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My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
moved Amendment No. 1:
Before Clause 1, insert the following new Clause—
"Guiding Principles: incorporation in 1983 Act
(1) Part 1 of the 1983 Act (Application of Act) is amended as follows.
(2) Before section 1 (Application of Act: "mental disorder") insert—
A1 Application of Act: "guiding principles"
(1) In discharging a function by virtue of this Act a person shall have regard to—
(a) the importance of the patient participating as fully as is possible in the discharge of the function;(b) the importance of providing such information and support to the patient as is necessary to enable the patient to participate in accordance with paragraph (a) above;(c) the present and past wishes and feelings of the patient which are relevant to the discharge of the function;(d) the views of any carer of the patient, or other person who is involved in a professional capacity, and which are relevant to the discharge of the function;(e) the full range of options which are available in the patient's case;(f) the need to ensure that, unless it is justified in the circumstances, the patient is not treated in any way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation;(g) the need to ensure that patients are not discriminated against, either directly or indirectly, on the grounds of age, gender, sexual orientation, race, colour, disability, language, religion or national, ethnic or social origin;(h) the importance of maximising the benefit to the patient from the discharge of the function;(i) the need to ensure that when either informal or compulsory care and treatment of a child aged under 18 years is considered, the welfare of the child is the paramount consideration; and(j) the need to ensure that compulsory treatment or detention of a patient under this Act should be matched by a reciprocal duty to provide treatment and support of a likely health benefit to that patient.
(2) After having regard to the matters mentioned in subsection (1) above the person shall discharge the function in the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances, including a preference for informed care and treatment when circumstances permit.""
It is a pleasure for me to begin these Committee proceedings by issuing a very warm welcome to the noble Lord, Lord Hunt of Kings Heath, whom I congratulate on behalf of all noble Lords on his appointment as Minister of State at the Department of Health. We wish him well there—it is familiar territory to him—and I am sure that it will not take him long to make his mark there once again. For us on this side of the Committee, it suddenly feels like old times.
We begin our Committee debates with an extremely important amendment which, I venture to suggest, will come as no surprise to the Minister. It would insert a set of key principles into the Mental Health Act 1983. Why this idea is so important can be explained very simply. The Mental Health Act and this amending Bill are not in any sense run-of-the-mill measures. They have two features about them which place them in a class apart from most other legislation: the powers granted to the state and its employees to coerce individuals who are not criminals into being detained and treated, and the fact that those individuals are, almost by definition, some of the most vulnerable of our citizens. The ethical standards governing that key interaction, between state and individual, are not some sort of subsidiary add-on; they are integral to the basic acceptability of the legislation. The principles defining those ethical standards deserve a place at the heart of the Act because it is only in that way that Parliament can signal to practitioners, patients and the legal profession how it wants the Act to be interpreted and implemented. Interpretation and implementation need to be in all our minds from the outset.
The Bill is full of tensions. We will deal with those tensions, I am sure, repeatedly. The most glaring tension is that between patient autonomy on the one hand and public safety on the other, but there is another tension pulling in a third direction: the need to make certain that mental health services remain trusted by service users. To achieve that, we have to ensure not just that coercive powers are used only as a last resort, but also that the ways in which those powers are used are not excessive in any given set of circumstances. By placing these very sensitive measures within a framework of overarching principles, the Bill will be more effective in protecting patients and the public. Why? Because if you make it crystal clear to everybody that the rules of compulsion are underpinned by values, and that because of those values there are times when compulsion is appropriate and times when it is not, you will have legislation that is much clearer and much more likely to command universal respect.
During the past few years of discussion on the two draft Bills there has been much debate about the relationship between the Mental Health Act and the European Convention on Human Rights, not least Article 5(1) which deals with the deprivation of liberty. Since the Human Rights Act was passed in 1998, there has been a succession of legal challenges to the Mental Health Act. It is argued by many people that the absence of a set of principles on the face of the Mental Health Act leaves it wide open to such challenges. I believe that that view is right and that we have a golden opportunity to remedy the lacuna now.
So what principles should the Act enshrine? None of them is unfamiliar but all, I suggest, are crucial. If we look at healthcare more generally, the importance of involving service users as far as possible in their own care is perhaps the most obvious way in which the practice of medicine has evolved over the past 10 or 20 years. It should apply in mental healthcare as it does anywhere else. Indeed it should apply with particular emphasis because when the context of care is one in which compulsory powers may at some point be used, it is all the more important that service users should be involved with their own assessment and care. It is only by doing that that users are likely to have confidence in those looking after them. The patient voice is a key plank of the Mental Capacity Act, and so it should be here. We need to promote the idea of patient empowerment. Patients are empowered by being given information and the freedom to make choices for themselves which those around them will respect. That is so even when a patient is subject to compulsion. There is no reason why he should not retain as much autonomy as possible, consistent with his own safety and that of others. Service users should be able to express their views and say what they want and not be criticised for doing so.
The amendment speaks of the respectful treatment of carers and of patients; it speaks of equal treatment of all groups in society. Here, not surprisingly, individuals from black and ethnic-minority communities are uppermost in my mind. I am sorry to say that respect and equal treatment are not commodities in abundant supply in mental healthcare. Others in this debate will, I am sure, speak with particular authority on that issue, but if we allow ourselves not to address it with absolute seriousness in the context of the Bill, we shall be guilty of failing to get to grips with the stigma and discrimination which hang around mental illness like a yoke. The inclusion of principles in the legislation is a visible recognition by Parliament that stigma, discrimination and racial stereotyping need to be banished. I believe that the amendment will help promote, in their place, a culture of respect and confidence; very importantly, it will also guide the courts.
When a patient is treated, it should be after consideration of a full range of options for that treatment, and after a conscious decision that treating him will be better than not treating him—the first "do no harm" principle. We need to make a statement about child welfare in the context of treatment for mental illness. The Minister may argue that the paramountcy principle is already enshrined in the Children Act 2004, but I firmly believe that we should be explicit about it here. The needs of children are very specific. The provisions on children are dealt with separately under the Act. When we come to debate community treatment orders, we will see that separate provisions for children are included.
We then come to the principle of reciprocity. Where society imposes an obligation on an individual to comply with a programme of treatment and care, it should impose a parallel obligation on health and social care authorities to provide appropriate services. The mental health community feels very strongly about that principle, and I share its view.
The final part of the amendment covers the key issue I referred to earlier: that compulsory treatment should apply only after all alternatives have been exhausted or ruled out. We must never forget what coercion feels like for the person subjected to it. It is deeply traumatic and humiliating, and frequently serves to engender terror of mental health services from that moment on. It also, almost inevitably, results in severe social disadvantages, not the least of which are employment and housing. Nobody should belittle the magnitude of what is done in the name of the state to administer compulsory detention and treatment to an individual. That is why the principle of least restriction needs to be articulated with absolute clarity.
I like to hope that the Minister will not be unsympathetic to the amendment. If he is in any way hesitant, I put it to him that a clause of this nature, setting the scene on a Bill, is not without precedent in recent legislation. It is worth reminding ourselves of one other thing: while we all agree that our mental health services need to deal fairly and effectively with those who pose a danger to themselves or others, this Bill will affect very many thousands of people who will never harm anyone. We owe it to those people, as much as to any others, to frame the Mental Health Act within a set of clear standards and values. Only in that way will we have an Act that achieves what the Government themselves aspire to: to give all patients, whatever the nature of their illness, the treatment they need. I beg to move.
I declare an interest as an employee of Age Concern England. I also take the opportunity to welcome the noble Lord, Lord Hunt, back to his former position as Minister for Health. I can think of nobody better to be in that position, not least because we have the tantalising prospect of discussing patient involvement and patient forums in the near future. I know that those are subjects very close to the noble Lord's heart.
Before following up on a number of the points made by the noble Earl, Lord Howe, about why we should have principles on the face of this Bill, it is important to address one other, more fundamental, question. What is the purpose of mental health legislation? I ask because just before Christmas the noble Baroness, Lady Royall of Blaisdon, kindly arranged for noble Lords who are interested in this Bill to meet some of the people responsible for its drafting. One of those people made a quite extraordinary statement. He said that the purpose of mental health legislation was to give practitioners the tools that they need to make people better. That is a partial truth and, because it is a very partial truth, quite a dangerous statement.
As the noble Earl, Lord Howe, pointed out, this is a subject with a long-standing history of sensitivity around such matters as compulsory treatment and the detention of individuals. The purpose of mental health legislation is to set the ethical framework and agreed standards, held by society to be true, for people who are perhaps among the most vulnerable of its number. As such, it entails questions of autonomy, safety, liberty, the role of the state, science and clinical judgment. The role of mental health legislation is to provide the framework by which clinicians and their activities are judged. Given that the architects of the Bill have chosen to project it in such a limited and partial way, it is our view on these Benches that there is, perhaps, a greater need than ever to have on the face of the Bill a statement of principles that encapsulate the framework within which practitioners, patients and other individuals will seek to make what we all recognise to be extremely difficult judgments on a daily basis.
The noble Earl, Lord Howe, has talked about the importance of Article 5 of the European Convention on Human Rights—the right to liberty and security of the person—as the key piece of European legislation into which ours must fit. Ever since 1999, the Government have received advice about the ethical nature of any future mental health Act. In 1999, the Richardson committee stated that any new Act should be based on principles of autonomy and non-discrimination. Importantly, that report was accepted by the Health Select Committee.
As the noble Earl, Lord Howe, also said, there are immediate parallels to which the Committee may look. The Mental Health (Care and Treatment) (Scotland) Act 2003 begins with a statement of principles to which practitioners must have regard. More than that, the Government's draft Bill of 2004, which was the subject of the work of the Joint Scrutiny Committee, included at its beginning three principles—that patients should be involved in decision-making, that decisions should be made fairly and openly, and that interference to patients in providing medical treatment and restrictions imposed on them during treatment should be kept to a minimum to protect their health and safety and that of others. So the Government themselves, in 2004, could see a case for having principles included in the legislation.
In the run-up to this Bill, there has been a fair degree of discussion about whether principles should be included in the Bill, as one would expect. The argument that has most frequently been deployed by Ministers is that principles may lose their authority or appropriateness over time, and if they are on the face of the legislation rather than in a code of practice they become more difficult to change. I do not accept that argument. Principles should be enduring. But even if they change—and sometimes they do—they are usually changes of such importance that they should be debated by Parliament.
Over the past 30 years, the attitude of society and of the psychiatric profession to homosexuals, for example, has changed. Homosexuality is no longer defined as a mental disorder. Rightly, that change was the subject of widespread discussion in society and Parliament. I do not believe that any of the principles we put forward in this amendment would be any less durable. Nor should any change to them be of such minor importance that it should not come before Parliament.
Why should principles be on the face of the Bill? The key issue is safety. If we have principles that set the parameters within which all clinical judgments are made, patients and practitioners will have more faith in the safety of those decisions. As a consequence, people will be more likely to avail themselves of treatment. Throughout discussion of the Bill, we will return time and again to the issue of safety and what will help or hinder practitioners as they seek to reach those who are dangerous and reluctant to come forward for what remain stigmatising services.
We have the benefit of having been through so many drafts on this Bill that we have a lot of material with which to work. Commenting on the draft 2002 Bill, the Joint Committee on Human Rights said that the capacity of a code of practice to give sufficient protection to the human rights of patients in the decision-making process was unclear, and that it should be clarified by putting principles on the face of the legislation. As the noble Earl, Lord Howe, said, we also have other examples near to hand. We have principles in the Children Act 2004 and the Mental Capacity Act 2005—cornerstones to everybody who has to implement those pieces of legislation that specify what the legislation seeks to achieve and what considerations should be fundamental and underlie any actions. We have not yet heard why people who are subject to compulsory mental health legislation deserve less.
Which principles should be included? The Joint Scrutiny Committee spent a great deal of time considering this issue. We decided that the principles in the Scottish Act would be consistent with good practice nationally and internationally. We thought they should serve as the basis for legislation in this country. The principles laid out in this amendment exactly reflect the legislative situation as it is being implemented in Scotland.
There are principles in the code of practice. I do not know if noble Lords have had a chance to study them in any detail, but they should. There is similarity yet also a great difference in emphasis between the list of principles which the Government subscribe to—we assume, because of their presence in the code of practice—and those in our amendment. I draw noble Lords' attention to two in particular. First, the Government talk about a participation principle—that care and treatment should be provided in such a way as to promote a patient's participation, self-determination and personal responsibility to the greatest practicable degree. It is questionable whether giving personal responsibility to people is a principle of mental health care, as it is a principle more generally extended throughout healthcare. I am not clear why the Government should believe that this principle should have to be applied to people who are mentally ill.
Secondly, the non-discrimination principle bears a striking resemblance to what, in the world outside, one would call the equal opportunities framework—the principle that is in the amendment. Remarkably, the code of practice does not include disability. Why do the Government not believe that disability should be included as a basis on which people should not be treated less favourably under mental health legislation?
There are other principles in the amendment relating to children which are not in the code of practice. It is difficult to change and to challenge principles when they are in a code of practice. There is not an easy means for us to do so. Nor is it easy to determine, from reading the code of practice—a lengthy document—exactly what weight, if any, principles have in relation to the rest of the proposals. What happens when there is a conflict? Some of the principles are indeed conflicting. Those issues were grappled with at length by noble Lords involved in the Mental Capacity Act 2005. We had extensive discussions about principles, and about the circumstances in which principles such as best interest should be over-ridden. In this legislation, given its importance, it is necessary that we have the same framework.
The Government have already said that it would be difficult, perhaps impossible, to include principles on the face of this Bill because it is an amendment of the Mental Health Act 1983. Which parts of the 1983 Act would be incompatible with the list of principles in the amendment? I struggle to find parts of that Bill that could be enacted in a discriminatory way and would be in conflict with these principles, which as I say reflect to a large extent international good practice.
One of the main reasons for including principles is to give guidance and confidence, not only to practitioners and to patients but to tribunals, to lawyers who have to implement the legislation, and to users. The noble Earl, Lord Howe, set out that case at length. The Government may believe that it would be wrong to restate principles that are set out in other legislation, but it is not an argument that I find compelling. The Children Act's paramountcy principle is repeated in various different pieces of legislation that relate to children. Therefore, I do not see why we should not have the principles included in this legislation.
I leave it to others to go through in some detail the reasons for the different principles that are set out in the amendment. However, there is one in particular that needs to be singled out—the principle of reciprocity. If people are to be subjected to compulsory treatment under mental health legislation, it must be an absolute point of principle that there is reciprocity and that services are available to them. I do not believe that in this day and age we could condemn people to be subject to compulsory treatment and then not make services available to them.
This is one of those pieces of legislation on major social topics that comes around once in a generation. Noble Lords have participated in many of those debates in the past; I refer to debates such as those on the adoption Bill. This is our opportunity, and perhaps the only one that we will get for the foreseeable future, to set out in terms what we believe is now, in this country, an acceptable way in which to treat people who have a mental illness. It is important that we do so as clearly as we can—and for the avoidance of any doubt about what we believe the purpose of this legislation to be, it is necessary that we accept an amendment of this nature.
From these Benches, I welcome the Minister home to the health portfolio. I am sure that I speak in part for the healthcare community, which will be delighted at his appointment.
We all want to have confidence that this Bill will protect the public in so far as legislation can; that it will be respected, if not always liked, by service users; that it feels fair and just to relatives and provides an ethical set of principles within which professionals work. In trying to provide that ethical set of principles, we should go back to the inherent principles in this Bill and all mental health legislation since the Vagrancy Act 1714. That Act specifically included the "furiously mad" among those who should be detained in bridewells but specifically excluded them from the punishment meted out to rogues and vagabonds and set some rules as to how they were to be treated.
The primary purpose is to permit interventions to stop individuals from harming others or themselves should mental disorder impair their judgment to the extent that the usual psychological, moral and legal constraints no longer apply. Secondly, the purpose is to constrain those professionals charged with intervening. So in Committee today we are talking about the counterbalancing principles within which we take away freedom—and I remind noble Lords that this is almost the only time, outside the criminal justice system, when we do that. We must balance compulsion against what society offers to those compelled. There are other public health provisions to detain physically ill or aged people in the public interest, but they are now very rarely used, generally out of favour and many people think that they should no longer be on the statute book. At present, it happens about 46,000 times every year.
As the noble Earl, Lord Howe, remarked, every mental health patient knows about these powers and fears their use. Even people with quite mild depressive symptoms—I would guess that there are noble Lords in the House who have experienced those—sometimes feel as if they are going mad. They might lose control and be taken away under a section. When I mentioned pink forms in the House, everybody knew what they were for.
The Government have an extraordinary opportunity to set a new cultural context within which mental health services are delivered. They know that they have been, albeit unwittingly, the instrument that has managed at long last to unite service users, families, health and social care professionals and campaigning organisations to agree on some fundamental principles within which care should be delivered to those under compulsion. Although I know that there are healthcare professionals who support other parts of the legislation that I have my doubts about, we are all agreed—even those psychiatrists who have expressed support for some parts of the Bill—on the general principles outlined today.
We know that the Government are not against principles, because there are some in the draft code of practice. Indeed, the National Service Framework for Mental Health has a splendid set of 10 guiding principles. Nowhere in the framework document is there any statement that it does not apply to those under compulsion. They are reflected in many of the principles tabled in this amendment.
I understand that there has been much talk of this being an amending Act and that therefore there are clauses in the 1983 Act that might not be consistent with the new principles. My own trawl through the 1983 Act suggests that there is only one area, in Part IV, dealing with patients under criminal proceedings, which might not be entirely consistent, but it does not seem to be beyond the wit of man or the Government to introduce a small amendment to deal with them. This is such an important issue. I do not see any reason why in future principles for mental health should be abandoned because of one or two clauses that might need slight amendment. Principles should apply to those restricted as a result of criminal proceedings, if they have a mental disorder.
If the Bill is to contain the reciprocity of principles, which principles will we adopt? We have proposed here those that the Scots have found in their recent Bill to cover the fundamentals. They are very similar, with minor differences of emphasis, to those recommended in the Richardson expert report in 1999 and were supported by the joint scrutiny committee. Summed up, they are designed: to promote patient autonomy and involvement and, when possible, to provide choice within the necessary constraints; to respect and involve carers; to promote equality, non-discrimination and respect for diversity; to provide for the least restrictive or invasive alternative; to maximise the benefit to the patient and act always in their best interest; to clarify that the welfare of any child under the Act should be consistent with the principles of the Children Act; and to recognise that the state has a reciprocal duty of care to exchange necessary compulsion with the promise of beneficial care and support.
I first heard most of these principles outlined by the noble and learned Baroness, Lady Hale of Richmond—now our first woman Law Lord, but then plain Brenda Hoggett—at a joint meeting of psychiatrists and lawyers in 1989. I wrote them down, right then. Those who go back to see what Brenda Hoggett wrote then will see that these principles have been around, talked about and supported by those who need to use mental health legislation for a long time. They are entirely consistent with the Government's wish to improve public safety. I hope that, with so much to gain and every patient, every caring family and professional urging them to accept these principles on the face of the Bill, the Government will accept the amendment.
I do not normally speak on something like this, but I will for just one and a half seconds. When my noble friend Lord Howe was talking, I watched with fascination the enraptured looks of the people opposite, who were listening to him with immense care. The same applied to the noble Baroness on the Liberal Democrat Benches. In this Chamber, we have a wealth of knowledge, experience and know-how. All I am begging the noble Lord to say is, "My mind is not totally made up, and I will listen to the expertise that there is in this Chamber". From the faces that I saw, there is a real interest in making the Bill as exactly right as human beings can make it. Will the noble Lord please instruct the Whips' Office to get their tanks off his lawn if he is convinced by something that someone—other than me, who knows nothing about it—says? That is the only thing that I will say on this Bill.
