Memorandum submitted by The National Autistic Society (MH 47)
· The 'abnormally aggressive or seriously irresponsible' caveat from the 1983 Act has been retained for people with a learning disability only, and specifically not for people with an autistic spectrum disorder (ASD). We believe it should also apply to people with an ASD.
· If someone with an ASD was detained now, the NAS would usually expect them to have a superimposed mental illness or display 'abnormally aggressive or seriously irresponsible' conduct.
· But there is no clear guideline on this. The result is confusion about the law, and we believe people with an ASD are sometimes detained inappropriately; in unsuitable settings; and for longer than is necessary.
· Services for people with an ASD need to improve, but while services are as imperfect as they are, additional safeguards are necessary.
· The Joint Scrutiny Committee on the 2004 Draft Mental Health Bill recommended that people with social and communication impairments should be subject to the 'abnormally aggressive or seriously irresponsible' caveat.
· The Government's main reason for opposing this view is that someone may not have 'abnormally aggressive or seriously irresponsible' behaviour or a mental illness, but may still require treatment. We cannot think of any such situations in which detention would be justified.
· We believe that the Government's current approach does not fulfil their stated aim of "retaining the effect of the 1983 Act" for people with an ASD.
· We believe it does not strike the right balance between public safety and patients' rights.
1. The National Autistic Society (NAS) is the leading charity for people with an autistic spectrum disorder (ASD) in the UK. It has a membership of 17,000, a network of around 70 branches, and 90 partner organisations in the autism field. The NAS is in a unique position to comment on issues affecting people with autistic spectrum disorders because it operates in all four nations of the UK. Research suggests that there are over half a million people with autistic spectrum disorders in the UK. We welcome the opportunity to provide evidence to the Public Bill Committee.
2. The NAS exists to champion the rights and interests of all people with autism and to ensure that they and their families receive quality services, appropriate to their needs. Among our services are 17 residential and day services for adults, including the Hayes Independent Hospital, which supports 12 adults with Asperger syndrome and related behavioural difficulties who have been detained under the Mental Health Act 1983.
3. The National Autistic Society is a member of both the Mental Health Alliance and the Making Decisions Alliance and we support their positions and briefings on this Bill. This evidence focuses on the definition of mental disorder, which has particular pertinence for people with an ASD. An ASD is not a mental illness but is a mental disorder under the definition of the 1983 Act and this Bill. Amendments 40 and 57 on this subject are likely to be discussed early on in Committee.
4. We intend to provide further written evidence on the Bournewood provisions when Government amendments are brought forward. The most important request is that the Committee allows enough time to discuss the Bournewood part of the Bill in detail.
Definition of mental disorder
5. The National Autistic Society understands the need for clearer definition of mental disorder. But we are extremely concerned that the new definition could mean that more people with an autistic spectrum disorder (ASD) are inappropriately detained.
6. We do not believe the Government has made a convincing case for why people with an ASD should be compulsorily detained for treatment if they are not mentally ill or do not exhibit abnormally aggressive or seriously irresponsible behaviour. We strongly support the recommendation by the Joint Scrutiny Committee that people with social and communication impairments should be subject to the same caveat as people with a learning disability in this legislation - that is, detention should only take place in the case of 'abnormally aggressive or seriously irresponsible behaviour'.
Background on the 1983 Act
7. The status of people with an ASD regarding the 1983 Act is far from clear. Of course, it depends on the presentation of the individual person's needs, but this is often not reflected by the existing categories of mental disorder. Practice varies around the country and there is no consistent guideline on how people with an ASD should be treated under mental health law.
8. Under the Mental Health Act 1983, there are four categories of mental disorder for the purposes of detention for treatment (the Bill will scrap these categories and replaces them with a single definition: "any disorder or disability of the mind"):
· Mental illness
· Mental impairment
· Severe mental impairment
· Psychopathic disorder
9. Mental impairment and severe mental impairment effectively cover people with a learning disability, who must display 'abnormally aggressive or seriously irresponsible behaviour' in order to be detained. Psychopathic disorder covers mental disorders, other than mental illnesses, that result in abnormally aggressive or seriously irresponsible behaviour.
10. At present, if a person with an ASD is detained, this would usually be:
· under mental illness if the person has a superimposed mental illness
· under mental impairment or severe mental impairment if the person has a learning disability but not a mental illness
· under psychopathic disorder if the person does not have a learning disability or mental illness
11. Therefore, if a person with an ASD was detained under the Mental Health Act 1983 and did not have a mental illness, it would be expected that they will have demonstrated 'abnormally aggressive or seriously irresponsible' conduct.
12. However, there is an added complication from case law: 'mental illness' is assessed on the basis of behaviour from the lay person's point of view. So some people with an ASD may be detained under the mental illness category, even without a mental illness. There is no clear national guideline on this; it is not supported by the Royal College of Psychiatrists or the broader community; and the NAS believes it is bad practice.
13. This situation has two consequences for the Bill:
· The Government believes that it is not changing the status of people with an ASD regarding the Act by allowing them to be detained regardless of abnormally aggressive or seriously irresponsible conduct.
