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In its report, the JCHR noted that provision of medical evidence before a compulsory medical examination is required by the existing provisions of the Public Health (Control of Disease) Act 1984, and the case law of the European Court of Human Rights supports the conclusion that detention for the purposes of preventing the spread of infectious diseases or other risks to public safety must be based on objective medical evidence where the source of that risk is related to the health of the person being detained. Can the Minister confirm that objective medical evidence will be required before a JP will be able to make a public health order?

If the Government do not consider that this evidence will be necessary or appropriate, can the Minister explain why? If the Government accept the need for it, I hope the amendment will be acceptable to the noble Baroness.

7.30 pm

Baroness Gould of Potternewton: I shall speak to Amendment No. 175, which should have had my name attached to it but, for some reason or other, the Bill team failed to add it. I do so because the amendment reflects the concerns I raised at Second Reading. I am grateful to the noble Earl for his introduction to this group of amendments because he has expressed many of the points I wished to raise. The noble Earl’s Amendment No. 192 is slightly

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different from Amendment No. 175 but, nevertheless, has the same principles behind it. Therefore it is very important.

My concern is particularly related to HIV. I have now come to accept that we are not going to get HIV taken out of the restrictions under the Bill. I hope that we might still be able to argue the case but, nevertheless, I am beginning to believe that that may not happen.

At Second Reading, I highlighted my concern about the absence of any reporting and monitoring mechanisms of the use of these orders, which may have significant implications for civil liberties, particularly given our obligations under the Human Rights Act. We have heard a great deal about that in previous amendments and, although I have not intervened, I support most of the amendments under this section.

My noble friend the Minister indicated earlier that the Bill will extend the powers available to a JP in relation to a risk of infection or disease. Previously a JP could make an order for a medical examination, to move someone with a notifiable disease to hospital or for detention in hospital. Under the new Bill, that list is much more extensive. I heard the Minister say that it had been devised to ultimately make the powers more flexible. I would like a little more explanation as to how that would work.

I shall not list all the duties that now fall to a JP, but I shall refer to two. For instance, a requirement to answer questions, restrict movement or quarantine may on occasions be necessary as a last resort to control a dangerous and contagious disease. However, there is also a potential for misuse against a stigmatised condition or a group of people who may be particularly vulnerable, such as people with HIV. I am also concerned that people who have HIV, once they are aware of the restrictions under the Bill, may refuse to go for testing because they are scared of the consequences. Very often they will fear something which they should not fear, which is particularly important. It is also terribly important to appreciate that there is continuing misunderstanding about how HIV is transmitted. In the UK, it mainly affects already socially marginalised groups.

Given the extension of these powers, it is vital to ensure that the use of the powers is monitored. The actual process of monitoring should be extremely simple. I, too, look to the HPA, which has existing procedures in place that could be adapted for this purpose. Will they be extended to cover this Bill? Given the potential implication of these orders for people’s civil liberties, it is absolutely essential that that is the case.

I stress the point about having some form of statutory provision because with a purely administrative process there is a danger that even with the best instructions and good will the process will be forgotten, particularly over time and as staff move on. The fact that the orders are used very infrequently makes it even more likely that administration processes will fall by the wayside. That could be avoided by a statutory monitoring process, as the system would be enshrined in law or be

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guaranteed in regulation. However, my concerns go further than that. They also relate to the needs of the individual who is subject to a public health order. Who will provide the information and advocacy for such individuals?

Clearly the use of the orders is extremely rare, as most people living with a contagious disease are willing to comply with suggested treatments and public health measures without need of an order. I made a point earlier about the problem of people with HIV. Prosecutions for transmission of HIV have prevented people going for testing. The CPS has now reviewed those regulations to assist that position.

One problem that worries me very much is that an individual, a vulnerable person—for example, an asylum seeker who does not speak English and is, perhaps, co-infected with TB and HIV and living in the UK without any family—could be subjected to an order and may not have access to the support that he requires to help him appeal the order. I appreciate the amendment tabled by the noble Baroness, Lady Murphy, which relates to a similar concern.

Will the Government consider the amendment carefully and look again at the need to include within the Bill measures or to give guarantees of a provision in regulation to ensure that vulnerable individuals who are subject to an order are aware of their rights, particularly their right to appeal, and have access to support to help them through that process? There is a need for the Government to consider again the importance of safeguarding the rights of vulnerable people who find themselves subject to a Part 2A order, both through measures to protect the individual and through a national statutory monitoring system to ensure that there is a reliable and sustainable mechanism to monitor the use of these extended powers.

Baroness Tonge: I shall speak to Amendment No. 175 which is tabled in my name and the names of my noble friend Lady Barker and the noble Baroness, Lady Gould. I shall not take up very much of the Committee’s time because it has all been said, but I make a plea that we look again at new Section 45C(3)(c), which talks about,

The noble Earl, Lord Howe, pointed out that that is a very broad statement. We should then look at new Section 45G, which, as we have heard from the noble Baroness, Lady Stern, and others, allows not only a person to be ordered to have a medical examination or to be removed to hospital but all the other things in the section, which I shall not read out. It is a very draconian curtailment of his civil liberties, because he is deemed to be a threat to public health.

