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Mental Health Bill [HL]

moved Amendment No. 3: Page 2, leave out lines 10 and 11 The noble Lord said: I must first declare an interest as president of the Royal Mencap Society. I mentioned earlier this afternoon that today happens to be the 30th anniversary of my last appearance at the Whitehall Theatre. It is also, almost to the day, the 24th anniversary of the first time I had the argument which is encapsulated in Amendment No. 3, which stands in my name. On that occasion the argument—and I admit eventual agreement—was with the noble Lord, Lord Elton, who is not in his place this evening. I do not know how many health Ministers there have been since 1983, but I am delighted that the noble Lord, Lord Hunt, on almost his first day in his new job, will be continuing the discussion. I hope he will have read my Second Reading speech, and at the same time may have seen the letters which I have received from, according to the Department of Health heading here, not the ““Right Hon”” but the ““Right”” Rosie Winterton MP, Minister of State for Health Services—she is a right one—and from the noble Lord, Lord Warner, Minister of State for NHS Reform as was. With the Second Reading speech and those two letters, I am sure he is well aware of the situation. Clause 2 as currently drafted says that people with a learning disability are not normally by virtue of their disability to be considered to have a mental disorder for the purposes of the Mental Health Act, "““unless that disability is associated with abnormally aggressive or seriously irresponsible conduct””." Amendment No. 3 would remove the aggressive or irresponsible caveat, which would mean that people who have a learning disability but no other mental disorder would not be subject to compulsion. I asked for this amendment to be grouped separately from that on autism from the noble Baroness, Lady Morgan, because although the two cover the same clause, they raise different issues. Amendment No. 2 relied on Clause 2 retaining its existing structure and sought to include autistic spectrum disorders on the same footing as learning disability. Amendment No. 3 seeks to change the structure of Clause 2, placing learning disability on a different footing. I hope the noble Baroness will accept my explanation as to why I did not intervene. In explaining what this amendment means, I must first make it clear that it does not mean that people with a learning disability would be excluded from the scope of the Bill altogether. People with a learning disability may well have a mental health problem or a mental disorder which needs to be treated under compulsion. Everyone who has a mental health problem comes within the scope of the Bill, including people who also have a learning disability. Indeed, there is evidence that the prevalence of mental ill-health among adults with a learning disability is higher than the prevalence of mental ill-health among the general population. Only last week, I read an article in the latest edition of the British Journal of Psychiatry reporting on a cohort study in Scotland—even though it is a small nation—which found that more than 40 per cent of adults with a learning disability also experienced mental ill-health. Other research has suggested that the prevalence of depression among people with a learning disability is four times greater than that among people without a learning disability, and that the prevalence of schizophrenia among people with a learning disability is three times greater than that among the general population. Just as my noble friend Lord Adebowale, in moving Amendment No. 5, rightly seeks to make it clear that dependence on alcohol or drugs does not preclude the existence of a mental disorder, so I want to emphasise that having a learning disability does not preclude the existence of a mental disorder either. I labour this point for two reasons. First, it demonstrates that my amendment would not prevent people with a learning disability being made subject to compulsory powers. They would still be more likely to come under the scope of the Bill than the general population. Secondly, and more importantly, abnormal aggression or serious irresponsibility—the characteristics for which people with a learning disability could be sectioned under the Bill as it stands—may in many cases be caused not by a person’s learning disability but by an underlying health condition which ought to be treated. I am concerned that the Bill as it stands would allow people with a learning disability who also have a mental health problem to be sectioned on the basis of learning disability plus aggression, leaving their mental health problems undiagnosed and unaddressed. Framing a law in a way which may incentivise misdiagnosis, or lazy or convenient diagnosis, is not helpful. We already know about serious inequalities in the standard of healthcare experienced by people with a learning disability. Mencap’s 2004 report, Treat Me Right!, and the Disability Rights Commission’s 2006 formal investigation, Equal Treatment: Closing the Gap, both found evidence of diagnostic overshadowing, in which symptoms of health problems displayed by people with a learning disability were treated as being part of the learning disability, rather than as evidence of a coexisting condition. This could mean a person