The
Chairman: In presenting her amendment so comprehensively
and clearly and with such passion, the hon. Lady obviously had to
compare the particular condition of ASD with many others, and she
therefore expounded on more general matters in the clause. For that
reason, I am happy for the Committee to expand discussion of the
amendment into a clause stand part debate. We shall pick the bones out
of the Divisions
later.
Dr.
Pugh: I support the amendment and pay tribute to
the hon. Member for Tiverton and Honiton for all the work that she has
done on autism. I noted her example of the man digging the garden in
the dark, and there is nothing essentially pathological about that. The
last time I did it, I was burying the cat, although I should say that
it was dead, and I needed to explain myself to the milkman as he came
past. We are learning
that psychiatry is not an exact science, particularly when it comes to
the classification of ailments. I think that we all accept that autism
covers an extraordinarily wide spectrum, but is genuinely a learning
disability. However, it is also linked—this is a key
point—with social disabilities,and sometimes with
disturbed but non-psychotic behaviour. There is therefore a real danger
that it will
not be treated correctly under the legislation, and there is a real case
for giving it a proper and appropriate mention. Autism, like many
learning disabilities, is essentially hardwired into the soul; it is an
impairment, not an illness. If any form of coercion is required, the
Mental Capacity Act 2005 is available, although Lord Rix in the House
of Lords thought that even that did not give sufficient protection in
every
circumstance. The hon.
Lady said dual diagnosis was a special problem, but that argument was
less convincing. Dual diagnosis crops up all the time, creating
clinical and legal challenges, but those challenges are the same,
whether we are talking about autism or dementia. None the less, given
the link between ASD and often quite disturbed social behaviour, there
is a case for including it expressly in the Bill, and I support the
amendment.
Ms
Winterton: I should like to start by paying a warm tribute
to the hon. Member for Tiverton and Honiton, who has put in a lot of
work over the years to advance the cause of people on the autistic
spectrum. As she mentioned on Second Reading, she is vice-president of
the National Autistic Society, and the founder member of the all-party
parliamentary group on autism. I was on the edge of my seat waiting for
the thoughts that had not been put on record before, but that will have
to remain between her and my hon. Friend the Member for Norwich, North.
I look forward to finding out what they actually were.
I think that it would be
helpful, particularly as the hon. Lady set out so clearly the reasons
why she has moved the amendment, for me to refer back to why there is
the exclusion or exception for learning disability, and why clause 2
exists in the first place. As hon. and right hon. Members know, there
has been a lot of debate about learning disability itself and whether
it should be excluded. Let me go back to what we have now achieved in
terms of the Bill. It will mean that people with learning disabilities
can be detained for medical treatment or made subject to guardianship
on the basis of their learning disabilities alone only if those
disabilities are accompanied by
“abnormally aggressive or
seriously irresponsible
conduct” on their part.
Similarly, it will ensure that people with learning disabilities cannot
be made subject to the new provisions for supervised community
treatment solely on account of their learning disabilities, unless,
again, they are associated with
“abnormally aggressive or
seriously irresponsible
conduct” on their
part. As I said, that
provision was not in the 2004 draft Bill. In that Bill, which was
submitted for pre-legislative scrutiny, there was no special provision
in relation to learning disability. We started from a
principle—in many senses it is still valid—that
exclusions of any kind were likely to create an arbitrary obstacle to
the proper and effective use of the legislation to protect people from
the effects of the mental disorder. However, we also know that many
people with learning disabilities, and those who work and care for
them, were concerned that that would put people with learning
disabilities at a greater risk of being detained inappropriately. We do
not believe that that is the case, but it is true that historically
this has
been a very emotive issue, going back to the 1983
Act. There was great concern that people with learning disabilities
could be inappropriately detained, sometimes because of the effect of
their behaviour, which might be seen as not the
norm. We listened to
what the pre-legislative scrutiny Committee said with regard to
learning disabilities. When we decided to amend, rather than replace,
the Mental Health Act, we took the opportunity to say that we would
preserve the way in which the Act currently works with regard to
learning disability. That is why we have preserved that provision in
clause
2. 12.30
pm That means that
before professionals even begin to think about whether a person whose
only mental disorder is a learning disability meets the criteria for
detention under section 3 and similar sections, they must first be sure
that the disability is associated with
“abnormally aggressive or
seriously irresponsible
conduct.” The
reference to aggressive or irresponsible conduct does not suggest that
either is a normal feature of learning disability—quite the
reverse, as I am sure all hon. Members would agree. It is to
distinguish the small minority from the rest. The vast majority of
people with learning disabilities do not display
“abnormally aggressive or
seriously irresponsible
conduct” any more than
vast majority of the rest of the
population.
