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Mental Health Bill [HL]
4.25 pm
Consideration of amendments on Report resumed.
Clause 2 [Learning disability]:
Lord Rix moved Amendment No. 2:
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The noble Lord said: My Lords, before speaking to Amendment No. 2, on which I shall detain your Lordships for a very short time, I should like to express my thanks to all those who sent their good wishes for my speedy recovery—it is six weeks since I was able to attend your Lordships’ House—and particularly to those who so ably took my place on the amendments in Committee, which I hope brought forth government amendments that will be acceptable as we go through Report.
I pay tribute also to the two Ministers concerned—the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Ashton of Upholland—who have extended the greatest possible courtesy by telephoning me and keeping me in communication with exactly what was happening in the House of Lords. I am extremely grateful to them. I say as a dispassionate outsider for the past six weeks, reading the goings-on in your Lordships' House, that I can only hope that, later this week, the other place votes for the right selection when it comes to the reform of your Lordships’ House. The quality of the debates and of the amendments put forward has been extraordinary.
Amendment No. 2 would delete the words,
- “unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part”.
I believe that those words unfairly pick on people who may well not have a mental disorder but who may well be frustrated for other reasons. I have previously put this case to the Minister, and I know that the president of the Royal College of Psychiatrists, Professor Sheila Hollins, has put exactly the same case. Unfortunately, the Government seem unable to accept my amendment. There seems little point in my pressing it to a Division because I know perfectly well that, even if I were to win, it would be overturned in the other place.
I can therefore only hope that the Government will offer me a lifeline in the code of practice. Having listened to the Government’s response on the first amendment, I hope that the code of practice will be strengthened by the attachment of principles to the Bill. The codes of practice therefore become very important. They currently do not apply to this caveat in the Bill. I can only hope that the Minister will give me an assurance that something will be done about this in the near future. I beg to move.
Baroness Royall of Blaisdon: My Lords, I am delighted to see the noble Lord, Lord Rix, in his place once more. We missed him. I am also pleased and privileged to have an opportunity to pay tribute to him. He is an extraordinary man: from coal mine to Mencap, he has over so many years made a real difference to the lives of many people, especially those with learning disabilities. I know that I speak for the whole House when I say that I hope he will continue to campaign, legislate and bring about change for many years to come.
We fully acknowledge that many people who have a learning disability can have difficulties in communicating the nature of their health problems, and in particular that some of them may seek to draw
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That is why, since the noble Lord graciously withdrew his amendment following the debate in Committee last month, we have been looking seriously at the issues he raised to see what more we could do to address them. As he kindly acknowledged, we have engaged in active dialogue with him in the intervening period and made strenuous efforts to identify ways to address at least some of his concerns. We have considered a number of legislative options to see whether we could meet those concerns about inadvertent detention without inadvertently taking away the option of detention for those for whom it is necessary and appropriate. As ever, however, we ran up against the disadvantage of trying to use legislation to tackle a problem of practice rather than of law. We have had to conclude, therefore, that these issues would be best addressed in the code of practice—that lifeline referred to by the noble Lord.
4.30 pm
It is vitally important to identify any underlying physical health problems in a person with a learning disability and to understand how it may be affecting their behaviour. Some may need to be helped only on their mental disorder. Other people with learning disabilities may need to be helped under the Act for their mental disorder while their underlying physical health problems are sorted out. I remind noble Lords that we are trying to frame legislation in such a way as to give mental health professionals the ability to do what needs to be done for the benefit of each mentally disordered person without imposing arbitrary restrictions. We consider that the learning disability qualification, as currently drafted in the Bill, allows clinicians this flexibility while still protecting patients’ rights.
Nevertheless, we acknowledge that there could be more practical guidance on the types of issues that can arise, such as proper diagnosis of an underlying physical disorder. Consequently, when we debated the amendment in Committee, we undertook to look at ways of strengthening the code of practice to take account of the concerns raised. I confirm to the noble Lord that we remain committed to that course of action. Indeed, we would be very happy if he and Mencap—the excellent charity of which he is the president—would be willing to take a proactive role in helping us to improve the revised code of practice for England as it relates to people with learning disabilities. And I do not mean just the section entitled “Learning Disabilities” but the whole code as it might be applied to people with learning disabilities.
