Baroness Bennett of Manor Castle:

Moved by Baroness Bennett of Manor Castle

4: Leave out Clause 3 and insert the following new Clause—“Application of the Mental Health Act 1983: autism and learning disability(1) Section 1 of the Mental Health Act 1983 (application of Act: “mental disorder”) is amended as follows.(2) Omit subsection (2A).(3) Omit subsection (4).(4) At end, insert—“(4A) Mental disorder does not include autism or learning disability for the purposes of this Act.””

My Lords, in moving Amendment 4, I will speak to the Schedule 1 stand part notice, which is consequent on Amendment 4. Both appear in my name. I will not speak to the other amendments in this group, although my understanding is that Amendments 5 and 38 to 41 inclusive—tabled, variously, in the names of the noble Baronesses, Lady Browning and Lady Hollins, and the noble Lord, Lord Scriven—are effectively trying to achieve the same thing but by different means. I will leave them to speak to their amendments, because I want to explain why I have structured mine in this way.

I must begin by thanking Jen Smith at the Bill office for her great patience and expert assistance to this non-lawyer in producing this and a number of other amendments. I also want to stress that I am not, unlike many people taking part in this debate, an expert in this area, but I seek to represent voices of people who have reached out to me who may not otherwise be heard in your Lordships’ Committee.

I will set out the background to Amendment 4. I had a detailed briefing from the group Liberation, a user experience group led by people who have experience of mental distress and trauma, which has the slogan “for full human rights”. It is seeking a complete end to involuntary detention in psychiatric hospitals and forced treatment for the people it represents—people given mental health diagnoses. It asked me to exclude all people from what is known as detention or sectioning.

Liberation says that involuntary detention and forced treatment are forms of disability-based discrimination, and these people should not be subject to them. This may not be the case under the European Convention on Human Rights—I acknowledge that the noble Baroness, Lady Merron, signed a statement to that effect in the Bill—but I understand that it can be argued to be the case under the UN Convention on the Rights of Persons with Disabilities. I note, however, that the Parliamentary Assembly of the Council of Europe has, in line with Articles 12 to 14 of the UN CRPD, strongly endorsed a complete end to involuntary hospitalisation and compulsory treatment and recommended the removal of Article 5.1(e) from the ECHR—the paragraph that limits right to liberty if people are judged to be “of unsound mind”. It describes it as

“not compatible with our 21st-century understanding of human rights”.

I note that the recent report on the situation in the UK from the UN Committee on the Rights of Persons with Disabilities, particularly paragraphs 79 and 80, expresses concern about the lack of government measures to end disability-based detention and that the then Conservative draft mental health Bill continued to allow involuntary detention and forced treatment. The Bill brought before us by the Labour Government still has the same kind of provisions. The argument is that the Bill as it stands remains non-compliant with the UN CRPD deinstitutionalisation guidelines and the World Health Organization publication Mental Health, Human Rights and Legislation: Guidance and Practice, in which countries are urged to replace institutions with high-quality services.

I can almost feel your Lordships’ Committee saying, “How can that be possible?” Starting from now, that looks like such a long way away. That was indeed the question that I put to Liberation, which presented me with a number of case studies from around the world. I imagine that the Minister is aware of the case of Trieste, in north-eastern Italy, which almost managed to abolish involuntary detentions. They have been replaced with wide-ranging and accessible community services, based on a whole-person approach. Its community mental health centres are open 24 hours a day, seven days a week, and they play a key role in preventing people reaching a point of crisis. This has enabled people with mental health diagnoses to remain in and be part of their local community, in line with Article 19 of the UN convention. Compulsory psychiatric treatment orders are still possible, but the numbers are very low and orders typically last seven to 10 days.

In Spain, Act 8/2021 recognises the legal capacity of all adults and stipulates that disabled people should receive the same legal treatment as non-disabled people, including those with mental health diagnoses and learning disabilities. This is still not complete equality but it is heading that way and has made further progress than we have.

Costa Rica, Peru and Colombia have all taken steps in this direction. In Peru, for example, a recent study on the impacts of crisis interventions indicates that involuntary detention rates have been significantly reduced and that, when people are detained, they typically leave hospital after a couple of days.

In Mexico, the general health law of 2022, a national civil procedure code, says that everybody has legal capacity, including people with mental health diagnoses. It enables access to supported decision-making for everybody. Mexico City, in particular, has set a real lead in delivering on this, but I acknowledge that not all of Mexico has.

Why have I tabled an amendment that would, in effect, end detention for those with autism and learning difficulties? I feel like I must apologise to the people I have spoken to, as I did not feel able to put down another amendment—this a probing amendment, by nature—as I looked at the realistic situation. The noble Baroness, Lady Tyler, in starting our debate, referred to the extreme lack of resources. I and many others have amendments later in the Bill referring to the need for it to specify the level of resources. I am sorry that I did not feel able, even in this probing stage of Committee, to table another amendment. I would like to, and I would very much welcome the Minister’s comments on how we sit in that UN framework and whether the Government have a long-term goal to reach the kind of levels that an increasing number of other countries have attained, as I have just set out in my quick survey.

But I have to look at the reality of the statistics. I have looked at the figures in the briefing from the Royal College of Psychiatrists. The number of recorded detentions in 2023-24 is 52,500. We really have to reflect on that number. Of those, we have seen a fall, to 1,880, in the level of detentions relating to learning disability and autism—that seems a step in the right direction. We are talking about disabilities. Can we really continue, a quarter of the way into the 21st century, to detain people for their disability rather than provide them with the support they need in the community? That is a question this amendment seeks to raise.

I want to reflect on the fact—we will come back to this again and again—that people are not getting the help they need, and that is leading to the state of crisis we have now. I note in Mind’s briefing that people are crying out for help and not getting it. In June 2024, very urgent referrals to crisis teams for adults were 45% higher than a year before. I should here declare my position as a vice-president of the Local Government Association and refer to the LGA briefing, which talks about the significant resource implications for councils of the Bill as it stands as presented by the Government.

There are voices here that should be heard. We should frame this in the context of the international situation of the UN Convention on the Rights of Persons with Disabilities. That is why I have tabled this amendment. I hope we can have a constructive discussion and see some real progress here today. I beg to move.

My Lords, I declare my interest as a vice-president of the National Autistic Society and a co-chair of the APPG on Autism, and I have responsibilities for close relatives who are on the autism spectrum.

I will speak to Amendment 5 first, and to the Mental Capacity Act, which is not the Act we are looking to change but it is my contention in this proposed clause that the Mental Capacity Act has a relationship with the Mental Health Act.

