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The noble Lord, Lord Owen, and the noble Baroness, Lady Kennedy, suggested that a clear line should be drawn for the medical profession. It is conceivable, I suppose, that some day a Government might attempt to put in the legislation a detailed statement of what is and is not a mental disorder. I doubt that it would be popular with the psychiatric world, but a Government might be compelled to do so if they concluded that the profession was taking an approach that was unsupportable in a democratic society. I do not think that we are anywhere near that position right now.
I should also say something else about the context within which the question of exclusions should be considered. There must, of course, be safeguards against improper use of the Act, but the definition of mental disorder is by no means the only place, or indeed the most obvious place, to look for such protections. There are already safeguards in the procedures for detention. No single professional can have someone detained. The criteria for detention impose further strict limitations. Then there are the many other external safeguards, both within the Act and beyond it. There is the Mental Health Review Tribunal, together with the Mental Health Act Commission, and the merged body which will take over its role in future. There are the clinical governance arrangements that all mental health service providers must have. There is professional regulation and, above all, as the noble Lord, Lord Soley, said in Committee, the rule of law.
Of course, those protections are not perfect, and not every professional attains the high standards of the majority. Mistakes get made, even by the most conscientious of professionals. We must all, collectively, work together to improve standards across the board; but I urge the House, in thinking about this amendment, not to forget that there is an intricate and extensive network of safeguards that goes far beyond what is achieved by refinements to the definition of mental disorder and exclusions from it.
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The exclusions proposed in the amendment are of two types: those that would substantively limit the disorders in respect of which the powers in the Act could be used to help and protect people; and those which, in the words used by the noble Earl, Lord Howe, in Committee, are markers designed to send signals about how the Act should, and should not, be used. Substance misuse is, I think, in the former category. In my experience, the Government are often challenged to say why their proposals represent an improvement. In this case, I feel justified in asking the same question of the noble Lords in whose name this amendment stands. For the past quarter of a century, the Act has excluded dependence but no other substance-related disorder, yet psychiatric hospitals are not full of drunks sleeping it off or drug users being kept away from their dealers by nominal nursing care. Why should anyone think that that will change as a result of the Bill? Why do noble Lords want to exclude from the Act those people who are now properly detained because of a substance use related disorder? If they do not want to do that, why none the less are they willing to take the risk of it happening? As many noble Lords know far better than I—
Earl Howe: My Lords, I had difficulty following the noble Baroness because the Bill itself contains an exclusion for substance dependence; therefore, the Government agree with me on that issue. I find it difficult to understand why the noble Baroness argued against that position.
Baroness Royall of Blaisdon: My Lords I am not arguing against that position. I shall come back to that matter shortly, if I may.
As many noble Lords know far better than I, there is a spectrum to acute intoxication just as with many other mental disorders. No one is ever likely to be detained because they are mildly depressed; major depression is a different matter entirely. Of course, no one is going to be detained just for being drunk, but sometimes it makes good clinical sense to detain someone who is profoundly intoxicated and hallucinating or suffering other psychotic symptoms which put them or other people at risk. The symptoms may recede with the intoxication, which can sometimes take days, or it may turn out that they are symptoms of another disorder.
The noble Lord, Lord Adebowale, said that he had experience of people with dual diagnosis—that is, substance dependence and mental illness—being refused services because of current exclusions. He gave an example of where exclusions are being misunderstood or misused to exclude people from the help that they need.
On sexual identity and orientation, one significant change has been made to this amendment since we debated it in Committee; namely, the change from “sexual behaviours” to “sexual identity or orientation”. We continue to believe that an exclusion for sexual identity or sexual orientation in the way that they are normally regarded—that is, heterosexuality, homosexuality
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The noble Countess, Lady Mar, referred to ME. That is an issue of diagnosis not definition. We cannot use legislation to tell clinicians how they are to diagnose patients; that is a matter of professional practice. If there are problems of poor practice, they must be tackled as such.
On criminal acts and cultural, religious and political beliefs, the remaining elements of the amendment are there to send signals that the Act is not to be used to exert social control, that criminal, antisocial or merely difficult behaviour is not, of itself, proof of mental disorder, and that diagnosis must be based on patients as they are, which includes their cultural, religious and political background, assumptions, values and beliefs. I simply cannot agree that people will be detained because of their cultural, religious or political beliefs.