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Clinicians must have cogent reasons for any decision to treat an individual in a way that departs from the code of practice. It is more than mere guidance. I hope very much that the noble Lord, Lord Rix, will feel able to accept this invitation on both his own and Mencap’s behalf. In doing so, I hope that he will see fit to withdraw the amendment.
Lord Rix: My Lords, what can I say after that? It is a most generous offer—one which I happily accept. I am overwhelmed by its scope. The fact that Mencap and I can be involved in the code of practice is a tremendous asset for us. I am extremely grateful to the Government for considering the amendment so sympathetically. I have the greatest pleasure in withdrawing my amendment, and hope that your Lordships will forgive me if I go home and put my feet up. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Changes to exclusions from operation of 1983 Act]:
Earl Howe moved Amendment No. 3:
““(3) For the purposes of subsection (2) above, a person shall not be considered to have a mental disorder as defined in this section solely on the grounds of—
The noble Earl said: My Lords, we return to an issue which we debated in Committee but did not resolve—the question of whether, in redefining what is meant by “mental disorder”, the Bill should draw clear boundaries around that definition by making clear what it does not encompass. We on these Benches regard this matter as particularly important.
When the Richardson committee reported in 1999, it recommended that a new Mental Health Act should contain a broad definition of “mental disorder” to replace the detailed diagnostic categories in the 1983 Act, and that this broad definition needed to be balanced by some exclusions. The Bill contains a new broad definition but no exclusions other than dependence on alcohol or drugs.
The broad definition has two consequences. The first is that it covers all the diagnoses listed in the WHO International Classification of Diseases 10— ICD-10—some of which are completely inappropriate for compulsory powers. Secondly, it potentially covers almost any significant deviation from a normal condition of the mind, however temporary that deviation may be. There is nothing in the Act or the Bill that confines the definition to the conditions listed in ICD-10. There needs to be some limit to guard against the inappropriate use of the clinician’s power of detention. Without such limits, the powers are capable of being used, even in a well-intentioned way, as a form of social control.
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Any decision by a clinician to detain a patient against his will always and inevitably rests on the clinician’s discretion. In practice this discretion is wide, and because of that it is not acceptable for the law to be expressed in such a way as to allow the clinician total freedom to interpret its meaning in any fashion he or she chooses. Clinicians themselves acknowledge this. They support the proposition that there should be clear limits on their powers.
From the clinician’s point of view, the exclusions need to be there so that the right questions can be asked. Let us imagine a doctor faced with someone who is distressed, disturbed and behaving in a strange way. What lies behind his behaviour? Is it misuse of alcohol or drugs? Does the person have odd or eccentric beliefs that cause him to behave in a strange manner? Does he have an uncontrolled temper? Would his behaviour be seen as normal, or at least as comprehensible, in a different culture? It is only by asking questions of this sort that doctors can avoid arriving at wrong conclusions. If the questions are not asked, the danger is that all sorts of people who are not mentally disordered in the true sense will be swept up by the use of the powers in the Mental Health Act.
The noble Baroness, Lady Murphy, spoke powerfully in Committee about people who are social misfits: people on drugs, religious fanatics, or people with odd sexual urges. They are difficult to help, but any well intentioned clinician naturally wants to help such people. The law should make the position clear. It is not enough for a person to be odd, eccentric or a social misfit; the only legal grounds for compulsory detention are an underlying mental health diagnosis. When confronted by an oddball patient, the clinician has a duty to make sure that his decision to detain is not based on spurious reasons.