There has for some years been concern about the deprivation of liberty safeguards as defined in the Mental Capacity Act 2005. They were inserted into the Mental Health Act 2007 following the Bournewood judgment in the European court which involved an autistic man whose liberty was denied, whose carers were ignored, and who had had what I can best describe as an autistic meltdown that resulted in his incarceration for a very long time.

Although the Mental Capacity Act has much to commend it, there has been ongoing concern about the deprivation of liberty safeguards—often referred to as DoLS—and I managed to obtain a House of Lords inquiry into the Act in 2013, ably chaired by the noble and learned Lord, Lord Hardie, who is in his place today. I will quote a section of the summary of that inquiry that deals specifically with deprivation of liberty safeguards. The House concluded:

“The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned”.

While I welcome the removal from the Mental Health Act 1983 of the presumption of mental illness in people with autism and learning difficulties, there is concern that once it is removed the Mental Capacity Act will be used more frequently with all the implications that I have just read out because nothing has changed the DoLS based on the Mental Capacity Act as we understand it today.

I am grateful to the Law Society for drafting Amendment 5, which strengthens the Mental Capacity Act 2005 and gives more liberty to P, in the example used, in determining the treatment and assessment of an individual case. I strongly urge the Minister, who has been so helpful in her deliberations and communications on this Bill, not to step out of the frying pan and straight into the fire of the Mental Capacity Act and to adopt this amendment.

I move briefly to Amendments 39 and 41. Under the Bill, it will be possible to detain autistic people and/or people with a learning disability if they have a coexisting mental health condition. Amendment 39 would provide that the behaviour risk that meets the criteria for detention must be wholly due to the psychiatric disorder and not to unmet needs. Failure to provide services to support an inability to obtain employment, make friendships or relationships or cope with everyday challenges can and often is difficult for neurodiverse people. Autism is, as we have already heard, a communication disorder. We know that these services are not always available and that that can lead to behaviours that sometimes are not properly understood. The delay in implementing this Bill once it becomes an Act of Parliament, which was flagged at Second Reading, is clear evidence of the fact that the services that we will talk about in the course of this Bill are just not there in the geographical spread or number that we require.

Therefore, I say to the Committee that the Bill should protect people with autism and psychiatric disorders, particularly those who have been denied or unable to obtain appropriate services which has led to what is often euphemistically called an autistic meltdown, behaviour that sometimes can be quite challenging, I appreciate. It should be identified in its own right, and that alone should be the criterion for detention when a mental disorder is identified.

Similarly, Amendment 41 would require that the psychiatric disorder and the reasons for that alone are listed on the statement when a patient is detained and that autism and learning disability should not be listed as the reason for detention. It may be appropriate in other types of documentation associated with the patient but not on the reason for detention.

I pay tribute to the work that the noble Baroness, Lady Browning, has done in relation to this matter. This is a matter that we considered in great detail in the Joint Committee. I am grateful that that gives us the opportunity to discuss in the round the legal basis on which people are detained. The independent review did not recommend what is currently in the Bill, which is the removal of learning disabilities and autism from the Act. The Joint Committee’s report quotes it saying,

“the risk of completely removing learning disabilities and autism from the Act is too high”.

The noble Baroness, Lady Browning, outlined one of the reasons for that, which is that if you remove the legal basis for detention under the Mental Health Act, then the bucket that these individuals and patients would fall into without Amendment 5 would be the Mental Capacity Act.

In the consideration by the Joint Committee, there is the other danger that—when there is no co-occurring mental health condition—you end up with people coming through the criminal justice system, instead of being detained under the Mental Health Act. That is the worst of all the evils we could be discussing here today and would be completely inappropriate.

I would be grateful if the Minister will ensure two things when we know that these are dangers: first, an increase in diagnoses of co-occurring mental health conditions to use the Mental Health Act; and, secondly, an increase in the use of the Part III criminal justice provisions. It is important that we know the exact statistics for the group with learning disabilities and autism before implementation of the Act. Then we would know whether the Act has caused an increase in diagnoses of co-occurring mental health disorders and an increase in the use of the criminal justice system.

I believe that currently 39% of people detained with learning disabilities and autism are detained under Part III of the Act. I see the noble Baroness, Lady Browning, nodding. It is important that we remember that New Zealand tried this, removing learning disabilities and autism from its mental health legislation. I cannot remember whether it had the co-occurring mental health diagnosis provision, but, only a few years later, it had to amend the law, as it had caused an increased number of learning disabilities and autism patients to come in through the criminal justice system.

What would be the position if the Bill were amended in accordance with Amendment 5? The evidence that we received in Joint Committee was that there would be no patients—that community facilities would be at a level where they could not think of anybody who would need to be detained. I wish the world were thus, but the ideal world portrayed in that way does not exist. Even with the community facilities that we all wish to exist, it seems clear to me that there would be circumstances in which there would still be a need to detain.

I recognise that, in reality, we may see that increase in diagnoses of co-occurring disorders. Physicians may reach for that to protect someone—to detain them to get them treatment. However, it was made clear to us that 28 days is a relatively short time. You can be detained for assessment, but it can take many days to get the level of distress down—I do not want or like to use the word “meltdown”—to assess the mental health of the person and whether there is a co-occurring disorder.

The Joint Committee came up with a special exceptional tribunal that would still allow the Mental Health Act to be used in that small number of cases—once community facilities are as we would like them to be—to continue detention. Why? For the reasons outlined by the noble Baroness, Lady Browning: the protections under the Mental Health Act are much greater. You have the nominated person, you can go to the Mental Health Act tribunal, and—ker-ching—you get Section 117 aftercare, which, of course, is not available under the Mental Capacity Act.

If Amendment 5 were accepted, we would have no Mental Health Act, no co-occurring diagnoses, no criminal justice system—I hope—and no Mental Capacity Act to refer to. If a clinician is in that circumstance where someone is so distressed and they do not have that diagnosis in the 28 days, where is the law? We are not talking about the practicalities here. Where is the law?

In any event, the Mental Capacity Act does not apply to under-16s. So the risk would be an increased use of what we now know as High Court DoLS. These are not DoLS under the Mental Capacity Act. They are DoLS under the inherent jurisdiction of the High Court. They are a most unsatisfactory way of restraining the liberty of under-16s.

Only two or three weeks ago, the Children’s Commissioner issued a report outlining the problem, and outlining that, already, some children with learning disabilities and autism are under a High Court DoLS. It is a matter that your Lordships’ House needs to consider. Nearly a thousand children are detained under a High Court DoLS.

