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Mental Health Bill [HL]

moved Amendment No. 2: 2: Clause 2, page 2, line 4, after ““disability”” insert ““or an autistic spectrum disorder”” The noble Baroness said: 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? At Second Reading, my noble friend Lord Warner—it is great to see him here today—restated the Government’s reasoning. He said that under the new definition, "““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””.—[Official Report, 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.