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6.30 pm
Lord Hunt of Kings Heath: I will see whether I can write to the noble Lord with a specific case, but the kind of situation that might arise would be where someone with the disorder has no other recognised mental disorder. Perhaps they were feeling suicidal due to the social isolation associated with their autism. The Act should then enable professionals to detain them for their own protection. I understand this is a different case from that raised by the noble Lord. Indeed, I was answering the point raised by my noble friend. The substantive point is to try to ensure
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In conclusion, while the Government do not want to accept my noble friend’s amendment, I will be happy to discuss this further with her and concerned stakeholders, to see if I can allay some of their concerns.
Baroness Morgan of Drefelin: I thank the Minister for that reply, but I am going to have to think about it quite carefully to ensure I understand it properly. If the Minister is worrying about gaps, I might be worried about including too many people who maybe should not be included. I will reflect on his response and on the comments made around the Chamber, but at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rix moved Amendment No. 3:
The noble Lord said: I must first declare an interest as president of the Royal Mencap Society. I mentioned earlier this afternoon that today happens to be the 30th anniversary of my last appearance at the Whitehall Theatre. It is also, almost to the day, the 24th anniversary of the first time I had the argument which is encapsulated in Amendment No. 3, which stands in my name. On that occasion the argument—and I admit eventual agreement—was with the noble Lord, Lord Elton, who is not in his place this evening. I do not know how many Health Ministers there have been since 1983, but I am delighted that the noble Lord, Lord Hunt, on almost his first day in his new job, will be continuing the discussion.
I hope he will have read my Second Reading speech, and at the same time may have seen the letters which I have received from, according to the Department of Health heading here, not the “Right Hon” but the “Right” Rosie Winterton MP, Minister of State for Health Services—she is a right one—and from the noble Lord, Lord Warner, Minister of State for NHS Reform as was. With the Second Reading speech and those two letters, I am sure he is well aware of the situation.
Clause 2 says that people with a learning disability are not normally by virtue of their disability to be considered to have a mental disorder for the purposes of the Mental Health Act,
- “unless that disability is associated with abnormally aggressive or seriously irresponsible conduct”.
Amendment No. 3 would remove the “aggressive or irresponsible” caveat, which would mean that people who have a learning disability but no other mental disorder would not be subject to compulsion.
I asked for this amendment to be grouped separately from that on autism from the noble Baroness, Lady Morgan, because although the two cover the same clause, they raise different issues. Amendment No. 2 relied on Clause 2 retaining its existing structure and sought to include autistic
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In explaining what this amendment means, I must first make it clear that it does not mean that people with a learning disability would be excluded from the scope of the Bill altogether. People with a learning disability may well have a mental health problem or a mental disorder which needs to be treated under compulsion. Everyone who has a mental health problem comes within the scope of the Bill, including people who also have a learning disability. Indeed, there is evidence that the prevalence of mental ill health among adults with a learning disability is higher than the prevalence of mental ill health among the general population. Only last week, I read an article in the latest edition of the British Journal of Psychiatry reporting on a cohort study in Scotland—even though it is a small nation—which found that more than 40 per cent of adults with a learning disability also experienced mental ill health. Other research has suggested that the prevalence of depression among people with a learning disability is four times greater than that among people without a learning disability, and that the prevalence of schizophrenia among people with a learning disability is three times greater than that among the general population.
Just as my noble friend Lord Adebowale, in moving Amendment No. 5, rightly seeks to make it clear that dependence on alcohol or drugs does not preclude the existence of a mental disorder, so I want to emphasise that having a learning disability does not preclude the existence of a mental disorder either.
I labour this point for two reasons. First, it demonstrates that my amendment would not prevent people with a learning disability being made subject to compulsory powers. They would still be more likely to come under the scope of the Bill than the general population. Secondly, and more importantly, abnormal aggression or serious irresponsibility—the characteristics for which people with a learning disability could be sectioned under the Bill as it stands—may in many cases be caused not by a person’s learning disability but by an underlying health condition which ought to be treated. I am concerned that the Bill as it stands would allow people with a learning disability who also have a mental health problem to be sectioned on the basis of learning disability plus aggression, leaving their mental health problems undiagnosed and unaddressed. Framing a law in a way which may incentivise misdiagnosis, or lazy or convenient diagnosis, is not helpful.
We already know about serious inequalities in the standard of healthcare experienced by people with a learning disability. Mencap’s 2004 report, Treat Me Right!, and the Disability Rights Commission’s 2006 formal investigation, Equal Treatment: Closing the Gap, both found evidence of diagnostic overshadowing, in which symptoms of health problems displayed by people with a learning
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Aggression and irresponsibility may be symptomatic of physical health problems, or stress. Allowing people with a learning disability who are aggressive or irresponsible to be sectioned on that basis may lead to physical health problems being missed. Mencap’s Treat Me Right! report contains an account by the mother of Simon, who has a learning disability:
“We knew there was something wrong with Simon. He was scratching his face and screaming and seemed extremely distressed. So we took him to see his GP, who couldn’t find anything the matter. We kept saying that we thought he must be in pain. But he just wouldn’t listen. He told us: ‘That's just the way they are sometimes. Just take him home.’ Luckily, the dentist took more time to examine Simon and found that he had an abscess. I hate to think how much pain he must have been in”.
