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Mental Health Bill [HL]

I am grateful to my noble friend for her Amendment No. 2. Section 1 of the 1983 Act as it stands first gives a general definition of mental disorder. It then defines four specific categories of mental disorder—mental illness, mental impairment, severe mental impairment and psychopathic disorder. Mental impairment and severe mental impairment can be identified with learning disabilities of different degrees of severity, but are defined in such a way that they cover those disabilities only where they are associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned. Many of the powers in the Act—including, for example, detention for medical treatment under Section 3—may be exercised only if the patient is suffering from one or more of the four categories of mental disorder. Some powers, including the Home Secretary’s ability to transfer unsentenced prisoners to hospital when they urgently need treatment for mental disorder, apply only to certain categories of disorder—in that example, only mental illness and severe mental impairment. We believe that the use of the Act should be determined by a patient’s needs and the risk posed by their disorder, not by the particular legal label applied to it. The four separate categories of mental disorder in the Act are legal distinctions that do not match clinical practice. They create arbitrary and unnecessary distinctions between patients and effectively exclude some patients entirely from certain parts of the Act. They also sometimes encourage some patients and their lawyers to argue about legal classifications in the hope of obtaining premature discharge, even when they remain in need of treatment. That is why Clause 1 removes the four categories of mental disorder. Criteria for admission for treatment will now apply uniformly to any disorder or disability of the mind, rather than being dependent on a patient having a particular category of mental disorder. However, Clause 2 deliberately maintains the idea that key parts of the Act should apply to learning disability only when associated with abnormally aggressive or seriously irresponsible conduct. That is what we mean by the learning disability qualification. Our intention in including the qualification in Clause 2 was to preserve the effect of the Act in relation to learning disabilities. It was not to change it by effectively excluding more disorders from the scope of many of the powers in the Act. I am at one with the noble Lord; as a general principle, we believe that the fewer exclusions there are the better, because each one adds to the risk of arbitrarily excluding people who need to be helped. That itself would be a powerful argument for not extending Clause 2 to cover autistic spectrum disorders. But we also think that there is a clinical distinction between autistic spectrum disorders and learning disability. A learning disability will include the presence of a significantly reduced ability to understand new or complex information or to learn new skills, and a reduced ability to cope independently. It will not necessarily be accompanied by the difficulties that a person with an autistic spectrum disorder will have with communication and relating to people around them. It is because of these communication difficulties that we believe that people with autistic spectrum disorders are better served by not being subject to any limitation. That way, in the rare cases where the Act needs to be used—for example, to help an autistic person who might otherwise attempt suicide—debates about diagnosis will not present an obstacle. In fact, by removing categories of mental disorder, we are making it clear that all the provisions of the Act apply to people with autistic spectrum disorders, where necessary. At present, the arbitrary distinctions between the four categories of disorder leave room for uncertainty about the extent to which the Act applies to people with autistic spectrum disorders—although a small number of people with such a disorder are certainly detained under the Act already. As a result of the change that we are making, when clinicians are called on to determine whether the Act ought to be used in relation to a person with such a disorder they will be able to concentrate on the individual’s needs and the risk posed by their disorder, rather than on whether the disorder fits one of four arbitrary legal categories, or whether the person’s autism is accompanied by seriously irresponsible or abnormally aggressive behaviour. Also, including autistic spectrum disorders in the learning disability qualification would mean that where an autistic person committed a serious offence and did not have another mental disorder, the courts might have no alternative but to pass a prison sentence unless the autistic spectrum disorder was associated with abnormally aggressive or seriously irresponsible conduct on the person’s part. Given that people with autism are more often aloof than aggressive, that would impose a constraint on the courts that might occasionally lead to people being detained in prison where it would be more appropriate to use the Mental Health Act. Amending the Act in the way that we have done will ensure that it can be used for the very few people with autistic spectrum disorders for whom detention or other compulsory intervention is justified, without any uncertainty about whether and how they fit into its legal framework.