Those are sentiments with which the Government wholeheartedly agree and that are clearly set out in the illustrative draft code of practice that we have issued. Indeed, the noble Lord, Lord Adebowale, suggested that the code of practice should be strengthened in this and other areas. We would certainly welcome his help in doing that. As my noble friend Lord Hunt of Kings Heath wrote in his letter of 31 January to all noble Lords, difference is not to be equated with disorder.
We still disagree on whether the way to send out and emphasise these messages is to amend the Act to purport to exclude these matters from the definition of mental disorder. The House is familiar with our arguments in this area and I will not repeat them in detail. However, we are more than ever confirmed in our view that otiose exclusions can achieve nothing except the risk that they will be misapplied or interpreted in an unintended way.
Perhaps if I were a certain type of patient detained in a high-security hospital following a conviction for a serious offence, I might be getting quite excited at the possibility that this House was seriously considering adding the exclusion for criminal acts. Of course, I would realise that it was not intended to lead to my discharge while I still needed treatment in hospital, but I would certainly be thinking about ways in which I, and my lawyer, could try to persuade a tribunal that that is none the less its legal effect. There may be few such patients, and one would hope they would not succeed. However, I do not think that we should take that risk.
5.30 pm
It has also been argued that these exclusions would engender trust in the Act, but the Government do not think that they would. I understand the need to engender confidence, especially among the black and ethnic-minority community, but I do not see how people who do not trust professionals to make the right decisions will have their minds changed by these declaratory exclusions when the same people will have to apply them.
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It has been argued that the Government should accept this amendment as a sign of good faith and, in particular, their commitment to eliminating discriminatory attitudes and practices within mental health services. I note the comments made by the right reverend Prelate the Bishop of Coventry and many other noble Lords. However, had the Government come forward with these exclusions and said, “Look, here is proof of our commitment”, I wonder how readily others would have been convinced. We will be, and we want to be, judged by the action we are taking, not least through our Delivering Race Equality programme, and not by whether we agree to include some well meant but otiose words in the Bill. The earlier debate on the elimination of discrimination in relation to principles is very important in this regard. I hope that that may be dealt with at Third Reading.
Many noble Lords have contrasted the Government’s approach with that taken in Scotland, Ireland, New Zealand and a number of other Commonwealth jurisdictions. It is not my place to comment on the wisdom of approaches taken by other legislatures, although I caution against the assumption that what works well in one legal system can automatically be transferred to another. Indeed, one does not need to look long at legislation from other countries to see the immense, almost bewildering, variety of ways in which legislatures have tried to define mental disorder or, as the case may be, the types of mental disorder to which they wish their particular legal framework to apply.
The approach we have taken is one of simplicity. This is not because we necessarily take a different view of the disorders that should potentially engage powers of compulsion, although on paraphilias we take a different view from that of the Scottish Parliament. It truly is more the case that we are wary of putting words in the Bill that are legally unnecessary, however much we agree with their underlying sentiment.
I have listened carefully to the important debate this afternoon. I have reread the debate that we had in Committee and have heard all the arguments put forward in the discussions which my noble friend Lord Hunt has had in the past three weeks. The Government have listened to all the arguments and fully agree that this legislation must not be used to wrongly subject any individual to mental health treatment. However, in relation to substance misuse, sexual identity and sexual orientation, we do not think that an exclusion is needed or that it is the right thing to do.
On the rest, while we agree with the objective, we do not agree with the proposed means of achieving it. We do not believe it will deliver the benefits sought by its proponents and fear that it will create a risk to the effective working of the Act, something which is best avoided. I would be grateful if the noble Earl, Lord Howe, would reconsider his amendment.
Earl Howe: My Lords, I thank all noble Lords who have spoken in this debate. I have found every contribution extremely enlightening and valuable. I
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I totally accept the Government’s honourable intentions in not wishing to subject to detention anyone who does not have a mental disorder. The issue is whether Parliament, in common with comparable legal jurisdictions, should delineate what should and should not fall within the scope of the law.
I listened carefully to the noble Baroness’s exposition of the safeguards in the Act and the Bill but still maintain that there is a clear value in the Act setting down clear markers about how Parliament wishes the very broad definition of mental disorder to be interpreted in the field. If the Government consider that some of the exclusions are legally otiose, I might in some cases be forced to agree with them. However, the fact is that, to the extent that they may be otiose, that does not seem to have caused problems in other jurisdictions in which similar provisions have been adopted. Indeed, the noble Baroness was gracious enough to say that, in some instances, she did not disagree with the sentiment behind those provisions.
