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19 Feb 2007 : Column 911

That is important because, frequently in the past few months, the Government have cited the example of New Zealand in their attempt to win support for their version of community treatment orders. In New Zealand, however, one must have gone through those exclusions and cleared those hurdles to be brought under mental health legislation at all. The Government, or their advisers, have therefore been presenting two things as the same. They are, however, radically different because they happen in a completely different context. That is why the amendment is of huge importance. We are talking about health and compulsory health treatment. We should confine it to the many, many thousands of people who we know need it and who cannot get it; we should not be including people whose problems are nothing to do with mental health.

Lord Owen: My Lords, we can fairly claim that this issue is a question of principle, and a substantial one at that. It is and has been for many years necessary to make a clear distinction between the roles of medicine, particularly for psychiatrists, and criminal justice. Few would deny that psychiatrists have to deal with problems closely related to criminality and therefore to criminal justice, but they are inexorably being drawn across a threshold which I think it is extremely important to establish. In the background to this legislation, what people outside this House have used as a justification for it gives reasonable cause for concern. There seems to be a feeling that some of the acute social problems facing society can be handled by psychiatrists and compulsory orders. That is a very dangerous path for this House to allow any Government to move along.

The wording of the amendment is modest. It makes it clear that,

It does not exclude people who are alcoholics or taking drugs; it does not exclude people of different sexual identity or orientation; it does not exclude illegal or disorderly acts, and it does not exclude those with different cultural, religious or political beliefs, whether they believe in voodoo or anything else. All these are real problems, but we must have a very clear line drawn in the sand: doctors ought to be able to state that these are not medical disorders.

This amendment has to be linked with the next one which provides that doctors must have reasonable grounds for thinking that they can alleviate the disorder. The word “likely” is probably used correctly, but I do not want to stray into that amendment. However, taken together these two amendments establish an important principle and safeguard the medical profession from being drawn across a line into the field of criminal justice—that of policemen, probation officers and all those involved in the maintenance of criminal justice. Of the need for psychiatrists and the medical profession to help people in the implementation of criminal justice I have no doubt, but they should not be dragged across this line. For me it is a line worth upholding as a matter of principle.

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Baroness Kennedy of The Shaws: My Lords, I too support this amendment. As noble Lords know, I am a practitioner in the criminal courts and a great deal of my work takes place at the interface between law and psychiatry, so I am conscious of what has happened in other common-law jurisdictions and have made a point of following closely the ways in which those jurisdictions have dealt with the problems the Government are seeking to address in this legislation. One of the tests of whether we are complying with the rule of law is that there should be clarity. Because of this, jurisdictions such as New Zealand have decided that it is far better to set out the exclusions in legislation. New Zealand felt that this was important because nothing focuses the minds of professionals more than the fact that the law is there. That is its purpose. As others have said, it would draw a line in the sand and focus minds, thus making sure that we do not transgress in any way and so create a situation where those who should not be included in this legislation are inappropriately brought under it. We would not run the risk of using a compulsory mental health section in circumstances where it should not be used.

It is for this reason that so many of the professionals involved are rising to their feet. All I can say to the Government is that while we are mindful of their good intentions, given that so much has been said about the expertise present in this House, and how it has been lauded on that expertise, they should listen to it.

Lord Adebowale: My Lords, I want to reiterate my support for the amendment and follow up on some comments I made in Committee. I wish to speak briefly about some of the specifics, first in relation to substance misuse. Here I should declare again an interest as chief executive of Turning Point, which provides services to more than 70,000 people with substance misuse challenges.

Unlike the Bill, this amendment specifies substance misuse as well as dependency. That is important because both the misuse of and dependence on substances are included in international classification systems used by psychiatrists such as ICD-10, mentioned by the noble Earl, Lord Howe. Unless the legislation excludes both misuse and dependency, it could mean that people come under mental health law inappropriately.

Let me give an example, as I am prone to do, from Turning Point’s case files. John is one of Turning Point’s alcohol service users. He is a binge drinker but is not dependent on alcohol. He does not have a concurrent mental health problem, but he reacts to times of personal and emotional crisis by drinking. He will drink heavily for several days and nights before crashing. He then will not drink alcohol for several months. John’s irrational behaviour could mean that he is inappropriately sectioned under mental health law unless exclusions in the Bill also cover substance misuse.