Fortunately, this case had a happy ending and did not involve the use of mental health law. Yet it is not difficult to see how things could have been different, here and in many other cases. My concern is for people like Simon who, being unable to communicate, may respond to pain by lashing out and being violent. It is also for people like Simon’s GP, who may simply write this behaviour off as being part of the learning disability and who, in order to protect the patient or those around him, use the Mental Health Act to provide the wrong kind of treatment under compulsion.
I am concerned that Clause 2 may make it less likely that people with a learning disability who behave in an aggressive or irresponsible way will have other underlying mental and physical health problems identified and treated, so the Bill as drafted could lead to people with a learning disability being misdiagnosed and not getting the treatment that they need. It is not the purpose of the Bill to provide people with worse health conditions, but I am worried that it may be the effect. Perhaps the code of practice could be used to make this clearer. Amendment No. 72, which we shall debate in due course, would give the code statutory force, which might help to eliminate some of the poor practice which I am worried about.
It is also worth pointing out that when a person lacks capacity in relation to the question of whether he should be given medical treatment, he can be treated in his best interests under the Mental Capacity Act. When people with a learning disability behave in an aggressive and irresponsible way, they will in most cases lack capacity.
I should say a few words about the diversion of people with a learning disability from criminal punishment to hospital. The amendment would, after all, provide that that could not happen unless they also had another mental disorder. First, it is true that prison is not an ideal environment for people with a learning disability but there is evidence that there are very many people with a learning disability in the prison system anyway.
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My concern in moving this amendment is not only on the grounds of the principled position that a learning disability is completely different from a mental illness, and should not be treated as such. I have always held that position, and I still hold it now. I am pleased to see that the Disability Rights Commission, commenting on my amendment, agrees with me, describing Clause 2 as it stands as,
My concern is also that the clause may bring under the scope of mental health legislation people who even the Government think should not be there, or may put them there for the wrong reasons, so that the underlying cause of their aggression or irresponsibility is not addressed.
As the clause stands, it would allow people to be sectioned on the basis of learning disability when other courses of action would be more appropriate; it incentivises bad practice when we know that good practice is far from universal; it allows the symptoms—aggression or irresponsibility—to overshadow the causes, be they mental or physical ill health or simply distress; and makes it less likely that people with a learning disability will get the treatment that they need. I hope that the Minister will be able to begin his new job on the best possible footing, by finding a way of making sure that people with a learning disability are not disadvantaged by mental health law. I beg to move.
6.45 pm
Baroness Barker: During my time in this Chamber I have learnt one thing—that the noble Lord, Lord Rix, is the worst act to follow because he always has the best lines, and that is my position today. Anyone who spent more than about 30 seconds on the Joint Committee was left in absolutely no doubt as to his commitment over many years to this subject, and his tenacity. All that we could do, strong-minded people though we were, was to emerge from that committee in complete agreement with everything that he said and to be prepared to line up with him. We did that because he is absolutely right—and he is absolutely right in proposing this amendment.
Being aggressive or irresponsible is not a reason in itself for people to be subjected to mental health legislation. Because someone has a learning disability
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I remind noble Lords that during the passage of the Mental Capacity Act, I was one of those who argued most strongly that there should be an equality provision in that Act and there should not be discrimination. It is beholden on people such as me who hold that view, which is sometimes quite controversial in its application to some areas of healthcare, that we do so consistently. If we cannot be consistent on such a matter of principle, we should not be here at all.
The noble Lord, Lord Rix, is absolutely right in saying that people with learning disabilities have the right to expect the same treatment and regard as anybody else. That has been the thrust of legislation in recent years, not least with the Mental Capacity Act, and it should be the thrust of this legislation too. At a very simple level, having a clause in the Bill in which the words “learning disability” and, “abnormally aggressive or seriously irresponsible conduct”, come together reinforces some of those stereotypes, about which my noble friend Lord Addington spoke so eloquently in relation to the previous amendment.
For all the reasons that the noble Lord, Lord Rix, outlined with better erudition than I ever could, I believe that we should support him.
Lord Adebowale: I shall support the amendment proposed by the noble Lord, Lord Rix, by making two points and telling a story, which illustrates the point forcefully, if nowhere near as strongly as the story that the noble Lord told. I and the organisation for which I work—and, again, I declare an interest with regard to Turning Point, which provides a service to about 8,000 people with learning disabilities, some of whom have very challenging behaviour problems too—believe that learning disability should not constitute mental disorder. In fact, the principle is one of equality; it is as simple as that. None of this is rocket science. Without wishing to go back to an earlier debate, this is about the principle of equality.