My noble friend Lady Murphy mentioned rogues and vagabonds, which reminds me that today is the 30th anniversary of my very last performance at the Whitehall Theatre, in a play called "Fringe Benefits". Today we are not talking about fringe benefits but about something that goes absolutely to the heart of the Bill, and which will decisively influence how it is used. Therefore, I am very pleased that the noble Lord, Lord Hunt, can be welcomed to his new ministerial brief with a debate on such a key issue.
Principles are important, and they deserve to be on the face of the Bill because they make it clear to practitioners, tribunals and, importantly, service users and their families and carers what standards are expected from mental health law. This argument was accepted by the Government in relation to the Mental Capacity Act. I served on the Joint Committee that scrutinised that legislation when it was in draft form as the Mental Incapacity Bill, under the chairmanship of the late Lord Carter, whose sad loss last month will be keenly felt in this House, in particular by those of us with an interest in disability issues. Lord Carter always took a great interest in disability, influenced in part by his own family's experience. He was a great ally in improving a number of recent pieces of legislation on disabled people. He and I were the only people to serve on all three of the Joint Committees that scrutinised the draft Disability Discrimination Bill, the draft Mental Incapacity Bill and the draft Mental Health Bill, Lord Carter very ably chairing two out of the three. I am certain that we shall miss him in the months and years to come.
One of our key recommendations in respect of what is now the Mental Capacity Act 2005 was that guiding principles should be on the face of that legislation. We were influenced in this, as noble Lords have heard, by the evidence on the usefulness of principles in the Children Act 1989 and the Adoption and Children Act 2002. The Government accepted that recommendation, and the Mental Capacity Act now contains at the beginning a very helpful statement of principles. When I served on the Joint Committee that scrutinised the previous version of the Bill, one of our recommendations was that principles should appear in this legislation. We said then that,
"putting principles on the face of a major piece of complex legislation serves a clear purpose, in that it helps to make clear to everyone implementing the Act, what the legislation is trying to achieve and what considerations should guide their actions".
It is fair to say that the Government were not sympathetic to very many of our recommendations, but they have agreed with us on this, and in their response to our report they accepted that principles ought to be set out in the Bill.
I am not quite sure why the Government have now changed their mind. I understand that they believe that it would be difficult to put new principles into an existing Act, but surely that is only the case if such principles are inconsistent with the legislation in question. In this case, we are making wholesale amendments to the Mental Health Act 1983, which presents an ideal opportunity both to set out a clear statement of principles and to iron out any consequent inconsistencies. It is hard for me to imagine circumstances in which treating patients less favourably than non-patients might be in line with best practice, but I am not a practitioner, and I may need to be set right on that and on all of the principles in Amendment No. 1. However, it seems to me that if the Mental Health Act as it now stands is inconsistent with the principle of patient participation, then it is the Act and not the principle that is at fault. Again, if the Mental Health Act as it now stands is inconsistent with the principle of non-discrimination,
"on the grounds of age, gender, sexual orientation, race, colour ... language, religion or national, ethnic or social origin", it is the Act and not the principle that is at fault. The same goes for all the important principles set out in the amendment.
It is fortunate indeed, then, that this Bill gives us the opportunity now to amend the 1983 Act both to include principles and to ensure that it meets those principles. Perhaps the Minister could let us know precisely which parts of the Bill violate those principles and then bring forward amendments to change it accordingly. Alternatively, perhaps he could let us know precisely which of these principles he thinks should be violated in the discharge of mental health legislation.
I support the amendment. What strikes me is that, although the current Mental Health Act was never intended to sow fear into the hearts of the black community, to which I speak daily, or into the hearts of many people who have a mental health challenge or know someone who has a mental health challenge, it does sow fear into the hearts of those communities.
I should declare my interest as an employee of the organisation Turning Point, which provides significant services to people with mental health challenges. I know from our service provision and from talking to our clients how critical this amendment is to the confidence that many outside this House will have in whatever we do next with the Bill. The principles are crucial and I hope that one of the easier things that the noble Lord, Lord Hunt, will have to do in his new job is to agree with us on that. Once we have agreed the principles, the rest becomes a little easier. To be honest, I do not understand why the Government would seek to gainsay this argument. This is one of the few occasions on which the voluntary sector, the royal colleges and many other organisations have been in total agreement. They accept that this set of principles—and one could argue about principles from here to kingdom come—are crucial.
Let me explain a little why I support the amendment. We have an opportunity to set in stone how this legislation should be applied and how it should affect the lives of hundreds of thousands of our fellow citizens. As has been stated, the legislation is likely to last for several years, so we may not get an opportunity to do this again. The principles are a vital safeguard to ensure that clinicians and others responsible for administering the legislation do not drift too far from the original intentions. It would be a crying shame if in years to come we were forced to debate mental health in a similar climate to the one in which we are currently debating it. This is a crucial opportunity to ensure that mental health legislation that allows for compulsory care is applied in the right way in the first place, before being subject to challenge. The current Mental Health Act has been subject to a number of successful challenges under the Human Rights Act 1998 precisely because of its lack of principles.
Let me refer to some of the specific principles that are being suggested. One is to take note of,
"the present and past wishes and feelings of the patient".
I do not mind telling noble Lords that I have had several conversations with people using Turning Point's mental health services and in my role as co-chair of the Government's Delivering Race Equality in Mental Health Care strategy. They have a huge fear that, if or when they become subject to the Act, their ability to make decisions about any aspect of their care—even those which do not relate to compulsion—will simply not be respected. They fear not being consulted or included, and that undermines their dignity and confidence in approaching the mental health services, including voluntary services, for help. For example, this principle is relevant to concerns about levels and types of medication: it would be especially reassuring to individuals to know that their views on medication and its side-effects—a huge issue for people in the mental health system—could be taken into account.
I am aware that my noble friend Lord Patel of Bradford will put forward amendments, which I hope to support, to strengthen the race equality and diversity issues in the Bill, but I, the Government and all noble Lords know that people from black and minority-ethnic groups are discriminated against in the mental health system. The Act affects them disproportionately. We have already said in this House that reports such as Breaking the Circles of Fear and others describe people's fear of mental health services, which, in any other situation, would be a cause for outrage and much concern. Such fears are very real. In this climate and in the light of tangible evidence of overuse of the Mental Health Act, the onus is on the Government to demonstrate in the Bill that the new mental health legislation will not discriminate against BME groups. Putting a principle in the Bill about non-discrimination and respect for diversity is essential in achieving that. Such a principle will support, rather than undermine, the fundamental aims of the delivering race equality strategy—for example, more appropriate and responsive services—and the vital progress being made outside the Act in projects such as the DRE.
It is important to have principles in the Bill and not just in the code, as we know that that will help to ensure that legislation is used appropriately. This legislation is going to be around for a lot longer than many of us. Principles are a crucial safeguard and it is critical that they have statutory force. They will give more confidence and stronger guidance to tribunals and lawyers faced with interpreting the legislation, to practitioners concerned about how to implement it, and to people who may be subject to the Act and who are worried about how it might affect them. They would also set and help to raise ethical standards in mental health care and achieve greater transparency.
I wish to comment further on some specific principles and turn, first, to the importance of patient participation. The value of service users' involvement and participation in their care is widely recognised in voluntary mental health provision and other areas of healthcare. When the context is one of using compulsory powers, it is all the more important that service users subject to the Act are fully involved as much as possible at all stages of their assessment and care. That is likely to enhance their engagement with practitioners and, therefore, treatment outcomes. I give as an example the case of John, who has written a crisis plan for mental health professionals to consider if he becomes unwell again in the future. It includes asking whether, if possible, when he is admitted to hospital, he may be accompanied by his father rather than a social worker and the police, and it asks that he should not be taken to the locked ward where he has had bad experiences in the past. This makes John feel that he can participate in what can be a highly traumatic sectioning process.
My second point concerns providing the necessary information and support to enable participation. In order for their involvement to be effective and meaningful, service users should be given all the necessary information about how to lodge an appeal to mental health review tribunals. We assume that people know these things but, in fact, in many cases they are simply lost in the system and do not have the information. People should know how to contact patient advocacy services and have information about their medication. Information should also be provided in a form that they can understand, taking into account the needs of those with literacy problems or the increasing number of people whose first language is not English.
I want to comment on the principle that the past and present wishes and feelings of patients should be taken into account. Patient autonomy is the freedom to decide for oneself and the ability to make choices which others will respect. The Department of Health's Review of the Mental Health Act 1983: Report of the Expert Committee pointed that out.
Practitioners must recognise that many patients retain decision-making ability in relation to many decisions, despite the necessity for detention under the Act. Patients should have a right to continue to make such decisions, subject to their health and safety and the safety of others. Patient choice, which is a fundamental objective of government policy, should not be limited to those with physical health conditions alone. For example, following an assessment of Ms B, it has been decided that compulsory treatment is necessary and that that should be through a supervised community treatment order. However, Ms B does not feel safe in a community environment and would prefer to be treated in a hospital setting. Those issues need to be taken seriously and need to be set out in the Bill.
Finally, I want to comment again on racial equality, non-discrimination and respect for diversity. There is considerable evidence that the current Act is applied more heavily among African and Caribbean people than among other groups. A statement of non-discrimination specifically in the context of the Mental Health Act would give those people a basis for confidence in the law. Importantly, this principle should go beyond non-discrimination and include respect for diversity, which indicates the need for practitioners and tribunals to take a proactive stance.
Principles play a critical role in giving the BME community confidence in the professionals who exercise powers under the Act. The inclusion of principles in the Bill would be a visible recognition by Parliament of the need to overcome stigma and discrimination. That would assist the development of a culture of respect for the qualities, abilities and diverse backgrounds of individuals. It would also help to avoid making general assumptions on the basis of ethnic, cultural and religious stereotypes. Here I note the work of the Mental Health Act Commission in putting a spotlight on the assumptions that have led to the horrendous treatment of many people from black and minority ethnic communities in our mental health system. Crucially, it will also guide the development of future case law by establishing parameters for judicial interpretations of the Act. That will enshrine race equality in all future developments of the legislation.
On this Bill, we stand at a pivotal point. We should take the Bill seriously. We should take seriously the idea that it will affect the freedoms and views of many thousands of people in their relationships with society through the mental health services and we should put the principles in the Bill to reassure people who, at the moment, are not using the mental health services, but who may need them in the future. I urge the Government to take the principles seriously, to accept the amendment and to work with us all to turn the Bill into something in which many people outside the House can have confidence.
I support the amendment in the context of a Government who have already done a great deal to alleviate the conditions and perceptions of disability and mental illness. I am convinced that a list of guiding principles is crucial and should be inserted into the Bill. In that, I am supported by Mind, of which I am president, and by many other expert and experienced mental health charities.
The principles are worth restating, even in headline form. The list shows both the ambition and the centrality of the guiding principles. They concern patient participation, the right to information, autonomy, respect for carers, the availability of a full range of options, equality with people who are not patients, racial equality, non-discrimination, respect for diversity, the maximising of benefit, child welfare and reciprocity. Moreover, there should be an overall requirement in the Bill for the least restrictive alternative, including informal treatment and care.
Why not put the principles in the Bill? Why put them in the code of practice, but not in the Bill? Why not, when these principles will serve a vital purpose for practitioners, many of whom—for example, the Royal College of Psychiatrists—support this, accede to their wisdom and put the principles in the Bill where both practitioners and patients can see them equally? Why not be guided by the democratic option? The Government's objections seem to be merely defensively technical. It would be a nailing of colours to the mast: a clear and encouraging act of faith, evidence of conviction and purpose worthy of, at its best, a fine, liberalising Government.
Reiteration follows, but I contend that reiteration is evidence of widespread concern and strong, well informed feeling across the spectrum. The amendment is of crucial importance. Principles in the Bill should and will raise ethical standards in mental healthcare by guiding practitioners and lawyers in the implementation and interpretation of the law. That will also improve people's confidence in the legislation, particularly those who may be subject to it. We particularly need principles in a law which authorises the use of coercive powers, to guard against expedience, discrimination and abuse, and to encourage proactive efforts in favour of patients' rights and well-being.
Principles should not be left to the code of practice, where they could be changed without Parliament's agreement and would carry less weight. If the Mental Health Act becomes incompatible with any of these principles, those of its aspects should be amended. Such essential principles should be at least as enduring as the legislation. For example, principles of participation, right to information and patient autonomy would all help to counter the kind of situation where people are, or feel, coerced into agreeing to treatment, or are effectively told that there is no point in refusing. In a Mind survey of people's experiences with ECT, over half the total sample and one third of those who had had ECT most recently were not aware that they could refuse to consent to the treatment. People detained under the Act who consent to treatment do not get the second-opinion safeguard.
The following quotations are from people who had had ECT in the previous six months not many years ago:
"I was told that as I was on a Section 3 ... I had no rights".
"If I had known I had the right to refuse, I would have done so. My understanding was that I had no choice in the matter and that they could do it by force".
On racial equality, non-discrimination and respect for diversity, racial inequalities in mental health have been documented in the "Count Me In" census of 2005, particularly for African-Caribbean peoples, including higher rates of detention. That needs tackling at every level, including the guiding principles in the Mental Health Act, because of the unequal treatment that could be carried out under the Act and because it will operate in circumstances where inequalities already exist. The existence of race relations legislation does not obviate the need for inclusion in this Bill. Those rights and duties should be reinforced by the Mental Health Bill, not treated as being taken care of elsewhere.
My final example refers to something that will come up again and again: patient autonomy. The Mental Health Act clearly restricts patient autonomy by authorising the use of compulsory detention and treatment. That makes it all the more important to include a principle that people should retain as much autonomy as possible. They may have decision-making ability in many of the areas where decisions must be made. For example, it may be necessary for someone to receive treatment under compulsory powers, but they may have views and knowledge about which treatments have previously helped or harmed them. Alternatively, there may be activities or therapies available which the patients would be willing to explore and over which they could be offered real choice, rather than either not having them or having them presented as part of a compulsory package. People should be supported to make their own decisions where possible and given the same choices as people with physical health conditions. Autonomy should be curtailed only to the extent that it is absolutely necessary, and making that a principle in the Bill makes this clear.
I hope that my noble friend seizes the day and accepts this amendment. I urge the Government to take full note of it. Accepting this amendment would go far to help clarify and reassure those in an area which is, at last and thankfully, ceasing to be an area of darkness.
I support the amendment. I am among those of your Lordships who would like to welcome back the noble Lord, Lord Hunt of Kings Heath. I have agreed with his views on a whole range of issues over many years, and it only remains for him to agree with me for us to arrive at a satisfactory solution.
I have it in mind that by the time the Bill becomes law and is implemented it will be about a quarter of a century since the passing of the Mental Health Act 1983. It might well be another quarter of a century before we have the opportunity to set out fully in legislation the principles that we believe in and to make the improvements that we seek within primary legislation. So we need to be bold and to establish in this Bill certain key principles that will stand for many years and bring a good deal of confidence back into mental health provision.
I am for a bold approach. If in fact some of the principles set out in the amendment do not exactly match some provisions in the 1983 Act, then we should make some small change in that Act to make it possible to adopt this amendment within the Bill. I really want to see this established for the medium-term; that would be good for the mental health community as a whole.
I will refer briefly to three basic points arising from the amendment. First, there is,
"the importance of the patient participating as fully as is possible", in the discharge of the activities that concern him or her. We should emphasise that important point and set it out right at the beginning of the Bill. We then have the reference in the principles to carers. If we cast our minds back only five or 10 years, there would have been no reference to carers, who were very much on the margin. There has been a huge change of attitude in that area. I was a carer for many years and know what the attitudes are. It is important to get the views of the carer set out in the principles.
Another important point is the question of separate treatment of children or young persons. We are coming to amendments, to one of which I have put my name, about the age appropriate setting. I really hold that view and would therefore like to see it in the principles.
Lastly, there is the question of the,
"reciprocal duty to provide treatment and support".
That reflects Amendment No. 55, which stands in my name and to which we shall come eventually. There is a widespread feeling now that this is what we believe in. We have not expressed it very well before. Let us express these principles in this Bill, take a bold step and get it clear. It will last for a long time, and we shall all welcome that.
I start by wishing my noble friend Lord Hunt well in his new job. I am sorry if my departure has caused him to take a crash course on the Bill, but he is of course well versed in the NHS and I am sure that he will cope well. Just to reduce expectations around the Committee, let me reassure my noble friend that I am not about to say anything that I would not have been prepared to say if I had been in his place.
I understand well the arguments against putting a set of principles into the Bill, which after all amends the 1983 Act and does not start afresh as the original draft Bill did. If at this stage we put any set of principles into the Bill, it will require the parliamentary draftsman to comb through the rest of the Bill to ensure that all its provisions are totally consistent with those principles. I detected a slight feeling among other noble Lords who have spoken that this would be a simple job to do in a couple of hours on a wet afternoon in January or February, but it is a bit more complicated than that.
The longer and more complex the list of principles, the more arduous the task of ensuring the compatibility of the amending legislation with those superimposed principles, which is what they are at this stage in the legislation. This is a real practical consideration that cannot be wished way. Many people who criticised the original Bill argued for a simple amending Bill, so, to some extent, they cannot have it both ways. The Government have gone for a simple amending Bill rather than the original new blockbuster Bill starting from scratch in which the principles were to be set out. This is a different set of circumstances. An amending Bill makes it inherently more difficult to superimpose a set of guiding principles.
In practice, it is easier to place those guiding principles in the statutory code of practice, which has been a little too easily dismissed in the debate so far. Those guiding principles would be in a code that has statutory force and would be taken account of by the courts. I have to let the Committee know very gently that practitioners do not assiduously study the legislation passed in this House or the other place. They tend to turn to the code of practice for their guidance, which is what it is for. So putting principles in the code of practice is not a lesser option, but is a practical option for shaping the behaviour of practitioners. From listening to the debate so far, I sense that many speakers want to shape the practice of practitioners. The code of practice is one of the places, if not the main place, where we can influence and shape the behaviour of practitioners.
I understand only too well that many people would like to see guiding principles in the Bill. I can see why they want that, but I have some difficulty with the approach adopted by this amendment. I am not completely convinced that everything in it is a guiding principle. Some provisions simply urge practitioners to balance a number of potentially conflicting considerations—for example, paragraphs (d), (f) and (j)—whereas paragraph (g) is a guiding principle. The paragraphs are not consistently framed as principles; they may well be good statements of intent, but they are not necessarily guiding principles. I also have some difficulty with how one would apply paragraph (c) as currently drafted. It embodies a noble aspiration, but it is not necessarily one that is easy to apply as presently framed.
I recognise that this debate shows that a considerable body of opinion is very attached to the idea of placing guiding principles in the Bill and that much of the opposition to the Bill in its present form might be abated if we could fashion a workable set of key principles to put in the Bill. If we are to move down this path—and at present I am not yet convinced that it is practical to do so—I favour having genuine principles like the headings for the guiding principles in the statutory code. Indeed, I would much prefer the Bill to limit itself to a minimum list of headings for principles that the code should spell out. They would still have the force of law, but that would make it easier to recast the code if opinions and circumstances change.
I know that a number of other noble Lords have made my next point, but it is worth registering it again. We seem to be able to change our mental health legislation only about once every quarter of a century. Given the pace of change in many areas of healthcare, we may find that we are legislating here with some principles which may not stand the test of time. I would prefer the little extra flexibility that would be gained by being able to amend the code of practice.
I reassure my noble friend that I am not in any way urging him to accept this amendment as it stands. I am certainly not trying to behave like many of those Permanent Secretaries in the past who, I remember only too well, suddenly became in favour of freedom of information legislation once their Civil Service pensions were secure. However, I wonder whether it would not be worth giving some urgent consideration, across all sections of the Committee, to whether agreement could be reached on a more limited set of key principles for shaping the code of practice which might go in the Bill. That seems to me to be a more practicable way forward, and it would respond to what are clearly strongly held views on this issue across the Committee.