5 pm

Having explained the need for exclusions solely on the basis of misuse or dependence on alcohol or drugs, I stress that if a person has a dual diagnosis of

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a mental disorder and a problem with misuse or dependence on alcohol or drugs, they should not be excluded from treatment under the Act. As I highlighted in Committee, Turning Point’s experience is that people with a so-called dual diagnosis have been turned away from mental health services in the past, due to the current exclusions in the Bill, so it will be vital for any code of practice to address the issue and address it properly.

Secondly, with regard to,

while I do not think it is the Government’s intention to use psychiatry as some kind of social control, these things have a horrible habit of happening by accident and by fashion. I need not repeat the substantial and undisputed evidence about high rates of detention among people of African and Caribbean origin in comparison with those who are white British—we have discussed that enough today. However, I repeat my firm belief that in the light of these statistics, it is imperative for the Government to take proactive steps to address this imbalance. The amendment is an important way of doing so. I would dearly like to believe that racial and other stereotypes do not influence diagnosis, but the reality for many of the young black men I have spoken to—and it usually is young black men—is very different. I urge the Government to accept the amendment.

Lord Alderdice: My Lords, I would like to speak about diagnosis, adverted to by my noble friend Lady Barker and the noble Lord, Lord Owen. It is important to be clear what you are dealing with medically, whether we are talking about physical or psychological medicine. That is not at all easy at times.

One of the problems about this amending Bill is that it removes some of the rather crude and simplistic but necessarily fundamental diagnostic entities. It sets to one side mental illness, psychopathic disorder and mental impairment, referring to the global term, “mental disorder”. The difficulty is that it removes the clarity that existed before, so it is necessary to insert some exclusions in the Bill. Let me give two particulars which may be helpful.

The tendency is to make the judgment that someone has a personality disorder because of the way they behave. It becomes a circular argument: if somebody behaves in such a way that they are anti-social, if they break the law and have difficulties with relationships, the term “personality disorder” is frequently applied. There is no depth psychology to it; it is simply a matter of observing their behaviour, and unfortunately the Bill helps to push us in that direction. The circular argument goes like this: the person breaks the law, therefore they have a personality disorder; they have a personality disorder because we know that they break the law; therefore, they are the province of psychiatry and it is appropriate to detain them because they might well break the law again. Psychiatry and mental health legislation are drawn into a circular argument. There is no depth psychology to it; the diagnosis is made on the basis of behaviour that is a breach of the law.

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A similar problem arises with psychosis, particularly schizophrenic psychoses of various kinds. If a person behaves strangely and speaks about strange ideas and thoughts, they may suffer from a psychosis, but they may have a set of beliefs and a way of behaving that is simply alien, for cultural, religious or, occasionally, political reasons, to the psychiatrist or the other person that they are dealing with. The individual’s experience might get misconstrued as that of someone suffering from a mental illness rather than someone with different cultural and religious experiences. Generally, those groups are affected.

Again, if there is no depth appreciation, if a judgment is made simply on the basis of behaviour, symptoms and effects, which are terms in the Bill, people will be drawn in; inevitably, it will be, more largely, people from immigrant, black and minority-ethnic communities. If we are not going to have circular diagnosis for personality disorders or discriminatory diagnosis on the psychosis side, we must return to the Bill some kind of boundaries, exclusions or guidance, which have been removed. I understand why that has been done, because what was removed was relatively simplistic and, one might say, even a bit primitive and crude. Something needs to be put in its place to protect us, to protect patients and to give guidance to those who are working in this field.

The Countess of Mar: My Lords, I, too, support the noble Earl, Lord Howe, in this amendment. This category includes another group of people who are labelled as having a personality disorder but are physically ill. They are people with ME. Over and over again, I hear about people with ME being described as having “illness beliefs” or as suffering from psychosocial behavioural problems, when they have from a physician a diagnosis of ME but psychiatrists disagree with the diagnosis. Psychiatrists say that ME does not exist, and somehow social workers and psychiatrists gang up together and get the person sectioned. More often than not, they come out of hospital much more ill than when they went in.

What is particularly iniquitous—the Minister knows what I am talking about—is how children are treated in this respect. We really need to protect those people. The fact that they think differently from other people does not necessarily mean that they are mentally ill.

