Memorandum submitted by Craig Nelson
(MH 35)
Matters
relating to sexual orientation and gender identity
Summary
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.
Introduction
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.
Recommendations
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.
April 2007