Obviously, the Mental Capacity Act would have applied to 16 and 17 year-olds and adults so where does that leave those vulnerable adults? Where is there a power to detain them? The Mental Health Act and the Mental Capacity Act will both have gone. If clinicians are in that circumstance where there is no co-occurring mental health disorder, there is a vacuum which may end up being filled by the inherent jurisdiction of the High Court using vulnerable adults. We will have created another little bucket of people. I accept the criticism made by the noble Baroness, Lady Browning, about DoLS under the Mental Capacity Act. They are supposed to be replaced by protection of liberty safeguards, but those are not in force yet.

If we accept Amendment 5, are we going to create more work for the High Court with clinicians in that situation because the law will not have provided any means for them to detain? I recognise and repeat that the practicality will probably be a co-occurring mental health disorder but, as far as I understand it, that is where the law will be left if Amendment 5 is accepted.

Although the Mental Capacity Act is far from ideal, I hope the Minister can help us understand what the situation would be if we were to accept the amendment. As I say, for the under-16s it would be more cases under High Court DoLS, as far I understand it.

My Lords, I have an amendment in this group but I want to speak particularly to the amendment from the noble Baroness, Lady Bennett, and to thank the noble Baroness, Lady Berridge, for her good sense. I agree with every word she has said.

I had earlier tabled amendments to Clause 3 and Schedule 1 to give effect to opposing any change in the definition of mental disorder for the meaning of the Act in the same way as Sir Simon Wessely’s committee recommended and I withdrew them in favour of a compromise amendment because I was not sure, to be honest, that I would get here at all today. I have. I am not quite sure how many more I will be able to get to but for the moment I am here so I will speak to this one.

I want to make it clear right from the start that if we had changed our legislation to be a hybrid Bill that was a fusion of a mental capacity and a mental health Bill we would not be in this pickle because we would have capacity-based legislation and therefore we could have proceeded without any of these silly criteria for what is this diagnosis and what is another. As the legislation is at the moment, I believe the move to remove autism and learning disabilities from what is a mental disorder is frankly bizarre, akin to having Parliament establish that for the purposes of legislation, the earth is flat and the sun goes round the earth. Galileo had the same problem. I want to ensure that Hansard will record that not everyone is in agreement with the notion that autism and learning disabilities are somehow separate and different from other mental disorders.

Neurodiversity, which, of course, exists, is the term used to describe statistical outliers from the norm and, of course, as for many other mental states, there can be many positive and interesting aspects of alternative ways of thinking about and responding emotionally to the world that enrich society. I understand that many people with autism and learning disabilities do just that and that is where neurodiversity has been so supported by people who want to ensure that they are recognised as individuals and citizens just as the rest of us are. But that does not change the fundamentals.

I know noble Lords know that I was a professor of psychiatry for many years at the University of London but I ought to mention at this point that I also have a special interest in mental health legislation because I was for six years vice-chair of the Mental Health Act Commission. I co-authored this now much revered code of practice for the 1983 Act. It is actually my only bestseller—if only it did not say Secretary of State on it—and I know first-hand how the Acts and codes are used. That is why I do not get involved in the principles of where this should be. The code does have statutory effect, by the way—I am sorry that the noble and learned Baroness, Lady Butler-Sloss, has left, because I can reassure her it does have statutory force. I was also UK advisor to the WHO on mental health and older people and was exposed to the developments in mental health legislation in other jurisdictions, not only in the UK, with the Scottish and Northern Ireland Acts as they were being developed, but in the Republic of Ireland when it introduced its new Act, and abroad in English-speaking legislatures.

I can see that, at this point, we are in real danger of distinctions being made between mental disorder and psychiatric disorder. Not only is it inappropriate to refer to disorder by reference to the medical speciality that treats it—as far as I can tell, that has never been done before in legislation—but it is inconsistent with the internationally accepted definitions of mental disorder and psychiatric disorder, which include explicitly all forms of neurodevelopmental disorder, including autism spectrum disorders and learning disabilities.

In fact, in what I call DSM-5—the diagnostic and statistical manual used in international research in the majority of English-speaking countries—mental disorders, including neurodevelopmental disorders, come first. They are at the top of the list in that classification of mental disorders. Similarly in ICD-11, the international classification of diseases used by the World Health Organization and for coding and global health monitoring, to which the UK subscribes, all forms of neurodevelopmental disorder, including autism and its spectrum, are at the top of the list of mental disorders. We have some difficulty here: the Bill before us has changed these definitions to separate them off.

The issues surrounding the diagnostic criteria were thought through carefully during the development of the Mental Capacity Act 2005 and, most recently, looked at again during the passage of the Autism Act 2009. It was felt to be unfeasible to change the definitions because of the national and international implications. It would be very sad if this Bill were to diverge the direction of travel in English and Welsh legislation away from the international trend. It is also true in any case that many mental disorders are now treated not by psychiatrists but by psychologists, neurologists and clinical psychiatric nurse specialists, so calling something a psychiatric disorder rather than a mental disorder really does not make much sense.

This leads to the very difficult distinction between the application of Part II civil sections and the criteria for Part III, concerned with patients with criminal proceedings, where mental disorders are, extraordinarily, referred to as “relevant” disorders. I do not think that I have ever met anyone diagnosed as suffering from a relevant disorder. It means that Part II criteria are now different from those in Part III. Clearly, I understand that that is necessary if Section 3 in Part II of the Act is to exclude people with these two categories of neurodevelopmental disorders, but these unfortunate people will not be able to benefit.

I ask the noble Baroness, Lady Browning, how she would think of an autistic meltdown. I know that she must have experienced them and they are very distressing. They are mental disorders; autism is a mental disorder. Let us have none of this trying to be sophisticated. Psychiatrists will carry on treating people with a wide range of mental disorders, including neurodevelopmental disorders, and it is utter nonsense to try to exclude them.

The noble Baroness asked me a question. Was it rhetorical? I wonder whether she could accept that autism is different. From the time that Kanner first identified autism, which is what a lot of psychiatric bases are based on—we then had Asperger and others, and the very good, more recent documentation from Lorna Wing, with whom I am sure she is familiar—autism has been different. If people doubt that, it is important to note that, apart from the Mental Health Act, the only other condition, however you label it, to have its own Act of Parliament is autism. In the Autism Act 2009, this Parliament unanimously agreed—in both Houses—that autism is different and deserved its own Act of Parliament.

I would say that all mental disorders are different but that they cannot all have their own Acts of Parliament. I do not accept that autism is different. Of course, it is different in the way that it manifests—

I will make a slightly cheeky intervention, if I may, on the noble Baroness. I am not weighing into the debate that is taking place but simply make this point. Does she accept that the fact that a condition is listed in the DSM or the ICD is not itself definitive? Until 1973, homosexuality was listed as a psychiatric condition in the DSM and until 1990 it was, I believe, included as a psychiatric diagnosis in the ICD. Therefore, that is not the strongest evidential basis for her claims.