The other group of people affected includes the lady, whom I mentioned in Committee, locked up in Pond Ward in the Central Middlesex Hospital because her beliefs about her children’s illness differed from that of the social workers looking after the children. There was absolutely nothing wrong with that lady; she should never have been locked up.

Lord Soley: My Lords, my noble friend Lady Kennedy put her finger on the key issue: whether it is better to put something like this in the Bill or to rely on professional standards, codes of conduct and the underlying general law of the country. I tend to prefer the latter, although I acknowledge my noble friend Lady Kennedy’s point that other countries, for

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example New Zealand, put it in legislation without any great disadvantage. I understand the argument in both directions, and I would not lose an enormous amount of sleep if it were in the Bill, but there are some warnings about that, and they perhaps need to be spelt out.

Admitting someone to a psychiatric hospital on the basis of, for example, their religious or political beliefs would be unlawful anyway, unless you could show an accompanying mental illness. The intervention of the right reverend Prelate was appropriate, because some people go around these days claiming to be the son of God and to have other such relationships with God. If we had applied the same principle 2,000 years ago, history, and one or two other books, might have been written slightly differently, so we always have to be aware of it. It would be difficult to compulsorily treat on the basis of politics, culture or religion in the way that is feared without breaking the law, unless you could show a clear mental illness.

I intervened in the speech of the noble Earl, Lord Howe, because I am concerned about people with compulsive disorders who would fall under subsection (3)(c) of his amendment. The noble Earl and others may remember the case of the Jewish woman who had survived the Nazi death camps. This was a very long time ago, I have to concede—it was when I was still a probation officer—but it got a certain amount of publicity at the time, not surprisingly. Like a number of people who came out of that experience, she felt an inner guilt. She had attempted to resolve it in many ways, including psychotherapy and so on, but in her later life it seemed to totally overtake her and she began to shoplift compulsively—you could not describe it otherwise—and appeared in Hampstead court almost daily. The court leant over backwards not to send people to prison but, after many offences had been committed and every type of voluntary approach had been tried, it sent her to prison. If we box ourselves in too much with these regulations we will at times make it inevitable that prisons—as they did then and as they do now—take too many people who are in need of mental health treatment rather than custodial sentences.

Another example involves alcohol addiction. I give it against the slight warning that I was chairman of the Alcohol Education Centre in the 1970s, which was based at the Maudsley Hospital, and what I say arises out of the work of some psychiatrists there. The argument used to me as chairman of that organisation was that alcoholism should be treated as a mental illness, which was quite a powerful argument at the time. I had my doubts about it but they persuaded me—this is where it goes full circle—largely on the basis that the evidence was growing that acute addiction, whether to alcohol or drugs or cigarettes for that matter, could be linked to activity in the brain which could ultimately be treated. It is an interesting concept. I have gone back to the position that I held originally, before the psychiatrists got to me, that you still have to rely on the person wanting to take the treatment, which is an important aspect.

Again, there is a shady area in between. In one of my earlier speeches at Committee stage I talked about the old mental health hospitals, referred to as “bins”

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at the time. Although it was totally inappropriate to hold so many people there as we did, we were holding people who would now end up in prison—and, as we have heard, are held there inappropriately—or who are adrift in the streets and need a safe place.

The Grass Arena, written by another ex-client of mine, John Healy, refers to the problems he had when he was in between prison and treatment centres, a very difficult period. On one occasion he was about to be discharged from a prison sentence at Pentonville on Christmas eve, having been already sentenced to three months for a drunk and disorderly offence. The Ley Clinic, in Oxford, was unable to take him before that and was not prepared to section him even though he at that stage was asking to be sectioned. We did not section him; we got the court to impose another prison sentence for an unpaid fine, which kept him in until the new year.

That is not the best way of dealing with these problems. Ultimately, I rely more on professional judgments from all the professions involved—not only psychiatry, I stress. Part of the battle that troubles me is that there are too many psychiatrists speaking for psychiatry and not enough people speaking for the other professions involved. This is a grey area that will always be difficult, and opinion is moving on whether alcoholism is a treatable mental illness.