I hope that my noble friend will be able to give some sympathetic consideration to an approach of this kind so that we might then be able to move forward with this Bill in a way that is acceptable to many of those who have a great interest in it.
Perhaps I may briefly intervene before what I know will be a very important speech by the noble Lord, Lord Winston. A number of noble Lords have said that Section 1 of the Scottish legislation of 2003 contains a statement that is very similar to that put forward by my noble friend and others. Does the Minister have any news of how that legislation is going? How is it meeting the needs of Scotland and has there been any legal challenge to it? The Scottish Act refers to the whole of mental health legislation and only Part 7 relates to compulsory detention, so I ask him only about that. The noble Lord, Lord Warner, clearly sees the problems that that will arise as a result of this amendment—I suspect that he saw them at Second Reading. He made a helpful speech. I wonder whether the Minister's reply will fit in well with it. It would be encouraging if it did. Will the Minister tell us what the news is from Scotland? The Act there has been in operation since October 2005. There must be some evidence of whether the problems which the noble Lord, Lord Warner, sees have arisen.
I too offer my hearty congratulations to the noble Lord, Lord Hunt, on taking his place back at the Department of Health. It is a pleasure to see him again. I remember with fondness briefly offering him refuge in my office after his previous resignation in the House of Lords.
Perhaps I may tell noble Lords a short story. Some years ago, a young female employee of Imperial College—she was a brilliant young scientist who was working on the ovary in my laboratory—ended up with a quite severe bipolar disorder, with alternating depression and mania. After a while, she became completely impossible at work and caused great disruption. She eventually gained inappropriate access to my laboratory, against the wishes and the instructions of the university, and caused mayhem. One morning, at about 6.30, she rang me at home in huge distress, crying and screaming that they had come to section her. I said to her, "Hang on, just calm down. Speak to me in a calm voice and, above all, speak to the people who you think have come for you in a calm voice". She had great difficulty in doing that. What she saw as an attack on her, that complete ignorance and the notion that she had no autonomy at all in her state, had a massively bad impact on her health at the time, and on her attitude towards psychiatrists for a long time afterwards and to her subsequent care. Only with the greatest of difficulties could I persuade the medical people there who did not know her and who had come to section her to wait until I could arrive at her house to intercede on her behalf and to offer guarantees. Of course her behaviour had been unacceptable to the university, of course she was at risk of damaging herself, but her autonomy was easily lost in the culture which was present.
I know my noble friend Lord Warner has said that it is massively difficult to change the drafting of a Bill if you have a preamble of this sort beforehand, but if that results in an injustice and in something which makes the law less adequate, it may be none the less necessary for parliamentary draftsmen to work not just for two wet days—if it takes six months, it is still worth getting the law in order. I want to congratulate the noble Earl, Lord Howe, on introducing this amendment. It may not be the final wording but it seems to me to be the absolute basis for something which must be in the minds of the carers when they consider sectioning a patient. This young PhD student is now a brilliant doctor of philosophy, working not in this country any more but in another part of the United Kingdom highly successfully. It was touch and go that her career was not permanently damaged because of the result on her health, and I beg the Minister to consider what he could do to try and come to an agreement to put these principles into a position where they might be used.
I identify myself with the sincere and widespread welcome to the noble Lord, Lord Hunt of Kings Heath, on his return. We all know that his experience and skill will ensure that he picks up this rather heavy baton on the run and is able to continue on with us.
I was very moved by the comments of the noble Lord, Lord Winston, who described a situation very familiar to me, as a consultant psychiatrist quite often on call in Belfast, of the difficulties that arise when one has to confront the pink forms that the noble Baroness, Lady Murphy, referred to on another occasion. What he describes are the practicalities of working out the legislation that has been properly put in place. He has not described the principle. He adverted to the principle of care and concern, and to autonomy, understanding and so on. That can be written into a piece of legislation. What could not be written in was the requirement that the noble Lord, Lord Winston, should turn up. That is not something one can put in. That was a piece of practice that was occasioned by understanding and the principled approach. That is where there seems to be some confusion.
For me—perhaps some might think it a rather quaint notion—principles are things that you do not change very often; rather less than once in every 25 years in my view. Principles are the kinds of things that are fundamental, that you stick with, the kinds of things one is perfectly happy to put in a piece of legislation which might last for a generation. Practice is a different matter. That is the sort of thing that may have to change in various circumstances, as has been described to us in this particular anecdote. It may have to change quite regularly and frequently. The principle does not change but how one applies it has to change if the principle itself is to be sustained and maintained. The principle is something transcendent with longevity. So when I turn to the code of practice—it is not a code of principles—and the principles that are in it, I find that it states that the status of the principles is the same as the status of the code as a whole. The principles outlined here are not transcendent but are simply in with all the rest of the stuff in the code—a code of practice, that is, not a code of principles. The whole point of principles is that they stand over and above everything else, and one can judge what happens afterwards on the basis of the fundamental principles. As the noble Lord, Lord Rix, says, a list of principles would have a decisive influence on the way in which the Bill is used.
It has been said by the noble Lord, Lord Warner, that staff do not read the legislation that is passed here; they read the codes of practice. I hope that I am not letting myself or my psychiatrist colleagues down when I say that my experience is that we do consult the legislation, and we consult it all the time to make sure that we are absolutely right with it. How reassuring and encouraging it would be if, right at the beginning of the legislation, was a set of principles upon which we could depend for our interpretation of all the complicated and technical details that happen thereafter. At nine or 10 o'clock on a Friday night, when a practitioner is under pressure from other healthcare practitioners, is dealing with a disturbed patient and a family in difficulties, and there are frequently very few beds available even when the decision to take the patient is made, a set of principles at the start that enables the practitioner to think in the right direction is a great protection and relief.
The fact that those principles do not change too frequently is extremely helpful. It means that through your professional life you know where you stand, along with the patient, the carers and those who provide services over a prolonged period. They know the fundamental principles upon which they should base their professional behaviour, their caring commitment and the provision of services, as a health service should do. The idea that principles should be changed every now and again in a code of practice without parliamentary scrutiny seems to be the wrong way round. The principles should survive; they should be included right at the start and should guide Her Majesty's Government and your Lordships' House as we consider the rest of the Bill.
It is a fundamental principle of our parliamentary process that subsequent Acts can amend previous ones, so if these principles are not in conformity with some parts of the 1983 Act we should expect that Act to be amended because we are talking about principles that go beyond what it was based on. It has been suggested that there is a real problem of compatibility. I have a problem with that, because it means that the code of practice would not be compatible with the 1983 legislation because it sets down the principles. Or does it have some kind of subsidiary statutory position which means that it does not stack up? If so, that strengthens the argument for having the principles in the Bill where nobody can be in any doubt which is primary legislation. The code of practice cannot be primary if the Government are suggesting there is a problem of compatibility.
We have talked about guidance to those who are involved at every level from the passage of the legislation and the provision of services to the operation of the Act and the code of practice. Then there are the notions of longevity—that principles should outlast the current fashion—and of transcendence, with principles above the rest. There is a very good reason why those are important. The Bill is about the problems of disordered and deluded thinking. When I was training, my old trainer warned me against a particular form of disturbed thinking. Furor sanandi, or the madness to heal, is the belief, sometimes found in practitioners—and legislators and providers of services—that they so know the truth of what should be done that they have the right, and indeed the responsibility, to force it on people to make sure that they get better whether they like it or not. The principles will be a protection against furor sanandi.
In expressing my strong support for this amendment I salute the tone and temper, as well as the quantity, of the opening speech by the noble Earl, Lord Howe. From the moment we started discussing this very important Bill it was extremely important that we should all agree on the tone and temper of what the importance of this subject represented. I was particularly glad that, on the principle in proposed new paragraph (f), he talked about the need to ensure that, unless justified by the circumstances, the patient is not treated less favourably than a person who is not a patient might be treated in a comparable situation.
We have already drawn attention to two groups who might benefit from this: minority and ethnic communities, and children. There is a third group, which represents an enormous well of psychiatric morbidity in this country, and that is those who are in custody or in the hands of the Prison Service. It is unfortunate that the National Health Service assumed responsibility for mental health, as well as primary healthcare, in prisons only in 2003. Until then no provision for people suffering from mental health problems in prison had been made in the planning of the National Health Service. It is estimated that up to 500 prisoners each year might have needed to be transferred to special mental hospitals, but had to compete with the requirements of people from the community. Very often the prisoner lost out and became worse as a result. That, of course, is a public health issue.
Had this principle been enshrined in the original 1983 Act, and had Prison Service healthcare been subject to the National Health Service, the Act would have required that those in prison received—or be capable of receiving—treatment exactly equal to that received by those outside. It is important that this should be included in the principles at the start of this Bill because, if included, it tempers our judgment on many of the other issues in the Bill, which we will be discussing during the course of the amendments.
I should like to add one practical point, though not the one mentioned by the noble Lord, Lord Warner. It is surely axiomatic that the parliamentary draftsmen should work night and day to get a Bill of such importance absolutely correct—perhaps we should add extra parliamentary draftsmen to the task—rather than that we regard that as something to prevent it happening. My practical point concerns the provision of services to the people who require them as a result of this Act. I shall quote two statistics in support of that. In 1999 when this Government introduced a paper about what they called people suffering from dangerous and severe personality disorder—neither term being recognised by psychiatrists—it was said that there were some 2,500 in the country. Four hundred were in special hospitals receiving the treatment they required; 700 were somewhere in the community, possibly receiving some form of treatment; 1,400 were in our prisons, where nobody knew who they were and they were certainly not receiving treatment. That is one end of the spectrum.
At the other end, it was said by the Office for National Statistics in a report published in October 1998 that 70 per cent of all those in prison are suffering from some form of identifiable personality disorder. That is an enormous well. We must remember that all except some 35 of that huge number will come out and join the community. Therefore, we have a responsibility to use their time in prison to do something to help them lead useful and law-abiding lives when they come out. That is why it is so important that, in any Bill discussing mental health, the needs of those in custody are included so that provision is made for them as a result of that Bill, be that in principle or in practice.
I apologise for my absence from the first few minutes of this debate. It may assist the Committee if, as chair of the Joint Committee that considered the previous draft Mental Health Bill, I make some comments about this amendment, which I support. However, before I start, I welcome the return of the noble Lord, Lord Hunt of Kings Heath, to the Front Bench dealing with health matters. He and I go back a long way. We were dealing with health matters together long before either of us was a Member of this House. I have great respect for his judgment and I hope that I will not be disappointed later this afternoon.
To echo the words of the noble Lord, Lord Rix, I also mourn the passing of Lord Carter. Denis Carter made an invaluable, consistent and persuasive contribution to the Joint Committee's deliberations. He is missed by a great many of us in this House. He was a good friend to many of us.
When he comes to respond to this debate, I invite the Minister to confirm that the inclusion of principles in this Bill, and therefore in the amended Mental Health Act 1983, is in order. I understand that it is within the Long Title of the Bill and perfectly in order. Therefore, I hope that we will not hear any more of the purported explanation that it is not possible to introduce principles in this Bill because it amends the Mental Health Act 1983. The constitutional position is irrefutable. It is possible to amend the 1983 Act in this way.
We have heard the argument that it would be difficult for parliamentary draftsmen to draft anything in time to achieve the purpose of the amendment, even if the amendment is imperfect. That is palpable nonsense. I happen to deal a great deal with terrorism legislation, which is a very difficult area. However, most of it is drafted overnight by parliamentary counsel. Several noble Lords in this House are ex-Ministers who have been Cabinet Members or Ministers at a senior level. Ministers frequently instruct parliamentary counsel to draft much more complex legislation than this literally overnight for the next meeting of a Standing Committee. If the amendment is imperfect, it is not far from the mark, and I apprehend that a couple of parliamentary counsel could probably finish it "between lunch and tea", to coin a phrase.
My next point is a general one about mental health and mental illness. No doubt others in this House have also been in the position of having to face an entry into acute mental health issues concerning those near or dear to us. In my case, it fell far short of compulsory treatment, I am happy to say. For every family and every patient who enters into these issues, it is a very frightening experience. It is like walking into a completely dark cave with, if you are lucky, the slightest suspicion of light at the other side.
The particular problem with mental illness is that many if not most of the people who walk into that cave are highly intelligent. They are capable of understanding the principles surrounding their treatment. They do not all live in a permanent fantasy world. Most of them have long lucid periods in which they understand exactly what is going on. They are aware that they are ill but when they are sectioned they ask the clinicians—such as my noble friend Lord Alderdice, in Belfast—who go to their homes late at night, what their rights are, why they are being detained and what will happen to them. A stark illustration of that was given by the noble Lord, Lord Winston, in his very helpful speech, which put these issues into a human context.
We are talking about intelligent people who must trust the medical services they come into contact with, particularly if those services are compulsory. The dark cave must seem an even gloomier place, if that is possible, when the treatment is compulsory in the sort of circumstances described by the noble Lord, Lord Winston.
Principles in the statute enable the person concerned and those who have his or her best interests at heart to challenge their detention. We talk in this legislation about the liberty of the subject, and of detaining subjects who, in many cases, have committed no crime. They are simply severely ill and a threat perhaps to themselves and others.
I recognise that the courts are of course able to take account of codes of practice. Yet the influence of a code of practice upon a court, on a take-account basis, is quite different from the influence upon a court of principles in the statute. For the service user, for professionals applying the service and for the court determining the liberty of the subject, the literal imprimatur of inclusion on the statute is most important.
It may be said that this opens the floodgates of judicial review. That is sometimes said by Governments when they want to avoid putting some principle or other in a Bill. Let us not forget that judicial review requires the permission of the court to proceed to a hearing. In areas such as this, the courts are extremely conscientious to ensure that leave provisions are applied fully.
On the issue of whether practitioners pay attention to the statute and the codes of practice, I agree entirely with my noble friend Lord Alderdice. As a criminal barrister, I have a lot of experience of reading reports by and calling evidence from forensic psychiatrists who speak of the mental state of somebody who has been referred to them. I have seen Sections 37 and 41 of the Mental Health Act 1983 referred to on hundreds of occasions—and parsed in detail by the practitioners on not a few—to determine whether their patient falls within the provisions. It is rare to read in such a medical report or hear in such evidence reference to codes of practice.
A number of considerations persuaded me and the committee that principles should be in the Bill. I want to list a few of these because they are persuasive—indeed, formidable. We were persuaded by the Richardson committee in 1999, chaired by Professor Ginevra Richardson at King's College, London, which said that principles should be contained in the Bill. We were persuaded by the Mental Health (Care and Treatment) (Scotland) Act 2003, which has already been mentioned. It has principles on its face.
I was at a meeting earlier today—kindly and helpfully arranged by the noble Baroness, Lady Royall of Blaisdon—at which a number of psychiatrists were present. The question was asked: if Scotland can have principles, why cannot we, too? The answer frankly astonished in its risibility—if that is the noun to go with the adjective "risible". We were told that it would work in Scotland because,
"it is a small place, a village".
I do not know what our Scottish friends will make of that—and I can see one or two feisty ones in the Committee now. But I reject it, especially because quite a few people live in Scotland who do not come from the village—who go to Scotland and then, unfortunately, become patients. Having the principles in the Bill would provide exactly the certainty that the Scottish Parliament found when it introduced this legislation.
We were persuaded by the Mental Health Alliance, which proposed that principles should be contained in the Bill. We were persuaded by the Minister of State, Rosie Winterton, who said in evidence to the committee that she was not opposed in principle to having principles in the Bill. As the noble Lord, Lord Rix, reminded us, in the Government's response to the committee's report, she accepted that principles should be included in the Bill. Nothing has changed in reality. I suggest that the burden is firmly on the Government to show beyond any doubt, if they can, why there is now a persuasive and convincing case for principles not to be included in the Bill.
We were persuaded, too, by the British Psychological Society; No Force UK; the Sainsbury Centre for Mental Health, which has done an immense amount of research in this area; Depression Alliance Cymru; Mind, of which the noble Lord, Lord Bragg, is the president, as he said earlier; Mencap; the Council on Tribunals, to which I shall come in a moment; Professor Thorneycroft; and Rowena Daw from the Mental Health Alliance. They all,
"emphasised the very powerful and important signal value of having clear and explicit guiding principles on the face of the Bill which set out the ethical standards that apply when a person is deprived of his liberty and autonomy under the Act".
There is an absolute paramountcy in producing ethical legislation on this subject, and including principles in the Bill is a prime ethical consideration.
We were persuaded, too, by the Joint Committee on Human Rights which, in its 25th report in November 2002, recommended that principles be clarified in the legislation.
I referred to the Council on Tribunals, whose words are worth reflecting on. It said:
"Since the Code of Practice will not bind the Mental Health Tribunal, it would greatly assist the Tribunal in carrying out its judicial functions under the Act if a clear statement of the guiding principles were specified in the legislation itself".
We were persuaded by the Mental Health Act Commission, the Bar Council and, as has already been mentioned, the contents of the Children Act 1989 and the Mental Capacity Act 2005, a close cousin of that legislation, both of which have principles included.
I must say that I am also persuaded by everything that I have heard in the Chamber this afternoon. There is a near unanimity on this issue, and I believe that it would be inexplicable to the community at large if the Minister were not to make at the very least a signal concession. With great respect to the noble Lord, Lord Warner—whom, in welcoming the noble Lord, Lord Hunt, we miss from the Front Bench on this Bill—we do not want a compromise. It is not good enough—we want principles included in the Bill. They may be slightly different from what has been proposed, but that is the commitment that we request, and I suggest that it is a perfectly reasonable request.
I, too, welcome most warmly the return of the noble Lord, Lord Hunt, to the Front Bench. No one is more qualified than he, in the light of his experience, to hold this brief. I can assure him that he will have a very exciting life during the passage of this Bill.
It has been a singularly well informed debate of very high quality. My comments will be quite brief. I have received a flood of letters from professional organisations of every kind stressing the crucial importance of including principles in the Bill. The issue was brilliantly articulated by the noble Earl, Lord Howe. I will quote just one piece of the evidence that I have received; it is from the General Medical Council, of which the noble Lord, Lord Carlile, was once a distinguished lay member.
The council said that it was very,
"disappointed that principles have not been included on the face of the [Bill] (although they are in the draft Code of Practice)", particularly as"— the noble Lords, Lord Rix and Lord Carlile, have also said this recently—
"the Government agreed in its response to the report of the Joint Committee on the draft Mental Health Bill 2004, that principles should be set out on the face of the Bill".
The GMC says that, while it welcomes,
"the principles, including respect for patients, non-discrimination, maximum benefit and minimum restrictions, which are set out in the draft Code of Practice, we maintain that clear, meaningful principles should be included on the face of the legislation itself".
It believes that,
"this would be a valuable way of providing clarity about the scope and purpose of the Bill, so that those working within its framework or affected by its provisions are clear about the basis on which it is considered legitimate to intervene in the lives of people with a mental disorder".
I could not put that more clearly. The House should support this amendment very strongly.
I support the proposal of the noble Lord, Lord Warner, that the Government take this away, look at it, understand the strength of feeling about the principles, but do not go down the road suggested by some on all sides of the House.
My first priority in a debate of this type is to ask myself, "Will this be effective?". At the moment my concern about the proposed list of principles, or anything like it, is that it would be ineffective and in certain circumstances it could be counterproductive. First, as people were half-recognising, some of the things in the list are practices not principles and it would be a job to make them stand up as principles in a court of law. Secondly—this is very important and needs to be taken into account by many on all sides of the legislature—a good code of practice can be much more effective in law at protecting people's rights than principles in a Bill. There are one or two areas where we could get into severe difficulties, even if this list of principles were taken away to be rewritten.