I agree with the noble Lord, but the reality is that we use DSM-3 and ICD-11 in the international classification of disorders. If we in Britain are to go outside that, for reasons of our own, then we had better have some pretty good ideas why that should be. I am not so sure that we have them.

The Wessely review rejected the notion because, as the noble Baroness, Lady Berridge, said, it carried serious risks that individuals would be extruded and neglected, the opposite of what is intended. Similar anxieties were expressed in the development and creation of other Acts—I am sorry that I am going to go on longer than the advisory—so as not to exclude anybody from this group, because we want mental disorder to be an inclusive thing and not to exclude whole groups of people. Their protections are gone if we exclude them.

I accept that almost all the developments for autism and learning disabilities in the Bill are very positive. They will really improve the way that people think about autism and will have an extremely beneficial effect on trying to develop services and improve training, but there is no evidence that changing the criteria under the Act will do anything to improve it. Getting money into services and service design is what we need and not a change in the legislation for criteria. As the Royal College of Psychiatrists’ group of specialists in learning disabilities have pointed out, the vast majority of them do not want this change in legislation. We should think very carefully before we submit people to something when we do not know what will be unleashed as a result.

My Lords, I wish to speak on this group; I have tabled two amendments, Amendments 38 and 40. I declare an interest as a vice-president of the Local Government Association. I also wish to share an interest which is similar to that of the noble Baroness, Lady Browning. I used to have two nephews who had learning disabilities and autism. One of them, sadly, has died—there is a statistic that people with learning disabilities and autism die, on average, at 20 years below people without them. I still have a loving, warm, neurodiverse and very proudly different nephew, who I love. I see his behaviours and the way that many people do not understand him and deal with him differently.

I listened carefully to the noble Baroness, Lady Murphy, and was going to make the exact point that, as a gay person, before 1973 I would have been defined as having a mental illness. The discussion among psychiatrists and the mental health professions at the moment is not as robust as the noble Baroness made out. Many people within the profession say that those with learning disabilities and autism are not on the mental health spectrum and should not be treated as having a psychiatric illness.

We are in a difficult position. My amendments are probing amendments to try to preclude Sections 2 and 3 of the Mental Capacity Act being used to detain people who do not meet the Mental Health Act detention criteria. It is fascinating that, in some cases where people are detained at the moment, it is not because there is a therapeutic benefit but because there are no community facilities—this is completely at odds with the code of practice. Professionals are using a lack of facility to detain people. Let us be clear: these people are detained for 4.8 years on average, in solitary confinement, and this has a lifelong detriment. They are scarred for life. Many probing amendments in this group are trying to tease out exactly what will happen and to ensure that the Mental Capacity Act is not used to detain people because provision in this country does not exist.

As the noble Baroness, Lady Bennett, pointed out, there are places, such as Trieste, where this issue has been dealt with starting from a different view: starting from what is needed, rather than this power being required because things are needed. That is the fundamental change that we need to make because, if not—I am glad the Government are moving down this path—we will continue to see people detained when they have not a mental illness or a psychiatric disorder but a development issue, which is not a psychiatric disorder. There are many papers on learning disabilities and autism by professionals who would argue that that is the case. We are all probing to try to work out what will happen.

I fully support the change to the detention criteria for autistic people and people with learning disabilities, and I believe it is key to reducing the number of autistic people and people with learning disabilities detained in mental health hospitals. But to achieve this policy intent, the Government need to make sure that a backdoor to detention is not opened through the inappropriate use of the Mental Capacity Act—detention in a mental health hospital under the deprivation of liberty safeguards instead. Without further guidance on the use of the Mental Capacity Act, the Government’s intent to reduce the number of autistic people and those with learning disabilities in mental health hospitals may be undermined.

I am concerned that the Mental Capacity Act may not be generally appropriate for use in deciding on treatment in a mental health hospital, as its primary intention is to help decide issues relating to people’s overall care and living arrangements. I am also concerned that somebody detained under the Mental Capacity Act would not benefit from procedural safeguards and access to the mental health tribunal if required.

Amendment 35 from the noble Baroness, Lady Murphy, would mean that people with a learning disability or autism could be held for six months. There could be a six-month period of detention but only in exceptional circumstances, which are not defined but are to be defined and put in the code of practice. Again, as we know, people can divert from the code of practice, so it is not the safeguard that the noble Baroness would suggest. Exceptional circumstances in a code of practice could be diverted from. Furthermore, based on the noble Baroness’s amendment, there could be a further six months for a tribunal to decide. Nowhere in here is there anything about therapeutic benefit and how that detention would be to the benefit of the individual rather than of society. So I am not clear how therapeutic benefit would be determined under the noble Baroness’s amendment.

I accept that there is a gap, but I do not believe it is best filled by detaining people or assuming that detention is the first step. I look forward to the Minister exploring with the Committee exactly what the Government’s intention will be if this provision in the Bill is enacted and what provision will be put in place to ensure that there is not a backdoor and that people with learning disabilities and autism who are clearly at the end of the 28 days would have appropriate provision for their needs to be met. It is absolutely vital to understand this in Committee to determine exactly how we go forward without detention being the automatic assumption of what is required when this gap needs to be filled.

What does the noble Lord think will happen to the people in the gap?

As I said, the noble Baroness, Lady Bennett, pointed out what happens internationally, in Trieste in Italy, for example, and I therefore suggest that good international comparisons and practice could be enacted in legislation to ensure that the needs of as many people as possible are met in the community, rather than them being held in detention because the provision is not there. That is exactly what will happen unless this gap is dealt with by looking at what is required rather than looking at the gap and continuing detention.

My Lords, I apologise that I did not speak at Second Reading, but I have been listening to this interesting debate and it seems to me that Clause 5 is introducing the concept of detention in extreme cases, where there is a risk of serious harm to the health or safety of the patient or another person unless the patient is detained. That is the reason for the detention: to protect the patient from serious harm to himself or herself, or to protect others from serious harm.

As I read the amendment from the noble Baroness, Lady Browning, it simply seeks to suggest, or to put on the statute book, that someone suffering from autism or a learning disability would not satisfy the test in Clause 5. But the amendment permits the admission to hospital of someone with a learning disability for the purpose of assessing whether he or she has a mental disorder. I am not sure that this amendment by the noble Baroness, Lady Browning, would result in people slipping through the net.

