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Mental Health Bill [HL]

The noble Lord, Lord Rix, has once again spoken very powerfully on an issue in whichhe is an expert. I have huge sympathy with the points that he has made. He is passionate—rightly so—about the distinction between learning disability and mental disorder. He does not want to see one confused with the other. I am entirely with him on that, as with the points on discrimination and stigma, and on wrong and lazy diagnosis. In expressing that support for his amendment, I have two worries, both of which are practical. By removing lines 10 and 11 from the clause, the noble Lord, as he acknowledged, is effectively excluding people with learning disabilities from the scope of the Mental Health Act altogether, unless at one and the same time there is a mental illness or mental disorder also present. I worry how that leaves someone with a learning disability who is behaving in a very aggressive or irresponsible way and who may be a risk to himself or to others. If the police are summoned to a scene where they witness such behaviour, what are they to do? The noble Baroness, Lady Finlay, suggested that the provisions of the Mental Capacity Act might come into play here. I want to ask her or the Minister whether we are quite sure that the provisions of that Act could be used to administer care and treatment in the person’s best interest. I am far from clear that the provisions of that Act would cover this kind of situation, because the Act does not authorise detention. If that is correct, the police’s only recourse would be the criminal justice system. That seems to me to be an even worse avenue for the individual, and certainly a much less therapeutic one, than to be admitted to hospital. I am simply making a pragmatic point here. My second worry was raised by various witnesses giving evidence to the Joint Scrutiny Committee on the 2004 draft Bill. A case known as the HL case was dealt with recently by the European Court of Human Rights. The decision in that case, in the view of at least one witness, means that whatever the definitional niceties that we have been talking about, it will be necessary to devise some sort of legal framework whereby people with learning disabilities can be admitted to hospital and given the kind of safeguards provided by the Mental Health Act and this Bill. I am thinking particularly of the extension of the tribunal’s remit. If I am broadly correct about that case and its effect, it is important. I should be interested to hear what the Minister has to say about it. If I could put a brutal question to him: is the Bill a quick and ready short cut to addressing the findings in that case?