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By removing lines 10 and 11 from the clause, the noble Lord, as he acknowledged, is effectively excluding people with learning disabilities from the scope of the Mental Health Act altogether, unless at one and the same time there is a mental illness or mental disorder also present. I worry how that leaves someone with a learning disability who is behaving in a very aggressive or irresponsible way and who may be a risk to himself or to others. If the police are summoned to a scene where they witness such behaviour, what are they to do? The noble Baroness, Lady Finlay, suggested that the provisions of the Mental Capacity Act might come into play here. I want to ask her or the Minister whether we are quite sure that the provisions of that Act could be used to administer care and treatment in the person’s best interest. I am far from clear that the provisions of that Act would cover this kind of situation, because the Act does not authorise detention. If that is correct, the police’s only recourse would be the criminal justice system. That seems to me to be an even worse avenue for the individual, and certainly a much less therapeutic one, than to be admitted to hospital. I am simply making a pragmatic point here.
My second worry was raised by various witnesses giving evidence to the Joint Scrutiny Committee on the 2004 draft Bill. A case known as the HL case was dealt with recently by the European Court of Human Rights. The decision in that case, in the view of at least one witness, means that whatever the definitional niceties that we have been talking about, it will be necessary to devise some sort of legal framework whereby people with learning disabilities can be admitted to hospital and given the kind of safeguards provided by the Mental Health Act and this Bill. I am thinking particularly of the extension of the tribunal’s remit. If I am broadly correct about that case and its effect, it is important. I should be interested to hear what the Minister has to say about it. If I could put a brutal question to him: is the Bill a quick and ready short cut to addressing the findings in that case?
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Lord Hunt of Kings Heath: I am very grateful to the noble Lord, Lord Rix. I read his speech on Second Reading, and I understood that he would be tabling the amendment. His amendment seeks to
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Indeed, very few of the provisions of the Act would apply to a learning disability that was not accompanied by any other recognised mental disorder, even if associated with,
I have the greatest respect for the noble Lord, Lord Rix, who is a tireless advocate for the rights and interests of people with learning disabilities. I know that he has met officials in my department, but I have to say that the Government are not in favour of this amendment. He discussed on Second Reading his involvement in the development of the wording in the current Act in relation to learning disability; that is the very wording,
that his amendment now asks your Lordships’ House to remove.
We are, of course, well aware of the strongly held view that learning disabilities should not be labelled as a mental disorder, both on principle and for fear of exacerbating confusion between learning disability and mental illness. The noble Lord, Lord Rix, will know that I understand that point of view. We recognise that learning disabilities are not the same as mental illness, but they are recognised disorders or disabilities of the mind. The crux of this issue is that the Act is not about labelling people; it is about making sure that they can be treated where necessary. Excluding people with learning disabilities from the definition entirely would risk the very small minority of those people who need compulsion not getting it, or else would require clinicians sometimes to apply inappropriate diagnostic labels to ensure that they can give the treatment that they believe is needed. That is why learning disability remains a mental disorder for the purposes of the Act generally. None the less, we all agree that the powers in the Act should not be used just because someone has a learning disability; hence our decision to include a special provision to preserve the effect of the current Act in relation to learning disability, despite the abolition of categories of mental disorder, in particular those of mental impairment and severe mental impairment. Thus, in future people who have a learning disability will be treated in exactly the same way as they are at present, but we are not persuaded that we should go further.
I fully accept the comments that have been made about the potential problem of misdiagnosis. I have taken careful note of the points that the noble Lord, Lord Rix, has made about the importance of ensuring good practice in the diagnosis of mental health problems in people with learning disabilities. I acknowledge that people who have a learning disability have special difficulty in communicating the nature of their health problems in ways that may be mistaken for mental disorders. I agree that picking up physical health problems is an important issue for anyone with a mental disorder. For everyone who may be assessed for possible mental health problems, it is
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We do not believe that by so defining the clause we are stigmatising people with learning disabilities. In no way does a learning disability qualification suggest that abnormally aggressive or irresponsible behaviour are associated with learning disabilities; quite the opposite. It is not inappropriate, and it certainly makes no assumption that detention in hospital is the best approach for people with learning disabilities who offend, but it makes sure that the option is open to the courts where appropriate. The noble Lord, Lord Carlile, asked what “abnormally aggressive” and so on means. I am advised that the term has been used since 1983, and that the words have to take their normal meaning. Case law suggests that conduct is to be judged by general standards, not those of other people with a learning disability.
