---

Mental Health Bill [Lords]

I accept the hon. Gentleman’s point, but we do not want to create a loophole that might allow paedophiles to escape. We have proposed this measure to be helpful by addressing the specific concern that the Minister raised. She also raised the concern that it might be a lawyers’ bonanza. I can tell her that there have been four reported challenges to the current exceptions since 1983; they are all on sexual deviancy. It is not bad going that there have been only four in the past 24 years. In Victoria and New South Wales in Australia there is a long list of exceptions, including on political opinions and religious beliefs. In New South Wales, there have been no challenges to this law since it was introduced in 1990, and in Victoria there have been very few, if any. Therefore, there should be no cause for concern that this measure might be a lawyers’ charter. The Richardson expert committee and the Joint Committee on the Draft Mental Health Bill agree that the broad definition of mental disorder introduced in the Bill, which we support, must be balanced by a set of exclusions. The Joint Committee, of which I was a member, said:"““We conclude that a broad definition of mental disorder in the draft Bill must be accompanied by explicit and specific ""exclusions which safeguard against the legislation being used inappropriately as a means of social control.””" The Bill defines mental disorder very broadly as any disorder or disability of the mind. There is now only one exclusion, for dependence on alcohol and drugs. It is instructive to compare the amended 1983 Act with mental health legislation in other common law countries, all of which have narrower definitions of mental disorder and broader exclusions. Dr. Metcalfe of Justice has said:"““The European Court of Human Rights has given a clear judgment stating that the definition of mental disorder must be very clear in order for exercise of detention powers to be lawful. The use of exclusions is a standard feature of most common law jurisdictions in meeting that requirement. They meet the requirements of legal certainty, of guaranteeing individual autonomy and of ensuring that the powers of detention are used no more than strictly necessary.””" The broad definition has two consequences. First, it covers all the diagnoses listed in the relevant World Health Organisation international classification of diseases, some of which even the Government acknowledge might be inappropriate in respect of compulsory powers. Secondly, it covers almost any significant deviation from a normal condition of the mind, however temporary. In the view of the Mental Health Alliance, there must be some limits to guard against inappropriate use of a clinician’s powers of detention as a form of social control. The Mental Health Act Commission said in evidence to the Joint Committee:"““For the law to be of value—to patients, State administrators, mental health professionals, the police, the courts or the Tribunal—its meaning cannot rest upon the discretion of those working within its framework. We do not find it difficult to envisage the inappropriate use, however well meant, of mental health legislation for non-medical purposes of social control””." We need certainty to avoid the field day for lawyers to which the Minister referred. The limits on powers are welcomed by the clinicians, the British Psychological Society—if I can get another plug in for it—the British Association of Social Workers, the Royal College of Nursing and occupational therapists. Many of them have been prayed in aid on many occasions by the Minister—and now I am praying them in aid for us. The new definition of mental disorder—any disorder or disability of mind—could include certain mental states and states relating to certain sexual behaviours. The scope of the new definition is much broader than that in the current Act. If the numbers subject to compulsion are not to be markedly and inappropriately increased, the exclusions are necessary. This is important because the definitions in the 1983 Act are the gateway to the compulsory powers that we have been debating. It is important to protect the fundamental right to liberty. Lord Alderdice said that"““without a serious look at understanding issues such as culture, politics, religion, breaking the law, sexual behaviour and so on, we could end up dragging into the net all sorts of people who are not suffering from mental illness in a proper sense and it becomes a question of how we deal with people who are difficult, different or deviant in our society. That is a real problem for colleagues in psychiatry, not least because of a move to diagnosis on the basis of people's behaviour and a set of symptoms, rather then ""necessarily understanding something more about the depth of the disorder and its likely prognosis.””" In Scotland—if we may pray in aid the Scottish again—there are the following exclusions: sexual orientation; sexual deviancy; transsexualism; transvestism; dependence on or use of alcohol or drugs; behaviour which causes, or is likely to cause, harassment, alarm or distress to any person; and acting as no prudent person would act. In New South Wales, there is a raft of exclusions, as there is in New Zealand. So again, it is the norm to have exclusions in various jurisdictions around the world. On the specific exclusion in question, people misuse alcohol if they become drunk as a result. They misuse illicit drugs just by taking them, and other drugs by using them for non-therapeutic or non-prescribed purposes. In both cases, that includes a level of intoxication that does not cause lasting harm or dependence. Both misuse and dependence are covered by international classification of diseases 10, and are therefore classified as mental disorders. It is therefore necessary that the exclusion be worded to cover both, so that neither the binge drinker nor the casual consumer of drugs is considered a case for compulsion. On sexual preference and gender identity, what is socially acceptable as sexual behaviour is subject to change over time, because it is embodied in religious and cultural value systems. For instance, homosexuality, as we discussed in Committee, was at one time—some time ago, fortunately—considered unacceptable and a sign of mental dysfunction. It was until recently included as a mental disorder in ICD 10. It is no longer necessary to cover sexual orientation because it is neither listed as a mental disorder nor considered in society as a disorder. Indeed, people are protected by anti-discrimination laws and by the Human Rights Act against such an approach. The House of Lords discussed at great length all sorts of fetishes, transvestism and auto-erotic strangulation, on which they proved to be something in the way of experts. What a lot of fun they do have in the House of Lords. [Interruption.] We had sex addiction. As the Government have expressed great concern about whether this exclusion might cover paedophilia, and in the wish for a compromise, the amendment makes it clear that paedophilia is not within the scope of the exclusion. There is a lot more that I would like to say, but I will finish as I want colleagues to be able to get in. The provision on political, cultural or religious beliefs—we had this debate in Committee—is of particular importance to members of the black and minority ethnic community. Again, it is a consideration that they have written to us about in serious terms. They feel that what are considered normal practices and beliefs for many members of that community could be construed in extreme circumstances—I am not saying that this will happen every day—as constituting a mental disorder. The perceptions of that community are perhaps more important that the number of times that the provision might in practice be used. That is why we have brought back this amendment, which we consider very important. There have to be proper checks and balances in the Bill if we are to broaden the definition of mental disorder in the way that we all support. We want a better balance and to protect people, so that those who have other problems can be treated for them and not have them re-badged as a mental illness, and thereby suffer and run the risk that they will be taken under compulsion for something that is not a mental illness.