Mental Health Bill [HL]

My Lords, I am delighted to see the noble Lord, Lord Rix, in his place once more. We missed him. I am also pleased and privileged to have an opportunity to pay tribute to him. He is an extraordinary man: from coal mine to Mencap, he has over so many years made a real difference to the lives of many people, especially those with learning disabilities. I know that I speak for the whole House when I say that I hope he will continue to campaign, legislate and bring about change for many years to come. We fully acknowledge that many people who have a learning disability can have difficulties in communicating the nature of their health problems, and in particular that some of them may seek to draw attention to physical health problems by displaying aggressive or irresponsible behaviour that could be mistaken for mental disorders. Identifying 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 crucial to establish whether their behavioural presentation is in fact a reflection of underlying physical health problems. But we recognise, of course, that the risk of diagnostic overshadowing is especially high in the cases of people with learning disabilities. That is why, since the noble Lord graciously withdrew his amendment following the debate in Committee last month, we have been looking seriously at the issues he raised to see what more we could do to address them. As he kindly acknowledged, we have engaged in active dialogue with him in the intervening period and made strenuous efforts to identify ways to address at least some of his concerns. We have considered a number of legislative options to see whether we could meet those concerns about inadvertent detention without inadvertently taking away the option of detention for those for whom it is necessary and appropriate. As ever, however, we ran up against the disadvantage of trying to use legislation to tackle a problem of practice rather than of law. We have had to conclude, therefore, that these issues would be best addressed in the code of practice—that lifeline referred to by the noble Lord. It is vitally important to identify any underlying physical health problems in a person with a learning disability and to understand how it may be affecting their behaviour. Some may need to be helped only on their mental disorder. Other people with learning disabilities may need to be helped under the Act for their mental disorder while their underlying physical health problems are sorted out. I remind noble Lords that we are trying to frame legislation in such a way as to give mental health professionals the ability to do what needs to be done for the benefit of each mentally disordered person without imposing arbitrary restrictions. We consider that the learning disability qualification, as currently drafted in the Bill, allows clinicians this flexibility while still protecting patients’ rights. Nevertheless, we acknowledge that there could be more practical guidance on the types of issues that can arise, such as proper diagnosis of an underlying physical disorder. Consequently, when we debated the amendment in Committee, we undertook to look at ways of strengthening the code of practice to take account of the concerns raised. I confirm to the noble Lord that we remain committed to that course of action. Indeed, we would be very happy if he and Mencap—the excellent charity of which he is the president—would be willing to take a proactive role in helping us to improve the revised code of practice for England as it relates to people with learning disabilities. And I do not mean just the section entitled ““Learning Disabilities”” but the whole code as it might be applied to people with learning disabilities. Clinicians must have cogent reasons for any decision to treat an individual in a way that departs from the code of practice. It is more than mere guidance. I hope very much that the noble Lord, Lord Rix, will feel able to accept this invitation on both his own and Mencap’s behalf. In doing so, I hope that he will see fit to withdraw the amendment.