· The Government believes that the new definition of mental disorder is no wider than the definition in the 1983 Act.
What is "the effect of the 1983 Act" for people with an ASD?
14. We believe that now, people with an ASD are sometimes inappropriately detained under the 'mental illness' category; detained in inappropriate mental health settings that do not take any account of their ASD; and detained for longer than is necessary, with their problems escalating. There are a number of factors causing this:
· A lack of services that are appropriate to people with an ASD
· A lack of understanding of ASD by some mental health professionals
· The confusion over where people with an ASD 'fit in' to the categories of mental disorder
15. A paper by the Royal College of Psychiatrists supports this view. It states:
· "[there should be] a greater emphasis on avoiding admission"
· "this group of people may well find the usual clinical environ distressing and unhelpful"
· "admission [can have] a flypaper quality, trapping the patient in hospital"
16. It is true that change beyond this legislation is necessary: a greater quality and quantity of services for people with an ASD would prevent many admissions and lengthy stays; autism-friendly mental health settings must be developed; and greater training in autism is essential for all healthcare professionals. But while services are as imperfect as they are, additional safeguards on compulsory detention are necessary.
17. The Government has stated that it wants to retain the effect of the 1983 Act regarding people with an ASD. We believe that if an effect of the 1983 Act is inappropriate detention and confusion about the law, that effect should not be retained. We believe that people with an ASD should, like those with a learning disability, only be detained if they have a mental illness or display 'abnormally aggressive or seriously irresponsible' conduct.
A change in the effect of the Act
18. Notwithstanding our concerns outlined above, we believe that the Bill does not actually fulfil the Government's intention to retain the effect of the 1983 Act for people with an ASD:
· A person with an ASD and a learning disability would usually be detained under the 'mental impairment' category. Making clear for the first time that people with an ASD, even the substantial number of people who have both a learning disability and an ASD, will be subject to the Act without acting aggressively or irresponsibly, is surely a change for those people.
· If someone with an ASD was detained now, without a mental illness and without displaying 'abnormally aggressive or seriously irresponsible' conduct, this would be under the category of 'mental illness', which could be challenged; if the Bill was passed unamended, a person in the same situation could not challenge it - which is surely a change for people in that situation.
Debate in the House of Lords
19. Baroness Morgan of Drefelin tabled an amendment to the Bill that would apply the 'abnormally aggressive or seriously irresponsible' caveat to people with an ASD, in the same way it applies to people with a learning disability. The amendment was supported by the Liberal Democrats and Conservatives, but not the Government.
20. A number of reasons were given by the Minister, Lord Hunt of Kings Heath, for opposing the amendment. These are below, in italics, with our reaction to each given below.
a) That the fewer exclusions there are, the better, because each one adds to the risk of arbitrarily excluding people who need to be helped
It is understandable that there should not be a long list of groups who are excluded, but we're not convinced that people with an ASD should not be excluded on this basis. We do not believe that an exclusion for people with an ASD will lead to more groups demanding an exclusion: we have identified a current problem that is particular to people with an ASD. Nor do we believe that applying the 'abnormally aggressive or seriously irresponsible' caveat to people with an ASD would arbitrarily exclude anyone who needed treatment.
b) That an individual's needs and risks, not their particular diagnostic label, should determine whether that person is detained.
We believe that the 'aggressive or irresponsible' caveat provides a thorough assessment of risk; and that a diagnostic label is helpful in identifying a person's needs and should serve as a signpost to appropriate services.
c) That there is a "clinical distinction" between people with a learning disability and people with an ASD: specifically, the difficulty people with an ASD have with communication and relating to people around them.
We agree that a learning disability is different to an ASD, but we do not believe that a person's impaired social communication, social interaction and social imagination justifies use of mental health legislation. We believe it is discriminatory to allow people with an ASD to be detained on this basis, when other people without this mental disorder cannot be detained.
d) That a person with an ASD who committed a crime may have to serve a custodial sentence if their crime did not involve abnormally aggressive or seriously irresponsible conduct on their part.
Crimes that cannot be deemed 'abnormally aggressive or seriously irresponsible' will rarely, if ever, fulfil the other conditions for detention under the Act, particularly 'risk of harm to self or others'.
21. We accept that the Bill must balance patients' rights with public safety, but we believe that, in this case, a hypothetical risk that a person may require treatment without mental illness or aggressive or irresponsible behaviour does not justify the ongoing risk of people with an ASD being inappropriately detained.
 Joint Scrutiny Committee on the Draft Mental Health Bill 2004, HL 79-I / HC 95-I, Recommendation 15 / Paragraph 111, March 2005
 Oral evidence given by Prof Greg O'Brien to Joint Scrutiny Committee on the Draft Mental Health Bill, 27 October 2004
 Psychiatric Services for Adolescents and Adults with Asperger Syndrome and Other Autistic-Spectrum Disorders, Royal College of Psychiatrists Council Report CR136, April 2006
 Mental Health Bill, House of Lords Committee Stage, 8 January 2007, Hansard Vol. 688, c. 53 - 62.