To the noble Lord, Lord Soley, I simply say that I would not wish to deny people with obsessive compulsive disorders access to therapeutic care, if that is what they need. The issue is whether such people should be compelled into treatment, if there is no underlying mental health diagnosis. That is what troubles me about the possibility of confusing the boundaries between what a mental disorder is and is not.
I do not know how the balance of opinion in the House lies. All I can judge is that this afternoon’s speeches have been heavily weighted towards the amendment and I take encouragement from that. Therefore, I think that it is appropriate for me to test the opinion of the House.
5.37 pm
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 216; Not-Contents, 128.
Addington, L.
Adebowale, L.
Alderdice, L.
Alliance, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Best, L.
Blackwell, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce-Lockhart, L.
Burnett, L.
Buscombe, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Carrington, L.
Chadlington, L.
Chidgey, L.
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Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Cotter, L.
Courtown, E.
Coventry, Bp.
Cox, B.
Craig of Radley, L.
Craigavon, V.
Darcy de Knayth, B.
De Mauley, L.
Denham, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Fearn, L.
Feldman, L.
Ferrers, E.
Fookes, B.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greaves, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B. [Teller]
Haskins, L.
Hayhoe, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Hylton, L.
Inglewood, L.
James of Holland Park, B.
Jay of Ewelme, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laidlaw, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Listowel, E.
Liverpool, E.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Meacher, B.
Methuen, L.
Miller of Hendon, B.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Moser, L.
Moynihan, L.
Murphy, B.
Murton of Lindisfarne, L.
Naseby, L.
Neuberger, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Owen, L.
Palmer, L.
Palumbo, L.
Patel, L.
Patel of Bradford, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Quinton, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rees, L.
Rennard, L.
Richardson of Calow, B.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
St. John of Bletso, L.
St John of Fawsley, L.
Sandberg, L.
Seccombe, B.
Selborne, E.
Selsdon, L.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
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Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Tenby, V.
Teverson, L.
Thatcher, B.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thomson of Monifieth, L.
Tonge, B.
Tordoff, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.
Wolfson, L.
Acton, L.
Adonis, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blood, B.
Borrie, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Golding, B.
Goldsmith, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Kilclooney, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Patel of Blackburn, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Quin, B.
Ramsay of Cartvale, B.
Rees-Mogg, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Macclesfield, L.
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Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
5.50 pm
Clause 5 [Replacement of “treatability” and “care” tests with appropriate treatment test]:
Lord Carlile of Berriew moved Amendment No. 4:
Clause 5, page 3, line 13, leave out from “is” to end of line 15 and insert “likely to alleviate or prevent a deterioration in his condition.”
The noble Lord said: My Lords, in this group we are also considering Amendments Nos. 6 and 7 and government Amendments Nos. 8, 11 and 12.
I start with a reference to the government amendments—I hope that it will be taken as a generous reference, not made grudgingly on this occasion. All of us who are involved with therapeutic benefit, on which I shall say more in a moment, are grateful that the Government have taken a great deal of time and trouble to consider the previous debates on this issue. I recognise that the Government have attempted to meet the serious concerns expressed in the past not just by those of us involved in the joint scrutiny committee’s deliberations but by many others around the House. Having said that, I regret that the amendments proposed by the Government do not seem to go anywhere near meeting the requirements which caused those concerns.
This group of amendments is about what has generally been called therapeutic benefit. There is a principle here and, in my view, it is an important and ethical principle. As a matter of medical and legal ethics and of professional ethics in the round, no professional person should be required to provide a service to someone whose requirements do not come within their professional ethical code of practice. Under the Bill as it stands, doctors and other clinicians—far from all clinicians are qualified medical practitioners—are being asked to provide medical treatment in circumstances in which such treatment is simply inappropriate. Therefore, I argue that clinicians are being asked to do something unethical. Putting it crudely, some clinicians may find themselves in the position of being asked to be, in reality, nothing more than turnkeys.
If it is the Government’s view that it is appropriate to introduce legislation which requires people to be locked away from society because they are perceived to be dangerous but could not benefit therapeutically, then I am sure that this House will consider any such proposed legislation on its merits. It may achieve a fair passage and it may not. At least it would be honest, ethical legislation in which the Government would set out their objective and we, the Members of this House—in, I hope, the multi-partisan way that
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