with a learning disability who is behaving in an aggressive or irresponsible way has their mental health problems completely overlooked. Aggression and irresponsibility may be symptomatic of physical health problems, or stress. Allowing people with a learning disability who are aggressive or irresponsible to be sectioned on that basis may lead to physical health problems being missed. Mencap’s Treat Me Right! report contains an account by the mother of Simon, who has a learning disability: "““We knew there was something wrong with Simon. He was scratching his face and screaming and seemed extremely distressed. So we took him to see his GP, who couldn’t find anything the matter. We kept saying that we thought he must be in pain. But he just wouldn’t listen. He told us: ‘That's just the way they are sometimes. Just take him home.’ Luckily, the dentist took more time to examine Simon and found that he had an abscess. I hate to think how much pain he must have been in””." Fortunately, this case had a happy ending and did not involve the use of mental health law. Yet it is not difficult to see how things could have been different, here and in many other cases. My concern is for people like Simon who, being unable to communicate, may respond to pain by lashing out and being violent. It is also for people like Simon’s GP, who may simply write this behaviour off as being part of the learning disability and who, in order to protect the patient or those around him, use the Mental Health Act to provide the wrong kind of treatment under compulsion. I am concerned that Clause 2 may make it less likely that people with a learning disability who behave in an aggressive or irresponsible way will have other underlying mental and physical health problems identified and treated, so the Bill as drafted couldlead to people with a learning disability being misdiagnosed and not getting the treatment that they need. It is not the purpose of the Bill to provide people with worse health conditions, but I am worried that it may be the effect. Perhaps the code of practice could be used to make this clearer. AmendmentNo. 72, which we shall debate in due course, would give the code statutory force, which might help to eliminate some of the poor practice which I am worried about. It is also worth pointing out that when a person lacks capacity in relation to the question of whether he should be given medical treatment, he can be treated in his best interests under the Mental Capacity Act. When people with a learning disability behave in an aggressive and irresponsible way, they will in most cases lack capacity. I should say a few words about the diversion of people with a learning disability from criminal punishment to hospital. The amendment would, after all, provide that that could not happen unless they also had another mental disorder. First, it is true that prison is not an ideal environment for people with a learning disability but there is evidence that there are very many people with a learning disability in the prison system anyway. There may be very good reasons for wanting to divert them away from it, but the Mental Health Bill, if enacted even with this amendment, would allow them to be diverted from it only if they were ““abnormally aggressive or seriously irresponsible””. It would leave most prisoners with a learning disability exactly where they are. There are many potential public policy options for providing better support to people with a learning disability who find themselves within the criminal justice system, and I am not convinced that using mental health law, which will only ever touch a small minority of them, is a particularly effective one. Secondly, my concern that the ““aggression or irresponsibility”” caveat can make mental and physical illness less likely to be diagnosed in people with a learning disability applies just as much to people inside the criminal justice system as to those outside it. My concern in moving this amendment is not only on the grounds of the principled position that a learning disability is completely different from a mental illness, and should not be treated as such. I have always held that position, and I still hold it now. I am pleased to see that the Disability Rights Commission, commenting on my amendment, agrees with me, describing Clause 2 as it stands as, "““discriminatory, stigmatising, inappropriate and unnecessary””." My concern is also that the clause may bring under the scope of mental health legislation people who even the Government think should not be there,or may put them there for the wrong reasons, so that the underlying cause of their aggression or irresponsibility is not addressed. As the clause stands, it would allow people to be sectioned on the basis of learning disability when other courses of action would be more appropriate;it incentivises bad practice when we know thatgood practice is far from universal; it allowsthe symptoms—aggression or irresponsibility—to overshadow the causes, be they mental or physical ill-health or simply distress; and makes it less likely that people with a learning disability will get the treatment that they need. I hope that the Minister will be able to begin his new job on the best possible footing, by finding a way of making sure that people with a learning disability are not disadvantaged by mental health law. I beg to move.