---

Mental Health Bill [HL]

I am grateful to noble Lords for tabling Amendments Nos. 4 and 5. My noble friend Lord Hunt mentioned earlier that, as a general rule, we have sought in the Bill to remove arbitrary obstacles to the use of compulsion where it is called for by the risk posed by a person’s mental disorder. The more we qualify and limit the definition of mental disorder, the greater the risk that some people will be excluded arbitrarily to their own disadvantage and potentially to the detriment of other people. It serves no one’s interests if decisions end up being taken on the basis of diagnostic or legal labels rather than the needs and circumstances of individuals. We recognise that these are complex issues. We are not being simplistic, and I stress that we takes these issues very seriously. In relation to alcohol and drug dependence, I do not think there is any disagreement between us. Although it is clearly clinically regarded as a disorder or disability of the mind, it is excluded from the Act at present. The Bill keeps it that way, as we are persuaded that it is not appropriate to use the Act to force people to accept treatment for addiction where it is not linked with another mental disorder. However, we do not agree that substance misuse in general should be excluded. The term ““misuse”” is used in a variety of ways. If all it means is the use of alcohol or of drugs that have the potential for harm or which are illicit, then the exclusion is unnecessary. Merely using alcohol or drugs is not regarded clinically as a mental disorder, and our understanding is that the same applies to an episode of misuse. However, if ““misuse”” is intended to mean the consequences of such behaviour, then we profoundly disagree with the suggestion that it be excluded. Many consequences of misuse, from acute intoxication to substance-induced psychosis and withdrawal states, are recognised mental disorders. Any of them, even intoxication in its most severe forms, might, in particular circumstances, warrant compulsory intervention under the Act. It would be wrong, arbitrary and to the detriment of patients to exclude such consequences. They are not excluded now, yet it is not, as far as we are aware, suggested that people are commonly, if ever, detained inappropriately as a result. If the problem is that psychiatrists fear being pressurised to detain alcohol and drug misusers inappropriately, I do not believe that that is a compelling reason for excluding people who might otherwise benefit. If they do not think detention is clinically appropriate, or patients do not meet the relevant criteria, psychiatrists should have no difficulty explaining to their colleagues that using the Act is not an option. The amendment next seeks to exclude sexual behaviour. If we are literally concerned with sexual behaviour, then we again believe the amendment is unnecessary. An episode of sexual behaviour, however unusual or, indeed, illegal, is not, of itself, diagnosable as a mental disorder, any more than setting fire to something constitutes pyromania. However, particular sexual behaviour may well be a sign of a mental disorder. Noble Lords have been careful to draft the exclusion in terms of no one being considered mentally disordered solely on the basis of sexual behaviour, but, even so, I worry what effect the exclusion might be interpreted to have, rightly or wrongly, in cases of people who, for example, have a personality disorder that manifests itself in their sexual behaviour. The noble Earl and the noble Baroness, Lady Murphy, mentioned gender dysphoria and gender identity disorders. While we acknowledge that gender dysphoria is clinically recognised as a mental disorder, the allegation that people can now be detained because of it presupposes that it could be regarded as sexual deviance. We struggle to see who, let alone which healthcare professionals, would think of gender identity disorders in those terms. Similarly, we do not see how a new exclusion for sexual behaviour would change the position. If the exclusion is meant to protect lesbian and gay people, it is again unnecessary. It is now firmly accepted that homosexuality is no more a mental disorder than heterosexuality. We do not believe any doctor would attempt to detain a patient on the basis of sexual orientation, let alone that another doctor and an approved mental health professional would agree, and, if they did, we are confident that no court would uphold their decision. If, however, the intention is to replicate the current exclusion for sexual deviance, we think it is wrong in principle. Although we have heard contradictory arguments, our understanding is that there are conditions that a lay person might regard as sexual deviance that are clinically recognised as disordersof the mind. They include paraphilias such as voyeurism, necrophilia and paedophilia, where they have a significant effect on the person’s functioning or pose a significant risk to others. We see no reason to distinguish those disorders from any other, and that view was shared by the Joint Committee that scrutinised the admittedly very different 2004draft Bill. It is nothing new for dangerous paedophiles to be detained under the Act, as their behaviour is often linked to dissocial personality disorder, or, in the current ungainly terminology, psychopathic disorder. If such people can properly be detained under the Act, we see no reason why clinicians should be barred from using the Act to treat patients whose only clinically recognised disorder is one involving abnormal sexual desires or behaviours. If that is what the clinicians concerned believe is the right approach for the individual in question, then, provided all the relevant criteria are met, we believe the Act should allow it.