The most appropriate legislation under which the majority of people with a learning disability should receive treatment is the Mental Capacity Act, when it comes into force in April. People who lack capacity who are also subject to the provisions of the Mental Health Act 1983 will still be protected by the Mental Capacity Act with regard to the types of decisions or actions affecting them. Therefore, when a decision unrelated to treatment for mental disorder needs to be made, including decisions about physical healthcare, welfare or financial matters, an assessment must be made of the individual’s capacity to make that particular decision when it needs to be made. It is important that the code of practice spells out that the principles and provisions of the Mental Capacity Act
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To illustrate this point, let me tell you a story, which ended in the use of the Mental Health Act. Mr S, who has a severe learning difficulty, autism and communication difficulties, lives in a residential setting. He was detained under the 1983 Act because he was becoming increasingly agitated and exhibited aggressive behaviour, banging his head against a wall. It was later discovered—this is shocking but true—that Mr S had a small twig in his ear, which was causing him distress, as it would most people, and which he expressed by his agitated behaviour. This scenario shows how the distress of a person with a learning disability can be automatically attributed to a mental disorder without paying sufficient attention to physical factors. This is about not just lazy diagnosis but making fatal assumptions.
The issue is education and skills among professionals. It is about being able to correctly assess whether a person has a co-existing mental health problem alongside a learning disability. Here again it is inappropriate to use mental health legislation to compensate for the lack of these skills if a person does not have an additional mental disorder. The Government should support the amendment of the noble Lord, Lord Rix, but might also want to make it explicit that, if a person has both a learning disability and a co-existing mental disorder, they should be able to receive appropriate treatment under the Act.
Baroness Murphy: I want briefly to support the amendment of the noble Lord, Lord Rix. He has said it so eloquently that, like the noble Baroness, Lady Barker, I do not want to add much. This is really about ensuring that people with learning disabilities are not discriminated against and have a proper assessment of their mental disorder. As we have already heard, they are far more likely to be suffering from serious mental disorder.
Underlying some of the Government’s thinking is the notion that we must not risk people with learning disabilities being caught up in the criminal justice system when it is inappropriate for that to happen. The reason why that happens is because of the poor availability of proper consultant psychiatry to people with learning disabilities. It is a developing field, which has got much better in recent years, but there is still tremendous discrimination. The opportunity to
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Baroness Finlay of Llandaff: I support this amendment. I remind the Committee of the wording of the recommendation from the Joint Scrutiny Committee. Our report pointed out that people with learning disabilities or communicative disorders should be,
- “liable for compulsory treatment under the Bill only if they display seriously aggressive or severely irresponsible behaviour as a result of their condition and if such treatment as is properly and reasonably required can only be provided to such patients under conditions of compulsion”.
That last condition is present in the Bill as it is currently drafted. That is why this amendment is so important. Our discussion and the difficulties raised are very much underpinned by the problem of the principles not being stated in the Bill.
This is all about correct diagnosis, as the anecdotes have so clearly illustrated. If someone with a learning disability also has a mental disorder it is appropriate for the Act to kick in and for compulsion to be used, if that is the only way that that mental disorder can be treated. However, under the Mental Capacity Act, if someone with a learning disability does not also have a mental disorder, but does not have the capacity, they can in any case be provided with the care and treatment that is in their best interest under that Act. For those people who do not have a mental disorder that requires treatment and for the patient who is not accepting treatment for a mental disorder, the trigger of accurate diagnosis is key. Without that, all the groups—such as the United Kingdom Disabled People’s Council and the other groups that have made representations on this clause—will have their fears enhanced, not decreased, as this Bill goes through. The other problem with people’s fears being enhanced is that they are less likely to access care and treatment early, when they need it and when intervention is much less. When problems escalate, they become greater and more difficult to deal with.
Lord Carlile of Berriew: I persuaded the noble Lord, Lord Rix, that he could escape from Wimbledon while his neighbours were taking children to the local school and, therefore, persuaded him into 9.30 meetings of the Joint Committee—a proposition he resisted strongly to begin with. I, too, was then treated to his knowledge—and that of Lord Carter and Mrs Browning—during the Joint Committee. As a result, I, too, support the amendment.
My principal point has been made by the noble Baroness, Lady Finlay of Llandaff, and I will not repeat it, although important. However, I have a further question. Given that half the recommendation of the Joint Committee has been incorporated into Clause 2, what is meant by “abnormally aggressive” or “seriously irresponsible” conduct? Is this to be judged by objective criteria, as against a norm of the person on the Clapham omnibus—or of the responsible person on the Clapham omnibus—or by the criteria of a person suffering from the learning disability from which the
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Earl Howe: The noble Lord, Lord Rix, has once again spoken very powerfully on an issue in which he is an expert. I have huge sympathy with the points that he has made. He is passionate—rightly so—about the distinction between learning disability and mental disorder. He does not want to see one confused with the other. I am entirely with him on that, as with the points on discrimination and stigma, and on wrong and lazy diagnosis. In expressing that support for his amendment, I have two worries, both of which are practical.
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