I could live with at least three of the conditions in the amendment but I have to say to the noble Earl, Lord Howe, that there is a danger that people will engage in certain types of compulsive behaviour—shoplifting, for example—which, by definition, will inevitably be taken into account by professionals, and in my view should be, if it is going to result in them going to prison. That is an assessment you have to make. That is why I find it difficult to make an absolute judgment of the type being assumed by this amendment. We must not make the mistake of assuming that including lots of special principles and conditions in the Bill will necessarily solve the problem for people who need treatment. It often pushes them on to the street or into prison. We have swung from the position of the 1940s and 1950s, when we had far too many people in psychiatric hospitals, to having a large section of people who need to be cared for, perhaps not in permanent care.

One of the reasons that John Healy wrote The Grass Arena was to explain his feelings and circumstances. One of his problems was going into hostels. As the noble Lord, Lord Adebowale, knows, it is difficult to find a hostel for someone who has a reputation for smashing up hostel staff and hostels, where there is a relatively more flexible regime. Frankly, we are not offering that person any real help and prison is not the answer either. Let us try to be flexible. Yes, the law must be absolutely clear to avoid the extremes of treating people because they have some strong religious or political belief or whatever, although I think that would be illegal anyway, but we must be very careful. My noble friend Lady Kennedy may be right: we could treat people in the way that the New Zealanders do—possibly things work well there. However, there is another side to the argument. It is worth remembering some of these cases particularly

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where issues such as compulsion are involved. You need to think carefully before including items such as paragraph (c) in this amendment.

5.15 pm

Baroness Royall of Blaisdon: My Lords, this has been an important debate on a key part of the Bill—indeed, an issue of principle. This amendment is the same as the one we discussed in Committee, and in many ways the arguments have been well rehearsed, although I have learnt an enormous amount including about the apophatic tradition, about which I will read more. I must say from the outset that it is absolutely not our intention to detain anyone except on the basis of their mental disorder. We will do everything possible to ensure that no individual is subjected to mental health treatment unless they have a mental disorder.

Much has been made in this debate and elsewhere of the idea that the Bill will widen—some have said it will be much wider—the definition of mental disorder. The Joint Committee on Human Rights referred in its recent report on the Bill to the,

and an argument was put forward that the widening of the definition must be matched by more exclusions. The Government do not agree with that, but before turning to the amendment itself I would like, if the House will allow me, to set out exactly what effect the Bill would have on the definition of mental disorder. In doing so, I hope to demonstrate that the effect is not as great as is sometimes thought.

Clause 1 simplifies, but does not change, the basic definition of mental disorder used in the Act. In fact, the only real change to the scope of mental disorder in the Act generally flows from the removal of the exclusion for sexual deviancy. In other words, for the purposes of detention for assessment under Section 2 of the Act, and various other powers, that is the only change. I will return in due course to the merits of that change.

A further effect of Clause 1 is that other provisions of the Act, largely those relating to detention for medical treatment, guardianship and, in future, supervised community treatment, will not be limited to the current categories of mental illness, mental impairment, severe mental impairment and psychopathic disorder. These are legal, not clinical, categories and the boundaries of “mental illness” are uncertain. That means that we cannot say precisely what will be covered by the relevant provisions that is not covered now. Almost certainly, mental disturbance arising from brain injury in adulthood will now be covered for the first time; likewise, personality disorders that do not fall within the definition of “psychopathic disorder”. That might, for example, cover someone suffering—and I do mean suffering—from a borderline personality disorder, with all the relationship difficulties, feelings of emptiness and propensity to self-harm that go with it. Possibly, too, the effect will be to widen the scope of the relevant provisions to include certain autistic spectrum disorders; certainly, it will remove any uncertainty about their status. These are not insignificant changes, but they do not amount

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to the significant widening of the definition of mental disorder that people sometimes ascribe to the Bill.

It has been argued that the Bill allows individual clinicians to decide what a mental disorder is. It does not. The reality is that psychiatry moves on. The European Court of Human Rights recognises that in its refusal to state definitively what constitutes “unsoundness of mind” for the purposes of the convention. Mental health legislation—perhaps inevitably, but certainly pragmatically—relies on the clinical professions taking the lead in defining and classifying mental disorder. But that is not to say that, Humpty Dumpty-like, mental disorder means whatever a clinician says it means. When we talk of clinically recognised mental disorders, we mean disorders recognised as such by clinicians at large. That does not necessarily mean exactly what is listed in the International Classification of Diseases or the American Diagnostic and Statistics Manual. Those publications do not purport to be the last word in what is a mental disorder, and they too get out of date, but they offer a good starting point for assessing what is likely to be regarded clinically as a mental disorder.

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