Mental Health Bill [HL]

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. There is no doubt that, as befitting a Bill which deals with such important subjects, it has been the subject of vigorous debate, both in this House and in the other place. In this House we have had debates which have been informed by the special experience and expertise that noble Lords can bring to bear on this and on many other subjects. There is no doubt in my mind that the Bill has benefited from those debates. The Bill that has been sent back to us by the other place is stronger than it would have been without the contribution of this House in identifying and getting to the heart of the issues which are of the most importance. The other place may not have agreed with this House on all those issues, but it is plain that the debate in your Lordships’ House has provided a very important context for the other place’s consideration. I have no doubt that the Bill is the better for it. As one would expect, the meaning of mental disorder was one of those critical issues identified by your Lordships’ House. The simplified definition itself met with considerable support. Debate concentrated instead on what, if anything, should be excluded from that definition. As noble Lords will recall, there are three exclusions from the definition of mental disorder in Section 1 of the Mental Health Act as it stands: ““promiscuity or other immoral conduct””, ““sexual deviancy”” and ““dependence on alcohol or drugs””. The Bill, as first introduced, removed the first two and reworded the third. On Report, this House replaced that single exclusion with four new exclusions for: substance misuse; sexual identity or orientation; commission, or likely commission, of illegal or disorderly acts; and cultural, religious or political beliefs. This amendment was reversed by the House of Commons. In introducing his amendment on Report, the noble Earl, Lord Howe, said: "““There needs to be some limit to guard against the inappropriate use of the clinician’s power of detention. Without such limits, the powers are capable of being used, even in a well-intentioned way, as a form of social control””.—[Official Report, 19/2/07; col. 906.]" The Government could not agree more. We believe that those limits are to be found in the Act—in the criteria for detention and in the safeguards which are themselves strengthened by the Bill. But I fully accept that the noble Earl, Lord Howe, spoke for all Members of the House when he went on to say: "““The law should make the position clear. It is not enough for a person to be odd, eccentric or a social misfit; the only legal grounds for compulsory detention are an underlying mental health diagnosis””.—[Official Report, 19/2/07; col. 907.]" Again, we agree. The law should make the position clear; in our view it does. The Bill does not permit any compulsory intervention except where the relevant criteria are met. Those criteria cannot be met except on the basis of a disability or disorder of the mind. Although not drafted in that way, the amendment which the other place rejected contained two types of exclusions—substantive exclusions for conditions which are recognised mental disorders and others whose effect is declaratory. The proposal to exclude substance misuse was at least in part an example of the former. It has become clear in the course of debate here and in the other place that ““substance misuse”” was intended, in the words of the honourable Member for East Worthing and Shoreham, Mr Tim Loughton, to ensure that, "““neither the binge drinker nor the casual consumer of drugs is considered a case for compulsion””.—[Official Report, Commons, 19/6/07; col. 1326.]" But there is no such exclusion now, and no reason to believe that such people are being detained. On the other hand, if we did have an exclusion there is a risk that we might prevent the use of the Act in those rare cases where acute intoxication is so severe that detention is a legitimate clinical response. The noble Earl’s amendment, which the other place rejected, dealt more with things that are simply not recognised mental disorders. Sexual orientation is not a mental disorder; being homosexual or bisexual does not make one mentally disordered, any more than being heterosexual does. Holding religious, political or cultural beliefs does not, of itself, make one mentally disordered; nor does committing a crime. It follows that none of these matters falls within the definition of mental disorder in the Act; indeed, to say so in the Act would be legally otiose. Strong arguments have been advanced for exclusions. Perhaps I should test the patience of the House by going through them. The first is that, by not changing the Act, we will encourage clinicians to change their practice for the worse. I do not see the logic of that, or any evidence for it; nor is it consistent with the ethical and professional responsibilities of those who will have the responsibility for this under the law. Secondly, it has been argued that the list of exclusions will make psychiatrists reflect more closely on how their own values and experience influence their decisions. That is, of course, a good thing to encourage; it should be central to clinical practice in mental health services. However, the idea that this kind of careful practice will not happen without a few strictly unnecessary words in an Act, or that those words will create a sea change in attitudes, stretches credulity. The same is true of the third argument—I recognise that this is a very important matter—that those words will reassure particularly those in black and minority ethnic communities, who fear that the Act may be misused to their detriment or to that of their families. I have met representatives of black communities and the black churches several times, and I know just how strongly they feel about this matter. We do not know why there are such markedly higher rates of diagnosis of certain conditions in people from many black and minority ethnic communities, or why they are much more likely to be admitted to hospital or detained under the Act. None of us has seen convincing research. Research to date has been far better at describing than explaining the situation. However, although we may not know why it happens, we do know that it does. Nor are we in any doubt that steps can and should be taken to change it. That is why this Government established their Delivering Race Equality programme, announced in December 2005 alongside their response to the inquiry into the death of David ““Rocky”” Bennett. A fourth argument made in favour of the exclusions is that they would protect against individual psychiatrists extending the boundaries of mental disorder, encouraged by the fact that the Bill relies more on their subjective opinions. The Bill does nothing of the sort, but, even if it did, exclusions would not help. If some psychiatrists were tempted to act in that way, they would be arguing not for new mental disorders but about whether or not certain things were manifestations of established mental disorders. A fifth argument is that the exclusions are needed as a protection against Governments yet to come. The noble Earl, Lord Howe, was good enough to say on Report that this country is not Soviet Russia and is in no danger of being like it. However, once we get to the point where the rule of law has broken down, the wording of the law is not likely to save us. Another argument simply questioned the harm of the exclusions. It is not disputed that mental disorders can manifest themselves in the form of religious or political views, or in actions that break the criminal law. As the noble Earl, Lord Howe, said on Report, the key test is whether there is an underlying mental disorder, which may exhibit itself in any of the behaviours listed in the amendment. There is therefore a risk that the exclusions would have no legal effect. They might, however, create room for doubt about what is and is not meant. That is not meant as a criticism of those who drafted or supported the noble Earl’s amendment. I hope that noble Lords will understand from my response that I quite understand the importance of the principles that inform the debate on exclusions but we have concerns about the practical impact that those will have. The noble Baroness, Lady Barker, has tabled an amendment dealing with discrimination, which from my experience of debating the Bill with noble Lords is a critical area of concern. The Government will support it. It deals with an important matter. The noble Baroness has drafted it in a way that allows us to make it clear to practitioners that this is an important principle but does not cause a problem in terms of the original drafting of the exclusions. I thank noble Lords for the constructive way in which we have debated the matter. Moved, That the House do agree with the Commons in their Amendment No. 16.—(Lord Hunt of Kings Heath.)