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8.30 pm
Tim Loughton: I shall try to be brief, because I know that others wish to speak—although the hon. Member for Hendon (Mr. Dismore), Chairman of the Joint Committee on Human Rights, who tabled amendment No. 69, does not appear to be present, so perhaps we have a little more time than we thought.
Let me begin by putting on record something rather distasteful. Apparently, the Sunday Mirror—not a paper that I read regularly—published an article entitled “Tories to block new paedo law”, which claimed
“The MPs want to water down a new Mental Health Bill allowing dangerous patients to be detained and forced to have treatment. At the moment dangerous patients and perverts can walk the streets simply because they have an ‘untreatable’ condition. . . But Tory MPs will claim the Bill breaches human rights in the Commons tomorrow. They want to exempt ‘sexual deviants’, which could lead to paedophiles claiming they are just ‘deviants’ and should not be locked up.”
What an ill-informed, shoddy bit of journalism and scaremongering from someone who is supposed to be the political editor of the Sunday Mirror, not that I think that that amounts to much of a job. If that article is not scaremongering—misinformed scaremongering—I do not know what is.
John Bercow: It is not only shoddy and ill-informed. My hon. Friend is right about that, but he expressed himself with the characteristic understatement for which he is renowned in all parts of the House. It is also a piece of scurrilous, vicious journalism—precisely the kind of journalism that has the effect of making life worse for very vulnerable people. The editor of that newspaper ought to be ashamed.
Tim Loughton: I entirely agree. There was a slightly watered-down version of the same attack in the Sunday People, which I believe is a sister newspaper. I use the term “newspaper” loosely. It quoted the Minister, who I hope will disassociate herself entirely from that article and the misrepresenting comments contained in it. I should be happy to hand it over to her. It does no one any justice: it certainly does no justice to the newspaper, and—as my hon. Friend rightly and articulately said—it does no justice to the people whom we are here to help and whom the Bill is intended to help. We have spent a great deal of time trying to achieve that.
Amendment No. 91 is an updated version of an amendment that was passed with a heavy majority by members of the House of Lords in all parties. Its purpose is to provide some exclusions from what has now become a much-extended definition of mental disorder. It would replace the exclusion for dependence on alcohol and drugs with a more appropriately worded exclusion to cover a state of acute intoxication falling short of dependence, reinstate the exclusion clause in the 1983 to cover sexual preferences, substitute for the existing exclusion for immoral conduct a more generic clause to prevent mental health law from being used as a form of social control, and respond to the evidence that people from ethic communities, particularly black communities, are disproportionately subjected to the Act by providing a specific exclusion to help address the problem.
When we have discussed this proposal in the past, the Minister has suggested that it would be a lawyers’ charter and that it would not address the issue of paedophilia, which is obviously of serious concern. The fear has been expressed that paedophiles would escape through a loophole. That is why subsection (2) states
“Nothing in this section shall be construed to cover paedophilia.”
We have made the position much clearer than it needs to be in order to explain it in language that is clear to everyone, which even the political editor of the Sunday Mirror—if he bothered to check his facts properly—might comprehend and take on board, perhaps even apologising for his scurrilous claims next Sunday.
Chris Bryant: In my experience, newspapers apologise only if we force them to do so by means of the law.
Having spoken to every psychiatrist I know—and I now seem to know a great number of them—I think they would say it is extremely rare for paedophilia to enter a psychiatrist’s domain, except through forensic psychiatry. It nearly always enters that domain through the criminal law rather than the Mental Health Act.
Tim Loughton: I accept the hon. Gentleman’s point, but we do not want to create a loophole that might allow paedophiles to escape.
We have proposed this measure to be helpful by addressing the specific concern that the Minister raised. She also raised the concern that it might be a lawyers’ bonanza. I can tell her that there have been four reported challenges to the current exceptions since 1983; they are all on sexual deviancy. It is not bad going that there have been only four in the past 24 years. In Victoria and New South Wales in Australia there is a long list of exceptions, including on political opinions and religious beliefs. In New South Wales, there have been no challenges to this law since it was introduced in 1990, and in Victoria there have been very few, if any. Therefore, there should be no cause for concern that this measure might be a lawyers’ charter.
The Richardson expert committee and the Joint Committee on the Draft Mental Health Bill agree that the broad definition of mental disorder introduced in the Bill, which we support, must be balanced by a set of exclusions. The Joint Committee, of which I was a member, said:
“We conclude that a broad definition of mental disorder in the draft Bill must be accompanied by explicit and specific
exclusions which safeguard against the legislation being used inappropriately as a means of social control.”
The Bill defines mental disorder very broadly as any disorder or disability of the mind. There is now only one exclusion, for dependence on alcohol and drugs. It is instructive to compare the amended 1983 Act with mental health legislation in other common law countries, all of which have narrower definitions of mental disorder and broader exclusions.
