Mental Health Bill [HL]

moved Amendment No. 3: 3: Clause 3 , page 2, leave out lines 25 and 26 and insert— ““““(3) For the purposes of subsection (2) above, a person shall not be considered to have a mental disorder as defined in this section solely on the grounds of— (a) his substance misuse (including dependence upon, or use of, alcohol or drugs); (b) his sexual identity or orientation; (c) his commission, or likely commission, of illegal or disorderly acts; (d) his cultural, religious or political beliefs.”””” The noble Earl said: My Lords, we return to an issue which we debated in Committee but did not resolve—the question of whether, in redefining what is meant by the term ““mental disorder””, the Bill should at the same time draw clear boundaries around that definition by making clear what it does not encompass. We on these Benches regard this matter as particularly important. When the Richardson committee reported in 1999, it recommended that a new Mental Health Act should contain a broad definition of ““mental disorder”” to replace the detailed diagnostic categories in the 1983 Act, and that this broad definition needed to be balanced by some exclusions. The Bill contains a new broad definition but no exclusions other than dependence on alcohol or drugs. The broad definition has two consequences. The first is that it covers all the diagnoses listed in the WHO International Classification of Diseases 10—ICD-10—some of which are completely inappropriate for compulsory powers. Secondly, it potentially covers almost any significant deviation from a normal condition of the mind, however temporary that deviation may be. There is nothing in the Act or the Bill that confines the definition to the conditions listed in ICD-10. 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. Any decision by a clinician to detain a patient against his will always and inevitably rests on the clinician’s discretion. In practice this discretion is wide, and because of that it is not acceptable for the law to be expressed in such a way as to allow the clinician total freedom to interpret its meaning in any fashion he or she chooses. Clinicians themselves acknowledge this. They support the proposition that there should be clear limits on their powers. From the clinician’s point of view, the exclusions need to be there so that the right questions can be asked. Let us imagine a doctor faced with someone who is distressed, disturbed and behaving in a strange way. What lies behind his behaviour? Is it misuse of alcohol or drugs? Does the person have odd or eccentric beliefs that cause him to behave in a strange manner? Does he have an uncontrolled temper? Would his behaviour be seen as normal, or at least as comprehensible, in a different culture? It is only by asking questions of this sort that doctors can avoid arriving at wrong conclusions. If the questions are not asked, the danger is that all sorts of people who are not mentally disordered in the true sense will be swept up by the use of the powers in the Mental Health Act. The noble Baroness, Lady Murphy, spoke powerfully in Committee about people who are social misfits: people on drugs, religious fanatics, or people with odd sexual urges. They are difficult to help, but any well-intentioned clinician naturally wants to help such people. 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. When confronted by an oddball patient, the clinician has a duty to make sure that his decision to detain is not based on spurious reasons. In Committee, the Government argued that exclusions in the Act would create uncertainty and that they would be arbitrary. I do not agree, and nor does the Royal College of Psychiatrists, the British Psychological Society, the British Association of Social Workers and the Royal College of Nursing, to name but a few members of the Mental Health Alliance. Exclusions serve a significant purpose, one that other legal jurisdictions in the English-speaking world have acknowledged. The equivalent mental health laws in Ireland, Scotland, New South Wales, Victoria and New Zealand contain exclusions on a basis similar to that set out in this amendment. To be specific about it, I do not think that it is acceptable or right for the law to allow someone who is drunk or high on drugs to be compulsorily detained for that reason alone. But if the Government have their way, he could be—misuse of drugs or alcohol is classified as a mental disorder under ICD-10. A single episode of misuse could fall within that. Given that the Bill excludes from ““mental disorder”” the more serious forms of alcohol and drug misuse, it is difficult to see what argument the Government have for excluding the less serious forms. The draft code of practice explicitly mentions acute intoxication as a possible ground for the use of powers under the Act. Absolutely no justification is offered for that. Equally, the proposition that someone who exhibits gender dysphoria, transsexualism or a sexual fetish should be eligible for compulsory detention is completely unacceptable. Yet these conditions are classified as mental disorders under ICD-10. I and many others would argue that they are not true mental disorders. Nor is behaving in a manner that is considered socially unacceptable or expressing a way-out political opinion. This country is not Soviet Russia and is in no danger of being like Soviet Russia. But the effect of not having exclusions along the lines set out in paragraphs (c) and (d) of the amendment is that it will further confuse in the public mind the role of psychiatry and mental health services.