condition. Of course, a failure to comply is a signal that something may be going wrong and, depending on the patients medical condition, recall to hospital may be necessary, but that will depend on the patients individual circumstances and is not automatic.
I stress that, just as the conditions in general are not mandatory, the fifth condition is likely to be appropriate for only a minority of patients. It is there for consideration where it is directly relevant to the patients mental disorder and will contribute to the success of the patients community treatment. If abstaining from a particular kind of conduct would help a patient to remain stable and if making it a condition of a community treatment order makes that abstention more achievable, the patient and others will benefit. It would be unacceptable to impose such a condition for any other reason, which will be made clear in the code of practice. Two professionals will be involved when a community treatment order is made; namely, the responsible clinician and the approved mental health practitioner, who must both agree to all the conditions before they can be set. That should surely ensure that there will not be arbitrary conditions imposed which cannot be justified.
I was asked about examples: in Committee, I quoted an example in which a patient was thought to be illegally taking drugs or consuming alcohol to adverse limits. That could impact on the overall treatment and condition of the patient and, in certain circumstances, it may be appropriate to lay such a condition. If noble Lords accept that, I know that they would then wish to bring the tribunal into play. We do not agree that that is the way forward. The tribunal of course is an independent judicial body, which considers the justification for a persons continuing detention, guardianship or compulsory treatment order under the Act. But referring the issue to a tribunal would be to ask the tribunal to substitute its judgment about the best way to treat a patient for that of the professional, or professionals, responsible. We do not agree that that is a relevant decision for the tribunal.
It is interesting that the amendment does not propose that the tribunal set new conditions to substitute for those that the responsible clinician has sought to place in the case of a particular patient. We also think that these amendments might impose extra and unnecessary burdens on the tribunal, and extra bureaucracy on the tribunal and the responsible clinician. I stress again that, ultimately, the conditions laid out in new Section 17B may be specified, save for the condition,
Lord Carlile of Berriew: My Lords, let us suppose that one of the conditions under new Section 17B(3)(e) is that a person remains in their home from six oclock in the evening until seven oclock the following morningthe purpose being to prevent them from going out
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Lord Hunt of Kings Heath: My Lords, these are all hypothetical examples, but my assumption in that circumstance would be that discussion would have taken place between the patient and the clinical team, including the responsible clinician and the approved mental health practitioner. If it becomes clear that the patient would find that unacceptable and is unlikely to abide by it, that would call into question the decision that a community treatment order would be suitable in that patients concern. That is the best answer I can give the noble Lord on that. We do not think that the kind of formality that is being proposed here, with the involvement of the tribunal, is the way forward. We believe that the way in which the provision is set out, whereby conditions may be satisfied, is a proportionate approach. I hope that the noble Earl on that basis will consider withdrawing his amendment.
Earl Howe: My Lords, I am grateful to the Minister for his reply, although it was disappointing. My fear here is that the Government are in danger of entering a minefield, if they ignore the human rights traps which they have set themselves. We would do well to listen to the noble Lord, Lord Carlile, whose expertise on these issues is undoubtedand I am sorry that the Minister is unable to appreciate the risks that I see in having an open-ended provision for conditions to be attached without qualification. For the reasons I stated, I believe that that could lead to some very unfair situations arising.
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