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Mental Health Bill [HL]

moved Amendment No. 4: 4: Clause 3, page 2, leave out lines 22 and 23 and insert— ““““(3) For the purposes of subsection (2), a person shall not be considered to have a mental disorder as defined in this section solely on the grounds of the following— (a) his substance misuse (including dependence upon, or use of, alcohol or drugs); (b) his sexual behaviour; (c) his commission, or likely commission, of illegal or disorderly acts; (d) his cultural, religious or political beliefs.”””” The noble Earl said: I shall also speak to Amendment No. 5. We come now to another issue that in many ways epitomises the fault line that separates the Government and the mental health community over the Bill. The question that Amendment No. 4 poses is to what extent the definition of ““mental disorder”” as it appears inthe Bill should be qualified by exclusions that restrict the manner in which the powers in the legislation may be applied—in other words, should the Bill delineate clear boundaries around the new and simplified definition of ““mental disorder”” as a guide to clinicians and other practitioners who will be called on to implement the Bill? The Government’s broad position is simple. They maintain that if the whole point of the legislation is for each patient to be treated according to his or her needs, we should not want clinicians to be sidetracked by or hung up about diagnostic labels of any sort. Professionals should be clinically free to decide what steps it is right to take in particular circumstances. If a particular sort of behavioural tendency is not classified as a mental disorder in any case, it is unnecessary to spell out in the Bill that it should not be regarded as such. I suspect that that is the line that we shall hear from the Minister today, but I suggest to her that there is another way of looking at this question. It has to do with two things: the nature of the decision-making process by clinicians and the entire context in which powers of compulsion are used and will continue to be used. When a clinician has to decide whether or not to detain a particular individual compulsorily, he first has to make a diagnosis based in large measure on the individual’s behaviour. But a diagnosis of mental disorder is not value free. It is not like a diagnosis of measles, which rests on clear clinical signs and symptoms. Rather, it depends ona subjective judgment—a judgment based on knowledge and experience, certainly, but ultimately one that is dependent on that clinician’s discretion. Certain sorts of behaviour that materially depart from societal norms can be viewed through one set of value judgments as deviant and dangerous or through another as merely distasteful and eccentric. One example of that would be certain sorts of sexual behaviour, such as gender dysphoria, transsexualism and fetishism. Some people tolerate these things; some people do not. In fact, disorders of sexual preference are included in the WHO’s classification of mental and behavioural disorders, under so-called ICD-10. Yet do we really wish to signal to clinicians that they are entitled to regard someone as mentally ill simply because they display these tendencies? I suggest that we do not. Indeed, I completely disagree with the Government when they make it clear in paragraph 32 of the Explanatory Notes that they intend to bring conditions such as fetishism within the scope of the 1983 Act. There is a wider point. Parliament has recently outlawed discrimination on grounds of sexual orientation. Without an exclusion of the kind in paragraph (b) of the amendment, the way would be clear for clinicians to allow their own values to interfere with what should be the only question in their minds: does this person or does he not have a mental disorder that makes him suitable for psychiatric detention? The value of an explicit exclusion is that it provides a marker to make sure that practitioners carefully evaluate the basis for compulsory treatment in accordance with accepted parameters. Placed alongside that idea is the context in which these often difficult and painful decisions are to be made. Among the black and ethnic-minority communities, mental health services are regarded with intense suspicion. Why is that so? It is because, as we have heard already, a disproportionately high number of people from those communities are sectioned and detained against their will. If we accept the proposal in the Bill for a broad definition of ““mental disorder””, which in principle I am perfectly prepared to do, the quid pro quo for that should be a set of riders that make it absolutely clear that the Bill is not designed as a licence to increase the numbers further. Any definition that might serve to do that, however well intentioned, should be qualified explicitly to ensure that it does not. If it is admitted that under the 1983 Act unwarranted discrimination takes place as a result of racial stereotyping, that on its own is the answer to anyone who says, as the Government have been wont to do, that cultural beliefs and behaviours are not mental disorders and therefore cannot legally be used as grounds for detention. If, in practice, that proposition is being widely ignored, then we have a positive duty to promote equality of treatment in the Bill. We can do that by means of an explicit exclusion, even at the risk of stating what to a parliamentary draftsman might seem technically otiose. However, there are other ways in which the breadth and generality of the new definition of ““mental disorder”” could be seen as risky. Let us take substance misuse. The Bill provides for an exception for dependence on alcohol or drugs but it does not provide an exemption for someone who is simply drunk or has misused drugs in a way that will not cause him long-term harm, if I can make that assumption. Surely we do not want the legislationto signal to clinicians that being drunk or having taken an illegal substance in itself equates to amental disorder. Under ICD-10, both misuse and dependence are covered and therefore, in my view, we should have an exclusion to cover both. Once again, such an exclusion would act as a marker to prevent decisions—sometimes very fraught decisions—being taken on the wrong clinical basis. Curiously enough, the Government have accepted the argument that there should be an exclusion covering substance dependency. Presumably, in doing so, they accept that there is a point to having an exclusion of this sort and that having it does not pose any serious risk that someone might be denied compulsory treatment just because their disorder manifests itself in certain behaviour. That must be the Government’s position, and, if so, I agree with them. The risk is not one that should concern us. On the contrary, we want to say to practitioners, ““By all means use your professional judgment and discretion about what may be right for the individual patient, but you can use the powers of compulsion granted to you in this Act only if you are certain that there is a mental disorder present that is quite separate from any of the behaviours or conditions listed in this amendment””. That is surely not a complicated message or one that risks any denial of psychiatric treatment when it is genuinely needed. There are two other categories of exclusion listed in the amendment that I have not covered: illegal or disorderly acts and political beliefs. As regards illegal acts, the point is quite simple. When someone is behaving in a manner that is clearly illegal, whether the behaviour consists of causing an affray in public or committing acts of paedophilia, such an act should not be seen by the police, doctors or anyone elseas a reason for applying powers of psychiatric compulsion. Criminal acts should be dealt with using the accepted means provided for under criminal law, and doctors need to be clear about that. With disorderly acts and political beliefs, we are into human rights territory. There are certain advantages to having a broad definition of ““mental disorder””, as proposed in the Bill, but one potential downside is that it lacks certainty. All of us are old enough to remember regimes around the world in which psychiatry was misused to clamp down on behaviour that related not to a treatable mental disorder but, rather, to socially or politically unacceptable behaviour. The definition of ““mental disorder”” was deliberately twisted to encompass matters that were no concern of medicine, still less of the state. I do not say that there is a realistic prospect of the same happening in this country—certainly not in a systematic way—but, once again, we need to remember the importance of perceptions and public trust. The powers of compulsion granted in the Bill are no trivial matter. If among certain people—not least black and ethnic-minority communities—psychiatry is seen, however unjustifiably, as a ready means for the establishment to lock away whomever it wants on whatever pretext it chooses, then the effectiveness of psychiatric services in assessing and treating genuine mental disorders will be diminished. I ask the Minister one thing: not to reject the amendment out of hand, as her brief probably urges her to do, but to take it away and reconsider it. All the things covered in it matter once we move away from the theoretical ideal world, in which policy-making tends to operate, to the real world, where real decisions are taken about real people. That is the platform on which I am standing, and I hope that the Government will be able to join me on it. I beg to move.