Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

May I first say what a pleasure it is to see you in the Chair, Lady Winterton, not least because of your surname?

Tim Loughton (Shadow Minister (Children), Health; East Worthing & Shoreham, Conservative)

That won’t help you.

Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

I can try.

Returning to the amendment, the point that I made earlier is that there is very little case law that would help us to say precisely what abnormally aggressive or seriously irresponsible would mean.

Ann Coffey (PPS (Rt Hon Alistair Darling, Secretary of State), Department of Trade and Industry; Stockport, Labour)

My hon. Friend’s remarks are also pertinent to the clause as a whole, which deals with learning disability. In view of that, I find it difficult to understand why it is in the Bill at all.

Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

My hon. Friend makes a good point. However, as I explained earlier, the reason we have kept in clause 2, on learning disability, is that there has been a historic attachment to saying that learning disability should be included in the Bill in this way, and I am afraid that there is no getting away from that. We took the clause out of the 2004 draft Bill, but there was heavy pressure to reinsert it, not least from the pre-legislative scrutiny Committee. In view of the points that were made, and the fact that hon. and right hon. Members and peers felt that we needed to be responsive to them, we said that we would agree with the pre-legislative scrutiny Committee on learning disability, because that meant that when we were considering amending the Mental Health Act 1983, we would be able to leave it as it was originally.

However, my point today is that to go further than that would, I am afraid, cause the difficulties that we have discussed, not only by creating the potential for uncertainty and the possibility of people not receiving the treatment that they need, but over and above  that, because people suffering from hyperactivity or obsessive compulsive disorder could make a very reasonable case for doing exactly the same thing.

That is why I am afraid we cannot agree to the amendment. I understand completely the sentiments of the hon. Member for Tiverton and Honiton and I know that she feels extremely strongly about the issue. However, at the same time as saying that we do not believe that the amendment is the right approach for this particular Bill, we want to ensure that we take on board all the issues that she raised regarding early diagnosis, and proper care and treatment. Nevertheless, I am afraid that I must urge the Committee to reject the amendment.

Angela Browning (Deputy Chairman (Organising and Campaigning), Conservative Party; Tiverton & Honiton, Conservative)

May I say what a pleasure it is to serve for the first time on a Committee under your chairmanship, Lady Winterton?

I should like to pick up on the Minister’s final considerations of the clause, not least her remarks immediately before the Committee rose this morning. Clearly, she prayed in aid in support of her decision not to add autistic spectrum disorder as outlined in the amendment. She said that there was confusion, and she prayed in aid the case of a young man with an Asperger’s diagnosis who was apparently minded to light fires. Whether he has an ASD diagnosis or not, I think that we all understand such activity to be arson. She described how difficult it would be for the court to decide whether to send him to prison or to hospital. I have to say to her that the confusion and lack of clarity is with the existing legislation. It is quite clear that if the words “seriously irresponsible” are used and if a court believes that someone is an arsonist, that court has a duty to identify an appropriate determination of that case. It is up to the court to determine whether that person, regardless of their diagnosis, is sent to prison or hospital. Therefore, by identifying seriously irresponsible conduct, the provision actually clarifies the situation of a person with an ASD diagnosis who is before a court in those circumstances. I cannot agree from the Minister’s example that that would confuse people. I think that it would clarify the current situation.

Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

I admit that it is an extreme example. I was trying to make the point that because there is little case law, the court would have to look at each case and decide whether the action was serious and irresponsible. By adding ASD in those circumstances, we are putting another hurdle in the way of getting treatment to people.

Angela Browning (Deputy Chairman (Organising and Campaigning), Conservative Party; Tiverton & Honiton, Conservative)

I do not want to pursue that individual case too much, but I think that the example the Minister gave before lunch made my case for me more succinctly than anything I had said in my hour-and-a-half-long presentation to the Committee. The Committee was extremely tolerant, and I am grateful to everyone. However, the Minister’s pointis that if somebody was before a court in those circumstances, the court would have difficulty deciding whether the action was seriously irresponsible. If it even considers prison to be an appropriate sentence, then by definition the action is seriously irresponsible.  If it was not seriously irresponsible, the option of a custodial sentence would not come into the court’s considerations. I have heard the Minister’s answer, but I must ask her to revisit that case. What is being proposed would clarify matters and not obscure them.

In conclusion, I fully understand why the Minister does not want a large pick-and-mix list of other conditions that might be appropriate to tag on. I hope that in the report of my submission this morning, I will have outlined many cases in which treatment and consideration of ASD is also appropriate for people with learning disabilities and vice versa. The conditions are different and it would be wrong in many circumstances to lump them together. For the purposes of the legislation, we know from what we have learned in recent years—how the condition presents itself and its appropriate management—that that is an area that is not being addressed at the moment.

The Minister has said that learning disabilities are included because there is an historical reason fordoing so. That is quite true; it is a matter of record. Instead of looking at history, the Minister now has an opportunity to make it. There comes a point when people must say that there is sufficient evidence to change in legislation what has changed around us. What has changed around us in recent years is the recognition and management of treatment of ASD.

I do not intend to press the amendment to a vote, not least because the Minister has been incredibly generous in agreeing to a meeting on Thursday, after the clause has been debated, with me and representatives from the National Autistic Society, including a doctor with a lot of experience in managing such cases. I hope to have another opportunity then, perhaps in a slightly quieter environment, to talk her through the more salient points. I beg to ask leave to withdraw the amendment.