I would like to give an example, which is my last point but an important one. For many years I have taken the widely supported view that one of the main failings of the British mental health system has been the overrepresentation of certain ethnic-minority groups—most particularly, Afro-Caribbeans and Africans—among those receiving psychiatric treatment. That is mirrored by the singular lack of doctors and other people in key positions who are drawn from those communities. Yet we see in this list an attempt to put that into a principle, which it might need to be, but in a portmanteau way, linking it to a host of other things, including language. When I last checked, there were at least 170 or 180 languages spoken in London alone; I think there are well over 200 now. Many of those are spoken only by a small number of people. It is not just that if you had such principles in the Bill you would have to produce psychiatrists who spoke the language; you would also be expecting nurses or others in a hospital situation to deal with an individual, knowing that the principles of the Bill stated that they must take account of their language and treat them equally, even when they were unable to communicate effectively with them. Certainly, in many, many cases, they would not be able to get an interpreter or another person to speak that person's language.
If you list the principles, you have to be 100 per cent sure, and I mean 100 per cent sure—I say that particularly to the noble Lord, Lord Carlile, with his legal experience—that you can realistically deliver on them. If you cannot do so, it is not a matter of opening the floodgates to legal cases; it is that you have failed to be effective. In legislation such as this, we are trying to be effective. Either the list of principles must be very tightly drawn up and very well defined or you go down the road of a code of practice. If the Minister is minded to take up my noble friend Lord Warner's suggestion, I ask him to come back to the House with some indication of how we, much more effectively than in the past, can address the racial imbalance in the British mental health system. It is profoundly serious and very significant, but it will not, in my judgment, be dealt with by putting a principle on the face of the Bill.
This is about training, practice and a requirement for how health authorities and the various professionals and groups involved address the problem. Although one or two people have dismissed it, the suggestion made by my noble friend Lord Warner that the Government look at this again and come back to it is a good one. I do not see why the Government should have difficulty with the general principle, if you like, about what should be in the list of principles. There is every question about how effectively you will deliver on them. If you are going to go down that road, you have to be very clear about the principles; they must be very clearly spelled out, very brief and very easily interpreted by a court of law; otherwise, you will end up being totally ineffective on something that people feel quite strongly about.
We on these Benches support the amendment. I do not want to repeat all the arguments in favour of the amendment, although I think I can hear the noble Lord, Lord Bragg, sitting behind me saying, "Oh, go on, repeat them all".
In his opening remarks, the noble Earl, Lord Howe, referred to stigma and discrimination. We live with those still; they still abound around us. Certainly, I come across quite a lot of stigma surrounding mental health issues. In fact, I was coming across so much stigma last year, and it was so serious, that I arranged to have a roadshow come to my diocese, with people who could talk about mental health educatively. We had a very worthwhile session. To my great surprise, it was well received and people have asked for more. We have so much still to do on discrimination and stigma.
The noble Baroness, Lady Barker, referred to the fact that we have a great opportunity now to make this Bill even better than it is. Amendment No. 1 is the way in to doing just that. We need to seize the opportunity. The principles are: maximising the participation of the patient, taking proper account of the views of patients and carers, non-discriminatory treatment, reciprocity and having the least restrictive treatment. We believe that those principles should be in the Bill, and it is difficult to see any of them being nullified or superseded. I hope to hear the newly returned Minister, the noble Lord, Lord Hunt, give us all some encouragement. Allowing for the cautions of the noble Lord, Lord Warner, I say let us give the parliamentary draftsmen even more work to do on wet winter afternoons. Others on the Benches opposite have made similar comments. As the noble Lord, Lord Alderdice, pointed out, guiding principles also have a significant professional and public educative role. We support the amendment wholeheartedly.
I, too, welcome back the noble Lord, Lord Hunt of Kings Heath. He and I, like several others in this House, go back a long way. Like my noble friend Lord Carlile, I very much hope that he will not disappoint on this occasion. He does not usually.
I should declare some interests. I am an honorary fellow of the Royal College of Psychiatrists, which has been much quoted this afternoon. I was chief executive of the King's Fund, a member of the Mental Health Alliance, which has been writing to members of your Lordships' House regularly over the past few months and, indeed, years. I am also an adviser to the trustees of the Sainsbury Centre for Mental Health, which, too, has been much quoted this afternoon. Like the noble Baroness, Lady Murphy, I believe that the Mental Health Alliance is one of the great things to have happened in this third time round with the mental health legislation. The Mental Health Alliance—an alliance of some rather unlikely bedfellows—got together seven years ago and has become truly a force for good; it is a good forum in which strong, powerful and intelligent thought is given to these issues and great debates are held.
Like the noble Lord, Lord Bragg, I think that the question to the Minister is: "Why not put this on the face of the Bill?". Part of the mental health legislation is so compulsorily restrictive that the principles by which the state, if you like, takes unto itself the ability to restrict the freedoms of various often very vulnerable members of society should be clearly stated where everyone can see them and is likely to see them.
Like the noble Lord, Lord Walton, I have received an enormous number of letters, as I am sure we all have, from a whole variety of organisations. But perhaps the most extraordinary thing has been not the enormous number of those letters, which I think we might have expected, but the number of letters that many of us have had from complete strangers—not people whom we already know—asking us to take this aspect very seriously. They want principles that service users or patients can see and understand to be put on the face of the Bill. They are saying that not because they are theoretically interested, but because they are the parents, siblings or children of people who have severe mental illness episodically; they know that it is important for those people to see what the principles are and to test the way in which they are treated against those principles. Like the noble Lord, Lord Adebowale, I think that we should take this matter extremely seriously. I very much hope that the noble Lord, Lord Hunt, will accept the amendment, even if he takes it away to have a think about it and comes back with a marginally different version.
Let me deal with the doubt about whether principles should be included on the face of a Bill because they change. Yes, we change. Human beings view things in different ways over a quarter of a century—and it is roughly every quarter of a century that we have a look at mental health legislation. Our perceptions change. However, as my noble friend Lady Barker said, if they change, we have a chance to debate the issues in this House. Homosexuality is a good example. I suspect that in the next few years we will change our perceptions—to the good, I hope—on the issues that are being raised now about the treatment of black and minority ethnic communities in our mental health services. And, yes, we will use this principle to drive our perceptions further. You can say that perceptions may change and that we may have to debate things again, but that does not invalidate putting principles on the face of a Bill. You derive everything else from those principles. As we examine the rest of this legislation closely over the next few weeks and months, we need to do so through the net of the principles that I hope will be established.
The issues raised in the principles in the amendment are important. For example, the welfare of the child is paramount in them. That is key, but it is not to be found in the principles in the code of practice that the Government have provided, on the basis, I think, that the treatment of children and young people is separate from the treatment of adults under this legislation. Any of us who have had any experience of mental health services—I once chaired a mental health trust—know that there are borderlines here. Young people of 16 and 17 years of age often find themselves in adult wards being treated by people who are not expert child and adolescent mental health service professionals but normally work with adults. If we do not have a principle in the Bill about the treatment of children, I believe that people will not take the welfare of children seriously. I consider that to be a key issue in our present mental health services, where many young people between the ages of 16 and 18 are still to be found in our adult wards using adult services.
Secondly, there is the question of reciprocity, which also is not mentioned in the code of practice. When the state deprives people of their freedom, it must do something in return. One would expect high-quality treatment, care and protection, and the idea of reciprocity not appearing in the Bill worries me.
I also want to talk about Scotland. Those whom I have talked to working in the mental health services in Scotland say that thus far the Scottish legislation seems to be working quite well. It seems extraordinary that we do not learn from that and say that, if that is the case and if principles appear in the Scottish legislation, perhaps we should also have principles in our legislation. I want to quote a Scottish service user:
"The principles ... make crystal clear the need to respect us and treat us as fellow humans deserving of dignity and respect, entitled to participate and have a say in what happens to us at all points in our treatment ... Nowadays, I see my psychiatrist as someone I trust rather than fear or feel suspicious of; in the past, I felt the opposite".
However, the key reason that it is important that the Minister accepts the amendment is that, as the noble Lord, Lord Rix, pointed out, the Government accepted that principles should be in the 2004 draft Bill. Therefore, having accepted that in principle, it should be possible to deal with the practical objections raised by the noble Lord, Lord Warner, and others. If we cannot deal with practical difficulties, I do not think much of us as legislators.
The Government claim that it would be difficult to graft principles on to the existing Act but, despite everything that we have heard this afternoon, I cannot see why that should be so. The noble Lord, Lord Warner, said that it would be difficult for the parliamentary draftsmen, but—dare I say it as someone who is related to an odd lawyer or two?—they are lawyers and they should be able to deal with it. Not only that but, if they cannot do it in a single wet afternoon—although my noble friend Lord Carlile thinks that they could do it between lunch and tea—perhaps there should be several wet afternoons, or weeks or months of wet afternoons, until they can do it. It seems to me that that objection simply does not stand. We have to carry on looking at the issue until we can get it right.
People from all round the Chamber have said that they want to see principles in the Bill. They have been saying that for a variety of reasons, heartfelt and passionately. They want to see them because they would set some ethical standards, and arguably raise ethical standards, in our treatment of vulnerable people with mental illness. They would give guidance and confidence to tribunals and lawyers and would guide practitioners. As someone who used to chair a mental health trust, I know that psychiatrists and psychiatric nurses look at the legislation and not only at the code of practice. I have frequently seen them do it: they do it when they are in doubt or when they think that the code of practice might be going out of date or might not be entirely adequate.
The principles would also give enormous confidence to people who think that they might be subject to the Bill and who are worried that it might in some way be used against them. It would generally give confidence to service users, as one service user has said of the Scottish Act. The Royal College of Psychiatrists is right to say that the principles would provide clarity and transparency of mental health services for all concerned about when and for whom compulsion is required and when it is not appropriate.
As my noble friend Lord Carlile has said, the expert committee, chaired by Genevra Richardson, wanted it. It said that,
"legislation is most effective when it reflects the values and ethics of those concerned with its implementation and thereby attracts their agreement and co-operation".
The noble Earl, Lord Howe, has argued that the European Convention on Human Rights is called into play here and that the absence of principles in the Bill would leave the legislation open to legal challenges. The Joint Committee on the Bill said that placing them in a code of practice that can be overridden in emergencies is not sufficient. The Mental Health Act commissioner, Chinyere Inyama, has argued that the absence of the principles in the current Act led to drift. Perhaps that is why there have been so many challenges under the Human Rights Act 1998. As many others around the Committee have said, principles are included in the Children Act, the Adoption Act, the Mental Capacity Act and, of course, the Scottish mental health Act, so why not here?
The Government have said that principles restating rights and duties in other legislation should not necessarily appear on the face of the Bill. That must be wrong, because how can it be right for the Adoption (Scotland) Act but not right here? The principles should be stated and cross-referenced. Given the nature of the legislation, they need to be seen.
First and foremost, I am a rabbi so I shall make a rabbinic point. The principles are a little like the 10 Commandments: one does not need to keep repeating them. It is not that people do not know them—they do—but they are principles and the rest can be derived from them, so one puts them in to remind people. The principles need to be right at the beginning of the Bill as an aide memoire, to give moral authority, which I believe people need in this kind of legislation.
I have a couple of points to make on individual principles. Clearly, the issue of participation is obvious. From all around the Committee, we have heard that people want greater participation by people who have mental illnesses and who often have them episodically. That needs to be strengthened in the code of practice. The issue of carers is relatively new as regards quarter-century reviews of mental health legislation. In the evidence submitted to us before today's debate, it was very clear that the views of carers need to be taken into consideration much more. The national confidential inquiry into suicides and homicides emphasised that the consultation on working with carers was a key part of working differently with people who have mental illness. The expert committee said the same.
On patients' wishes, the principles in the code of practice simply do not go far enough. They do not encapsulate paragraph (c) of the amendment, the paragraph for which the noble Lord, Lord Warner, did not care:
"the present and past wishes and feelings of the patient which are relevant to the discharge of the function".
He argues that that principle is not one that is easy to translate into a set of principles in the Bill. I beg to disagree with him. Of course, it is a principle in the Mental Capacity Act and, therefore, translates very neatly into this Bill. I argue that it is very important to take patients' wishes into account.
On race, equality and diversity, the noble Lord, Lord Adebowale, made a strong case. Breaking the Circles of Fear, published by the Sainsbury Centre for Mental Health, made absolutely clear how terrified of the services many black patients are. That is exacerbated by the fact that, increasingly, some of the mental health professionals become frightened of patients from the black and minority ethnic communities. That exacerbates the fear, and the process goes round in circles. The evidence is clear that the incidence of black patients—particularly men—being detained under the Mental Health Act is between 25 and 38 per cent greater than among other groups. Non-discrimination must therefore be in the Bill to give those communities confidence. Assuming that practitioners will remember non-discrimination and take it into account, day after day in a busy practice, without it being in the Bill is at least unwise and arguably unsafe.
The noble Lord, Lord Ramsbotham, is of course right to say that prisoners are the third special category, along with children and people from minority ethnic communities. He is right because such an enormous proportion of the prison population has either a mental illness or personality disorder or both. Again, principle (f), which makes it clear that they can have treatment no less favourable than any other patient, is absolutely vital.
I hope that the Government will listen to everything said around the Committee. One thing that has worried me particularly, however, is the omission of the disability framework from the principles. The Disability Rights Commission has said:
"In relation to non-discrimination principles, we believe it is not merely desirable but necessary to restate and reinforce key principles which feature in other legislation. The existing public sector duties to promote disability and race equality, for example, need practical reinforcement in a legislative framework in which people may be deprived of their liberty and where prejudicial and discriminatory judgments can so easily come into play. Including principles which support the autonomy and human rights of mental health patients, we believe, would be an effective way of the Department of Health being able to demonstrate that it is meeting its duty to promote disability equality under Section 49 of the Disability Discrimination Act".
That case is made. There must be a statement of principles including disability.
I remind the Minister of the NHS Plan which came into force about five and a half years ago. There was a statement of principles right at the beginning of NHS Plan: a Plan for Investment, a Plan for Reform—a sort of Ten Commandments, dare I say it, for the NHS—which had massive sign-up from all around the NHS: patient groups, royal colleges and all sorts of advisory groups. It gave the NHS Plan the feeling that people really wanted to make it work. The same must be true here. If we can get the sign-up, with principles that everybody has agreed are the right way forward, it will be much easier to make the legislation work.
The final argument was made by my noble friend Lady Barker. It is about making patients feel safer. Possible service users and present patients would feel safer if principles enshrining their protection were actually in the Bill. That is important for them, but it is just as important for public safety. They are much more likely to then seek help than if they feel that the principles are in a code of practice that could be overridden. If they do not feel safe, and that they might be subject to compulsion when they do not feel it is right, they will not seek help. If people who need help do not seek it, we are in trouble.
I want to make a very short statement. I was not planning to speak to this amendment, although I completely agree with all the comments that have been made. I feel I have to speak briefly in direct response to what the noble Lord, Lord Soley, said. I hope that I heard his comments incorrectly and that there was no suggestion that we might justify an inferior quality of care—or what I would probably state to be an illegal service—to somebody whose first language was not English. We have come across too many of those situations.
The language issue is a very good example of why paragraph (g) of Amendment No. 1 is absolutely perfect, because it stops practitioners from turning a blind eye to someone who is a difficult patient. It goes beyond that. Where there are issues of sexual orientation, it draws to the attention of the practitioner, the RMO, that something needs to be done. It is really important that we deal with such issues.
I want to make another comment in response to the remarks of the noble Lord, Lord Warner. If any part of the 1983 Act is counter to the principles listed here, then we should root it out as there is absolutely no room for those discriminatory practices in the legislation that we currently have.
I thank noble Lords for their warm welcome, which is much appreciated. I pay tribute to my noble friend Lord Warner for his absolutely magnificent work as a health Minister over, I think, three-and-a-half years.
I have a certain amount of form in this area as on
It also has to be recognised that however much we do to improve services, there will always be a need for mental health legislation to protect a person with serious mental health problems from harming themselves or others. We are seeking to update that legislation, not only to ensure it meets the objective of protection, but to make sure that the legislation is in line with modern service provision and promotes patient safeguards.
I will respond to the telling comments made about ethical standards. Of course detention in hospital and compulsory treatment raises difficult ethical issues; it is right that we debate those fully. We must make sure that we get this legislation right. We should also accept that patients will rarely be happy about being brought under compulsion, and we have an opportunity here to ensure that when compulsion is used it is done in ways that best serve the needs of patients and provide for the proper safeguarding of their rights. We are committed to providing good quality and accessible services and we will continue to encourage patients to seek help where they believe they need it. Despite this, there will always be occasions when compulsion will be needed—a fact we believe our community, including the users of mental health services, acknowledges.
Clearly, I am new to this debate and noble Lords who have spoken are very experienced and expert in this field. I just want to assure them that I see my role as listening to the debates in Committee. I want to find as constructive a way forward as possible and will do everything that I can to make sure that that happens.
Noble Lords were very kind to me and then suggested that I could confirm the view they have of me by accepting Amendment No. 1. Alas, not for the first time, I shall disappoint. However, I have listened carefully to the debate and have a sense of where noble Lords are coming from. I also understand full well the importance of ethical standards and fully understand that a principled approach to the implementation of mental health legislation is vital. However, the Government see some practical difficulties in accepting the amendment as it stands or accepting it with minor modifications. I say to the noble Lord, Lord Carlile, that putting the principles in the Bill is not a constitutional problem, rather we are concerned about the practical impact of those principles. We consider that the right and best way to approach the principles is to apply them in the codes of practice. I say to my noble friend Lord Bragg that this approach is not defensive and technical, but is concerned to make the legislation as clear as possible. Putting the principles in the Bill might well lead to a lack of clarity and a lack of understanding by practitioners who have to operate day in and day out.
Noble Lords, and many people outside this House, have referred to the Mental Health (Care and Treatment) (Scotland) Act 2003 as a good example of principles in an Act. The noble Lord, Lord Carlile, reminded us about the recommendations of his committee and I pay tribute to the work that he and other members of that committee undertook. It is certainly the case that in the Government's response to the committee's report we agreed that principles should be in the Bill as long as they could be drafted in a way that allowed for due protection of an individual's rights and autonomy while also facilitating practitioners and others to take decisions to minimise harm. But there is a difference between then and now: the Scottish Act and the draft 2004 Bill were replacement legislation, but the Bill before us is not. It is an amending Bill in response to many comments received from stakeholders. It amends a well established and legally tested Act of Parliament—the 1983 Act—which embodies a finely balanced system matching individual rights against the need to take action to prevent harm.
The 1983 Act already contains overriding principles, albeit that they are inherent in its provisions and not separately spelled out. None the less, they are there, and I shall attempt to summarise them. First, the common law protects the personal freedom of the individual, which may not be curtailed except in circumstances sanctioned by law. Secondly, the law may provide for the compulsory detention in hospital of those who suffer from mental disorder when it is necessary for their protection or that of others—which is what the Mental Health Act primarily does. Thirdly, compulsory interventions must be for clinical reasons. Fourthly, compulsory interventions must be justified in all the circumstances—to give the most obvious example, detention for treatment under Section 3 is permissible only when other ways ensuring patients get the treatment they need would not suffice. Fifthly, in order to determine that compulsory interventions are justified in the terms of the Act, other options have to be considered. Sixthly, the detained person has the right to have the lawfulness of his detention reviewed by an independent judicial body that has the power to discharge him if it finds his detention is unlawful. I say to the noble Lord, Lord Rix, and to other noble Lords that our concern is not so much about a conflict between those principles and those in the amendment, or about the time of parliamentary counsel; our concern is that grafting new principles on to such an established and tested piece of legislation does not offer the clarity that proponents of this amendment are seeking.
