Memorandum submitted by Craig Nelson (MH 35)
Matters relating to sexual orientation and gender identity
This paper considers the current draft of the Mental Health Act with regard to issues which impinge on issues of sexual orientation or gender identity.
It recommends a provision of a named person to allow a patient to be able to nominate a person to act as their Nearest Relative, where appropriate; opposes a specific exclusion for sexual orientation as being likely to perpetuate discriminatory attitudes towards LGB people and argues instead for a clear statement on non-discrimination to be written into both the Bill and the Code of Practice.
After a review of the Mental Health Act a draft Mental Health Act was published in 2002 and a revised draft in 2004. This was subsequently dropped in favour of a parliamentary bill to amend the Mental Health Act (1983).
This submission considers specific issues that have arisen relating both to sexual orientation and gender identity, especially in the light of amendments that have been made to the Bill through its passage in through the House of Lords.
Issues of concern relating to the Bill as introduced
The 'Nearest Relative' provision
Though welcoming the recognition of Civil Partnerships for the purpose of the Nearest Relative provision, we are concerned that a strict hierarchy of the Nearest Relative is still maintained.
Specifically, though there are means of removing a Nearest Relative, this has to be on the grounds that the current Nearest Relative is "unsuitable", not that another Nearest Relative would be preferable.
Our principal concern with this is the restriction of choice this implies in designating the Nearest Relative in a given case. Specifically with regard to Lesbian,Gay and Bisexual service users, for many reasons it is not possible for many people to enter into Civil Partnerships (for whatever reason) and in such a circumstance a partner may remain without recognition.
In addition to this we foresee significant difficulties where a patient attempts to demonstrate to a Court that the Nearest Relative is unsuitable (as this may be for a number of reasons, including previous abuse, hostility with regard to sexual orientation etc).
Equally we would like to see a situation where individuals are able to develop close bonds with friends, ex-partners etc and may wish to designate one of these as a "Nominated Person" in lieu of a Nearest Relative.
This appears to be allowed for under the Scottish Mental Health Act (2003) and was originally provided for under the Draft Bills published in 2002 and 2004.
Whilst amendments have been laid to bring this about in the House of Lords these do not yet seem to have been accepted by the Government and I hope this area can be given fresh consideration.
Issues of concern relating to the Bill as it has been amended in the House of Lords
The definition of mental disorder
The bill as originally introduced deleted the current (no doubt somewhat archaic) exclusion related to promiscuity, immorality and sexual deviancy as applied to the definition of mental disorder.
Some concern was expressed that conditions which might have been excluded by such a clause may as a consequence come within the remit of the Act and may become liable for detention under certain circumstances.
The Joint Committee on Human Rights raised such a concern and recommended a number of measures to preclude such a risk - notably (para 15 page 9 "We consider that this is an area where it is desirable to include principles such as non-discrimination and proportionality on the face of the legislation") the insertion of a statement of non-discrimination and human rights within the Bill (as is the case with the Scottish Mental Health Act, where it is stated s3:
"The person shall discharge the function in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements."
Subsequently, in the House of Lords an amendment was made to the Bill to exclude a variety of perceived classes of individuals from the definition of mental disorder so as to read:
" - a person shall not be considered to have a mental disorder solely on the grounds of:
a) ... substance misuse
b) his sexual orientation or identity
c) commission or likely commission of illegal or disorderly acts
d) his cultural, religious or political beliefs"
This however may prove problematic from a number of angles, but those relating to sexual orientation and gender identity and expression are explicitly considered here.
By stating that sexual orientation is excluded from the definition of mental disorder an entirely negative and in our view wholly inadequate view is taken of addressing issues of equality and discrimination on the grounds of sexual orientation and gender identity.
Sexual orientation per se ceased to be considered a mental disorder per se in the 1970's for DSM and in 1991 for the ICD-10.
