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Section 3 — Meaning of "mental Disorder" in the 1984 Act

Part of Mental Health (Public Safety and Appeals) (Scotland) Bill: Stage 2 – in the Scottish Parliament at 4:30 pm on 8th September 1999.

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Photo of David McLetchie David McLetchie Conservative 4:30 pm, 8th September 1999

The purpose of amendment 29 is similar to the one that Mr Matheson indicated in speaking to amendment 28. I do not think that I need take up the committee's time in replicating many of the points that he made in his substantial contribution to the debate.

It is a great pity that the Parliament was unable to give fuller consideration to the definition of mental disorder when it discussed stage 1 of the bill. I was advised by the clerk that, because mental disorder is mentioned in the long title of the bill, the amendment of its definition is one of the bill's general principles and that an amendment to delete section 3 in its entirety, as recommended by the Mental Welfare Commission for Scotland, would not be competent. I assure members that that was the ruling that was given to me. Whether it is correct, I do not know. The matter might be investigated.

The memorandum from the Mental Welfare Commission to the minister on 6 September arrived too late for the matter to be considered at stage 1 of the bill. That is not a criticism of the commission, but it does give rise to the concern flagged up by Kenny MacAskill that, in preparing the bill and presenting it to Parliament for approval, the Executive was remiss in not consulting the commission.

I was interested to hear Jim Wallace talking about the need to maintain the narrow focus of the bill so as to concentrate on the specific problem that the bill is designed to remedy, which arose as a result of the decision in Mr Ruddle's case. In essence, Mr Gray made the same point, although he did so in a more colourful way and, being a master of metaphor, introduced more windows and doors into the debate than C R Smith could. His point was that we should not be opening doors or closing windows-or whatever the case may be-in a way that might prejudice the outcome of the Millan committee review.

That throws into focus the point made by the Mental Welfare Commission-it is not necessary, for the purposes of remedying the deficiency in the law highlighted by the Ruddle case, to go as far as to amend the definition of mental disorder or mental illness to include persons affected by a generality of personality disorders. That is why in amendment 29 we have sought, like Mr Matheson in amendment 28, to narrow the definition so that it applies to a smaller category of people.

It cannot be right-given that the amendment relates to a definition in the principal act-that all forms of personality disorder be treated as mental disorders or mental illnesses for the purposes of the act. So wide a definition could extend the scope of the whole act so that many individuals who have never come within the scope of the criminal justice system could now be subject to civil detention.

I invite the minister to explain more fully why he considers the amended definition to be absolutely necessary to fulfil the purpose of the bill, which-as the Minister for Justice acknowledged in the debate on earlier amendments-is limited.

In that context, I also ask the minister whether the expansion of the definition of mental disorder and mental illness to encompass personality disorders has implications for criminal law in Scotland and for the plea of diminished responsibility. As he will be aware, one line of defence open to an accused charged with murder is to establish that he was suffering from diminished responsibility at the time of the killing. A finding to that effect would enable the jury to reduce the conviction from murder to culpable homicide so that the accused received a determinate sentence instead of the mandatory life sentence.

Criminal case law indicates that a judge will allow the plea of diminished responsibility to go to the jury for decision only if there is evidence of mental disorder, mental illness or disease. Evidence of severe personality disorder may not in itself be sufficient. If a personality disorder is now treated as a mental illness for the purposes of the act, that may impact on the plea of diminished responsibility under criminal law. It cannot be right that persons who are simply wicked by nature may be able to exploit such a change in the law to reduce the charge on which they are convicted in the criminal courts.