Of course, practitioners need guidance on how to operate the Act, and we agree that guidance should include explicit principles to which they should have regard. That is why principles are contained in the current code of practice for England and Wales and why we propose to revise and extend them in the illustrative revised code that we have issued alongside the Bill. Like the 10 principles proposed in this amendment, people are required to have regard to the code, including its principles, which means that, as the courts have stated, they can depart from them only if they have cogent reasons, and they may be called on to justify their reasons if they do so.
The difference between having the principles in the code and having them in the Act is the clarity of their relationship with the detailed provisions of the Act. If the principles are in the code, it is clear that the statute comes first. The principles do not change the statute, but guide people on how to approach its implementation. If the principles are in the Act, they must be assumed to have an effect equal in status and therefore somehow add to the existing detailed provisions, which would, I suggest, make interpretation much more complex.
Let me give examples of some of the issues that would be problematic. My noble friends Lord Warner and Lord Soley referred to some of them. If we take the amendment introducing a principle of maximising the benefit to the patient from the discharge of the functions, at the level of generality, no one would disagree. However, its very purpose means that the Act needs to strike a balance between the needs of individuals and the rights of others to be protected from the risks posed by their mental disorders. That balance is inherent in the legislation as it stands, and putting this principle in the Act, especially with no counter-balancing provision about assessment of risk or harm to others, might have to be presumed to change that balance somehow.
The noble Baronesses, Lady Barker and Lady Neuberger, raised the issue of the reciprocal right. The reciprocal right to treatment and support principle introduces a further obligation to anticipate health outcomes. It seems to us that the effect would be to restore many of the disadvantages of the so-called treatability test, to which we will be coming in due course. There are many cases in which it is entirely right that a detained patient should be treated in a comparable way to a non-detained patient. The fact of detention should not, for example, make any difference to the quality of healthcare received, nor should the patient be treated with any less consideration or respect. But we must think about what the principle would mean when applied to, for example, the criteria for detention. The criteria are in the Act and are the justification for treating the patient differently. We could debate whether that is less favourable treatment, and I can imagine that many people might think that it is. It is certainly true that it inevitably prevents patients doing certain things and making certain choices that other people would be able to make if they were admitted to hospital voluntarily. Yet this principle, which noble Lords would have as part of the Act itself, relates to treatment that can be justified in the circumstances, so it appears to call for justification over and above the criteria that already determine when an application for detention can be made. Yet it is not clear what the justification would be or why there should need to be any further justification. If noble Lords feel that the criteria should be changed, the way to do it is to propose amendments to the criteria and not to create uncertainty by putting principles in the Act whose relationship to the criteria is unclear.
The very purpose of the Act is to provide a lawful framework for the application of compulsion where it is necessary for the prevention of harm. It is to enable patients to be treated under constraints which would be unnecessary were it not for the risks of harm posed by their disorder. To put this principle in the Act risks frustrating that purpose.
Likewise, while consulting carers is a good thing—subject to the specific circumstances of the case—the effect of making it a principle in the Act would not merely be to make it explicit. Decisions often have to be taken in circumstances where consultation with carers may not be practical; for example, where emergency treatment is required. Does making it a principle in the Bill mean, for example, that taking account of carers' views would become, in effect, an additional criterion for such treatment, beyond the fact that treatment is immediately necessary to save the patient's life or one of the other purposes set out in Section 62? If so, it is hard to see how that would be desirable. Overall, this principle would seem to risk placing a disproportionate burden on practitioners that could even be to a patient's detriment.
As noble friends have said, the proposed principles also have the potential to conflict with each other. There are circumstances where it may be inappropriate for some reason to consult carers, perhaps because of the views of patients, which would have to be taken into account under the previous proposed principle in the amendment.
Similarly, the maximum benefit principle and the least restriction duty may conflict. Compulsory treatment may speed up a patient's recovery but involve more restriction than could perhaps be said to be necessary if the risk posed by the patient's disorder could, in theory, be managed equally well by detaining the patient for a long time with only the minimum care and treatment. Yet, in that case, the amendment would seem to suggest that least restriction must be preferred, because unless the action needed to provide maximum benefit were "necessary" rather than, let us say, highly desirable, the least restriction duty would trump the maximum benefit principle.
The Act is, in large part, about clinical and professional judgments. By its very nature, it has to be so. The presumptions of circumstances for which this legislation must cater are surely too varied to be amenable to primary legislation. There is surely an argument for leaving practitioners with sufficient discretion to deploy their professional judgment proportionately with the patient's needs and the assessed risk in every case, not tie them down with over-prescriptive legislative requirements.
I have listened carefully to noble Lords' passionate speeches. Their intention seems clearly to be to ensure that practitioners, as well as patients and the public, understand and have access to a clearly defined set of principles to promote best practice, and no one could argue against it. However, that is the beauty of the code of practice. Noble Lords have rather dismissed the benefit of flexibility. Twenty five years has been quoted as the average amount of time between different mental health Bills. Circumstances change. Even if we were to adopt principles which, it seemed to us, as the noble Lord, Lord Alderdice, suggested, would last many lifetimes, none of us could say with confidence that we could establish all those principles today. Life and society move on. That is the beauty of the code of practice. My understanding is that it has been changed from time to time. There is ample opportunity for scrutiny by Parliament of the code of practice.
Various comments were made about various aspects of the code of practice. I very much accept the point about disability rights. We have produced an illustrative code of practice. The very point of producing this code of practice for discussion and consultation is to be informed by what is in it. If, in the course of time, the code of practice proves to be missing something, and if, as the Act is implemented, it becomes clear that something needs to be added, one can make changes as quickly as possible. However, who of us who have listened to the endless debates on mental health legislation would have confidence that we could simply and quickly change the primary legislation? I urge noble Lords to consider strongly the benefits of an approach through the code of practice, subject to what will be extensive consultation and informed by the debates in your Lordships' House on this Bill.
Few noble Lords mentioned Amendment No. 59, but I ought perhaps to say a few words on it before summing up. It would apply principles proposed for the Mental Health Act 1983 by Amendment No. 1 to all decisions and actions taken under the Mental Capacity Act 2005. The amendment was proposed to illustrate that principles were contained in the Mental Capacity Act. I understand that, but I hope that I have explained that we see a difference between a Bill which seeks to amend an existing Act and the circumstances of the Mental Capacity Act.
If Amendment No. 59 were agreed to, there would be a great problem in dealing with the two sets of principles as set out in the amendments. People who lack capacity to make their own decisions, whether it be in the context of their personal welfare, property or affairs, or of the new Bournewood safeguards to be established by this Bill, should be fully supported to participate in decision-making about their care. Similarly, no one would argue against the fact that a person's present and past wishes and feelings should be considered if decisions must be made on their behalf; that the views of those, such as carers, with an interest in the person's welfare should be taken into account; or that there should be no discrimination. However, Sections 1 to 4 of the Mental Capacity Act already establish these principles. I am not sure how it helps to add the further 10 principles, designed for a different purpose; it would simply confuse.
As the Minister is coming to his summing-up, I thought that this might be the right place to put a question to him, which is in two parts. He began by saying that such principles should not be in the Act—it is an amending Act, but no legal point derives from that—but that they should be in a code of practice. However, he has since said that he does not accept the principles, although I noticed that he said nothing about the discrimination principle. He seems to oppose all the others, so that they will not be in a code of practice. His logic is that he does not like them.
The second part of the question is perhaps more important—we shall come to it as the Minister said. Is not the stance of the Government on the matter of putting highly valuable principles on the face of the Bill really based on the new treatment principle, with the highly subjective test of appropriate treatment, instead of a straightforward, objective test which it would be much better for patients and those who want the Act's protection to have?
I do not agree with that. I was not arguing against the laudable aims in many of the paragraphs of the noble Earl's amendment. Indeed, I invite the noble Lord to read page 8 of the draft illustrative code of practice, which contains the Government's suggested guiding principles. I have been suggesting that there may be—and, indeed, I believe there will be—some very practical issues with putting the principles on the face of the Bill as the noble Earl, Lord Howe, and others have suggested, and with how they interrelate with the current 1983 Act and the principles contained in it. I went on to describe some of the potential difficulties because, although one could certainly argue that each of the principles contained in the amendments of the noble Earl, Lord Howe, could be justified, from time to time there could be a conflict between them in terms of how the Act would have to be implemented.
In terms of where we are and where we should be going, let me say this in conclusion. I have listened very carefully to noble Lords' comments and understand the importance of principles to them. I hope that I have explained why the Government have concerns about the practical impact of the principles proposed, but I will, to use the words of the noble Earl, Lord Onslow, take this away and explore it before Report to see whether any movement can be made. I can make no promise that ultimately such an approach will lead us to wish to put some principles on the face of the Bill, but I am happy to take this away and discuss it with noble Lords between Committee and Report to see whether there is any way through.
This has been a debate of very high quality, one of the best that I have had the privilege of taking part in. I thank all noble Lords who have participated in it and thank the Minister for his very full and thoughtful reply. We start from a point that is quite unusual when we debate legislation. There is near universal agreement outside this House, as evidenced by the list read out by the noble Lord, Lord Carlile, that there should be a set of principles on the face of the Bill. We have heard this afternoon that there is very wide agreement within this House that that should happen. The noble Baroness, Lady Neuberger, is right to have posed the essential question: why not place principles on the face of the Bill? Are the arguments advanced by the Minister strong enough to cause us to think again?
We have heard from many noble Lords that principles have real practical value. We can see that already in Scotland. I was interested that the Highland Users Group in Scotland has said in a recent broadcast how useful it is to have principles in the Act in giving them confidence in how the legislation will be implemented. That is particularly important because psychiatry is the only branch of medicine feared by its patients and the noble Lord, Lord Adebowale, got that point absolutely right. He and the noble Lord, Lord Bragg, were right to say that part of the point of a set of principles is to raise ethical standards of practice. Because they are in the statute, a sound set of principles should have a lasting value over the long term. I took note particularly of what the noble Baroness, Lady Barker, said; namely, that the justification for principles is that people will have confidence in the safety of the decisions made.
There seems one particular weakness in a code of practice. A code can be departed from as a result of a House of Lords judgment or case law. That can occur in a whole class of cases so long as there is a cogent set of reasons for doing so, and I have an example in my file. By contrast, guiding principles are of such general applicability that it is hard to see which of them could possibly be incompatible with the detail of the law. Sadly we have to remember that there is a long and ignoble international history of abusing detention in mental hospitals.
The noble Lord, Lord Hunt, was right that circumstances change, but if principles are to be changed in response to those circumstances, as we might envisage, it is essential that this only follow parliamentary debate and decision. The fact is that practitioners pay more attention to the Act than the code; that is also true of the Mental Health Review Tribunal and the courts. Over 25 years the Bill will lead to the detention and forced treatment of at least 1 million people, and ensuring that the provisions of the Act are in line with the principles would be time very well spent.
The noble Lord, Lord Hunt, pointed to a possible conflict between some provisions in the amendment. I think that the principles, by their nature, involve a balance between them at different times and in different circumstances. That is exactly what occurs in the implementation of all human rights law, when we think about it. The human right to life, for instance, and the right to liberty. There are circumstances when those two are in conflict. That is the nature of the implementation of this kind of law.
The noble Lord, Lord Warner, was critical of the amendment and commended to our attention the principles set out in the code of practice as an alternative. I would just say to him that the amendment is actually modelled very closely on the wording of the Scottish Act of 2003. It was because I did not want to fall into the trap of importing practical detail on to the face of the Bill that I did not do a straight crib of the code of practice. The noble Lord, Lord Alderdice, was absolutely right about that. The code of practice is primarily that, rather than a set of guiding principles.
The noble Baroness, Lady Murphy, made the excellent point that the principles in the amendment have been around for a very long time and have gained wide acceptance; however, I am more than happy to concede that the amendment may not be perfect. I should just say that there is a misprint in the last line of the amendment. It should say "informal" care and treatment.
If the principles are not compatible with anything in the Act, surely we ought to try to identify what those issues are. I think we will come to a number of them later in our Committee proceedings, but I say to the noble Lord, Lord Warner, that it should not be beyond the wit of parliamentary counsel to propose a set of principles along the lines of those set out in the amendment.
There is, of course, a larger point. If it is the united will of this House, supported, we may be entitled to hope, by the Minister—at least in principle—that such a clause be drafted, then a way should be found for that to happen. The noble Lord, Lord Williamson, said that we must be bold, and I fully agree with him. He is absolutely right. I urge the Government to be bold, to use this opportunity to put the legislation into a context of values and, in so doing, make a real difference to mental health patients. If the Minister commits himself to that, he can count on the support of noble Lords on all sides of the House as he sets about the task.
This is clearly not the occasion to test the opinion of the House. There will be a great deal more discussion and debate before we settle this issue. I beg leave to withdraw the amendment.
I, too, welcome the return of my noble friend Lord Hunt to the health brief. I look forward to supporting him in his work; his wisdom will benefit the whole House.
This is a probing amendment, and I acknowledge the briefing and support I have had from the National Autistic Society. It is widely acknowledged that autistic spectrum disorders are not a form of mental illness. The definitions of mental disorder in the 1983 Act and the Bill include autistic spectrum disorders as covered by the new wider definition. The need for a new definition is understandable, but there is concern that the breadth of the definition in the Bill could result in a greater number of people with an autistic spectrum disorder being inappropriately detained.
At Second Reading, several Peers raised the issue of the broadened definition and the related issue of removing the treatability test, which will be subject to further debate later in Committee. It was encouraging to hear the right reverend Prelate the Bishop of Manchester and my noble friend Lord Bragg speak out about the definition of mental disorder and suggest that exclusions should perhaps be extended.
The reason for the amendment is quite straightforward. It addresses a concern that relates to both those points. The Bill partially excludes people with learning disability from the Act; they can be detained only if they have a mental illness or if,
"abnormally aggressive or seriously irresponsible", conduct is displayed, as in the 1983 Act. The caveat is welcome, but the Government have chosen to omit autistic spectrum disorders from this category. The amendment would simply add autistic spectrum disorders to this category, ensuring that people with an autistic spectrum disorder are subject to the same caveat in the Bill as people with a learning disability.
Autistic spectrum disorders are not mental health problems and not psychotic conditions, so mental health legislation should not normally be used to detain people with such a disorder. People with an autistic spectrum disorder experience difficulties with communication, social interaction and flexibility of thought, all of which affect the way in which a person relates to other people and the world around them. It means that people with an autistic spectrum disorder may have difficulty understanding tone of voice or unclear language and may appear withdrawn or insensitive to the feelings of others.
The broadened definition, along with the removed treatability clause, allows for detention if it is necessary for the health or safety of the person or other people. There is concern that that could result in the detention of people with an autistic spectrum disorder where their own or another person's health or safety is at risk but where detention is unnecessary or inappropriate. For example, a person's perception of the world as chaotic and confusing can mean that they rely on routine and structure, and on repetitive actions. Unexpected changes to routine can cause alarm and frustration and can sometimes lead to challenging behaviour. Difficulties can arise from sensory sensitivity or social misunderstanding. Another example is a lack of recognition of something as simple as road safety, resulting in people with an autistic spectrum disorder putting themselves at risk. These examples do not justify detention under the Mental Health Act, but the Bill appears to leave that possibility open. The caveat of,
"abnormally aggressive or seriously irresponsible conduct", would guard against such inappropriate detentions.
There are concerns that people sometimes remain detained in inappropriate non-specialist placements simply because the support that they need to live in the community or a social care placement is not in place, and that the mental health system is sometimes the only way that some people with an autistic spectrum disorder can access services at all.
The amendment follows a recommendation by the Joint Scrutiny Committee on the 2004 draft Bill. I pay tribute to the committee's valuable work. It said that people with learning disabilities or communicative disorders such as autistic spectrum disorders should be,
"liable for compulsory treatment under the Bill only if they display seriously aggressive or severely irresponsible behaviour".
At the time, the Government did not agree that this provision from the 1983 Act should be retained. Now, however, the Bill retains that provision, but for people with a learning disability only. Can my noble friend explain why the provision should not be extended to people with an autistic spectrum disorder, as the committee recommended, or in what circumstances someone with an autistic spectrum disorder should be compulsorily detained if they are not mentally ill or do not exhibit abnormally aggressive or seriously irresponsible conduct?
"a patient's needs and risks, not the label that happens to be applied to a person's mental disorder, determine when action is taken".—[Hansard, 28/11/06; col. 657.]
I accept that the amendment refers to a diagnostic label, but it also takes account of risk in a clear way by applying the,
"abnormally aggressive or seriously irresponsible conduct", caveat.
Furthermore, with regard to specialist care, a diagnosis should serve as a signpost to appropriate services. Whether or not a person with an autistic spectrum disorder has a mental illness or a learning disability, where care is required it must, ideally, be specialist care. The draft illustrative code of conduct contains a welcome emphasis on the need for specialists with regard to assessments and services, but it could be stronger. I welcome wholeheartedly the Minister's indication of a willingness to look at strengthening the code. People with an autistic spectrum disorder should be dealt with only in a setting where they can access specialist care. There have been cases without specialist input where mental health problems have been neglected during an assessment and put down to a person's autistic spectrum disorder. Equally, it is inappropriate for people with an autistic spectrum disorder to be treated for mental health difficulties without any consideration of their autistic spectrum disorder. For example, people are more likely to experience anxiety as a result of their environment; treating the anxiety without understanding its causes may escalate the problem.
The Government have said that they want to reduce the need for compulsion. Stakeholders and Peers on all Benches want to minimise the potential for inappropriate detention. According to the draft illustrative code of practice for the Bill, detention of people solely on account of their autistic spectrum disorder will happen only very rarely. Additions to the draft code about autistic spectrum disorders are extremely welcome, including noting that certain characteristics do not justify the use of the Act. The Bill and the draft code could do more to prevent inappropriate detention and to clarify circumstances in which detention of someone with an autistic spectrum disorder is appropriate.
The only reference in the code to appropriate detention of a person with an autistic spectrum disorder is to the person being unable to prevent themselves causing severe harm to themselves or others. Would this not be considered abnormally aggressive or seriously irresponsible behaviour? It would be valuable to hear from the Minister about what the very rare circumstances envisaged might be, in which a person with an autistic spectrum disorder could be detained without mental illness and without displaying abnormally aggressive or seriously irresponsible behaviour. I fully understand that it may not be possible to give that answer now, but I would welcome the opportunity to discuss this amendment further, and ask the Minister if he would be willing to consider this matter further and have further discussions with stakeholders. I look forward to hearing further discussion on this matter now. I beg to move.
This is an extremely difficult issue. The Government's position—if I do not misrepresent them—is that we gain very much more by having a single and unqualified definition of mental disorder than we would gain by building in various categories of exemption. We will be debating the issue of exclusions in some detail when we reach Amendment No. 4, and I do not want to pre-empt those discussions. The Government's reason for taking this position is to ensure that clinicians do not get hung up on what diagnostic label may be hanging around someone's neck, but rather pay attention to what their needs are and what behaviour or symptoms they are exhibiting.
In the case of autistic spectrum disorders, I expect that this is the argument we will hear. It is not an argument that can be brushed aside lightly, but I disagree with it. Autistic spectrum disorders are disorders characterised by impaired communication and social interaction. They are not psychotic disorders; nor are they mental illnesses. What the National Autistic Society fears, as the noble Baroness said, is that far from the single definition in the Bill making life simpler and ensuring that only people who have a disorder or disability of the mind are detained, it will cause confusion and result in more people with autistic spectrum disorders being detained than is justified. The behaviour of someone with an autistic spectrum disorder may well resemble that of someone with a mental disorder. We need to be sure that one is not mistaken for the other. If a person is neither mentally ill nor behaving in an abnormally aggressive or irresponsible way, quite simply, they should not be detained compulsorily under the Mental Health Act.