In Committee, the Government argued that exclusions in the Act would create uncertainty and that they would be arbitrary. I do not agree, and nor does the Royal College of Psychiatrists, the British Psychological Society, the British Association of Social Workers and the Royal College of Nursing, to name but a few members of the Mental Health Alliance. Exclusions serve a significant purpose, one that other legal jurisdictions in the English-speaking world have acknowledged. The equivalent mental health laws in Ireland, Scotland, New South Wales, Victoria and New Zealand contain exclusions on a basis similar to that set out in this amendment.
To be specific about it, I do not think that it is acceptable or right for the law to allow someone who is drunk or high on drugs to be compulsorily detained for that reason alone. But if the Government have their way, he could be—misuse of drugs or alcohol is classified as a mental disorder under ICD-10. A single episode of misuse could fall within that. Given that the Bill excludes from “mental disorder” the more serious forms of alcohol and drug misuse, it is difficult to see what argument the Government have for excluding the less serious forms. The draft code of practice explicitly mentions acute intoxication as a possible ground for the use of powers under the Act. Absolutely no justification is offered for that.
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Equally, the proposition that someone who exhibits gender dysphoria, transsexualism or a sexual fetish should be eligible for compulsory detention is completely unacceptable. Yet these conditions are classified as mental disorders under ICD-10. I and many others would argue that they are not true mental disorders. Nor is behaving in a manner that is considered socially unacceptable or expressing a way-out political opinion. This country is not Soviet Russia and is in no danger of being like Soviet Russia. But the effect of not having exclusions along the lines set out in paragraphs (c) and (d) of the amendment is that it will further confuse in the public mind the role of psychiatry and mental health services.
Lord Soley: My Lords, will the noble Earl clarify how paragraph (c) of the amendment would work in the case of a compulsive disorder where the nature of the compulsion is likely to result in a criminal or disorder offence?
Earl Howe: My Lords, the key test is whether there is an underlying mental disorder. That may exhibit itself in any of the behaviours listed in the amendment. The question which the clinician has to ask himself or herself is whether there is an underlying mental disorder. They should not allow the issue to be clouded by extraneous behaviour that has nothing to do with the mental disorder.
As I was saying, the effect of not having exclusions along the lines set out in paragraphs (c) and (d) of the amendment is that it will confuse the role of psychiatry in the public mind; moving them, as far as perceptions go, from the proper aim of assessment and treatment of mental disorder into the area of social control. We have often spoken about the fears and apprehensions of the black and ethnic minority communities. Disproportionately high numbers of people from BME backgrounds are diagnosed with major mental illness and detained. To the extent that the Bill may serve to add to the current negative view of mental health services among those communities, it will have failed. That point was very powerfully made by the noble Lord, Lord Adebowale, earlier.
There is a real worry that stereotyping and misunderstanding of black people may lead to unnecessary and unjustified use of compulsion. That worry is not imaginary; it is based on current practice under the 1983 Act. Extensive literature confirms that racism can apply in mental health practice. It is even more likely to happen under the broader definition of “mental disorder”. Psychiatrists acknowledge how difficult it is to distinguish symptoms of genuine mental disorder such as hallucinations from beliefs that to a particular individual may be culturally or religiously appropriate, such as belief in spirits or in witchcraft. Without an exclusion of the kind I have proposed, we will see an increase in the degree to which diagnosis of mental disorder depends on discriminatory assumptions and on the subjective judgment of clinicians.
That is the rationale for the amendment. I believe that the arguments which the Government have put forward for resisting it are wrong. I therefore ask the House to give it full support. I beg to move.
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4.45 pm
Baroness Murphy: My Lords, briefly, I support the noble Earl, Lord Howe, on the amendment. I do not want to repeat what I said in Committee, but many of our discussions throughout the passage of the Bill have been intended to ensure that people who are really in need of care and treatment have it made available to them. All of us have that concern, but we have approached it in different ways. In refusing the exclusions, the Government are misguidedly trying to draw into mental health services a much broader range of people who at present would be excluded and whom, mostly, we would want to be excluded.
