Mental Health Bill [HL]

Part of the debate – in the House of Lords at 7:30 pm on 8 January 2007.

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Photo of Baroness Murphy Baroness Murphy Crossbench 7:30, 8 January 2007

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.