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This is clearly not the occasion to test the opinion of the House. There will be a great deal more discussion and debate before we settle this issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 pm
Clause 2 [Learning disability]:
Baroness Morgan of Drefelin moved Amendment No. 2:
The noble Baroness said: I, too, welcome the return of my noble friend Lord Hunt to the health brief. I look forward to supporting him in his work; his wisdom will benefit the whole House.
This is a probing amendment, and I acknowledge the briefing and support I have had from the National Autistic Society. It is widely acknowledged that autistic spectrum disorders are not a form of mental illness. The definitions of mental disorder in the 1983 Act and the Bill include autistic spectrum disorders as covered by the new wider definition. The need for a new definition is understandable, but there is concern that the breadth of the definition in the Bill could result in a greater number of people with an autistic spectrum disorder being inappropriately detained.
At Second Reading, several Peers raised the issue of the broadened definition and the related issue of removing the treatability test, which will be subject to
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The reason for the amendment is quite straightforward. It addresses a concern that relates to both those points. The Bill partially excludes people with learning disability from the Act; they can be detained only if they have a mental illness or if,
conduct is displayed, as in the 1983 Act. The caveat is welcome, but the Government have chosen to omit autistic spectrum disorders from this category. The amendment would simply add autistic spectrum disorders to this category, ensuring that people with an autistic spectrum disorder are subject to the same caveat in the Bill as people with a learning disability.
Autistic spectrum disorders are not mental health problems and not psychotic conditions, so mental health legislation should not normally be used to detain people with such a disorder. People with an autistic spectrum disorder experience difficulties with communication, social interaction and flexibility of thought, all of which affect the way in which a person relates to other people and the world around them. It means that people with an autistic spectrum disorder may have difficulty understanding tone of voice or unclear language and may appear withdrawn or insensitive to the feelings of others.
The broadened definition, along with the removed treatability clause, allows for detention if it is necessary for the health or safety of the person or other people. There is concern that that could result in the detention of people with an autistic spectrum disorder where their own or another person’s health or safety is at risk but where detention is unnecessary or inappropriate. For example, a person’s perception of the world as chaotic and confusing can mean that they rely on routine and structure, and on repetitive actions. Unexpected changes to routine can cause alarm and frustration and can sometimes lead to challenging behaviour. Difficulties can arise from sensory sensitivity or social misunderstanding. Another example is a lack of recognition of something as simple as road safety, resulting in people with an autistic spectrum disorder putting themselves at risk. These examples do not justify detention under the Mental Health Act, but the Bill appears to leave that possibility open. The caveat of,
would guard against such inappropriate detentions.
There are concerns that people sometimes remain detained in inappropriate non-specialist placements simply because the support that they need to live in the community or a social care placement is not in place, and that the mental health system is sometimes the only way that some people with an autistic spectrum disorder can access services at all.
The amendment follows a recommendation by the Joint Scrutiny Committee on the 2004 draft Bill. I pay tribute to the committee’s valuable work. It said that
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- “liable for compulsory treatment under the Bill only if they display seriously aggressive or severely irresponsible behaviour”.
At the time, the Government did not agree that this provision from the 1983 Act should be retained. Now, however, the Bill retains that provision, but for people with a learning disability only. Can my noble friend explain why the provision should not be extended to people with an autistic spectrum disorder, as the committee recommended, or in what circumstances someone with an autistic spectrum disorder should be compulsorily detained if they are not mentally ill or do not exhibit abnormally aggressive or seriously irresponsible conduct?
At Second Reading, my noble friend Lord Warner—it is great to see him here today—restated the Government’s reasoning. He said that under the new definition,
- “a patient’s needs and risks, not the label that happens to be applied to a person’s mental disorder, determine when action is taken”.—[Official Report, 28/11/06; col. 657.]
I accept that the amendment refers to a diagnostic label, but it also takes account of risk in a clear way by applying the,
Furthermore, with regard to specialist care, a diagnosis should serve as a signpost to appropriate services. Whether or not a person with an autistic spectrum disorder has a mental illness or a learning disability, where care is required it must, ideally, be specialist care. The draft illustrative code of conduct contains a welcome emphasis on the need for specialists with regard to assessments and services, but it could be stronger. I welcome wholeheartedly the Minister’s indication of a willingness to look at strengthening the code. People with an autistic spectrum disorder should be dealt with only in a setting where they can access specialist care. There have been cases without specialist input where mental health problems have been neglected during an assessment and put down to a person’s autistic spectrum disorder. Equally, it is inappropriate for people with an autistic spectrum disorder to be treated for mental health difficulties without any consideration of their autistic spectrum disorder. For example, people are more likely to experience anxiety as a result of their environment; treating the anxiety without understanding its causes may escalate the problem.
