Angela
Browning: Will the Minister clarify something for me? If
she does not put autistic spectrum disorder alongside learning
disability in clause 2, how will people with a dual diagnosis be dealt
with? It is, of course, quite possible that someone has an autistic
spectrum disorder and a learning disability diagnosis. Which will take
precedence under the Bill? The learning disability? Will the person
have protection, as someone recognised as having a learning disability,
in terms of “abnormally
aggressive or seriously
irresponsible” behaviour,
or will that be
waived?
Ms
Winterton: In those circumstances, I would expect a
clinician to be able to consider the learning disability and whether
the person was, because of the learning disability, displaying
abnormally aggressive behaviour, as we have set out in the Bill, or
whether the autistic spectrum was the reason for the disorder. That,
again, connects to all the other aspects of the detention, which would
be taken into account. Obviously, if someone needed treatment and
fulfilled all the conditions—if that person had a learning
disorder and was, in a sense, a risk to themselves or others and if
appropriate treatment was available under section 3—that is what
one would want them to have. It is important that the clinician should
be able to make use of the Act to get care to people who need
it.
Angela
Browning: Would there ever be circumstances in which, if
the person with a dual diagnosis was not demonstrating abnormally
aggressive or seriously irresponsible conduct, the learning disability
diagnosis could let them off the hook, so to
speak?
Ms
Winterton: I hope that there will be no letting off hooks
if treatment is required.
Perhaps I may discuss a case
that I wanted to bring to the attention of the hon. Lady. It is
important to recognise that there would be real problems in accepting
her amendment in such a case. Mr. H. is a 25-year-old man
with Asperger’s syndrome, who lives in a small hostel and
attends a sheltered workshop. He has a supportive family and a good
relationship with mental health services. A community psychiatric nurse
visits him regularly. He is quite withdrawn socially and becomes very
anxious around people he does not know. He is fascinated by fire and on
three previous occasions has started small fires in public places. This
time hehas started a fire in his hostel and although no one
has been hurt there has been serious damage to the building and he has
been convicted of arson.
His psychiatrist advises the
court that Mr. H would be highly vulnerable in prison. In
his opinion, Mr. H is not suffering from any other mental
illness or personality disorder and his IQ is at the low end of the
normal range. He believes that he should be admitted to a mental health
unit under the Mental Health Act 1983 where he could be helped
to understand the effects of his fire setting. The court questions
whethera mental health disposal is legal if his diagnosis is
Asperger’s syndrome. What does the psychiatrist do in those
circumstances? The point is that if autistic spectrum
disorders—autism and Asperger’s syndrome— were
excluded from the definition of mental disorder, Mr. H would
have to go to prison.
Angela
Browning: But surely his conduct is seriously
irresponsible. It has to be. If he is a fire setter, that
is seriously irresponsible conduct. Society would be protected and he
would be appropriately treated.
Ms
Winterton: No, because at the moment his only diagnosis is
Asperger’s syndrome, which has been excluded from the Act. He
has started small fires, but he is not at present covered under the Act
as the hon. Lady suggests.
Tim
Loughton: He would be.
Ms
Winterton: He would not in those circumstances be able to
have a Mental Health Act disposal. The point is that, in such
circumstances, if one makes the exclusion one also creates uncertainty
for the clinician. In those circumstances, the clinician has to ask
whether there was a disposal that we could make from the court. The
court is confused because it sees that if it comes under
Asperger’s syndrome, the problem would have been excluded from
the Act. Therefore, the court is left with saying that if we want to
treat the person in a mental health unit, we would have difficulties
doing so. The difficulty in those circumstances is that the person then
has not to be treated but to go to prison—because they have
committed an offence—instead of being
transferred. Such
problems have also been raised about learning disability, because many
people said that had to be absolutely clear, which is why there were a
lot of discussions in the first place, as the hon. Lady knows. If
learning disability continued to be excluded, then there would be a
problem if someone committed a crime as to whether they could
effectively be treated underthe Mental Health Act
1983—whether they would continue to be treated or be kept in a
prison setting. That is one of the reasons why we do not want the
overlap between the prison setting and the mental health
setting.
Angela
Browning: The Minister is talking about the inadequacies
of the 1983 Act. If she were to accept my amendment, there would be
absolute clarity about ASD, and the Bill would be very clear about how
the person in the case she has just described—which Iam
quite sure, incontestably, would be seriously irresponsible
conduct—should be treated. That would be the reverse of what she
has been saying all morning. She could clarify the Act, which would be
helpful to the individual, to society and, particularly, to clinicians.
That is missing from the 1983 Act. We are now informed about ASD, and
she has the opportunity to pick up on that and put it in the
Bill.
Ms
Winterton: The issue at stake here is whether the court
can truly say that the person has abnormally aggressive or seriously
irresponsible
conduct.
James
Duddridge: If that action of fire-setting was not
seriously irresponsible conduct, what would be an example of seriously
irresponsible
conduct? Ms
Winterton: That is exactly the point at stake. We
could get into a grey area. We would be trying to ask the courts to
define what is abnormally aggressive. There may be instances, as in
this case, where
somebody says that they have a fascination with fire—that is
their issue—and so there is no guarantee with that individual.
The point is that the court then has to look at the case, which might
stand in the way of somebody receiving
treatment. Sandra
Gidley (Romsey) (LD): I am finding the Minister’s
logic convoluted. She is now arguing against the exemption for learning
disabilities. Surely the
same argument would apply in that case? What isthe problem in
extending the definition to autistic spectrum disorder as
well?
Ms
Winterton: As I said, we considered removing the
exemption. It being
One o’clock, The Chairman
adjourned the Committee without Question put, pursuant to the Standing
Order. Adjourned
till this day at half-past Four
o’clock.
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