Angela
Browning: Does the Minister agree that, unless it is
event-triggered, nor do people with autistic spectrum
disorders?
Ms
Winterton: That can certainly be the case, and I shall
come to some examples, including that one. I hope that I have helped to
illustrate my point. Obviously,
“abnormally aggressive or
seriously irresponsible
behaviour” is not a
clinical concept, but it is something that we understand.
It is also true—again,
this goes back to the history of the previous Mental Health
Act—that some people believe strongly that learning disability
should not be labelled a mental disorder, both on principle and for
fear of exacerbating confusion between learning disability and mental
illness. Again, that is often
raised. We are clear
that the Bill is not about labelling people but about treating people
when necessary. I hope that the hon. Lady accepts that if people with
learning difficulties were excluded entirely from the definition, that
would risk the very small minorityof those people who need
compulsion not getting treatment when they need it; or it would
meanthat clinicians would end up sometimes applying
inappropriate diagnostic labels to ensure that people who need
treatment receive it. Again, if we did that, when a learning disabled
person committed a serious offence, the courts might have no
alternative but to pass a prison sentence. That is why learning
disability remains a mental disorder for the purpose of the Bill
generally. There were
many detailed and sometimes emotive and sensitive discussions about
learning disability. There was no exclusion in the 2004 draft Bill, but
we listened to representations, and a key issue that will apply to many
of our discussions in Committee is that
we have tried in many instances to retain what is in the 1983 Act. In
the case of learning disability, that means that we are maintaining the
status quo. We listened to many of the people who said that they would
be uneasy about removing it in case it sent the wrong
message.We do not believe that it would have done, but
wehave listened and we understand the point. We are
maintaining the status quo with regard to learning
disabilities. The hon.
Lady’s amendment would add to that the condition of autistic
spectrum disorder. We are not in favour of it for the reasons that I
shall set out. I assure her that I have looked carefully at the
amendment because of the many points she has made not onlyin
Committee, but elsewhere, about some of the difficulties in diagnosis
and the need to ensure that we improve the care available to people
with autistic spectrum disorder. She is absolutely right to say that
there have been improvements, but that there is still some way to go.
One of the key issues that she put her finger on was
diagnosis. We have
maintained the general stance that the fewer exclusions in the Bill,
the better, because the risk of exclusions is always that someone who
perhaps needs treatment will not get it. We want to hold to that
general principle because each time an exclusion is added, someone will
be at risk of not receiving treatment. The hon. Lady rightly said that
others could well make the same case. I am thinking particularly of
people with hyper-activity or obsessive compulsive disorders. The same
could be said about people with such conditions, so it is difficult for
us to pick out a particular group of people and say that we will add
their condition to the Bill because others would be well justified to
say, “Why not this as well?” I have even heard it said
that some people with depression might ask whether their condition
should be
excluded. That is the
first reason why we do not want to accept the amendment. The hon. Lady
was right to refer to some of the discussions that took place when
the 1983 Act was drafted. People generally did not understand
the full extent of autistic spectrum disorder,
particularly Asperger’s syndrome, and some of the other higher
functioning forms of autism. I am sure that we all agree that there is
now a far wider and better understanding of autistic spectrum disorder
than there was in 1983. The hon. Lady is probably aware of a paper
byDr. Lorna Wing. It was published in 1981, so by 1983 it had
not really received the widespread respect that it enjoys today. It is
also true that all forms of autism are now widely recognised as
disorders of the
mind.
Angela
Browning: I wonder whether the Minister would rephrase
that description as being a disorder of the brain rather than the mind?
There is a
difference.
Ms
Winterton: I am more than happy to write to the hon. Lady
about it, but I am strongly advised that the condition is a disorder of
the mind. The hon.