The Government have said that they want to reduce the need for compulsion. Stakeholders and Peers on all Benches want to minimise the potential for inappropriate detention. According to the draft illustrative code of practice for the Bill, detention of people solely on account of their autistic spectrum disorder will happen only very rarely. Additions to the draft code about autistic spectrum disorders are extremely welcome, including noting that certain characteristics do not justify the use of the Act. The Bill and the draft code could do more to prevent
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The only reference in the code to appropriate detention of a person with an autistic spectrum disorder is to the person being unable to prevent themselves causing severe harm to themselves or others. Would this not be considered abnormally aggressive or seriously irresponsible behaviour? It would be valuable to hear from the Minister about what the very rare circumstances envisaged might be, in which a person with an autistic spectrum disorder could be detained without mental illness and without displaying abnormally aggressive or seriously irresponsible behaviour. I fully understand that it may not be possible to give that answer now, but I would welcome the opportunity to discuss this amendment further, and ask the Minister if he would be willing to consider this matter further and have further discussions with stakeholders. I look forward to hearing further discussion on this matter now. I beg to move.
Earl Howe: This is an extremely difficult issue. The Government’s position—if I do not misrepresent them—is that we gain very much more by having a single and unqualified definition of mental disorder than we would gain by building in various categories of exemption. We will be debating the issue of exclusions in some detail when we reach Amendment No. 4, and I do not want to pre-empt those discussions. The Government’s reason for taking this position is to ensure that clinicians do not get hung up on what diagnostic label may be hanging around someone’s neck, but rather pay attention to what their needs are and what behaviour or symptoms they are exhibiting.
In the case of autistic spectrum disorders, I expect that this is the argument we will hear. It is not an argument that can be brushed aside lightly, but I disagree with it. Autistic spectrum disorders are disorders characterised by impaired communication and social interaction. They are not psychotic disorders; nor are they mental illnesses. What the National Autistic Society fears, as the noble Baroness said, is that far from the single definition in the Bill making life simpler and ensuring that only people who have a disorder or disability of the mind are detained, it will cause confusion and result in more people with autistic spectrum disorders being detained than is justified. The behaviour of someone with an autistic spectrum disorder may well resemble that of someone with a mental disorder. We need to be sure that one is not mistaken for the other. If a person is neither mentally ill nor behaving in an abnormally aggressive or irresponsible way, quite simply, they should not be detained compulsorily under the Mental Health Act.
It is perfectly true that people with ASDs have a higher than average incidence of mental health problems. We do not want to say that by virtue of having an autistic spectrum disorder they should be excluded from the scope of the Bill altogether. That really would be a mistake. If we imagine an autistic
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There is a way out of this, suggested by the noble Baroness. Unless we add to Clause 2 the words in the amendment, we will have a situation where someone with a learning disability and an autistic spectrum disorder, but without mental illness, could still be detained, even if they were not displaying seriously irresponsible or aggressive behaviour. That surely cannot be what we want. I very much hope that the Minister will be sympathetic to the arguments put forward by the noble Baroness.
6.15 pm
Lord Carlile of Berriew: The noble Baroness, in moving this amendment, has done so comprehensively, and has given the views of the Joint Committee. I would not resile from those views for one moment. I agree entirely with what she said, although I would put it in a slightly different way, to add something—I hope—to the way she expressed herself. The committee was of the view that this was, in many senses, an issue of discrimination. People suffering from autistic spectrum disorders carry out valuable roles in society. I suspect that there are not a few people suffering from autistic spectrum disorders not a million miles from where we sit now and the other place.
If I may be anecdotal for moment, I recall that last year someone came to install some case analysis software on my laptop in my barristers’ chambers. He explained to me that in his business he employs four people who suffer from autistic spectrum disorders to prepare and analyse the vast quantities of case material—and we were talking about a huge fraud case—which were to be reduced into a particular CD-ROM format. To his great credit, he told me that not only are they among his most valued employees, but that everyone in his firm earns the same wage, so that they earn exactly as much as he does. He was amazed that more companies were not using people suffering from autistic spectrum disorders to deal with very complex issues of that kind, which maximise the particular abilities that some people suffering from autistic spectrum disorders, including Asperger’s syndrome, experience.
To say that people suffering from autistic spectrum disorders are not “normal members of society” is, in my view, discriminatory and insulting to those people. Returning to where I started, I should say that it seemed to the committee that, although people with autistic spectrum disorders had a greater incidence of mental disorders in their lives, there was no evidence before us to support the view that one could assume that they suffered from mental disorder. The provisions as they stand imply that assumption. If the amendment is accepted by the Government there would be no deficit in the effectiveness of this legislation in relation to people suffering from autistic spectrum disorders.
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Lord Addington: The noble Baroness has brought forward what is, I hope, a probing amendment. The awful point is that if you start naming various conditions, we will get a never-ending list. Most of us who have dealt with disabilities over a period of time know that one of the problems we face is the stereotype. There are certain preconceptions to do with the way that people with disabilities—either obvious or hidden—relate to the world. The deaf may have tremendous problems relating to people if the batteries in their hearing aids are low or if there is no loop in the room. Their behaviour could be interpreted as aggressive if you happen to catch them on a bad day.