You could have a ruthless JP or local authority—I do not suggest for one moment that they exist in this country at the moment, but there could be such an Administration in the future—which would say that a sex worker with HIV was a threat to public health. You could have an equally ruthless person saying that any gay person infected with HIV was a threat to public health, because it is such a broad term. Therefore, it is conceivable that under that Administration—we have had Governments like that in Europe and it is not

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beyond the bounds of possibility that it could happen again—those people would be subject to an order, rounded up, put in safekeeping and deprived of their liberty when, in the general sense, they are not a threat to public health. It could be interpreted in that way because of the looseness of that phrase. I urge the Minister to look at those two new sections to make sure that the Government are entirely happy that they will not be misused in future. That is why we want to see some central monitoring. There is no monitoring of these orders at the moment, and it is important that there should be. The Health Protection Agency is the ideal body to do it. We need to keep a close watch on this because of the “just in case” scenario. It could happen, even in the UK. We must protect our civil liberties.

Baroness Murphy: I am sorry to be keeping people from their dinners, but I want to make a few points about this group and shall speak to Amendment No. 183, which is tabled in my name. It addresses the issue that the noble Baroness, Lady Gould, has already raised: the need for independent advocacy for these individuals. I am not wedded to my amendment, which I lifted lock, stock and barrel from the Mental Health Act 2007. It was a highly convenient to lift it out and transpose it.

I want us to think about who these people are and why they are so rare. Normally someone gets carted away by the police and the courts under the criminal justice system or under mental health legislation. Tens of thousands of people are carted away every year. Everybody who works in those two systems has intense training in recognising individuals’ rights and ensuring that they receive information. There is a system of appeals that is brought to their attention, and there are advocates on their behalf who ensure that they know how to use the system to their best interests. However, there are provisions where that is not the case. Many people will know that Section 47 of the National Assistance Act 1948, which was put in place following catastrophes in 1925, and the shorter emergency version in the National Assistance (Amendment) Act of 1951 are still on the statute book. They are about carting away dirty old people who do not fit conveniently into mental health legislation. They are rather vague statutes, and they are used about 200 times a year. A medical officer of health has to apply to a JP in the same way, and those people are removed to a hospital and detained. As a research project, my colleague Paul Wolfson and I interviewed 200 individuals who had been removed under Section 47. None of them had appealed. I think that one was enabled to appeal after our interview but mostly they did not appeal because no one told them how to do it. These were very sick and frail old people, and half of them died following their removal. Seventy per cent of them could have been removed under the mental health legislation if someone had thought to use it appropriately.

As the noble Baroness, Lady Gould, has said, it could well be the case that individuals who do not speak English and who arrive with a very peculiar disease, such as SARS, will be subject to these orders, and it seems to me that they will be in the same boat

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as people taken away under Section 47. We must have some way of ensuring that they know how to appeal and make certain that someone is responsible for ensuring that they know their rights.

No data are collected centrally about Section 47. Questions were raised in 2000 in a letter from the Department of Health about the difficulties that Section 47 of the National Assistance Act posed in relation to the Human Rights Act. A discussion was got going but it did not seem to continue. The letter from the Department of Health was circulated. It expressed anxiety about the likely incompatibility of some of the provisions with the Human Rights Act. It said that it was difficult to judge how far any incompatibility of Section 47 and the Human Rights Act went and pointed out the practical difficulties for authorities that did not have any information available.

The reality is that people who are carted away under Part 2A orders will be in exactly the same boat. It is crucial that we understand that it is not just for local authorities to collect the data; we must have data that can be used to review why these things are happening, and those data must be collected centrally by some authority. I, for one, think that the health protection authority was the right organisation to do that. I also express support for the notion that the individuals should have someone independent—I am not wedded to the idea of the local authority doing it—who can assist them in exercising their right to an appeal.

7.45 pm

Baroness Thornton: 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

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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.

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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.

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Earl Howe: This has been a good and interesting debate and I thank the Minister for her comprehensive reply, which in many respects was very cheering. I particularly welcome her statement on HIV and very much welcomed her undertaking on the role of the Health Protection Agency in monitoring the use of these orders. It was helpful that she picked up on the concern about friendless people and the provision of advocacy for them, and that she will take away and consider the possibility that the definition of an affected person could be tailored to include someone who could act as an advocate in those circumstances. I was also glad to hear her say that any lack of clarity about a prohibition on forced medical treatment might be addressed by means of a clarifying amendment.

I am sure that all Members of the Committee will study the Minister’s reply with considerable interest. I thank her once again for the care that she has taken to address the concerns. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 170:

The noble Earl said: I will speak also to Amendments Nos. 173A, 176, 178, 179 and 181.

When a magistrate receives an application for a Part 2A order, there is a checklist of conditions that must be satisfied before an order may legally be granted. The checklist is similar whether the application relates to a person, a thing or a set of premises. In the case of a person, the JP has to be satisfied that he or she,

The checklist does not include any threshold of risk. The degree of risk, or the size of the threat to public health presented by a given set of circumstances, can of course vary enormously. It can be anything from a remote risk and a distant threat to a high risk and a serious and imminent threat. But the clause leaves the whole issue completely open.

Under new Sections 45C(6) and 45D(4) special restrictions or requirements can be imposed in one of two ways: they can either be imposed by a magistrate or, in certain circumstances, by means of regulations where there is a serious and imminent threat to public health. The inference to be drawn from this is that an application to a magistrate for a Part 2A order could in theory be made in circumstances where the threat to public health is a good deal lower than serious and imminent.

One could have an overcautious local authority applying to take quite draconian action in the face of a risk that by most people’s standards was remote. That may sound unlikely, but the drafting of the clause at present seems to offer no barrier to the granting of an order in such circumstances.

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