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Mental Health Bill [HL]

I shall support the amendment proposed by the noble Lord, Lord Rix, by making two points and telling a story, which illustrates the point forcefully, if nowhere near as strongly as the story that the noble Lord told. I and the organisation for which I work—and, again, I declare an interest with regard to Turning Point, which provides a service to about 8,000 people with learning disabilities, some of whom have very challenging behaviour problems too—believe that learning disability should not constitute mental disorder. In fact, the principle is one of equality; it is as simple as that. None of this is rocket science. Without wishing to go back to an earlier debate, this is about the principle of equality. The most appropriate legislation under which the majority of people with a learning disability should receive treatment is the Mental Capacity Act, when it comes into force in April. People who lack capacity who are also subject to the provisions of the Mental Health Act 1983 will still be protected by the Mental Capacity Act with regard to the types of decisions or actions affecting them. Therefore, when a decision unrelated to treatment for mental disorder needs to be made, including decisions about physical healthcare, welfare or financial matters, an assessment must be made of the individual’s capacity to make that particular decision when it needs to be made. It is important that the code of practice spells out that the principles and provisions of the Mental Capacity Act would apply to all such decisions or actions, regardless of whether the person was subject to the provisions of the Mental Health Act 1983. There is a danger that the behaviour of some people who have a learning disability will be misinterpreted and mistakenly attributed to mental disorder. In my20 years or so of working with government departments, I have worked with many people who have either a learning disability or another disability and whose behaviour has been extraordinarily aggressive. They would certainly be very shocked to find themselves coming under the Mental Health Act. People with a learning disability are in danger of having their behaviour misinterpreted and mistakenly attributed to a mental disorder. As has been pointed out, that is quite simply wrong, when there is a physical or environmental reason for their behaviour. To illustrate this point, let me tell you a story, which ended in the use of the Mental Health Act.Mr S, who has a severe learning difficulty, autismand communication difficulties, lives in a residential setting. He was detained under the 1983 Act because he was becoming increasingly agitated and exhibited aggressive behaviour, banging his head against a wall. It was later discovered—this is shocking but true—that Mr S had a small twig in his ear, which was causing him distress, as it would most people, and which he expressed by his agitated behaviour. This scenario shows how the distress of a person with a learning disability can be automatically attributed to a mental disorder without paying sufficient attention to physical factors. This is about not just lazy diagnosis but making fatal assumptions. The issue is education and skills among professionals. It is about being able to correctly assess whether a person has a co-existing mental health problem alongside a learning disability. Here again it is inappropriate to use mental health legislation to compensate for the lack of these skills if a person does not have an additional mental disorder. The Government should support the amendment of the noble Lord, Lord Rix, but might also want to make it explicit that, if a person has both a learning disability and a co-existing mental disorder, they should be able to receive appropriate treatment under the Act.