I remember the wonderful tease of the noble Lord, Lord Alderdice, over the auto-erotic strangulation case, which somewhat confused the noble Baroness, Lady Royall, at the time. That was a wonderful example of how very many sexual perversions and fetishisms there are. We know that there are eccentricities that we do not want included in treatment where there is no defined mental disorder. I take the point made by the noble Lord, Lord Soley, that where there is a mental disorder exhibited through an obsessional behaviour that is criminal or distressing, that ought to be included, but it is perfectly possible to make that distinction.
Most common-law jurisdictions across the developed world have such exclusions, for very good reason. We have forgotten how very recently it is that people complained that too many people were drawn into mental health legislation through an overbroad interpretation of the Act. That is why we have the exclusions: to define exactly whom we are trying to detain in this way to help them. I strongly support the amendment.
The Lord Bishop of Coventry: My Lords, the House will no doubt be very familiar with the writings of a 6th century monk, a Syrian named Dionysius the pseudo-Areopagite. He made his place in church history by developing what was known as the apophatic tradition. In case one or two of your Lordships are not entirely familiar with that, let me explain it very briefly. The apophatic tradition says that as well as saying positive things about the nature of God, it is not only possible but desirable to use the negative. As well as saying, “God is love, God is light”, one must also say: “Because God cannot be seen, He is invisible; because He cannot be touched, He is intangible; because He cannot be fully understood, He is incomprehensible”. I suggest that the apophatic tradition is worthy of consideration in relation to the Bill.
The noble Earl, Lord Howe, has already made the point that the purpose of the amendment is to make clear what is not included as well as what is included in the Bill. I am strongly in favour of the amendment because its purpose is to reinstate and extend the exclusions. The point of exclusions has always been to ensure that compulsory powers are used to assess and to treat genuine mental disorder and not, in the words of the Church of England’s submission to the Joint Scrutiny Committee, as a means of social control.
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The Government’s twofold argument—first, that most of the exclusions are unnecessary and, secondly, that they might prevent people being brought under compulsion when that is appropriate—seems rather curious. If the conditions and behaviour specified in the exclusions do not constitute mental disorder, they could not prevent legitimate application of the criterion for compulsion, but they could provide protection against inappropriate compulsion.
In view of the widespread concern about the detention of Afro-Caribbean men—I beg your Lordships’ pardon, African-Caribbean men—it is particularly important that exclusion (d), the criterion for cultural, religious and political beliefs, should apply. If the exclusions really are unnecessary, no harm will be done by adding them to the Bill. However, there are many reasons for thinking that, as a checklist, they will act as a significant safeguard of civil liberties in a climate of anxiety about risk.
Baroness Barker: My Lords, I am sure that the Minister’s brief includes the apophatic tradition, and that she will no doubt tell us about it. Mine did not, but then I have the noble Baroness, Lady Neuberger, beside me, who tells me that the right reverend Prelate is absolutely right.
I shall briefly make three points that are not only important for our discussions but to be read perhaps at another time and in a different place. In response to a similar amendment in Committee, the Minister stated the Government’s belief that exclusions are,
He also said that they would cause uncertainty. Many noble Lords will have been in meetings in which Professor Appleby, the Government’s mental health adviser, has spoken about the need to make this legislation inclusive. Memorably, in an all-party group meeting on 30 January, he said:
It is beyond doubt that statements such as that are made with good intentions, but it is equally true that those of us who disagree do so with good intentions. We on these Benches do not believe that we should set up exclusions to deny people treatment; we believe that every exclusion is someone not being wrongly subjected to mental health treatment. There may be people who are very seriously disturbed and whose behaviour is dangerous, but the central question that must be asked, and answered by practitioners, is whether that behaviour is to be treated using mental health legislation. As the noble Earl, Lord Howe, said, we should not leave that decision solely to the discretion of individual practitioners.
The noble Baroness, Lady Murphy, alluded to another important reason for accepting the amendment when she talked about other jurisdictions. I shall focus on New Zealand, in which the definition of mental illness is,
- “an abnormal state of mind shown by delusions or disorders of mood, perception, volition or cognition”.
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