I say to those noble Lords who have expressed concern that the real problem here is about misdiagnosis and a lack of adequate services—and I suspect that I will repeat this on a number of occasions—that good practice is an area in which it can be difficult to legislate, especially where we want to legislate in such a way as to give mental health professionals the maximum latitude to make decisions flexibly in the best interests of the mentally disordered person. But clearly the code of practice is an appropriate avenue in which to look at the issues that the noble Lord has raised. I will look at ways of strengthening, the code of practice to take account of his and others concerns in this area.
On the use of the Mental Capacity Act to guarantee treatment for people with learning disabilities, it is important to make it clear that many such people have the capacity to make their own decisions about treatment, even when they are experiencing particular mental health problems, and we must not assume that they do not. For those people, the Mental Health Act is more appropriate, because it treats them in the same way as anyone else who refuses to consent to the mental health care that they need.
The answer to the question asked by the noble Earl, Lord Howe, is no. He can find the answer in Part 2, in the so-called Bournewood safeguards, which deal with the situation that he raised. The Government’s view is that, notwithstanding the need to ensure that diagnosis is as effective as possible, the code of practice needs to be reviewed in the light of the comments made by the noble Lord, Lord Rix. This amendment, if adopted, would potentially leave a small minority of people with learning disabilities in a more vulnerable position than at present. That is why we would prefer to leave the safeguard in the Bill.
Baroness Barker: The Minister said at the beginning of his remarks that if the amendment in the name of the noble Lord, Lord Rix, were passed, there would be a danger that some people with learning disabilities who needed compulsory treatment would not get it. Why should the situation be any different
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Lord Hunt of Kings Heath: I would prefer to write to the noble Baroness on some of the points that she raises. As a general point, we consider that there is a need to ensure that the position of people with learning disabilities is covered and that there are specific circumstances in which it is appropriate that they are referred to in the Bill. I hope that she will allow me to write to her with further detail on that.
Lord Rix: Those were the new year’s greetings that I expected, whether from the noble Lord, Lord Warner, or from his replacement. I knew that the Government would say what they did, because in my discussions with the Bill team last week and in the two letters that I received, in particular the one from the noble Lord, Lord Warner, more or less exactly the same points were made. I realise that I have a bit of an uphill struggle. However, I would like to meet the Minister again before Report to see whether we can reach some compromise and to discuss strengthening the code of practice, which I think is terribly important. The code of practice would be a very good background for sorting out this problem about learning disability, especially if Amendment No. 72 were passed, as that would make the code a little more enforceable.
I have a sense of déjà vu. The conversation that I had with the noble Lord, Lord Elton, 24 years ago was not dissimilar to the conversation, albeit one-sided, that we have just heard from the Minister, who put the same sort of arguments. Twenty-four years ago, I queried whether the meaning of the words “abnormally aggressive” and “seriously irresponsible conduct” was quite clear. I believe that if I were a diagnosing doctor—rather, if I were two diagnosing doctors—I could easily say that the person was being abnormally aggressive or seriously irresponsible and we would back each other up; it would be much easier and quicker to do that than to look for the root cause of the problem.
