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Baroness Walmsley: My Lords, I thank the Minister for his response. I confess to agreeing with many of the words he uttered and I pay tribute to the Government's intention and objective of helping young people. The difference between us boils down to the fact that I and the children's organisations do not believe that the compulsion element will achieve what is required. Furthermore, we are concerned about the ratcheting up element of the potential for breaching a court order. However, I do not intend to press the amendment on this occasion and I beg leave to withdraw it.
The noble Baroness said: My Lords, in moving Amendment No. 231 I shall speak also to Amendment No. 234. Their purpose is to ensure that prior to the attachment of requirement of drug treatment to a supervision and action plan order, the court has regard to the child's understanding of and willingness to comply with a programme of treatment. The treatment requirements within Schedule 22 could, as they currently stand, be included in an order for any person aged 10 or over. The proviso that the court shall be satisfied that the young person's consent has been
Both those implications of the current drafting are problematic, and they support the need for the amendments, which would separate and clarify the difference. Our aim would be to ensure that each child who is assessed for such an order has had the opportunity to express his view and intentions in relation to the prospect of treatment, whether or not it is the child or his parents who will need to give express consent to the inclusion of the requirement in the order.
The Government's stated intention in introducing these requirements is to provide helping treatment that will engage the young person in behaviour change. The principle behind my decision to return to this matter on Report is that I believe it is important that the engagement is there from the outset. I am sure that that is the correct approach. I believe it is also the Government's approach in many ways.
Therefore, I cannot see any logical reason for legislating in this way only for those aged 14 and over, should such an engagement be necessary. In fact, the younger the person involved, surely the more important it is for the court to know whether he is being subjected to a process which he does not understand or with which he has no desire or intention to comply. I beg to move.
Lord Hylton: My Lords, when the noble Lord comes to reply, can he say whether the Government wish to see parents agreeing to this kind of order and treatment? I believe that that would greatly reinforce their effectiveness in the 14-to-18 age group and would do so even more if such orders applied to children under the age of 14.
Lord Bassam of Brighton: My Lords, the schedule does not allow the court to include a treatment requirement in either order unless, among other things, the individual, if aged 14 or over, consents specifically to its inclusion. Amendments Nos. 231 and 234 would require offenders aged 14 or over to indicate a "willingness to comply" with the requirement and would also require that "appropriate consent" be given to its inclusion in the order. The schedule 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 has already been mentioned, the court cannot include a treatment requirement unless it has 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 must take into account the willingness of the offender to comply with the order.
I turn to the need for "appropriate consent" to inclusion of the requirementthat is, consent both to the inclusion of a requirement as to treatment, and testing where applicable, and consent to the treatment itself. That will have to be given in accordance with the Fraser guidelines and the principle of Gillick competence. That will be confirmed in guidance to the courts and to professionals, who will be responsible for the implementation of the provisions.
We do not mean to imply, as has been suggested, that all those aged 14 and over will be competent to give their consent, nor that those under the age of 14 will not be competent. We shall make clear in guidance that the courts should have regard to the consent of an individual, and his parents or guardians where appropriate, whatever the offender's age.
Having said that, we continue to believe that it is right to require the implicit consent of those aged 14 and over to the inclusion of a treatment requirement. We believe that young people should be engaged in that decision. With that engagement from the start, successful participation in a treatment programme can surely only be more likely, as the noble Baroness, Lady Walmsley, suggested.
I do not believe that there is a great deal between us on this issue. I hope that what I have said offers the noble Baroness, Lady Walmsley, and the noble Lord, Lord Hylton, sufficient comfort and that they will feel confident in seeing the amendment withdrawn.
Baroness Walmsley: My Lords, I thank the Minister for his response. On this occasion, I believe that we have to rely on the recommendations of the youth offending team officers in relation to the treatment being not only suitable and relevant to the young person but also in relation to the young person understanding and agreeing with it. It is not so much the suitability but the state of mind of the young person that is most important, and the court must be absolutely clear about that. I am particularly concerned about the 10 to 14 year-old group in this case. However, I do not intend to press the matter at present and I beg leave to withdraw the amendment.
The noble Baroness said: My Lords, in moving Amendment No. 232, I shall speak also to Amendment No. 235. The purpose of both amendments is to remove the testing requirement in action plan and supervision orders that can be applied where a treatment requirement has already been made and to ensure that testing is rooted in treatment and is not seen as an intervention in and of itself.