It is perfectly true that people with ASDs have a higher than average incidence of mental health problems. We do not want to say that by virtue of having an autistic spectrum disorder they should be excluded from the scope of the Bill altogether. That really would be a mistake. If we imagine an autistic person posing a risk to themselves or to others by reason of mental illness, instead of having the various protections afforded by both the Act and the Bill, they would be left to the mercies of the criminal justice system.
There is a way out of this, suggested by the noble Baroness. Unless we add to Clause 2 the words in the amendment, we will have a situation where someone with a learning disability and an autistic spectrum disorder, but without mental illness, could still be detained, even if they were not displaying seriously irresponsible or aggressive behaviour. That surely cannot be what we want. I very much hope that the Minister will be sympathetic to the arguments put forward by the noble Baroness.
The noble Baroness, in moving this amendment, has done so comprehensively, and has given the views of the Joint Committee. I would not resile from those views for one moment. I agree entirely with what she said, although I would put it in a slightly different way, to add something—I hope—to the way she expressed herself. The committee was of the view that this was, in many senses, an issue of discrimination. People suffering from autistic spectrum disorders carry out valuable roles in society. I suspect that there are not a few people suffering from autistic spectrum disorders not a million miles from where we sit now and the other place.
If I may be anecdotal for moment, I recall that last year someone came to install some case analysis software on my laptop in my barristers' chambers. He explained to me that in his business he employs four people who suffer from autistic spectrum disorders to prepare and analyse the vast quantities of case material—and we were talking about a huge fraud case—which were to be reduced into a particular CD-ROM format. To his great credit, he told me that not only are they among his most valued employees, but that everyone in his firm earns the same wage, so that they earn exactly as much as he does. He was amazed that more companies were not using people suffering from autistic spectrum disorders to deal with very complex issues of that kind, which maximise the particular abilities that some people suffering from autistic spectrum disorders, including Asperger's syndrome, experience.
To say that people suffering from autistic spectrum disorders are not "normal members of society" is, in my view, discriminatory and insulting to those people. Returning to where I started, I should say that it seemed to the committee that, although people with autistic spectrum disorders had a greater incidence of mental disorders in their lives, there was no evidence before us to support the view that one could assume that they suffered from mental disorder. The provisions as they stand imply that assumption. If the amendment is accepted by the Government there would be no deficit in the effectiveness of this legislation in relation to people suffering from autistic spectrum disorders.
The noble Baroness has brought forward what is, I hope, a probing amendment. The awful point is that if you start naming various conditions, we will get a never-ending list. Most of us who have dealt with disabilities over a period of time know that one of the problems we face is the stereotype. There are certain preconceptions to do with the way that people with disabilities—either obvious or hidden—relate to the world. The deaf may have tremendous problems relating to people if the batteries in their hearing aids are low or if there is no loop in the room. Their behaviour could be interpreted as aggressive if you happen to catch them on a bad day.
I do not like the idea of naming a condition in the Bill and saying that it is fundamentally different. I have spent countless hours in this Chamber saying that disabled people should be treated wherever possible in the same way as the rest of the world. We are in trouble if we start to introduce caveats suggesting that we need not take into account that a disability will lead to slightly different patterns of behaviour. That would be the flipside of saying, "Does he take sugar? Dear lad. Pat him on the head and put him in his wheelchair in the corner". It would be like saying, "They are all monsters".
I would be much happier if the Government would explain their thinking on this matter. The fact is that illness can occur to any disability group regardless of whether it is mental or physical. Why introduce a second caveat? It may be because people are worried that this group has been labelled in the past. I may not have listened to enough of what has been going on in this Bill, but please could we have more clarification of the Government's thinking?
I am grateful to my noble friend for her Amendment No. 2. Section 1 of the 1983 Act as it stands first gives a general definition of mental disorder. It then defines four specific categories of mental disorder—mental illness, mental impairment, severe mental impairment and psychopathic disorder. Mental impairment and severe mental impairment can be identified with learning disabilities of different degrees of severity, but are defined in such a way that they cover those disabilities only where they are associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.
Many of the powers in the Act—including, for example, detention for medical treatment under Section 3—may be exercised only if the patient is suffering from one or more of the four categories of mental disorder. Some powers, including the Home Secretary's ability to transfer unsentenced prisoners to hospital when they urgently need treatment for mental disorder, apply only to certain categories of disorder—in that example, only mental illness and severe mental impairment.
We believe that the use of the Act should be determined by a patient's needs and the risk posed by their disorder, not by the particular legal label applied to it. The four separate categories of mental disorder in the Act are legal distinctions that do not match clinical practice. They create arbitrary and unnecessary distinctions between patients and effectively exclude some patients entirely from certain parts of the Act. They also sometimes encourage some patients and their lawyers to argue about legal classifications in the hope of obtaining premature discharge, even when they remain in need of treatment. That is why Clause 1 removes the four categories of mental disorder. Criteria for admission for treatment will now apply uniformly to any disorder or disability of the mind, rather than being dependent on a patient having a particular category of mental disorder.
However, Clause 2 deliberately maintains the idea that key parts of the Act should apply to learning disability only when associated with abnormally aggressive or seriously irresponsible conduct. That is what we mean by the learning disability qualification. Our intention in including the qualification in Clause 2 was to preserve the effect of the Act in relation to learning disabilities. It was not to change it by effectively excluding more disorders from the scope of many of the powers in the Act. I am at one with the noble Lord; as a general principle, we believe that the fewer exclusions there are the better, because each one adds to the risk of arbitrarily excluding people who need to be helped. That itself would be a powerful argument for not extending Clause 2 to cover autistic spectrum disorders.
But we also think that there is a clinical distinction between autistic spectrum disorders and learning disability. A learning disability will include the presence of a significantly reduced ability to understand new or complex information or to learn new skills, and a reduced ability to cope independently. It will not necessarily be accompanied by the difficulties that a person with an autistic spectrum disorder will have with communication and relating to people around them. It is because of these communication difficulties that we believe that people with autistic spectrum disorders are better served by not being subject to any limitation. That way, in the rare cases where the Act needs to be used—for example, to help an autistic person who might otherwise attempt suicide—debates about diagnosis will not present an obstacle.
In fact, by removing categories of mental disorder, we are making it clear that all the provisions of the Act apply to people with autistic spectrum disorders, where necessary. At present, the arbitrary distinctions between the four categories of disorder leave room for uncertainty about the extent to which the Act applies to people with autistic spectrum disorders—although a small number of people with such a disorder are certainly detained under the Act already.
As a result of the change that we are making, when clinicians are called on to determine whether the Act ought to be used in relation to a person with such a disorder they will be able to concentrate on the individual's needs and the risk posed by their disorder, rather than on whether the disorder fits one of four arbitrary legal categories, or whether the person's autism is accompanied by seriously irresponsible or abnormally aggressive behaviour. Also, including autistic spectrum disorders in the learning disability qualification would mean that where an autistic person committed a serious offence and did not have another mental disorder, the courts might have no alternative but to pass a prison sentence unless the autistic spectrum disorder was associated with abnormally aggressive or seriously irresponsible conduct on the person's part. Given that people with autism are more often aloof than aggressive, that would impose a constraint on the courts that might occasionally lead to people being detained in prison where it would be more appropriate to use the Mental Health Act.
Amending the Act in the way that we have done will ensure that it can be used for the very few people with autistic spectrum disorders for whom detention or other compulsory intervention is justified, without any uncertainty about whether and how they fit into its legal framework.
I am puzzled by something that the Minister said about the courts. Is he suggesting that there might be a case in which the court would make an order under Section 37 and/or Section 41 of the Mental Health Act 1983 on the grounds that the person was suffering from autism spectrum disorder, without anything more? I find it extremely difficult to imagine that that would happen.
I was seeking to suggest that there may be a gap. If there is an exclusion such as the one suggested by the noble Baroness, a situation may occur in which there was no alternative other than the person being dealt with through a custodial sentence. That is why it would be much better not to have an exclusion and to allow more flexibility in the way that such an issue could be dealt with.
If the Minister is inviting me to intervene again I certainly will. I hope that the Committee will not think that it is a discourtesy. The Minister says that there may be situations. Are the Government able to put their finger on any example of any such situation from known experience from which they can extrapolate that prediction?
I will see whether I can write to the noble Lord with a specific case, but the kind of situation that might arise would be where someone with the disorder has no other recognised mental disorder. Perhaps they were feeling suicidal due to the social isolation associated with their autism. The Act should then enable professionals to detain them for their own protection. I understand this is a different case from that raised by the noble Lord. Indeed, I was answering the point raised by my noble friend. The substantive point is to try to ensure that there are no gaps. An exclusion in the way suggested by my noble friend has the potential for leaving a gap. I shall see whether I can produce any information on the question that the noble Lord raised.
In conclusion, while the Government do not want to accept my noble friend's amendment, I will be happy to discuss this further with her and concerned stakeholders, to see if I can allay some of their concerns.
I thank the Minister for that reply, but I am going to have to think about it quite carefully to ensure I understand it properly. If the Minister is worrying about gaps, I might be worried about including too many people who maybe should not be included. I will reflect on his response and on the comments made around the Chamber, but at this stage I beg leave to withdraw the amendment.
I must first declare an interest as president of the Royal Mencap Society. I mentioned earlier this afternoon that today happens to be the 30th anniversary of my last appearance at the Whitehall Theatre. It is also, almost to the day, the 24th anniversary of the first time I had the argument which is encapsulated in Amendment No. 3, which stands in my name. On that occasion the argument—and I admit eventual agreement—was with the noble Lord, Lord Elton, who is not in his place this evening. I do not know how many Health Ministers there have been since 1983, but I am delighted that the noble Lord, Lord Hunt, on almost his first day in his new job, will be continuing the discussion.
I hope he will have read my Second Reading speech, and at the same time may have seen the letters which I have received from, according to the Department of Health heading here, not the "Right Hon" but the "Right" Rosie Winterton MP, Minister of State for Health Services—she is a right one—and from the noble Lord, Lord Warner, Minister of State for NHS Reform as was. With the Second Reading speech and those two letters, I am sure he is well aware of the situation.
Clause 2 says that people with a learning disability are not normally by virtue of their disability to be considered to have a mental disorder for the purposes of the Mental Health Act,
"unless that disability is associated with abnormally aggressive or seriously irresponsible conduct".
Amendment No. 3 would remove the "aggressive or irresponsible" caveat, which would mean that people who have a learning disability but no other mental disorder would not be subject to compulsion.
I asked for this amendment to be grouped separately from that on autism from the noble Baroness, Lady Morgan, because although the two cover the same clause, they raise different issues. Amendment No. 2 relied on Clause 2 retaining its existing structure and sought to include autistic spectrum disorders on the same footing as learning disability. Amendment No. 3 seeks to change the structure of Clause 2, placing learning disability on a different footing. I hope the noble Baroness will accept my explanation as to why I did not intervene.
In explaining what this amendment means, I must first make it clear that it does not mean that people with a learning disability would be excluded from the scope of the Bill altogether. People with a learning disability may well have a mental health problem or a mental disorder which needs to be treated under compulsion. Everyone who has a mental health problem comes within the scope of the Bill, including people who also have a learning disability. Indeed, there is evidence that the prevalence of mental ill health among adults with a learning disability is higher than the prevalence of mental ill health among the general population. Only last week, I read an article in the latest edition of the British Journal of Psychiatry reporting on a cohort study in Scotland—even though it is a small nation—which found that more than 40 per cent of adults with a learning disability also experienced mental ill health. Other research has suggested that the prevalence of depression among people with a learning disability is four times greater than that among people without a learning disability, and that the prevalence of schizophrenia among people with a learning disability is three times greater than that among the general population.
Just as my noble friend Lord Adebowale, in moving Amendment No. 5, rightly seeks to make it clear that dependence on alcohol or drugs does not preclude the existence of a mental disorder, so I want to emphasise that having a learning disability does not preclude the existence of a mental disorder either.
I labour this point for two reasons. First, it demonstrates that my amendment would not prevent people with a learning disability being made subject to compulsory powers. They would still be more likely to come under the scope of the Bill than the general population. Secondly, and more importantly, abnormal aggression or serious irresponsibility—the characteristics for which people with a learning disability could be sectioned under the Bill as it stands—may in many cases be caused not by a person's learning disability but by an underlying health condition which ought to be treated. I am concerned that the Bill as it stands would allow people with a learning disability who also have a mental health problem to be sectioned on the basis of learning disability plus aggression, leaving their mental health problems undiagnosed and unaddressed. Framing a law in a way which may incentivise misdiagnosis, or lazy or convenient diagnosis, is not helpful.
We already know about serious inequalities in the standard of healthcare experienced by people with a learning disability. Mencap's 2004 report, Treat Me Right!, and the Disability Rights Commission's 2006 formal investigation, Equal Treatment: Closing the Gap, both found evidence of diagnostic overshadowing, in which symptoms of health problems displayed by people with a learning disability were treated as being part of the learning disability, rather than as evidence of a coexisting condition. This could mean a person with a learning disability who is behaving in an aggressive or irresponsible way has their mental health problems completely overlooked.
Aggression and irresponsibility may be symptomatic of physical health problems, or stress. Allowing people with a learning disability who are aggressive or irresponsible to be sectioned on that basis may lead to physical health problems being missed. Mencap's Treat Me Right! report contains an account by the mother of Simon, who has a learning disability:
"We knew there was something wrong with Simon. He was scratching his face and screaming and seemed extremely distressed. So we took him to see his GP, who couldn't find anything the matter. We kept saying that we thought he must be in pain. But he just wouldn't listen. He told us: 'That's just the way they are sometimes. Just take him home.' Luckily, the dentist took more time to examine Simon and found that he had an abscess. I hate to think how much pain he must have been in".
Fortunately, this case had a happy ending and did not involve the use of mental health law. Yet it is not difficult to see how things could have been different, here and in many other cases. My concern is for people like Simon who, being unable to communicate, may respond to pain by lashing out and being violent. It is also for people like Simon's GP, who may simply write this behaviour off as being part of the learning disability and who, in order to protect the patient or those around him, use the Mental Health Act to provide the wrong kind of treatment under compulsion.
I am concerned that Clause 2 may make it less likely that people with a learning disability who behave in an aggressive or irresponsible way will have other underlying mental and physical health problems identified and treated, so the Bill as drafted could lead to people with a learning disability being misdiagnosed and not getting the treatment that they need. It is not the purpose of the Bill to provide people with worse health conditions, but I am worried that it may be the effect. Perhaps the code of practice could be used to make this clearer. Amendment No. 72, which we shall debate in due course, would give the code statutory force, which might help to eliminate some of the poor practice which I am worried about.
It is also worth pointing out that when a person lacks capacity in relation to the question of whether he should be given medical treatment, he can be treated in his best interests under the Mental Capacity Act. When people with a learning disability behave in an aggressive and irresponsible way, they will in most cases lack capacity.
I should say a few words about the diversion of people with a learning disability from criminal punishment to hospital. The amendment would, after all, provide that that could not happen unless they also had another mental disorder. First, it is true that prison is not an ideal environment for people with a learning disability but there is evidence that there are very many people with a learning disability in the prison system anyway. There may be very good reasons for wanting to divert them away from it, but the Mental Health Bill, if enacted even with this amendment, would allow them to be diverted from it only if they were "abnormally aggressive" or "seriously irresponsible". It would leave most prisoners with a learning disability exactly where they are. There are many potential public policy options for providing better support to people with a learning disability who find themselves within the criminal justice system, and I am not convinced that using mental health law, which will only ever touch a small minority of them, is a particularly effective one. Secondly, my concern that the "aggression or irresponsibility" caveat can make mental and physical illness less likely to be diagnosed in people with a learning disability applies just as much to people inside the criminal justice system as to those outside it.
My concern in moving this amendment is not only on the grounds of the principled position that a learning disability is completely different from a mental illness, and should not be treated as such. I have always held that position, and I still hold it now. I am pleased to see that the Disability Rights Commission, commenting on my amendment, agrees with me, describing Clause 2 as it stands as,
"discriminatory, stigmatising, inappropriate and unnecessary".
My concern is also that the clause may bring under the scope of mental health legislation people who even the Government think should not be there, or may put them there for the wrong reasons, so that the underlying cause of their aggression or irresponsibility is not addressed.
As the clause stands, it would allow people to be sectioned on the basis of learning disability when other courses of action would be more appropriate; it incentivises bad practice when we know that good practice is far from universal; it allows the symptoms—aggression or irresponsibility—to overshadow the causes, be they mental or physical ill health or simply distress; and makes it less likely that people with a learning disability will get the treatment that they need. I hope that the Minister will be able to begin his new job on the best possible footing, by finding a way of making sure that people with a learning disability are not disadvantaged by mental health law. I beg to move.
During my time in this Chamber I have learnt one thing—that the noble Lord, Lord Rix, is the worst act to follow because he always has the best lines, and that is my position today. Anyone who spent more than about 30 seconds on the Joint Committee was left in absolutely no doubt as to his commitment over many years to this subject, and his tenacity. All that we could do, strong-minded people though we were, was to emerge from that committee in complete agreement with everything that he said and to be prepared to line up with him. We did that because he is absolutely right—and he is absolutely right in proposing this amendment.
Being aggressive or irresponsible is not a reason in itself for people to be subjected to mental health legislation. Because someone has a learning disability and displays those two things it is simply wrong to make them subject to a different degree of judgment from other people. It is important that we support the noble Lord, Lord Rix, because he is right that there is huge scope not only for wrong or lazy diagnosis but for people with learning disabilities being subject to a completely different degree of assessment from other people, which is fundamentally wrong.
I remind noble Lords that during the passage of the Mental Capacity Act, I was one of those who argued most strongly that there should be an equality provision in that Act and there should not be discrimination. It is beholden on people such as me who hold that view, which is sometimes quite controversial in its application to some areas of healthcare, that we do so consistently. If we cannot be consistent on such a matter of principle, we should not be here at all.
The noble Lord, Lord Rix, is absolutely right in saying that people with learning disabilities have the right to expect the same treatment and regard as anybody else. That has been the thrust of legislation in recent years, not least with the Mental Capacity Act, and it should be the thrust of this legislation too. At a very simple level, having a clause in the Bill in which the words "learning disability" and, "abnormally aggressive or seriously irresponsible conduct", come together reinforces some of those stereotypes, about which my noble friend Lord Addington spoke so eloquently in relation to the previous amendment.
For all the reasons that the noble Lord, Lord Rix, outlined with better erudition than I ever could, I believe that we should support him.
I shall support the amendment proposed by the noble Lord, Lord Rix, by making two points and telling a story, which illustrates the point forcefully, if nowhere near as strongly as the story that the noble Lord told. I and the organisation for which I work—and, again, I declare an interest with regard to Turning Point, which provides a service to about 8,000 people with learning disabilities, some of whom have very challenging behaviour problems too—believe that learning disability should not constitute mental disorder. In fact, the principle is one of equality; it is as simple as that. None of this is rocket science. Without wishing to go back to an earlier debate, this is about the principle of equality.
The most appropriate legislation under which the majority of people with a learning disability should receive treatment is the Mental Capacity Act, when it comes into force in April. People who lack capacity who are also subject to the provisions of the Mental Health Act 1983 will still be protected by the Mental Capacity Act with regard to the types of decisions or actions affecting them. Therefore, when a decision unrelated to treatment for mental disorder needs to be made, including decisions about physical healthcare, welfare or financial matters, an assessment must be made of the individual's capacity to make that particular decision when it needs to be made. It is important that the code of practice spells out that the principles and provisions of the Mental Capacity Act would apply to all such decisions or actions, regardless of whether the person was subject to the provisions of the Mental Health Act 1983. There is a danger that the behaviour of some people who have a learning disability will be misinterpreted and mistakenly attributed to mental disorder. In my 20 years or so of working with government departments, I have worked with many people who have either a learning disability or another disability and whose behaviour has been extraordinarily aggressive. They would certainly be very shocked to find themselves coming under the Mental Health Act. People with a learning disability are in danger of having their behaviour misinterpreted and mistakenly attributed to a mental disorder. As has been pointed out, that is quite simply wrong, when there is a physical or environmental reason for their behaviour.