I wrote the amendment in a terrible hurry as a compromise amendment when I could not table the amendment that I really wished to table, which was seeking to get back to having clarity about the diagnostic criteria. I apologise if that was not the provision that the noble Lord wanted in the Bill—I am not sure that I want it very much either. I do not have any great devotion to the proposed new clause; it was just a way of trying to address this leaving of the gap. We used to do that, by the way. After the 1983 Act, noble Lords will remember that we dropped alcohol addictions and drug misuse from the Act, saying that we could not detain people for those reasons alone. What happened was that there was total neglect for the next 20 years until voluntary organisations and local authorities got moving and said, “This won’t do—we must do something”.

Noble Lords should remember that that is what happens. If you leave somebody out of protective legislation, they will not be included; they will be neglected and they will end up in prison. That is what Sir Simon Wessely thought and it is what the noble Baroness, Lady Berridge, has been talking about. I can guarantee that nobody will be interested in autistic meltdowns if there is no way in which to intervene to save a family from having that person with them, seven days a week and 24 hours a day, during the period of this terrible disturbance.

Community services are great. I urge noble Lords to visit Trieste, as it has brilliant services in a tiny area; it is one of the very few in Italy, and it continues to work very well. It is cited all over the world, and that is very good. But this is Britain, with 80 million people and massively underfunded services, and it ain’t going to happen. I want to know what will happen to those people noble Lords would like to see neglected until such time as the Government produce some alternative provision.

I do not think that I or anybody else who has a different opinion from the noble Baroness wants to see those people being neglected. We have a different view. The issue I have with her stance is that the evidence is that putting people with learning disabilities and autism in a psychiatric hospital—and that is where they will go if there is no provision, because that is where they go at present—is damaging. It is not the correct provision. I believe that what she is arguing for—to continue the neglect of provision by putting them somewhere—is significantly not in their best interests and causes damage.

Perhaps I can clarify. I think that the noble Baroness’s amendment is to some extent based on the spirit of the Joint Committee’s report, which was about providing some kind of mechanism, after the 28 days—I am glad to see the noble Lord, Lord Bradley, nodding. There would be a specialist tribunal, and we said that it should be composed of people with experience of learning disabilities and autism, so that there was not a get-out for clinicians that they had not done the assessments properly. There would have to be grounded reasons to go beyond the 28 days and, in exceptional circumstances, you could authorise the detention, to make sure that the law covered that gap or group of people. No one wanted to see people detained for the reason that there was no community provision—that is ridiculous.

I accept that the reality is probably going to be that clinicians will find a mental disorder diagnosis to use the powers under Part II to do what is in the best interests of that person and their family at the time. But the law should also cover that situation and not force clinicians into those diagnoses—hence the need for accurate data, so that we can track what is happening when the law is enacted.

Once again, I am grateful to all noble Lords who spoke to this group of amendments. The purpose of today’s Committee is to probe the Government, but it is interesting that we find noble Lords probing each other—though I have learned a huge amount from these discussions. They say that discourse leads not only to liberty but to an increase in knowledge.

I add my words to those of the Minister and offer my condolences to the noble Baroness, Lady Hollins, who is not in her place today. I recall a debate in 2021 led by the noble Baroness—one of my first as Health Minister—in which she highlighted that people with learning difficulties and autism were being detained in secure settings, even when an assessment had recommended that they should live in the community. This goes back to the words of my noble friend Lady Berridge, who talked about how we can deal with the world as it is and not with the ideal world that we want to live in.

I was shocked at the time by what the noble Baroness, Lady Hollins, told the House about some of the findings from the oversight panel for the independent care (education) and treatment reviews. I bear in mind what the noble Baroness, Lady Bennett, said, when she gave some examples of other countries with much shorter detentions, but I will never forget the story that the noble Baroness, Lady Hollins, told about a Mr W, who had been detained in hospital for more than 20 years, spending most of his time in what amounted to solitary confinement. At the time of the debate, Mr W had been living in his own home for nearly three years, near his family, with his home environment and care being built around his needs. That is something that all noble Lords are trying to push for in this group of amendments. It was not only a heart-warming story but the point was made that, financially, it cost no more to support Mr W living in his own home than it did to detain him in hospital. More importantly, the noble Baroness shared the happy ending that, despite the trauma of being in the wrong environment for so many years, Mr W was, we hope, going to live happily ever after. That highlights the reasons for the amendments in this group.

I should add that I recall the noble Baroness who is now the Minister pushing the Government from these Benches on ending detention. I am sorry—I am going to be a little naughty here, but she can do it if we ever get back into government. She told the House that the average length of stay for people with a learning disability and/or autism in in-patient units was 5.4 years, saying:

“That is 5.4 years that no person will ever get back”.—[Official Report, 28/10/2021; col. GC 231.]

She asked how that could be justifiable when the cost of living in the community was the same as the cost of detention. I know that she is naturally sympathetic to ending these detentions. The detention of those with autism and learning disabilities was one of the central issues addressed by the Wessely review.

I was interested in Amendment 4, in the name of the noble Baroness, Lady Bennett, arguing the definition of “mental disorder” under the Bill. While I am sympathetic to the amendment, can the Minister confirm whether my understanding is correct that the World Health Organization defines a mental disorder as

“a clinically significant disturbance in an individual’s cognition, emotional regulation, or behaviour”, and whether the WHO includes neurodevelopmental disorders, which includes autism? If so, are the Government sympathetic to Amendment 4 and considering bringing forward their own amendment? How would they avoid running contrary to the definition accepted by the WHO and included in the Diagnostic and Statistical Manual of Mental Disorders, particularly DSM-5? I understand the point that these things can change, as the noble Lords, Lord Stevens and Lord Scriven, have very importantly alluded to.

Amendment 5, in the name of my noble friend Lady Browning, seeks to ensure that, if a person has autism or a learning difficulty but not a mental health condition, we should not be using deprivation of liberty safeguards to replace detention under the Mental Health Act. We fully support my noble friend’s amendment and the intention behind it.

I am grateful to noble Lady, Baroness Murphy, who has tabled Amendment 35, for the time she has taken to share her experience and expertise with me and my noble friend Lord Howe. She addresses an issue that we should all be aware of with any legislation: that of unintended consequences. While most noble Lords here today would accept and support ending these detentions, for all the reasons that we have all given, and particularly after the harrowing stories that the noble Baroness, Lady Hollins, told all those years ago, how will the Government ensure that anyone with learning difficulties who could potentially pose a considerable risk in the community receive the required supervision? That is the challenge here, and it is the challenge to which my noble friend Lady Berridge referred when she reminded us that we have to talk about the world in which we live and not the ideal world that we all want.

