---

Mental Health Bill [HL]

I am very grateful to the noble Lord, Lord Rix. I read his speech on Second Reading, and I understood that he would be tabling the amendment. His amendment seeks to ensure that people with a learning disability couldnot be detained for treatment, made subject to guardianship, or placed on supervised community treatment under the 1983 Act unless they also had another clinically recognised mental disorder. Indeed, very few of the provisions of the Act would apply to a learning disability that was not accompanied by any other recognised mental disorder, even if associated with, "““abnormally aggressive or seriously irresponsible conduct””." I have the greatest respect for the noble Lord, Lord Rix, who is a tireless advocate for the rights and interests of people with learning disabilities. I know that he has met officials in my department, but I have to say that the Government are not in favour of this amendment. He discussed on Second Reading his involvement in the development of the wording in the current Act in relation to learning disability; that is the very wording, "““abnormally aggressive or seriously irresponsible conduct””," that his amendment now asks your Lordships’ House to remove. We are, of course, well aware of the strongly held view that learning disabilities should not be labelled as a mental disorder, both on principle and for fear of exacerbating confusion between learning disability and mental illness. The noble Lord, Lord Rix, will know that I understand that point of view. We recognise that learning disabilities are not the same as mental illness, but they are recognised disorders or disabilities of the mind. The crux of this issue is that the Act is not about labelling people; it is about making sure that they can be treated where necessary. Excluding people with learning disabilities from the definition entirely would risk the very small minority of those people who need compulsion not getting it, or else would require clinicians sometimes to apply inappropriate diagnostic labels to ensure that they can give the treatment that they believe is needed. That is why learning disability remains a mental disorder for the purposes of the Act generally. None the less, we all agree that the powers in the Act should not be used just because someone has a learning disability; hence our decision to include a special provision to preserve the effect of the current Act in relation to learning disability, despite the abolition of categories of mental disorder, in particular those of mental impairment and severe mental impairment. Thus, in future people who have a learning disability will be treated in exactly the same way as they are at present, but we are not persuaded that we should go further. I fully accept the comments that have been made about the potential problem of misdiagnosis. I have taken careful note of the points that the noble Lord, Lord Rix, has made about the importance of ensuring good practice in the diagnosis of mental health problems in people with learning disabilities. I acknowledge that people who have a learning disability have special difficulty in communicating the nature of their health problems in ways that may be mistaken for mental disorders. I agree that picking up physical health problems is an important issue for anyone with a mental disorder. For everyone who may be assessed for possible mental health problems, it is important to establish that their psychological presentation is not a reflection of underlying physical health problems. That is especially so in the case of people with learning disabilities. We do not believe that by so defining the clause we are stigmatising people with learning disabilities. In no way does a learning disability qualification suggest that abnormally aggressive or irresponsible behaviour are associated with learning disabilities; quite the opposite. It is not inappropriate, and it certainly makes no assumption that detention in hospital is the best approach for people with learning disabilities who offend, but it makes sure that the option is open to the courts where appropriate. The noble Lord, Lord Carlile, asked what ““abnormally aggressive”” and so on means. I am advised that the term has been used since 1983, and that the words have to take their normal meaning. Case law suggests that conduct is to be judged by general standards, not those of other people with a learning disability. I say to those noble Lords who have expressed concern that the real problem here is about misdiagnosis and a lack of adequate services—and I suspect that I will repeat this on a number of occasions—that good practice is an area in which it can be difficult to legislate, especially where we want to legislate in such a way as to give mental health professionals the maximum latitude to make decisions flexibly in the best interests of the mentally disordered person. But clearly the code of practice is an appropriate avenue in which to look at the issues that the noble Lord has raised. I will look at ways of strengthening the code of practice to take account of his and others concerns in this area. On the use of the Mental Capacity Act to guarantee treatment for people with learning disabilities, it is important to make it clear that many such people have the capacity to make their own decisions about treatment, even when they are experiencing particular mental health problems, and we must not assume that they do not. For those people, the Mental Health Act is more appropriate, because it treats them in the same way as anyone else who refuses to consent to the mental health care that they need. The answer to the question asked by the noble Earl, Lord Howe, is no. He can find the answer in Part 2, in the so-called Bournewood safeguards, which deal with the situation that he raised. The Government’s view is that, notwithstanding the need to ensure that diagnosis is as effective as possible, the code of practice needs to be reviewed in the light of the comments made by the noble Lord, Lord Rix. This amendment, if adopted, would potentially leave a small minority of people with learning disabilities in a more vulnerable position than at present. That is why we would prefer to leave the safeguard in the Bill.