To illustrate this point, let me tell you a story, which ended in the use of the Mental Health Act. Mr S, who has a severe learning difficulty, autism and communication difficulties, lives in a residential setting. He was detained under the 1983 Act because he was becoming increasingly agitated and exhibited aggressive behaviour, banging his head against a wall. It was later discovered—this is shocking but true—that Mr S had a small twig in his ear, which was causing him distress, as it would most people, and which he expressed by his agitated behaviour. This scenario shows how the distress of a person with a learning disability can be automatically attributed to a mental disorder without paying sufficient attention to physical factors. This is about not just lazy diagnosis but making fatal assumptions.
The issue is education and skills among professionals. It is about being able to correctly assess whether a person has a co-existing mental health problem alongside a learning disability. Here again it is inappropriate to use mental health legislation to compensate for the lack of these skills if a person does not have an additional mental disorder. The Government should support the amendment of the noble Lord, Lord Rix, but might also want to make it explicit that, if a person has both a learning disability and a co-existing mental disorder, they should be able to receive appropriate treatment under the Act.
I want briefly to support the amendment of the noble Lord, Lord Rix. He has said it so eloquently that, like the noble Baroness, Lady Barker, I do not want to add much. This is really about ensuring that people with learning disabilities are not discriminated against and have a proper assessment of their mental disorder. As we have already heard, they are far more likely to be suffering from serious mental disorder.
Underlying some of the Government's thinking is the notion that we must not risk people with learning disabilities being caught up in the criminal justice system when it is inappropriate for that to happen. The reason why that happens is because of the poor availability of proper consultant psychiatry to people with learning disabilities. It is a developing field, which has got much better in recent years, but there is still tremendous discrimination. The opportunity to have proper assessments and treatments is absolutely crucial. The noble Lord, Lord Rix, has said it. I support this amendment strongly.
I support this amendment. I remind the Committee of the wording of the recommendation from the Joint Scrutiny Committee. Our report pointed out that people with learning disabilities or communicative disorders should be,
"liable for compulsory treatment under the Bill only if they display seriously aggressive or severely irresponsible behaviour as a result of their condition and if such treatment as is properly and reasonably required can only be provided to such patients under conditions of compulsion".
That last condition is present in the Bill as it is currently drafted. That is why this amendment is so important. Our discussion and the difficulties raised are very much underpinned by the problem of the principles not being stated in the Bill.
This is all about correct diagnosis, as the anecdotes have so clearly illustrated. If someone with a learning disability also has a mental disorder it is appropriate for the Act to kick in and for compulsion to be used, if that is the only way that that mental disorder can be treated. However, under the Mental Capacity Act, if someone with a learning disability does not also have a mental disorder, but does not have the capacity, they can in any case be provided with the care and treatment that is in their best interest under that Act. For those people who do not have a mental disorder that requires treatment and for the patient who is not accepting treatment for a mental disorder, the trigger of accurate diagnosis is key. Without that, all the groups—such as the United Kingdom Disabled People's Council and the other groups that have made representations on this clause—will have their fears enhanced, not decreased, as this Bill goes through. The other problem with people's fears being enhanced is that they are less likely to access care and treatment early, when they need it and when intervention is much less. When problems escalate, they become greater and more difficult to deal with.
I persuaded the noble Lord, Lord Rix, that he could escape from Wimbledon while his neighbours were taking children to the local school and, therefore, persuaded him into 9.30 meetings of the Joint Committee—a proposition he resisted strongly to begin with. I, too, was then treated to his knowledge—and that of Lord Carter and Mrs Browning—during the Joint Committee. As a result, I, too, support the amendment.
My principal point has been made by the noble Baroness, Lady Finlay of Llandaff, and I will not repeat it, although important. However, I have a further question. Given that half the recommendation of the Joint Committee has been incorporated into Clause 2, what is meant by "abnormally aggressive" or "seriously irresponsible" conduct? Is this to be judged by objective criteria, as against a norm of the person on the Clapham omnibus—or of the responsible person on the Clapham omnibus—or by the criteria of a person suffering from the learning disability from which the individual suffers? My view is that this clause suffers from serious terminological inexactitude. That needs to be clarified before we can proceed further in supporting any proposals, if that is the position we reach as a result of our debate on this amendment.
The noble Lord, Lord Rix, has once again spoken very powerfully on an issue in which he is an expert. I have huge sympathy with the points that he has made. He is passionate—rightly so—about the distinction between learning disability and mental disorder. He does not want to see one confused with the other. I am entirely with him on that, as with the points on discrimination and stigma, and on wrong and lazy diagnosis. In expressing that support for his amendment, I have two worries, both of which are practical.
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?
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 ensure that people with a learning disability could not be detained for treatment, made subject to guardianship, or placed on supervised community treatment under the 1983 Act unless they also had another clinically recognised mental disorder.
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,
"abnormally aggressive or seriously irresponsible conduct".
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,
"abnormally aggressive or seriously irresponsible conduct", 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 important to establish that their psychological presentation is not a reflection of underlying physical health problems. That is especially so in the case of people with learning disabilities.
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.
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 for people who have learning disabilities as opposed to those who do not? Will the Minister also answer the question asked by the noble Baroness, Lady Finlay of Llandaff, about why only part of the Joint Committee's recommendation finds its way into the Bill?
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.
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.
moved Amendment No. 4:
Clause 3, page 2, leave out lines 22 and 23 and insert—
""(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—
(a) his substance misuse (including dependence upon, or use of, alcohol or drugs);(b) his sexual behaviour;(c) his commission, or likely commission, of illegal or disorderly acts;(d) his cultural, religious or political beliefs.""
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 preference are included in the WHO's classification of mental and behavioural disorders, under so-called ICD 10. Yet do we really wish to signal to clinicians that they are entitled to regard someone as mentally ill simply because they display these tendencies? I suggest that we do not. Indeed, I completely disagree with the Government when they make it clear in paragraph 32 of the Explanatory Notes that they intend to bring conditions such as fetishism within the scope of the 1983 Act.
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 should have an exclusion to cover both. Once again, such an exclusion would act as a marker to prevent decisions—sometimes very fraught decisions—being taken on the wrong clinical basis.
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 things covered in it matter once we move away from the theoretical ideal world, in which policy-making tends to operate, to the real world, where real decisions are taken about real people. That is the platform on which I am standing, and I hope that the Government will be able to join me on it. I beg to move.
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.
Why is it important to have an amendment like this? The joint scrutiny committee concluded that the wider the definition of "mental disorder", the greater the need for exclusions. I am sure that the Minister will talk about the need for clinicians to have scope to employ their judgment. I do not believe that these amendments will in any way compromise that. The Mental Health Commission, in its evidence to the joint scrutiny committee, said:
"For the law to be of value—to patients, State administrators, mental health professionals, the police, the courts or the Tribunal—its meaning cannot rest upon the discretion of those working within its framework. We do not find it difficult to envisage the inappropriate use, however well meant, of mental health legislation for non-medical purposes of social control".
Therefore, it is important, in these very difficult areas of sexual behaviour, illegal or disorderly acts or cultural, religious or political beliefs, that we, as Parliament, set boundaries within which we expect our clinicians to make their decisions. It is beholden on us to ensure that there is a correct balance between the width of the definition of mental disorder and the extent to which compulsion can be brought to bear on patients with specific exclusions. We should support the amendment.
A subtext runs beneath many of the Government's proposals. I say, "Mind the gap". In trying to change the 1983 Act, the Government, in almost every single clause, are concerned to try to include patients who have been excluded from the 1983 Act as a result of poor psychiatric practice. That is the subtext of much of the Bill. In trying to close those gaps they have forgotten that the law has been used only as an excuse.
Take, for example, a 20-bed unit with 110 per cent occupancy. When one considers whether to admit someone who has a mental disorder, one will consider whether he can be treated, whether he will be out again in 48 hours and whether he can be supported in the community. One could also consider admitting a rather challenging, difficult Mr Smith who is persistently drunk, never takes his medication, and about whom it is unsure whether he can be dealt with over the next two to three months, so he will be in the bed longer. When someone asks why one did not admit this or that person, the answer is that the law did not allow it. That is repeated over and over again. I cannot tell you how often it happens. That is what lies behind the very wise amendment of the noble Lord, Lord Adebowale, who sees people excluded from care every day of the week.
Is the answer to put such a matter in legislation, widening the scope of the Act to include many people who would not otherwise be considered for detention? For various reasons the answer is no. The answer is training, resources, better understanding of what is possible and better understanding of how to help people with difficult and challenging problems such as substance misuse and paedophilia, but one cannot include them all.
The amendment is about stopping detention creep. In this country it is quite difficult to get people to take it seriously because since the 1959 Act we have had a tradition of using psychiatric hospitals and units almost exclusively, but not entirely, for the care of people with mental disorder. But that exclusiveness is a relatively recent phenomenon. Mental hospitals and asylums in the 19th century and before and after the First World War became repositories for all kinds of socially excluded people when there did not seem to be anywhere else to put them. In those days if one were in a mental hospital, one was detained by default. The destitute unmarried mother, the epileptic, the merely eccentric and the socially incompetent all tumbled into the asylums. They were a social inconvenience but everyone colluded in saying that there was nowhere else for them to go. In the 1970s, when I first worked in psychiatric hospitals outside the great fringe around London—what we call the Epsom archipelago—the place was full in the back wards of people whom we had enormous difficulty diagnosing with anything.
Society does not know what to do with other social misfits. One group is those who are persistently addle-headed on drink and drugs. They are very difficult to help. Of course, there are ways to help them, but it is not easy. Paedophiles form another group; the religious fanatics who belong to the Moonie loonies and the like is another. We know that those people are not as we would like them to be; they are not like us; they probably need some help, but how we should help them is rather obscure. No doubt a significant percentage of them suffer, from time to time, with mental disorder which would bring them properly under the scope of the Act, but it is a profound mistake to include all categories of people behaving badly simply because we do not have any other answers.
The Mental Health Act is designed, as we keep saying, to provide a check on clinical discretion and to give clear boundaries to protect against improper use. The Government believe that society in general is happy to leave decisions, such as the scope of the Act, in the hands of professional experts. I find that quite astonishing. They obviously do not know as many professionals as I do. I regret that I do not find it difficult to envisage the inappropriate use, perhaps well meant, of mental health legislation for non-medical purposes, for social convenience and control—"Get the paedophiles off the streets". The pressure on services to find solutions to the presently insoluble problems will be massive. Exclusions ensure that practitioners carefully consider the basis for compulsory treatment. If there is an underlying mental health diagnosis, a person is covered by the Act; if there is no diagnosis, it is unhelpful and inappropriate for the mental health services to manage that person.
The revised definition of mental disorder is deliberately simplified and free of diagnostic categories in the Bill, so it is all the more important to be clear about the exclusions, which, after all, are a feature of the legislation in all comparable jurisdictions in the common law world, including our near neighbours Ireland and Scotland.
I turn to sexual behaviour. When I was a trainee psychiatrist, we were obliged to learn all the ways to treat homosexuality, even though at the time many of us were horrified that it came within the scope of what we were meant to learn. Until recently, it was included in ICD 10. There is still a wide range of sexual behaviours in ICD 10 and so are many other mental phenomena which by themselves would not necessarily fall into the category of mental disorder; for example, excessive gambling and grief. Just because something is in ICD 10 does not mean that it should necessarily fall within the Act. We know that people whose sexual behaviour departs from socially acceptable norms are likely to be stigmatised. They may or may not have a mental disorder. Their behaviour may or may not be contrary to criminal law. Without this exclusion, however, people with gender dysphoria or transsexualism and, indeed, your everyday rubber fetishist will be brought within the Act as well as paedophiles.
Forensic scientists tell us that the current exclusion criteria are important in enabling them to distinguish between those who are truly amenable to help and would warrant a detention because they have an additional mental disorder, and those who do not. From a psychiatric point of view, there is no necessity to remove the exclusion of pure disorders of sexual preference from the definition of mental disorder. As I say, the Government are obsessed with folk who do not get into treatment. This is not the right way to approach that.
On illegal or disorderly acts and political beliefs, there should be a clear distinction between people who have a mental disorder and those whose behaviours and practices are simply unacceptable to society in general. There are, after all, lots of people who say that those young British Muslim terrorists who blew themselves and others up were mad—not a far step from thinking that all people who want to see an Islamic state in Britain should be locked up in a mental hospital. It has been done elsewhere in the world, as the noble Earl, Lord Howe, pointed out. Psychiatry has been abused in Nazi Germany and many other countries and, in the 1960s and 1970s, in the Soviet Union.
I spoke to many colleagues in the Soviet Union during that time, when I was a young trainee psychiatrist and the Soviet Union's psychiatrists were excluded from the World Psychiatric Association. Most of the psychiatrists working in the Soviet Union at that time believed that they were doing the right thing—there were of course those brave dissidents, many of whom managed to come here and other parts of western Europe. Most of the psychiatrists did it with the best of intentions. We must remember that. That is why they were excluded from the World Psychiatric Association; it was not imposed on them by their Government.
The effect of not having exclusions further confuses the role of psychiatry and mental health services in the public mind, moving it from its proper aim of the assessment and treatment of mental disorder into social control. It further reduces the acceptability and, therefore, effectiveness of the services. That will have a serious impact on people from black and minority-ethnic communities, as we have already heard. I have covered the third exclusion of cultural, religious or political beliefs, and the joint scrutiny committee agreed.
The Government are concerned with the exclusion of people with mental disorders who have unusual cultural beliefs. I cannot think why they feel that there is a risk that they will not be included, since minority cultures tend to be over-represented in those compulsorily detained. If there is a misunderstanding, it is, rather, the inverse of what the Government fear. What is their evidence on this? In their response to the scrutiny committee, the Government made the extraordinary statement that,
"cultural, religious and political beliefs do not constitute mental disorders, but may sometimes be symptoms of a clinically recognised mental disorder".
In other words, it is possible that you could have no delusions, hallucinations, thinking disorder, speech defect, disorder of emotions or difficulties with your emotional relationships, but could have expressed your disorder simply through a cultural or political belief. That strikes me as profoundly dodgy ground.
These amendments are to protect against inappropriate detention, and to protect professionals from being used inappropriately by society. With good training and better resources to treat people with a wide variety of disorders and ancillary problems—including those the noble Lord, Lord Adebowale, is talking about—we should certainly be able to solve this problem. Widening the definition, however, is not the answer.
I speak to Amendment No. 5 in my name. The Bill rightly clarifies that dependence on alcohol or drugs is not a mental disorder that justifies compulsory treatment. By making this clear, however, it could inadvertently mean that a person with a dual diagnosis of a mental disorder and dependence on alcohol or drugs might not get the help they need under the Act. Before I go on, I must once again declare an interest: Turning Point is probably the largest provider of services to people with alcohol and drug problems outside the NHS. I thank the noble Baroness, Lady Murphy, for her kind words on my amendment before she had heard me speak. That is quite nice.
My amendment is complementary to Amendment No. 4. In the United Kingdom, it is estimated that half the people in drug or alcohol services also have a mental health challenge. Around one third of patients in mental health services also have a drug or alcohol problem. My organisation works with many people who have multiple needs. We estimate that at least one in five people we support—at last count we provided a service to 136,000 people—with mental health challenges also need help with serious substance misuse.
All too often, the presence of a drug or alcohol problem alongside a mental disorder is used as grounds not to treat people. They are turned away, as has been pointed out, from mental health services when they are in the greatest possible need. From our experience, people with a so-called dual diagnosis of mental health and substance misuse problems have been turned away from mental health services in the past due to the current exclusions. Consequently, people are not receiving the help they urgently need. This has consequences across the social care system. Their mental health deteriorates even further and community services endeavour to help, despite being ill equipped to do so.
I offer an example. The Bill is often given colour when we talk about its effects on human beings. Sarah is 38 and has a diagnosis of depression and borderline personality disorder. She also has long-standing drug and alcohol difficulties and self-injures on a regular basis. When admitted for in-patient treatment, she is often put on a contract stating that she will be discharged if she self-injures or uses drugs or alcohol. These are her coping strategies; the use of alcohol or drugs is often a form of self-medication, a way of coping with mental health issues. So she invariably resorts to drinking or self-harm, and so she is discharged. On occasions she is not admitted at all when expressing suicidal thoughts because she has been drinking.
Simply educating mental health staff about substance misuse will not be enough to solve this problem. While I agree with the comments about resources and training, it is not enough. The reasons why people use drugs and alcohol are complex and often misunderstood. Sometimes it can be to self-medicate and treat the symptoms of mental illness but is often interpreted as resistance to treatment or to engagement with services. It is important, if we are going to have a Mental Health Act and spend time engaged in ensuring that those in need receive treatment, that we pay attention to this group, which is a growing challenge to mental health services throughout the country. That has already eloquently been pointed out by the noble Baroness, Lady Murphy.
I want to comment on the race issue, without repeating what has been said already here or in the joint scrutiny committee. There is considerable evidence that BME groups, particularly those from Afro-Caribbean backgrounds, are more likely to be diagnosed with a severe mental disorder. Simplified definitions where exclusions are removed increase the degree to which diagnosis of mental disorder depends on the subjective judgment of clinicians, which the literature now states with ample evidence is sometimes subject to quite racist interpretation. I am sure that my noble friend Lord Patel of Bradford can give chapter and verse on this, as chair of the Mental Health Act Commission.
Given the evidence that racial stereotypes are significant factors underpinning notions of mental disorder, that is likely to amplify the extent to which race is a factor in defining such disorder, in effect widening the pool of people to whom legislation could be applied and who will be affected by the existing skew toward black and minority-ethnic groups, a situation made worse by amendments.
I support Amendment No. 5. It would be wrong to prevent the treatment of someone suffering from alcohol or drug abuse if they had a co-existing mental disorder. It is well-known that alcohol or drug abuse, or both, can exacerbate a mental illness such as schizophrenia.
Some years ago, I was involved with an alcoholic man who would suddenly lapse into a schizophrenic state when he had been drinking alcohol, becoming a dangerous and different person. There were several frightening incidents; once, he threatened a friend of mine with a knife. It would be wrong to make alcohol or drugs an excuse for not treating the mental illness.
Far too many people residing in Her Majesty's prisons suffer from schizophrenia and do not get the treatment they need. That is of great concern to many, including prison governors. Will the Bill address that dilemma?
It seems to me that this group brings us to the heart of some real difficulties in applying legislation, and the law in general, to mental illness. It is not like physical illness; it is about the very essence of people and what they are, which is a very difficult issue.
The issues of diagnosis, management and practical reality all come to ground in this group, as the Government have recognised by introducing a specific exclusion. Nothing in the provision says that the exclusion is on a point of principle or a particular kind of difference in terms of psychology or psychiatry. It is quite clear that dependence on alcohol and drugs involves a disorder of the mind. There is no doubt about that. There is not much doubt either that it is also similar to lots of other kinds of addictive behaviour. When treating one of these folk, often you get rid of the alcohol problem and they turn to drugs; then you get rid of the drug problem and they turn to gambling, an eating disorder or whatever.
It is not an issue of principle, and the Government know perfectly well that if they were to include all those people as likely to be detained, the services would collapse completely because of the enormous number of people involved. It is not to do with there not being a possibility of violence; in fact, there is a much greater likelihood of violence from this group of people than from people suffering with schizophrenia. However, the Government recognise that they cannot cope. The truth is that they cannot cope with lots of the other folk they are going to bring in anyway. It is hard enough to find a bed for a psychotic young suicidal patient at the moment, and it will be even worse with a lot of these other things.