I am very grateful to my noble friend Lady Berridge for sharing some of the deliberations of the pre-legislative Joint Committee, particularly on the issue of the High Court DoLS. Given that, and the point of the noble Lord, Lord Scriven, if we are to have alternatives, how do we prevent detention by the back door or opening a massive loophole for detention?

Amendment 39, from my noble friend Lady Browning, would ensure that detention was for needs associated with the degree of psychiatric disorder, along with Amendment 40. We are sympathetic to that, and I look forward to the Minister’s response.

My Lords, I am most grateful to noble Lords across the Committee for their contributions. I will start by referring to the points raised by the noble Lord, Lord Scriven. A range of views has been expressed today on the matter of detention. The noble Lord asked what provision will be in place to ensure that we are not using some kind of backdoor, and that is a very good general question for us to hold in our heads. It is a very important matter, given the very poor outcomes we have seen for those with a learning disability and for autistic people under the current Act. I know this is something that has really exercised noble Lords—rightly so, in my view.

The noble Lord, Lord Kamall, is quite right to remind me of comments I made from that Dispatch Box, which I still stand by. I have concerns, as I know he does too. The proposals here are intended to address the matter of improving outcomes. The debate today has been extremely helpful and will allow me to reflect on where we need to go in respect of these. I am also grateful for the range of wider topics raised in this group—for example, on the importance of the community sector—and I look forward to moving on to these when we come to subsequent groups later today.

Let me first address Amendment 4 and the notice to oppose Schedule 1, tabled by the noble Baroness, Lady Bennett of Manor Castle. Currently, a person with a learning disability can be detained for treatment under Part II, Section 3 of the Mental Health Act when their learning disability

“is associated with abnormally aggressive or seriously irresponsible conduct”.

I heard what the noble Baronesses, Lady Browning and Lady Berridge, said. The noble Baroness, Lady Browning, used the word “meltdown”, and she has spoken to me about this before. I know that not all noble Lords like that word, which is why I put it in quotes, but the point is well made and the noble Baroness has explained to me about understanding a person’s conduct. It is also the case that an autistic person can be detained under Section 3 on the basis of mental disorder.

While the independent review found examples where use of the Act can deliver therapeutic benefit, it also found that hospital detention—a number of noble Lords spoke about this—can be detrimental for people with a learning disability and autistic people, due to exposure to environments or experiences that are completely insensitive to what I would call reasonable adjustments. This obviously causes stress and leads to behaviour considered to be challenging. We have heard that it is too often the case that people with a learning disability and autistic people are being inappropriately detained due to a crisis—which may be a better word in this instance—that has arisen due to a lack of community support, rather than for treatment of a mental health condition. That is unacceptable and the point has been extremely well made, both in the Chamber today and on earlier occasions.

The Government are committed to ensuring that hospital detention happens only when an individual has a mental disorder that warrants hospital treatment that has a reasonable prospect of providing a therapeutic benefit. It should not be some form of punishment. Schedule 1 and Clause 3 will change how the Act applies to people with a learning disability and autistic people by introducing new definitions for “psychiatric disorder”, “learning disability” and “autism” in the Act, and making amendments using those definitions throughout the Act. These amendments remove, for the purposes of Part II of the Act, learning disability and autism from the scope of conditions for which a person can be detained for compulsory treatment under Section 3. I hope that will be of reassurance to the noble Lord, Lord Kamall, and other noble Lords.

The noble Baroness, Lady Bennett, argued that the Bill is non-compliant with the UN Convention on the Rights of Persons with Disabilities. The measures in the Bill give patients greater choice, enhanced rights and support, and seek to ensure—I know that noble Lords want to probe this—that everyone is treated with dignity and respect throughout their treatment, and that the treatment is appropriate to the situation. It is the view of the Government that the Bill is compatible with the convention. Detention under the Act is not based merely on the existence of disability: that is something I really want to emphasise. Detention is risk-based. Detention and other compulsory measures are permitted only where they are justified by the risk posed by a person’s mental disorder and, through the Bill, I hope that we are very much strengthening the criteria for detention. We will come back to this later in Committee.

Amendment 4, tabled by the noble Baroness, would leave out Clause 3 and put in a new definition of mental disorder to remove learning disability and autism from the scope of the Mental Health Act entirely. This would mean that a person could not be dealt with under any section of the Act on the grounds of learning disability or autism alone. We very much recognise the arguments for removing these conditions from the scope of the Act, but there could be unintended consequences in the removal of critical safeguards. I know that the noble Baroness does not wish to cause that effect.

For example, the Bill retains the ability to detain people under Part II, Section 2, for a maximum of 28 days, for the purpose of assessment. That can be necessary both for the safety of the individual and the public, and for a clinician to understand fully whether a treatable mental health condition is the cause of the behaviour. I suggest that this is particularly important when considering conditions associated with high rates of co-occurring mental health conditions. Without these powers, there is a risk that the mental health needs of these groups of people are not identified or met appropriately, leading to further health inequalities for this group of people. I know that is not something that noble Lords would wish.

I have not spoken in this debate so far, but I have listened intently to everything that everybody has said, including the noble Baroness, Lady Murphy. Members of the Select Committee will remember—they could not forget—the evidence given to us by particular witnesses who have autism and have been through the trauma of being detained. They made to us, unforgettably, the point that there are some people with autism and learning disabilities for whom detention is an aggravating factor.

I happen not to agree completely with the noble Baroness, Lady Bennett, that there should be an end to all detention, although I have some sympathy with her arguments. I believe there are people for whom detention is necessary—both for them and for the safety of others—but they should be held in mental health facilities and not the criminal justice system.

I listened intently to the noble Baroness, Lady Murphy. I understand that it may be absolutely correct to define people with autism and learning disabilities as having a disorder, but we have moved on over 20 or 30 years to understanding that their manifestations and treatment are different from those of other mental health conditions. There is therefore a problem in having the diagnosis and treatment carried out by the same people. I hoped that she would explain, but she did not, why keeping people within the definition would improve their care.

Does the noble Baroness accept that, in talking about treatment, we are talking about care, education and training in social circumstances? Treatment is not about medication, which may be totally inappropriate, but about looking at the individual’s developmental needs as a whole, which include a whole raft of things. I agree that it is not just about psychiatrists or psychologists; it can be about teachers, people with a special understanding of speech and language, and so on. I would never deny that you have to encompass the whole thing—I would promote it.

I am sure that the noble Baroness would. Does she accept that for some people, particularly those with autism and learning disabilities, being held in conditions that are noisy, filled with light and full of people they do not know—in which they are made to feel completely powerless and do not know what will happen to them next—will be a contributory factor to their illness? I make that point to the noble Baroness, Lady Merron. She talks about choice, but what increased protections are there in this Bill for people with autism or learning disabilities who find themselves in detention, which is an aggravating factor causing them to be wrongly diagnosed?