I am not convinced, although I totally understand the Government’s arguments. For years, we described learning disability as a mental handicap. As noble Lords will know, we removed the words “mental handicap” from our organisation’s title; it is still called Mencap, as an abbreviation, although that could now apply to the Mental Capacity Act rather than to the Mental Health Act. The word “mental” and the stigma of applying the Mental Health Act to people with a learning disability are closely related. That is why I should like a clearer definition in the Bill. However, until we can have our discussions, as I hope we shall, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Clause 3 [Changes to exclusions from operation of 1983 Act]:
Earl Howe moved Amendment No. 4:
““(3) For the purposes of subsection (2), a person shall not be considered to have a mental disorder as defined in this section solely on the grounds of the following—
The noble Earl said: I shall also speak to Amendment No. 5. We come now to another issue that in many ways epitomises the fault line that separates the Government and the mental health community over the Bill. The question that Amendment No. 4 poses is to what extent the definition of “mental disorder” as it appears in the Bill should be qualified by exclusions that restrict the manner in which the powers in the legislation may be applied—in other words, should the Bill delineate clear boundaries around the new and simplified definition of “mental disorder” as a guide to clinicians and other practitioners who will be called on to implement the Bill?
The Government’s broad position is simple. They maintain that if the whole point of the legislation is for each patient to be treated according to his or her needs, we should not want clinicians to be sidetracked by or hung up about diagnostic labels of any sort. Professionals should be clinically free to decide what steps it is right to take in particular circumstances. If a particular sort of behavioural tendency is not classified as a mental disorder in any case, it is unnecessary to spell out in the Bill that it should not be regarded as such.
I suspect that that is the line that we shall hear from the Minister today, but I suggest to her that there is another way of looking at this question. It has to do with two things: the nature of the decision-making process by clinicians and the entire context in which powers of compulsion are used and will continue to be used. When a clinician has to decide whether or not to detain a particular individual compulsorily, he first has to make a diagnosis based in large measure on the individual’s behaviour. But a diagnosis of mental disorder is not value free. It is not like a diagnosis of measles, which rests on clear clinical signs and symptoms. Rather, it depends on a subjective judgment—a judgment based on knowledge and experience, certainly, but ultimately one that is dependent on that clinician’s discretion.
Certain sorts of behaviour that materially depart from societal norms can be viewed through one set of value judgments as deviant and dangerous or through another as merely distasteful and eccentric. One example of that would be certain sorts of sexual behaviour, such as gender dysphoria, transsexualism and fetishism. Some people tolerate these things; some people do not. In fact, disorders of sexual
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There is a wider point. Parliament has recently outlawed discrimination on grounds of sexual orientation. Without an exclusion of the kind in paragraph (b) of the amendment, the way would be clear for clinicians to allow their own values to interfere with what should be the only question in their minds: does this person or does he not have a mental disorder that makes him suitable for psychiatric detention? The value of an explicit exclusion is that it provides a marker to make sure that practitioners carefully evaluate the basis for compulsory treatment in accordance with accepted parameters.
Placed alongside that idea is the context in which these often difficult and painful decisions are to be made. Among the black and ethnic-minority communities, mental health services are regarded with intense suspicion. Why is that so? It is because, as we have heard already, a disproportionately high number of people from those communities are sectioned and detained against their will.
If we accept the proposal in the Bill for a broad definition of “mental disorder”, which in principle I am perfectly prepared to do, the quid pro quo for that should be a set of riders that make it absolutely clear that the Bill is not designed as a licence to increase the numbers further. Any definition that might serve to do that, however well intentioned, should be qualified explicitly to ensure that it does not. If it is admitted that under the 1983 Act unwarranted discrimination takes place as a result of racial stereotyping, that on its own is the answer to anyone who says, as the Government have been wont to do, that cultural beliefs and behaviours are not mental disorders and therefore cannot legally be used as grounds for detention. If, in practice, that proposition is being widely ignored, then we have a positive duty to promote equality of treatment in the Bill. We can do that by means of an explicit exclusion, even at the risk of stating what to a parliamentary draftsman might seem technically otiose.