I do not like the idea of naming a condition in the Bill and saying that it is fundamentally different. I have spent countless hours in this Chamber saying that disabled people should be treated wherever possible in the same way as the rest of the world. We are in trouble if we start to introduce caveats suggesting that we need not take into account that a disability will lead to slightly different patterns of behaviour. That would be the flipside of saying, “Does he take sugar? Dear lad. Pat him on the head and put him in his wheelchair in the corner”. It would be like saying, “They are all monsters”.
I would be much happier if the Government would explain their thinking on this matter. The fact is that illness can occur to any disability group regardless of whether it is mental or physical. Why introduce a second caveat? It may be because people are worried that this group has been labelled in the past. I may not have listened to enough of what has been going on in this Bill, but please could we have more clarification of the Government’s thinking?
Lord Hunt of Kings Heath: I am grateful to my noble friend for her Amendment No. 2. Section 1 of the 1983 Act as it stands first gives a general definition of mental disorder. It then defines four specific categories of mental disorder—mental illness, mental impairment, severe mental impairment and psychopathic disorder. Mental impairment and severe mental impairment can be identified with learning disabilities of different degrees of severity, but are defined in such a way that they cover those disabilities only where they are associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.
Many of the powers in the Act—including, for example, detention for medical treatment under Section 3—may be exercised only if the patient is suffering from one or more of the four categories of mental disorder. Some powers, including the Home Secretary’s ability to transfer unsentenced prisoners to hospital when they urgently need treatment for mental disorder, apply only to certain categories of disorder—in that example, only mental illness and severe mental impairment.
We believe that the use of the Act should be determined by a patient’s needs and the risk posed by their disorder, not by the particular legal label applied to it. The four separate categories of mental disorder in the Act are legal distinctions that do not match
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However, Clause 2 deliberately maintains the idea that key parts of the Act should apply to learning disability only when associated with abnormally aggressive or seriously irresponsible conduct. That is what we mean by the learning disability qualification. Our intention in including the qualification in Clause 2 was to preserve the effect of the Act in relation to learning disabilities. It was not to change it by effectively excluding more disorders from the scope of many of the powers in the Act. I am at one with the noble Lord; as a general principle, we believe that the fewer exclusions there are the better, because each one adds to the risk of arbitrarily excluding people who need to be helped. That itself would be a powerful argument for not extending Clause 2 to cover autistic spectrum disorders.
But we also think that there is a clinical distinction between autistic spectrum disorders and learning disability. A learning disability will include the presence of a significantly reduced ability to understand new or complex information or to learn new skills, and a reduced ability to cope independently. It will not necessarily be accompanied by the difficulties that a person with an autistic spectrum disorder will have with communication and relating to people around them. It is because of these communication difficulties that we believe that people with autistic spectrum disorders are better served by not being subject to any limitation. That way, in the rare cases where the Act needs to be used—for example, to help an autistic person who might otherwise attempt suicide—debates about diagnosis will not present an obstacle.
In fact, by removing categories of mental disorder, we are making it clear that all the provisions of the Act apply to people with autistic spectrum disorders, where necessary. At present, the arbitrary distinctions between the four categories of disorder leave room for uncertainty about the extent to which the Act applies to people with autistic spectrum disorders—although a small number of people with such a disorder are certainly detained under the Act already.
As a result of the change that we are making, when clinicians are called on to determine whether the Act ought to be used in relation to a person with such a disorder they will be able to concentrate on the individual’s needs and the risk posed by their disorder, rather than on whether the disorder fits one of four arbitrary legal categories, or whether the person’s autism is accompanied by seriously irresponsible or abnormally aggressive behaviour. Also, including
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Amending the Act in the way that we have done will ensure that it can be used for the very few people with autistic spectrum disorders for whom detention or other compulsory intervention is justified, without any uncertainty about whether and how they fit into its legal framework.
Lord Carlile of Berriew: I am puzzled by something that the Minister said about the courts. Is he suggesting that there might be a case in which the court would make an order under Section 37 and/or Section 41 of the Mental Health Act 1983 on the grounds that the person was suffering from autism spectrum disorder, without anything more? I find it extremely difficult to imagine that that would happen.
Lord Hunt of Kings Heath: I was seeking to suggest that there may be a gap. If there is an exclusion such as the one suggested by the noble Baroness, a situation may occur in which there was no alternative other than the person being dealt with through a custodial sentence. That is why it would be much better not to have an exclusion and to allow more flexibility in the way that such an issue could be dealt with.
Baroness Morgan of Drefelin: If I could—
Lord Hunt of Kings Heath: Perhaps I should—
Lord Carlile of Berriew: If the Minister is inviting me to intervene again I certainly will. I hope that the Committee will not think that it is a discourtesy. The Minister says that there may be situations. Are the Government able to put their finger on any example of any such situation from known experience from which they can extrapolate that prediction?
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