I will be pleased to come back to that point. I think agreement broke out for a moment, which I would share, on the fact that detention takes many forms. It is about getting the right form and being sensitive to the needs of the individual, which is what the Bill is all about. I am grateful for those comments.

To pick up my point about the expert consultation that has taken place, a decision was taken to retain the ability to divert people who are autistic or have a learning disability, who have committed a crime, from prison to hospital under Part III of the Act. Without this safeguard, the only alternative to detention in hospital is detention in prison. Noble Lords have referred in this group to how, often, this would be inappropriate in meeting those people’s needs and would exacerbate and manifest distress. On balance, we believe it is right to retain the ability to divert such patients to hospital, where they are much more likely to access the right kind of support and care that they need.

The noble Baroness, Lady Bennett, raised concern about resourcing implications for local authorities. I refer her to the impact assessment, which sets out anticipated costs, including a breakdown of costs for councils. I assure her that we will do further work with MHCLG to assess any new burdens on local authorities created by the Bill. We are very alive to that situation.

The noble Baroness, Lady Berridge, made interesting international comparisons, such as with New Zealand. Under our proposed reforms, people with a learning disability and autistic people, as I said, can be diverted from hospital to prison. It is about getting the right therapeutic environment. We are of course interested in international comparisons and experiences. We will look at them as we go further with the Bill.

Amendment 5 was tabled by the noble Baroness, Lady Browning, and Amendments 38 and 40 were tabled by the noble Lord, Lord Scriven, and supported by the noble Baroness, Lady Hollins. I appreciate the noble Lord speaking very personally about the experience of his family members, which always reminds us why we are discussing this Bill. I am grateful to him for sharing that. The noble Baroness, Lady Browning, raised understandable concerns about the length of time taken to implement the learning disability and autism reforms. I know that will come up with regard to the Bill more widely and I look forward to addressing those points as we go through Committee.

Amendments 5, 38 and 40 seek to prevent people being detained under the Mental Capacity Act as an alternative route to hospital detention if they do not meet the criteria for detention under the Mental Health Act. Amendment 5 would amend the Mental Capacity Act so that a person with a learning disability or an autistic person who does not have a psychiatric disorder could also not be detained in hospital under the deprivation of liberty safeguards or a Court of Protection order if they object to admission or treatment, or if someone objects on their behalf. Amendments 38 and 40 would amend the Mental Health Act so that the Mental Capacity Act could not be used to deprive people of their liberty who lack capacity and who do not meet the detention criteria under Part II, Section 3. This would include anyone who needs to be deprived of their liberty for physical treatment in a general hospital, in a care home or in the community. The noble Lord, Lord Scriven, spoke about not using the back door; I take these amendments in that spirit.

We strongly agree with the principle that people with a learning disability and autistic people who would no longer meet the proposed Section 3 detention criteria are instead detained under the Mental Capacity Act. We do not want this to be a loophole, back door or anything of that nature. We want the effect of the Bill to be that, wherever possible, these people are instead supported in the community when they do not have a need for hospital treatment for a psychiatric disorder.

The Minister will not be surprised to hear that I like what she just said. Is there no way she can put that in the Bill under a government amendment?

I am grateful for the invitation, as always. Government amendments will be considered as we progress through Committee, but I say that as a broad point, as I know the noble Baroness understands.

The intention of the provisions in the Bill on registers and commissioning is that people with a learning disability and autistic people are not detained but supported in the right way. The proposed changes to Part II, Section 3 will be commenced only where there are strong community services in place.

I am aware of how much time the Minister has given and how generous she has been in allowing interventions. If she is minded on Amendment 5, can she outline whether she is proposing that there would be the special tribunal that the Joint Committee outlined? If so, how would she then deal with these issues for under-16s in respect of DoLS and for vulnerable adults? When there is no legal basis at all, it is then left for clinicians to detain anybody after the 28 days.

I became a little worried, listening to the noble Baroness, Lady Berridge, that perhaps I had been a bit too generous.

Noble Lords:

No.

I am sure that I have not been generous enough. I cannot give a commitment to government amendments on any of these areas. As noble Lords will be aware, that is the purpose of the kind of debate that we are having in Committee. However, we will certainly return to these matters.

The Mental Capacity Act protects people subject to arrangements that may amount to a deprivation of liberty in hospitals, care homes and other settings, by allowing a deprivation of liberty only when it is necessary and proportionate. There are instances when it is important that the Mental Capacity Act can be used to protect and to safeguard people where appropriate, and we do not want to lose that aspect.

The concern about the amendment is that it might have the effect of undermining decision-making, or of denying a specified group of people the right to protections under the Mental Capacity Act—although I know that this is not intended. I will give an example. Where a person lacks capacity but does not have a psychiatric disorder that requires treatment, there may be elements of that person’s care plan and arrangements that require deprivation of liberty safeguards to ensure that they can access the community safely and maintain a safe home environment. Similarly, certain specialist community placements are also registered hospitals, so the proposed amendment could unintentionally—I stress “unintentionally”—remove such provision as a viable community-based option, where the individual lacks capacity but would benefit from this placement as an alternative to in-patient care.

The noble Baroness, Lady Berridge, rightly made some comments about the statistics for LDA detention rates. I assure your Lordships that the data and statistics being referred to are absolutely key. They are collected and published, and they will continue to be monitored. If there are any matters where the noble Baroness or other noble Lords feel that we should go further, I would be very pleased to receive their comments.

On the point raised by the noble Baroness, Lady Berridge, about the use of High Court deprivation of liberty safeguards for children, I will refer to the action of the previous Government, which I hope will be seen as very helpful. In 2023, a task and finish group was established called “Improving cross-sector support for children in complex situations with multiple needs”. It was made up of a number of central government departments, operational local agencies and representative bodies, the NHSE and the Youth Custody Service to represent the voice of children and young people, as well as the Children’s Commissioner. This group has been developing a cross-sector response to help ensure that there is suitable provision in place for children and young people with complex needs who are at risk of being deprived of their liberty. To that point, I will take a particular interest in the task and finish group and its work, and we may come back to it.

I thank the Minister for giving way again. Listening to the noble Baroness, Lady Browning, set out and explain her amendments, it seems to me that they require the people making the decisions about whether to detain somebody to be clearer about which law they are using to decide to detain at a particular point for a particular person. As I understand it, they are not excluding or preventing the use of either bit of legislation for an individual; they seek just to have greater clarity about which legislation is being used and why, and therefore what protections the person will have. The Minister said that, if these amendments go through, some people will, somehow, be excluded from the correct treatment. Is there a particular group of patients or conditions that are at risk if the amendments tabled by the noble Baroness, Lady Browning, are implemented? Can the Minister give us some examples? Otherwise, I fail to see the logic of what she is saying, given the explanation that the noble Baroness, Lady Browning, gave the Committee.