Dr. Metcalfe of Justice has said:
“The European Court of Human Rights has given a clear judgment stating that the definition of mental disorder must be very clear in order for exercise of detention powers to be lawful. The use of exclusions is a standard feature of most common law jurisdictions in meeting that requirement. They meet the requirements of legal certainty, of guaranteeing individual autonomy and of ensuring that the powers of detention are used no more than strictly necessary.”
The broad definition has two consequences. First, it covers all the diagnoses listed in the relevant World Health Organisation international classification of diseases, some of which even the Government acknowledge might be inappropriate in respect of compulsory powers. Secondly, it covers almost any significant deviation from a normal condition of the mind, however temporary.
In the view of the Mental Health Alliance, there must be some limits to guard against inappropriate use of a clinician’s powers of detention as a form of social control. The Mental Health Act Commission said in evidence to the Joint Committee:
“For the law to be of value—to patients, State administrators, mental health professionals, the police, the courts or the Tribunal—its meaning cannot rest upon the discretion of those working within its framework. We do not find it difficult to envisage the inappropriate use, however well meant, of mental health legislation for non-medical purposes of social control”.
We need certainty to avoid the field day for lawyers to which the Minister referred. The limits on powers are welcomed by the clinicians, the British Psychological Society—if I can get another plug in for it—the British Association of Social Workers, the Royal College of Nursing and occupational therapists. Many of them have been prayed in aid on many occasions by the Minister—and now I am praying them in aid for us.
The new definition of mental disorder—any disorder or disability of mind—could include certain mental states and states relating to certain sexual behaviours. The scope of the new definition is much broader than that in the current Act. If the numbers subject to compulsion are not to be markedly and inappropriately increased, the exclusions are necessary. This is important because the definitions in the 1983 Act are the gateway to the compulsory powers that we have been debating. It is important to protect the fundamental right to liberty.
“without a serious look at understanding issues such as culture, politics, religion, breaking the law, sexual behaviour and so on, we could end up dragging into the net all sorts of people who are not suffering from mental illness in a proper sense and it becomes a question of how we deal with people who are difficult, different or deviant in our society. That is a real problem for colleagues in psychiatry, not least because of a move to diagnosis on the basis of people's behaviour and a set of symptoms, rather then
necessarily understanding something more about the depth of the disorder and its likely prognosis.”
In Scotland—if we may pray in aid the Scottish again—there are the following exclusions: sexual orientation; sexual deviancy; transsexualism; transvestism; dependence on or use of alcohol or drugs; behaviour which causes, or is likely to cause, harassment, alarm or distress to any person; and acting as no prudent person would act. In New South Wales, there is a raft of exclusions, as there is in New Zealand. So again, it is the norm to have exclusions in various jurisdictions around the world.
On the specific exclusion in question, people misuse alcohol if they become drunk as a result. They misuse illicit drugs just by taking them, and other drugs by using them for non-therapeutic or non-prescribed purposes. In both cases, that includes a level of intoxication that does not cause lasting harm or dependence. Both misuse and dependence are covered by international classification of diseases 10, and are therefore classified as mental disorders. It is therefore necessary that the exclusion be worded to cover both, so that neither the binge drinker nor the casual consumer of drugs is considered a case for compulsion.
On sexual preference and gender identity, what is socially acceptable as sexual behaviour is subject to change over time, because it is embodied in religious and cultural value systems. For instance, homosexuality, as we discussed in Committee, was at one time—some time ago, fortunately—considered unacceptable and a sign of mental dysfunction. It was until recently included as a mental disorder in ICD 10. It is no longer necessary to cover sexual orientation because it is neither listed as a mental disorder nor considered in society as a disorder. Indeed, people are protected by anti-discrimination laws and by the Human Rights Act against such an approach.
The House of Lords discussed at great length all sorts of fetishes, transvestism and auto-erotic strangulation, on which they proved to be something in the way of experts. What a lot of fun they do have in the House of Lords. [Interruption.] We had sex addiction. As the Government have expressed great concern about whether this exclusion might cover paedophilia, and in the wish for a compromise, the amendment makes it clear that paedophilia is not within the scope of the exclusion.
There is a lot more that I would like to say, but I will finish as I want colleagues to be able to get in. The provision on political, cultural or religious beliefs—we had this debate in Committee—is of particular importance to members of the black and minority ethnic community. Again, it is a consideration that they have written to us about in serious terms. They feel that what are considered normal practices and beliefs for many members of that community could be construed in extreme circumstances—I am not saying that this will happen every day—as constituting a mental disorder. The perceptions of that community are perhaps more important than the number of times that the provision might in practice be used.
That is why we have brought back this amendment, which we consider very important. There have to be proper checks and balances in the Bill if we are to broaden the definition of mental disorder in the way that we all support. We want a better balance and to protect people, so that those who have other problems can be treated for them and not have them re-badged as
a mental illness, and thereby suffer and run the risk that they will be taken under compulsion for something that is not a mental illness.