The inclusion of sexual orientation in the current list of exclusions as listed in section 3 of the Bill as inserted by Lords amendment is therefore unnecessary and may actually prove confusing to LGB communities, who may believe that but for this provision they may be liable for detention under the Act, a factor which is bound to have serious repercussions in terms both of employment and service delivery within the mental health sector.
This has led to some grossly inaccurate reporting that the revised Mental Health Act would make it legal to detain someone "solely on the grounds of their sexual orientation", or because of a homophobic clinician, which of course is untrue, though it usefully points up a significant legacy of discrimination experienced by LGBT people within mental health services.
The reasons that sexual orientation could not (even without an explicit exclusion) be considered as a reason to compulsorily detain someone would include the criteria for section 2 and 3, which themselves already provide a high threshold (i.e. or an assessment section that the person:
"is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons";
as well as the Human Rights Act; the Code of Practice provisions on the principles of non-discrimination; the recently endorsed Goods and Services Regulations and the fact that service providers are obligated to maintain employment equality with respect to both sexual orientation and gender reassignment.
Whilst one may recognise that examples can be given of modern or recent mental health legislation (including the more recent Scottish Mental Health (Care and Treatment) Act, 2003) which does exempt either sexual orientation or (as in the 1983 Act) the more archaic terms such as promiscuity or sexual deviancy.
Whilst this may have had some value in an earlier age, legal developments such as the Human Rights Act, the Sexual Orientation regulations in both employment and goods and services, the Civil Partnership Act, the Equality Act and setting up of the Commission for Equality and Human Rights (CEHR) and the forthcoming Single Equality Act (not to mention widespread social changes) mean that this is now redundant.
The concern must be therefore that an exclusion on the basis of sexual orientation will have a negative impact on the Lesbian, Gay, Bisexual community, because while it is not realistic to expect people to be detained on the grounds of sexual orientation or gender identity, such an exclusion implies a continued link between sexual orientation and pathology.
As well as tending to continue such a potentially harmful association which may have as an effect that LGB people may be more reticent to seek help from mental health services and that professional attitudes may continue to pathologise a person's sexual orientation.
An exclusion clause as is currently inserted into s3 by the House of Lords risks therefore being profoundly unhelpful in creating a mental health service which deals effectively with discrimination on the grounds of sexual orientation and gender identity.
a) There should not be a specific exclusion for sexual orientation as this would result albeit, perhaps, paradoxically, in perpetuating myths within the mental health services about LGB people. If indeed detentions were to result from the absence of such an exclusion then this would be an indication of a far deeper institutionalised malaise within mental health services to which an 'exclusion' would be a completely inadequate response.
b) As there is a significant history of inequality and discrimination toward Lesbian, Gay and Bisexual people within psychiatric services which it is necessary to deal with in order to create a genuinely modern mental health service that is patient centred and non-discriminatory there should be a clear reference within the Bill to issues of equality and human rights as well as in the Code of Practice in order to seek to address concerns of discrimination or unequal treatment - this could be done very simply by reference to the wording used in Scottish legislation i.e. "The person shall discharge the function in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements."
c) Where it is not possible for whatever reason to remove an exclusion for sexual orientation, it should however be possible to improve the wording of such an exclusion so that sexual orientation doesn't appear in between drug and alcohol dependency on the one hand and the commission of illegal acts on the other, which again is profoundly stigmatising for Lesbian, Gay and Bisexual people. A preferable wording (though again it is preferable to avoid such an exclusion altogether) would be to divide the exclusion clause inserted by the House of Lords into two separate categories so as to place 'sexual orientation' in a separate clause along side gender identity, cultural, political and religious beliefs, though it would clearly be preferable to revert to the simpler definition as originally introduced provided there are further clarifications regarding non-discrimination, as argued for above.
Similar points could be made regarding gender identity and expression (which, of course, includes transsexuals and also cross dressing) where, unlike sexual orientation, Gender Identity Disorder does constitute a mental disorder as provided for under the Gender Recognition Act and similar provisions relating to non-discrimination will apply both in employment and goods and services as well as constituting one of the areas of discrimination considered by the Equality Act (2006) see s10.