Let us take the reason for some of the exclusions being set down here. Some are about real difficulty of diagnosis. If, for example, someone comes along and speaks about being low-spirited—they are not sleeping at night, they have lost interest in a lot of their affairs and are not behaving in their usual way—they might well have a depressive disorder but, of course, if their wife died three weeks ago, it would be a perfectly normal reaction to one of the vagaries of life. As my professional colleague the noble Baroness, Lady Murphy, pointed out, the difficulty is that if you do not look for all of the things that are around, the diagnosis can be faulty.
Taking personality disorder as an example, there is often a circular argument: this person is breaking the law; they do it repeatedly and do not stop; there must be something very disturbed about somebody who behaves in that way; therefore, they have a personality disorder and need to be treated. More insidiously, if the psychiatrist does not have much understanding of or sympathy for the cultural or religious background of the person involved, there is another kind of circular argument: this person has some very strange ideas; they might be religious ideas. I come from a part of the world where a lot of the religious ideas that are very current among people would be regarded as quite mad on this side of the water. I refer not just to religious ideas. One colleague came across to work in Northern Ireland, and after interviewing one patient said, "I think we have a really paranoid person here". When I asked why, they said, "They think that if they go up this particular road they will be attacked because all sorts of people will be against them because of their religion". I said, "They are not paranoid; they are realistic".
I guarantee that the reason for the undoubted fact that many more people from Afro-Caribbean backgrounds find themselves in a mental hospital is that there is less understanding of the cultural and religious beliefs and actions of many of those people by my colleagues in psychiatry. You find a difficulty in coping with and managing someone who has a very different set of understandings of what life is about. You think, "It's a bit strange. How am I going to deal with it?" At present, the fastest growing special interest group in the Royal College of Psychiatrists is the spirituality group. It is not so long since there was no such group. Why? Because 10 or 15 years ago, it would not have been politically correct to regard spirituality as a proper professional interest within psychiatry. Now, people have begun to change their view of it.
This amendment tries to point out that, without a serious look at understanding issues such as culture, politics, religion, breaking the law, sexual behaviour and so on, we could end up dragging into the net all sorts of people who are not suffering from mental illness in a proper sense and it becomes a question of how we deal with people who are difficult, different or deviant in our society. That is a real problem for colleagues in psychiatry, not least because of a move to diagnosis on the basis of people's behaviour and a set of symptoms, rather then necessarily understanding something more about the depth of the disorder and its likely prognosis.
Unfortunately, over the past few years I have heard from Ministers a set of views that suggests that there is a simplicity about all of this—that it is very easy to be clear about certain matters; that clearly psychiatrists are not taking their responsibilities seriously and are avoiding all sorts of issues because they are distasteful or difficult. The reality is that these are difficult questions, not susceptible to clean bits of legislation. Psychiatrists sometimes have real difficulty assessing these things, and find themselves lapsing back into making mistakes because of their own cultural, religious, or political views.
I ask that we take these things seriously, not because Amendment No. 4 necessarily solves all the problems, but it points up some of them, and I hope that Her Majesty's Government take that problem very seriously.
The background to these amendments has already been stated, but I briefly want to look at their importance from the other end of the telescope. It takes me back to the days when I was a GP. I am remembering two patients; one came in and told me that he wanted to kill somebody now, and that he had a knife in his pocket and an axe in his bag. With persuasion, he handed me the knife to lock up and then agreed to go and see a friend of mine, who was a psychiatrist. The other was a young man who came in because he was frightened by his tendency to be enormously attracted to the choir boys at his church. The ability to come in and seek help early is terribly important in making sure that people who might progress to harm others do not do so.
We have to give society a powerful message, not that the Bill is about locking up people who may be seen to be deviant in any sense, but that it is a mental health Bill for people who have mental health issues. Social control is another parameter in society, but we should not use psychiatry as the lever for social control, particularly not when psychiatry is dramatically under-resourced. I am worried that if the message of the Bill is that if someone expresses any of those tendencies he is more likely than previously to be locked up, then those tendencies will not be expressed to a clinician or somebody who can help, they will be expressed by being acted out and somebody will be sexually harmed or killed.
I am grateful to noble Lords for tabling Amendments Nos. 4 and 5. My noble friend Lord Hunt mentioned earlier that, as a general rule, we have sought in the Bill to remove arbitrary obstacles to the use of compulsion where it is called for by the risk posed by a person's mental disorder. The more we qualify and limit the definition of mental disorder, the greater the risk that some people will be excluded arbitrarily to their own disadvantage and potentially to the detriment of other people. It serves no one's interests if decisions end up being taken on the basis of diagnostic or legal labels rather than the needs and circumstances of individuals.
We recognise that these are complex issues. We are not being simplistic, and I stress that we takes these issues very seriously. In relation to alcohol and drug dependence, I do not think there is any disagreement between us. Although it is clearly clinically regarded as a disorder or disability of the mind, it is excluded from the Act at present. The Bill keeps it that way, as we are persuaded that it is not appropriate to use the Act to force people to accept treatment for addiction where it is not linked with another mental disorder.
However, we do not agree that substance misuse in general should be excluded. The term "misuse" is used in a variety of ways. If all it means is the use of alcohol or of drugs that have the potential for harm or which are illicit, then the exclusion is unnecessary. Merely using alcohol or drugs is not regarded clinically as a mental disorder, and our understanding is that the same applies to an episode of misuse. However, if "misuse" is intended to mean the consequences of such behaviour, then we profoundly disagree with the suggestion that it be excluded. Many consequences of misuse, from acute intoxication to substance-induced psychosis and withdrawal states, are recognised mental disorders. Any of them, even intoxication in its most severe forms, might, in particular circumstances, warrant compulsory intervention under the Act. It would be wrong, arbitrary and to the detriment of patients to exclude such consequences. They are not excluded now, yet it is not, as far as we are aware, suggested that people are commonly, if ever, detained inappropriately as a result. If the problem is that psychiatrists fear being pressurised to detain alcohol and drug misusers inappropriately, I do not believe that that is a compelling reason for excluding people who might otherwise benefit. If they do not think detention is clinically appropriate, or patients do not meet the relevant criteria, psychiatrists should have no difficulty explaining to their colleagues that using the Act is not an option.
The amendment next seeks to exclude sexual behaviour. If we are literally concerned with sexual behaviour, then we again believe the amendment is unnecessary. An episode of sexual behaviour, however unusual or, indeed, illegal, is not, of itself, diagnosable as a mental disorder, any more than setting fire to something constitutes pyromania. However, particular sexual behaviour may well be a sign of a mental disorder. Noble Lords have been careful to draft the exclusion in terms of no one being considered mentally disordered solely on the basis of sexual behaviour, but, even so, I worry what effect the exclusion might be interpreted to have, rightly or wrongly, in cases of people who, for example, have a personality disorder that manifests itself in their sexual behaviour.
The noble Earl and the noble Baroness, Lady Murphy, mentioned gender dysphoria and gender identity disorders. While we acknowledge that gender dysphoria is clinically recognised as a mental disorder, the allegation that people can now be detained because of it presupposes that it could be regarded as sexual deviance. We struggle to see who, let alone which healthcare professionals, would think of gender identity disorders in those terms. Similarly, we do not see how a new exclusion for sexual behaviour would change the position. If the exclusion is meant to protect lesbian and gay people, it is again unnecessary. It is now firmly accepted that homosexuality is no more a mental disorder than heterosexuality. We do not believe any doctor would attempt to detain a patient on the basis of sexual orientation, let alone that another doctor and an approved mental health professional would agree, and, if they did, we are confident that no court would uphold their decision.
If, however, the intention is to replicate the current exclusion for sexual deviance, we think it is wrong in principle. Although we have heard contradictory arguments, our understanding is that there are conditions that a lay person might regard as sexual deviance that are clinically recognised as disorders of the mind. They include paraphilias such as voyeurism, necrophilia and paedophilia, where they have a significant effect on the person's functioning or pose a significant risk to others. We see no reason to distinguish those disorders from any other, and that view was shared by the Joint Committee that scrutinised the admittedly very different 2004 draft Bill.
It is nothing new for dangerous paedophiles to be detained under the Act, as their behaviour is often linked to dissocial personality disorder, or, in the current ungainly terminology, psychopathic disorder.If such people can properly be detained under the Act, we see no reason why clinicians should be barred from using the Act to treat patients whose only clinically recognised disorder is one involving abnormal sexual desires or behaviours. If that is what the clinicians concerned believe is the right approach for the individual in question, then, provided all the relevant criteria are met, we believe the Act should allow it.
Perhaps I may clarify what the Minister said, because I was really quite struck by it. It is not at all uncommon for people of any age or either gender to achieve sexual excitement and satisfaction through partial self-asphyxiation. It is not a one-off; it is regular behaviour. It is clearly a disturbance of sexual behaviour. Such people are a risk to themselves and, from what has just been said, I cannot see how they would not therefore be liable to be compulsorily detained. Will the Minister clarify whether I am correct in that or whether there is something that I am missing?
The key question is whether the person has a mental disorder and how the criteria for that mental disorder are defined. The fact that that person has what we would regard as a sexual deviancy does not mean that they have a mental disorder. It is important to remember that the criteria for detention include whether it would be appropriate for them to be treated in hospital. A clinician would decide that. If that person should be treated in hospital, clearly the clinician believes that that person has a mental disorder. If they do not believe that that is the case, they will not ask for him or her to be treated in hospital. If the noble Lord would like me to clarify those points in writing, I shall certainly do so and place a copy in the Library.
I shall certainly write to the noble Lord.
I am not aware that it is suggested that the commission, or likely commission, of illegal or disorderly acts is, by itself, a clinically recognised mental disorder. Hence, the proposed exclusion is again unnecessary. It has been suggested by noble Lords, and in the evidence cited by the noble Baroness, Lady Barker, that the purpose of the amendment is to prevent the Act being used for social control. If that is the case, we are fully supportive of the objective. However, the Act already achieves this objective. This is a mental health Bill; it is not about social control. We are all aware of what happened in Russia, and noble Lords have quite rightly brought this to our attention, but this is not what this Bill is about. The most that the proposed new words in the amendment could achieve is wrongly to suggest that, in other contexts, such behaviours would be mental disorders or, worse still, that they might place uncertainty in the minds of professionals, and even the courts, about whether behaviours of this kind can be taken into account when deciding whether someone has a mental disorder.
Redundant material should not be included in Acts both as a matter of good drafting practice and for fear that an unintended meaning will be read into any such words. The courts will assume that Parliament would not have put material in the Act if it were unnecessary. However carefully drafted is an exclusion—I know that noble Lords have been most careful in their drafting—there is always the risk of it being interpreted in an unexpected way or being misunderstood and misapplied in practice. If, as in this case, an exclusion is unnecessary to start with, we think it better not to take that risk, remembering that what is at risk is whether people get the treatment they need to relieve their own suffering and, where relevant, protecting other people from harm.
Many noble Lords understandably raised the issue of people from black and ethnic minorities being disproportionately affected by the Act. We fully acknowledge that rates of admission and detention are significantly higher for some BME groups and that they are more likely to arrive in care through the criminal justice system. Once in hospital, some groups of BME patients are more likely than white British people to be subject to measures such as seclusion or restraint. This fuels a circle of fear which deters many BME patients from seeking early treatment for their illness. We have heard many examples of that cited today. The reasons for this are complicated and still not fully understood, but the problem has effectively been left unchallenged by government for decades. Last year, we published a comprehensive, five-year action plan for delivering race equality in access to services, experience of services and outcomes from services. A high level of resources has been committed to the plan and it has made a sound start. Bridging the system of equalities once and for all might not be easy, but we cannot be satisfied with anything less.
However, excluding cultural and religious beliefs from the definition of mental disorder is unlikely to help. It is possible of course to have disordered cultural and religious beliefs in any culture or religion, and indeed in any person, regardless of whether they see themselves as belonging to a particular culture or religion. Such beliefs may well be symptoms of clinically recognised mental disorders, but in the absence of such a disorder, political or cultural beliefs, values or opinions are simply not mental disorders. It is therefore unnecessary and potentially a source of uncertainty and misunderstanding to exclude them from the definition.
Disordered thinking and beliefs are central elements of many mental disorders. That these are expressed in cultural, political or religious terms makes them no less disordered than if they were expressed in any other terms. But it is axiomatic that in diagnosing whether thoughts are disordered, professionals must understand them from the patient's own perspective. However strange a thought or belief may appear to be to someone else, it is not a sign of mental disorder unless it is disordered within the framework of the person's own cultural, political and religious heritage, convictions and attitudes. We therefore do not think that this needs to be said in the Bill.
The noble Baroness, Lady Murphy, asked why the Government said that cultural beliefs could be signs of mental disorders. This is not what we said and indeed it would have been extraordinary had we done so. What we meant was that sometimes disordered thinking expresses itself in religious, political or cultural terms.
In summary, Amendment No. 4 seeks to exclude various behaviours and beliefs from the definition of mental disorder. On substance misuse and sexual behaviour we disagree about the objective if those terms are meant to cover the consequences of misuse and what is currently termed "sexual deviance". On the rest, we differ only as to means, not ends. Noble Lords say that it should be explicit in the Bill that it cannot be used for what some have described as social control. We say that there is simply nothing in the Bill which would allow it to be used that way. Adding unnecessary words does nothing to alter that but does increase the potential for confusion and misunderstanding in practice and the risk of an unintended meaning being read into the words by the courts.
It is for the same reason that, while agreeing entirely with what he seeks to achieve, I cannot support the amendment of the noble Lord, Lord Adebowale, to make explicit that dependence on alcohol and drugs does not preclude a person from treatment under the Bill if they also suffer from another mental disorder. I understand that this group of people is getting bigger.
For the reasons the noble Lord has eloquently and colourfully explained, I agree that it is essential that people using the Act in practice are clear about what the exclusion for dependence means, and perhaps more importantly what it does not mean. We have tried to spell this out in the draft code of practice for England that we have issued alongside the Bill. But if the noble Lord does not think the current draft of the code is sufficiently clear, then of course we would welcome his suggestions for improving it.
To the noble Baroness, Lady Masham, I must stress that the Bill does not exclude people who are dependent on alcohol or drugs from the Act entirely. If such a person has another mental disorder, then of course the Act applies in the normal way. That is true even if the other mental disorder is a result of the dependence or reinforces it, or if the dependence exacerbates the other disorder or makes it harder to treat. The amendment would put into words only what is anyway the case because of the absence of words to the contrary. It is therefore not necessary and while I agree with the objective, it is best not included in the Bill.
I noted the fine words of the noble Earl, who urged me not to reject the amendment out of hand but to listen carefully to the debate which has ensued as these are extremely important issues. I regret, however, that I am going to have to ask the noble Earl to withdraw Amendment No. 4 at this juncture and I hope that I have reassured the noble Lord, Lord Adebowale, that he may safely not move Amendment No. 5.
The noble Baroness, Lady Murphy, in one of her fascinating contributions—she opens a world to me of which I know nothing—reminded us of how psychiatry was used in Russia, Germany and so on in comparatively recent history and she added that this was done in many cases with the best will in the world of the psychiatrists who thought they were doing the right thing.
When the Government think about this—if they do, and I hope they will, or if they do not, we will make them think about it—will they consider what would happen if a group of recently arrived immigrants was sitting in the Gallery, immigrants from central Europe, from Russia, from Germany, and they heard the Minister say there was no need to put in a Bill like this the fact that you could not be shut up as a case of mental illness because of your cultural, religious or political views? Those people, I believe, would be astonished. They are citizens of this country. It is going to apply to them. Surely the Government have got to think of their point of view. Will the Minister remember that?
Of course we will consider the point of view that might be expressed by that group of people. But we have to distinguish between the democratic system in which we live and the system that existed previously in the Soviet Union, East Germany and other countries under the Soviet flag. The situation in this country is very different: we have safeguards, such as the courts and the law. We are confident that the safeguards we already have and those we are putting in place are adequate to ensure that this legislation will not be used for social control. This is a Mental Health Bill—it has nothing to do with social control.
I understand the root of the concern, but let us touch briefly on the Soviet Union point. When those people were locked up in mental institutions—Solzhenitsyn was perhaps the classic example—most of the doctors knew that what was being done was wrong. The problem for them in most cases, as it was for the directors of the institutions concerned, is that irrespective of whether they agreed or not, if they did not do it they lost their job at best and ended up as an in-patient at worst.
What stops this happening, as my noble friend just indicated, is not the definition in the Bill but two things—the rule of law, which did not exist in the Soviet Union or Nazi Germany and, very importantly, mental health tribunals plus the regular review of cases. That is important because in the old bins, as they were called, and of which I have considerable knowledge from the past, the police would bring someone along who was behaving atrociously and, they thought—rightly or wrong—madly, throw them to the nurses who would often half-strip the person and bung him into a padded cell. Sometimes the person went free a few days later, but sometimes they stayed there for a very long time and became institutionalised. There were pluses and minuses to that, mainly an awful lot of minuses, so I was pleased when that system ended.
What was missing then—never mind the Soviet Union—was the application of mental health tribunals which allow people to challenge the system. The issue is not really whether such a thing could happen, because any authoritarian Government could just lock people up if they chose to do so. However, the checks in place in a western democratic society that has the rule of law are the law itself and the pretty sophisticated mental health review tribunal approach which we have developed in recent years and which I welcome greatly. That is what prevents the system returning to what it was in the Soviet Union as well as to what was considered fairly normal here in the 1950s and earlier.
We have seriously overrun our time, and I am sure that noble Lords will thank me for being brief. The Minister's reply was not unexpected but it was disappointing. I was disappointed that none of what was said so powerfully by the noble Baroness, Lady Murphy, or the noble Lord, Lord Alderdice, made any impact.
The Minister took a very purist line. What we have heard in evidence from the real world, described by the noble Baroness and the noble Lord, was, I hoped, enough to stall her in her tracks, but that proved to be a fond hope. What she said did not appear to me to be based on the real world; indeed, her reply to the noble Lord, Lord Alderdice, seemed largely circular. She talked about not excluding people who drink habitually and have withdrawal symptoms. That is exactly the group that the Government are excluding from the Bill—that is what alcohol-dependence means. The Government's position on this issue is extremely confused.
The key question is whether the Bill should be used for moral control of, for example, drunkenness, fetishism, and so on, or for the treatment of people who are ill. The Bill should be used to treat people who are ill. I was very struck by the story told by the noble Baroness, Lady Murphy. Twenty years ago a psychiatrist of my acquaintance asked a Russian psychiatrist whether people who tried to escape were detained in Soviet mental hospitals. The psychiatrist said yes, but only if the person was mentally ill—but only a mentally ill person would try to leave the Soviet Union. That was the kind of distortion of professional ethics to be found there.
The noble Lord, Lord Soley, spoke extremely powerfully, but I return to my earlier point about perception and trust. If you have people in the black and ethnic minority communities who simply do not trust the system as they find it because of real discrimination, something has to be done. It is a feature of the legislation of all Commonwealth jurisdictions that I know of for there to be exclusions; it is part of the way in which legislation that deprives people of their basic rights needs to be confined. I include in that all the Australian states, New Zealand, Ireland, Scotland and at least some of the Canadian jurisdictions.
The noble Baroness, Lady Murphy, said that this amendment was about stopping detention creep. That is a very good way of putting it; its aim is to prevent inappropriate detention. As the noble Lord, Lord Alderdice, put it, we are in danger of driving into the net a large number of people who should not be there. This is a set of issues to which I am sure we will have to return. In the mean time, I beg leave to withdraw the amendment.
I think this is an appropriate moment to break. I suggest that Committee stage does not begin again before 9.27 pm. I therefore beg to move that the House do now resume.