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I should point out that there is very limited time left. I hope that speeches will be brief, as the Minister should be accorded the courtesy of a reply. I call Chris Bryant.
Chris Bryant: You always say that before you call me, Mr. Deputy Speaker, and you do so with great wisdom. I shall, however, be immensely brief. Although I suspect that the amendment will pushed to a vote, I will not vote with the hon. Member for East Worthing and Shoreham (Tim Loughton), and I simply want to explain why. It is not that I believe that homosexuality is a mental disorder; that we should detain people for their cultural, religious or political beliefs; or that we should detain people because of their likely commission of illegal or disorderly acts. It is simply because the amendment as drafted is complex, in that it involves a triple negative. There have not been many challenges since 1983, because the exceptions were unnecessary in the 1983 Act and are unnecessary today. I do not believe that any of these things is a mental disorder and, therefore, it is patronising to put on the face of the Bill that we consider them not to be mental disorders.
Finally, the liberty of people is already guaranteed by the four tests that have to be met before anybody could be considered for detention under the mental health legislation.
8.45 pm
Dr. Pugh: I shall also be brief. An essential difficulty in the legislation is the open nature of the term mental disorder. It is not related to medical taxonomy or to clinical categories and it is therefore helpful to say what it is not. That is the point about most exceptions lists, and about putting principles on the face of the Bill. As has been said, many other legal systems have similar, but not identical lists.
The argument against lists is that they are restrictive and can be faulted on a case by case basis. There are obviously instances of political or religious beliefs, and cultural or sexual practices that are so alarming that, by themselves, they might be symptomatic of a deluded or deranged state, though one would look for other associated symptoms. One thinks, for example, of the political or—for that matter—religious views of someone such as David Icke, and things such as paedophilia and necrophilia. Equally, we can cite instances in which gay people, communists, religious dissenters and generally socially wayward people have been labelled improperly as mentally ill.
It is a fascinating topic, but it is essentially theoretical. In real world situations, including exceptions does no evident harm, sends out important signals about cultural and social sensitivity and tilts practice in a wholly desirable way, as do statements of principles. If we were making law in a Platonic spirit of purity, completely unhooked from practice, disconnected from context and timeless in its significance, an exceptions clause would not be included, but that is not what we usually
do. We usually do a more pragmatic and mundane job and, in the current circumstances of the worldwide climate we inhabit, there is not a shred of evidence that including exceptions does any harm, and a fair presumption that it may do some good.
Ms Rosie Winterton: Once again, we return to a topic that was a matter of considerable controversy and impassioned debate throughout the passage of the Bill, and indeed during its long gestation. That is whether it is necessary to include on the face of legislation a list of matters that are not to be regarded as mental disorders. My hon. Friend the Member for Rhondda (Chris Bryant) put his finger on it —[ Interruption. ] Do wake up! We are all quite interested in this issue—
Mr. Simon Burns (West Chelmsford) (Con): So am I.
Ms Winterton: Clearly. At the moment, there are three exclusions in the mental health legislation as it stands. Our intention is to keep the exclusion for alcohol and drug dependence, but to abolish those for sexual deviancy and for
“promiscuity and other immoral conduct.”
The exclusion for promiscuity and immoral conduct dates back to the 1959 Act and the way mental health legislation had been misused before that to detain unmarried mothers and otherwise enforce moral codes. The exclusion has now served its purpose and is no longer needed.
The exclusion for sexual deviancy added in 1982 was probably intended to refer to homosexuality. As my hon. Friend the Member for Rhondda said, that was at that time still listed as mental disorder in the international classification of diseases. However, that exclusion was quickly associated with paedophilia and sexual offending. Its effect has been that paedophiles, for example, can be detained and treated under the Act, but only where clinicians diagnose an underlying condition, such as an antisocial personality disorder. Paedophilia—though a recognised mental disorder in itself—is excluded because of the provision on sexual deviancy, which is why we are removing it.
The amendments propose a set of new exclusions, but most of them refer to things that are not mental disorders in the first place. In other debates on these matters, in Committee and elsewhere in the House, Opposition Members have maintained that the proposals are less to do with what is happening at the moment than with what might happen if a very extreme Government were to take over—
Tim Loughton: We have that already.
Ms Winterton: We are getting close, I admit, and maybe it is not such a bad idea. However, my point is that an extreme Government might ask clinicians to start detaining people for their cultural, religious or political beliefs. The hon. Member for Daventry (Mr. Boswell) is one of those who has put the other argument—that the amendment does not have to do with UK practice or with the good faith of Ministers or the existing system but with the fact that there have been chilling experiences in other countries, where people have been singled out for mental treatment because their faces did not fit.
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