Paragraphs 1(2)(4E), (4F), (4G) and (4H) of Schedule 22 provide for the addition of testing requirements to action plan and supervision orders where a treatment requirement has already been decided upon for offenders aged 14 and over.
The children's organisations believe that those requirements are entirely unnecessary, given that where drug testing is believed by professionals to be necessary as part of treatment monitoring, it could already be detailed within a treatment plan under the treatment requirement. Failure to comply with treatment, including, therefore, any testing that formed part of the treatment programme, would already result in breach.
My principal concern in returning to this issue is 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 risks of the young person's failure to comply with an order.
Drug treatment and testing orders for adults have shown a very high rate of breach88 per cent of DTTOs made in 2002 were breached, as we heard reported in the media only recently. I am concerned that adding unnecessary requirements to similar orders for young people will be setting them up to fail, when it is in everyone's interests that they are supported to succeed in their treatment. The answer given by the noble Lord, Lord Bassam, in Committee did nothing to convince me that there is no threat to the proportionality of the court's response if it uses those measures. I believe that it would create layers of additional requirements on the young person.
In response to my amendments tabled in Committee on this matter, the Minister clarified that the intention behind the attachment of testing requirements, where a treatment requirement is already being made, is consistent with the other provisions for drug testing at the charge, pre-sentence and licence stages. However, there is an important difference. In other cases, testing is proposed as a means of identifying possible treatment needs. However, in the case of a young person who is already known and identified as having a drug problem, a court-ordered requirement for testing, concurrent with the treatment regime, is clearly not about identifying treatment needs. In fact, it gives a clear expression at the outset of treatment that there is a lack of belief or trust that the young person will be able to succeed in his treatment. That is the case to such an extent that testing should be made separately a compulsory and breachable requirement.
That is not to argue against the value of testing by the treatment provider in certain cases as a means of monitoring the young person's progress. Treatment providers can, and do, use drug testing to monitor progress and, more importantly, to ensure the safety of the young person where he is being prescribed medication. It should be possible to test where it is considered appropriate as part of treatment.
In Committee, the Minister stated that the testing requirements in these provisions were consistent with those made in drug treatment and testing orders. The evaluation of drug treatment and testing order pilots commissioned by the Home Office found that rates of positive tests were high, although they did not necessarily reflect a failure to progress with treatment. The report of the evaluation stated that for those who
The same evaluation found that older offenders who had been dependent for longer were more likely to do well under the orders because of their stronger desire finally to give up drugs. Given that the young people who will be subject to these new provisions will be on average at least 10 years younger than the average DTTO offender during the DTTO pilots, these findings should be considered an important source of information about their likely impact on the motivation of young people who may be working hard but succeeding only slowly with the difficult process of coming off class A drugs.
I believe that the case has not been made for attaching a separate testing requirement on top of a treatment requirement to an action plan and supervision order. The amendments would reflect the reality of treatment provision. Testing is not and should not be seen as a stand-alone intervention where drug use has already been identified. I beg to move.
Lord Bassam of Brighton: My Lords, Amendments Nos. 232 and 235 would remove the ability of the court to include a drug-testing requirement alongside the treatment requirement for those aged 14 and over as part of a coherent action plan order or a supervision order.
It is worth repeating that the purpose of this provision is not to set up young offenders to fail, as the noble Baroness suggested may happen. Allowing a testing requirement to be included in the orders is necessary to assist the responsible officer or treatment provider in ascertaining whether the treatment the offender is receiving is effective. It is also a highly useful tool for the treatment provider to tailor the treatment according to the needs of the offender.
Testing is integral to the treatment and an indicator of the young offender's progress with the treatment he is receiving. As we have stated in the past, we anticipate that these provisions will be used primarily for problematic drug-misusing offenders who lead a chaotic and disturbed lifestyle. We further anticipate and suggest that the testing requirement will be used primarily in the case of misuse of specified class A drugs which are the drugs which are commonly acknowledged to cause the most harm. As we have also said, we intend to introduce these provisions in limited areas initially so that their effectiveness can be further evaluated.
For those reasons we believe that the amendments should be resisted. I cannot agree that this is a stand-alone provision. We do not see it in that way, but as part of a cohesive and coherent programme. For those reasons we shall continue to resist the amendments which were similarly moved in Committee.
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