However, there are other ways in which the breadth and generality of the new definition of “mental disorder” could be seen as risky. Let us take substance misuse. The Bill provides for an exception for dependence on alcohol or drugs but it does not provide an exemption for someone who is simply drunk or has misused drugs in a way that will not cause him long-term harm, if I can make that assumption. Surely we do not want the legislation to signal to clinicians that being drunk or having taken an illegal substance in itself equates to a mental disorder. Under ICD 10, both misuse and dependence are covered and therefore, in my view, we
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Curiously enough, the Government have accepted the argument that there should be an exclusion covering substance dependency. Presumably, in doing so, they accept that there is a point to having an exclusion of this sort and that having it does not pose any serious risk that someone might be denied compulsory treatment just because their disorder manifests itself in certain behaviour. That must be the Government’s position, and, if so, I agree with them. The risk is not one that should concern us. On the contrary, we want to say to practitioners, “By all means use your professional judgment and discretion about what may be right for the individual patient, but you can use the powers of compulsion granted to you in this Act only if you are certain that there is a mental disorder present that is quite separate from any of the behaviours or conditions listed in this amendment”. That is surely not a complicated message or one that risks any denial of psychiatric treatment when it is genuinely needed.
There are two other categories of exclusion listed in the amendment that I have not covered: illegal or disorderly acts and political beliefs. As regards illegal acts, the point is quite simple. When someone is behaving in a manner that is clearly illegal, whether the behaviour consists of causing an affray in public or committing acts of paedophilia, such an act should not be seen by the police, doctors or anyone else as a reason for applying powers of psychiatric compulsion. Criminal acts should be dealt with using the accepted means provided for under criminal law, and doctors need to be clear about that.
With disorderly acts and political beliefs, we are into human rights territory. There are certain advantages to having a broad definition of “mental disorder”, as proposed in the Bill, but one potential downside is that it lacks certainty. All of us are old enough to remember regimes around the world in which psychiatry was misused to clamp down on behaviour that related not to a treatable mental disorder but, rather, to socially or politically unacceptable behaviour. The definition of “mental disorder” was deliberately twisted to encompass matters that were no concern of medicine, still less of the state. I do not say that there is a realistic prospect of the same happening in this country—certainly not in a systematic way—but, once again, we need to remember the importance of perceptions and public trust.
The powers of compulsion granted in the Bill are no trivial matter. If among certain people—not least black and ethnic-minority communities—psychiatry is seen, however unjustifiably, as a ready means for the establishment to lock away whomever it wants on whatever pretext it chooses, then the effectiveness of psychiatric services in assessing and treating genuine mental disorders will be diminished.
I ask the Minister one thing: not to reject the amendment out of hand, as her brief probably urges her to do, but to take it away and reconsider it. All the
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Baroness Barker: As I was getting ready to talk about this amendment, I was taken back many years—more than I care to remember—to a time when I was quite young. I was walking down a street in America where a lady was behaving in a very loud fashion: she was preaching in a hectoring manner. I was very small and found it quite frightening. The adults with me said, “It’s okay. She’s just a bit crazy and that’s what she does”. I had forgotten that incident until about five years ago when I was reading a biography of Hillary Clinton. Mrs Clinton is a lady who brings about quite extreme reactions but I was taken with her because, when she was a young lawyer in Arkansas, she was noted for things such as driving many hundreds of miles to defend ladies who “preached a bit crazy” in the street on the grounds that they were allowed to do that. I was also reminded of that early incident about two years ago when I was walking through Brixton and came across a lady preaching very loudly in the middle of the street.
All those things came back to me as I read through the briefings for this Bill, because what we and society decide is acceptable and “just a bit crazy” or something that should bring someone under compulsory powers may be subjective matters involving time, place and context. That is why it is important that we have this debate. There is always an element of subjectivity in any assessment or analysis of a person’s behaviour. As the Minister said earlier, the 1983 Act provided a fine balance between compulsory powers and rights of representation for individuals. That was a much more balanced piece of legislation than that which we have before us now and yet we have had report after report showing that even that legislation, tuned as it was at the time, has a disproportionate effect on some communities because behaviour is interpreted in wholly different ways.
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