Lady rightly referred to the fact that it is only possible to detain
people when strict conditions are met. The application for assessment
is used when an individual is suffering from a mental disorder of a
nature or degree that warrants his detention in hospital
for assessment, or for assessment followed by medical
treatment for at least a limited period. Under the
Government’s proposals there is an additional stipulation that
the patient must be one who ought to be detained in the interests of
his own health or safety or with a view to the protection of
others. That is the
position on assessment. Under section 3, which is concerned with
detention, an application for treatment may be made on the basis that a
patient is suffering from mental disorder of a nature or degree that
makes it appropriate for him to receive medical treatment in a
hospital, or that it is necessary for the health and safety of the
patient or for the protection of others that he should receive such
treatment. There is a further condition that detention under the
section is required for the provision of such treatment and that
appropriate medical treatment is available.
The changes that the Government
are proposing under section 3 in relation to appropriate medical
treatment, and the link between that treatment and individual
circumstances, will enhance the care that is available, and in that way
will help with some of the points that the hon. Lady made about
inappropriate treatment. I hope that that gives some reassurance with
regard to the very valid points that she made about ensuring that
people are diagnosed early and that they receive appropriate
treatment.
Angela
Browning: Obviously, I accept that thereare
people with an ASD for whom detention may sometimes be the appropriate
route. Detention is traumatic for anybody, however, particularly for
those with an ASD, because it involves a change in routine, environment
and so on. I hope that the Minister will consider what the royal
college has said about alternatives to detention for such people,
because detention often compounds the
problem.
Ms
Rosie Winterton: I shall give way to the hon. Member for
Southport before
responding. Dr.
Pugh: I understood the hon. Member for Tiverton and
Honiton to be suggesting that there was a danger that autism could be
undifferentiated from various forms of mental illness. She sought to
highlight autism and put, it in a sense, alongside learning disability.
Is the Minister now proposing that autism is both a learning disability
and a mental disorder, because that seems to be the case? If so, how
does the clause deal with
it?
Ms
Winterton: Autism is recognised as a mental disorder, as
is learning disability. However, even at the time of the 1983 Act it
was felt important that, although learning disability is a disorder,
the message should not be given that everyone with a learning
disability might be detained. There was strong discussion at the time
between Lord Rix and David
Ennals.
Dr.
Gibson: One of the previous MPs for Norwich,
North.
Ms
Winterton: Indeed. The wording that was arrived at to
reflect those discussions was, I believe, dictated down the phone by
Lord Rix to David Ennals. Those were the good old days. We have
decided, for the
reasons that have been raised again, that in a sense it is
important to keep what was in the Act at thetime, because that
is reassuring for people in those
circumstances. 12.45
pm
Dr.
Pugh: For absolute clarity, what is being said is that
although there are some learning disabilities that may or may not be
mental disorders, autism is a learning disability that, in whatever
form it takes or however severe it is— [Interruption.] It
is a mental
disorder.
Ms
Winterton: As I understand it—I am sure that the
hon. Member for Tiverton and Honiton will help me out—learning
disability is a mental disorder. Autism is a mental disorder, but
autism arrives because of behavioural
development.
Angela
Browning: It is a developmental disorder with a triad of
impairment; all three boxes have to be ticked for there to be an
autistic diagnosis. The Minister might be interested to know that the
National Autistic Society was formed because a group of
parentswho previously were members of Mencap—a very
worthwhile charity, which I have a lot of dealings with—felt
that although they had been previously been grouped with Mencap on the
basis of a learning disability, their group of children were rather
distinct, because of that triad of impairment. Therefore, the NAS was
born, but there is quite a read-across
still.
Ms
Winterton: I certainly understand that. It is important to
examine the rationale behind the clause in the first place in order to
be able to address the issues raised by the hon. Lady. It is important
to understand that this is a very particular exclusion. People might
say that under the application of the Act, if properly used, there
would not be this exclusion, but we have reacted to the strong feelings
that exist on the issue. The reason why we are concerned about adding
further to the list of disqualifications is that unfortunate
circumstances would arise if we included people with autistic spectrum
disorders within the learning disability
qualification. There would be unfortunate
consequences where, for example, a person with Asperger’s
syndrome committed a serious
offence. This morning,
I received information on some cases from Dr. Nick Land, who is a
consultant psychiatrist, with expertise in learning disability and
Asperger’s syndrome. If it would be helpful and if it met with
your approval, Mr. Cook, I would be more than happy to
circulate that to members of the Committee, having first obtained Dr.
Land’s permission, and to try to submit it as written evidence.
In considering closely the points that the hon. Lady has made, I wanted
to consult experts in the field and ask, “What are the
possibilities? What might happen if we went along the line of the hon.
Lady’s
amendment?”
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