I agree. The amendment seeks to strengthen and to clarify, rather than to make changes that would be completely different to what is intended in the Mental Capacity Act.

I am grateful for the noble Baronesses’ comments. I will come back with some examples before I sit down, because that is a very good suggestion. If I fail to do so, I will gladly provide them in writing.

Amendment 35, tabled by the noble Baroness, Lady Murphy, intends to provide a route to detain people with a learning disability and autistic people who do not have a diagnosed psychiatric disorder. Detention could be authorised only with the approval of the tribunal in “exceptional circumstances”, with power to provide guidance on what those circumstances will be in the code of practice. The amendment seeks to address the needs of those with a learning disability and autistic people, with whom I know the noble Baroness is concerned, where a considerable risk is being posed in the community, but who do not also have a diagnosed psychiatric disorder warranting detention for treatment under Part II, Section 3.

Our clear intent throughout the Bill is that people should be detained beyond Section 2 only when they have a psychiatric disorder that requires hospital treatment. It is our feeling that this amendment runs contrary to that intent. I am also grateful to the noble and learned Lord, Lord Hardie, for his comments on Amendment 35.

We also have some concerns about the scope of the “exceptional circumstances”, which would potentially result in a position no different to the current effect of the Act. It is unclear, in advance of the code of practice being developed, how broadly this might be defined. There would be considerable scope for different, divergent approaches in comparable cases, which, again, I know is not the intent of noble Lords.

In addition, although I understand that this is not the intent, based on the noble Baroness’s explanatory statement to the amendment, and I know that she said that it is not quite what she would have chosen—I heard that but I am sure she understands that I have to look at what is before us—the drafting of the amendment is such that this might also create an alternative route to detain people with a learning disability and autistic people with a psychiatric disorder. As the Bill already retains Section 3 for those with a learning disability or autism and a psychiatric disorder, this is unnecessary.

Separately, there are also some reservations about involving the tribunal in what are arguably clinical decisions about the right length of detention in each case.

I will just refer to the comments of the noble Lord, Lord Kamall, in this regard, if I might take a moment to contemplate the matter. He asked: if the World Health Organization defines mental health as a clinically significant disturbance, would the Government be sympathetic to Amendment 4, and therefore how could they accept a definition contrary to that of the World Health Organization? I will consider the definition further and will be pleased to come back to the noble Lord.

The noble Baroness, Lady Barker, asked for some examples of particular groups. There are a few examples that I have referred to in my speech, but I can tell that they are not hitting the mark. Therefore, I will be pleased to write further to consider the challenge to me—although it is not a great challenge—which I will seek to meet.

Finally, Amendments 39 and 41, tabled by the noble Baroness, Lady Browning, seek to ensure that people are detained under Section 3 only for treatment of a psychiatric disorder, not unmet needs relating to autism and/or a learning disability, and that the statement required to support an application for detention should include a statement that detention is necessary for treatment for a psychiatric disorder alone.

[Interruption.]

I am sure that the noble and learned Baroness’s yawn speaks for many.

I apologise.

There is no need to apologise.

I am pleased to provide the reassurance that the proposed changes to the Section 3 detention criteria mean that it would no longer be possible to detain someone with a learning disability or an autistic person under Section 3, unless they have a psychiatric disorder. Additionally, the Act already requires a statement of rationale for detention and statutory forms. The registered medical practitioner will have to confirm that the patient meets the criteria for detention, including that they are suffering from a psychiatric disorder requiring hospital treatment and not just that the patient has a learning disability or is autistic. I hope that will be of reassurance to the noble Baroness.

For the reasons I have set out in respect of all the amendments—I thank noble Lords for them—I ask the noble Baroness to withdraw hers.

I thank the Minister for her rich and full response, and indeed all noble Lords who have taken part in this important debate. It has been long but that has been quite necessary. I thank the Minister particularly for responding directly to my question about the UN Convention on the Rights of Persons with Disabilities. I do not agree with her response but I appreciate that she engaged fully with it, so I thank her for that.

I will not go through and summarise all the contributions, but I just want to make two points, which are perhaps specifically directed to the noble Lord, Lord Kamall, and the noble Baroness, Lady Murphy. A phrase which has been missing from our whole debate is the “social model of disability”. That is the idea that society is discriminatory, and that people are disabled by the barriers in society, not by their difference. That position was endorsed by the Government Equalities Office in 2014, and so far as I know, that still holds, and it is preferred by most disability charities.

I invite noble Lords to consider another phrase in this healthcare space, which is “parity of esteem”. I think that when we come to the social model of disability and physical disabilities, most people have now accepted that if there are only steps and not a ramp, that is a failure of society, not the failure of the person in the wheelchair. However, we have not heard in this debate an acknowledgement of the same parity of esteem—the same approach to mental disability as we have accepted towards physical disability—and we should consider and think about that.

In that context, just to pick up a couple of points from the Minister, she talked about how people with autism or learning difficulties can be detained for aggressive or irresponsible conduct. The Trieste model—if I can call it that—which is being adopted by many countries around the world, asks: “Can we intervene before that point and ask what has provoked that person? Can we intervene before we need to detain someone?” That needs to be very carefully considered.

The other point that the Minister addressed, which I confronted myself with, asking why I did not table the broader amendment that I might have done, is what happens when people get to the point of being a danger to themselves or—I stress that this is extraordinarily rare—a danger to others as a result of a mental disorder. Again, how did people get to that point, and should there not be services and support and community wraparound in the Trieste style? I do not think that any nation or area is saying that it has totally got to that point, but surely we should be aiming at that.

The noble Baroness referred to the Trieste model, and I thought that led to quite a deal of interest from noble Lords across the House. Could she share some details on the Trieste model with other noble Lords but especially the Minister and the department, so we can all start learning those lessons?

I should absolutely stress at this point that I am not an expert, but I will certainly do my best to secure as much information as possible and share it with all noble Lords. The Minister may also have access to resources that may not be available to me. Reflecting on the intervention of the noble Lord, Lord Kamall, perhaps we could even arrange some kind of discussion—it might be useful—and perhaps even hear some testimony, because that would really inform our consideration of the Bill. But in the meantime, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 3 agreed.

Amendment 5 not moved.

Schedule 1 agreed.

Clause 4: People with autism or learning disability