Mental Health Bill [HL]

My Lords, this has been an important debate on a key part of the Bill—indeed, an issue of principle. This amendment is the same as the one we discussed in Committee, and in many ways the arguments have been well rehearsed, although I have learnt an enormous amount including about the apophatic tradition, about which I will read more. I must say from the outset that it is absolutely not our intention to detain anyone except on the basis of their mental disorder. We will do everything possible to ensure that no individual is subjected to mental health treatment unless they have a mental disorder. Much has been made in this debate and elsewhere of the idea that the Bill will widen—some have said it will be much wider—the definition of mental disorder. The Joint Committee on Human Rights referred in its recent report on the Bill to the, "““breadth of the new definition of mental disorder””," and an argument was put forward that the widening of the definition must be matched by more exclusions. The Government do not agree with that, but before turning to the amendment itself I would like, if the House will allow me, to set out exactly what effect the Bill would have on the definition of mental disorder. In doing so, I hope to demonstrate that the effect is not as great as is sometimes thought. Clause 1 simplifies, but does not change, the basic definition of mental disorder used in the Act. In fact, the only real change to the scope of mental disorder in the Act generally flows from the removal of the exclusion for sexual deviancy. In other words, for the purposes of detention for assessment under Section 2 of the Act, and various other powers, that is the only change. I will return in due course to the merits of that change. A further effect of Clause 1 is that other provisions of the Act, largely those relating to detention for medical treatment, guardianship and, in future, supervised community treatment, will not be limited to the current categories of mental illness, mental impairment, severe mental impairment and psychopathic disorder. These are legal, not clinical, categories and the boundaries of ““mental illness”” are uncertain. That means that we cannot say precisely what will be covered by the relevant provisions that is not covered now. Almost certainly, mental disturbance arising from brain injury in adulthood will now be covered for the first time; likewise, personality disorders that do not fall within the definition of ““psychopathic disorder””. That might, for example, cover someone suffering—and I do mean suffering—from a borderline personality disorder, with all the relationship difficulties, feelings of emptiness and propensity to self-harm that go with it. Possibly, too, the effect will be to widen the scope of the relevant provisions to include certain autistic spectrum disorders; certainly, it will remove any uncertainty about their status. These are not insignificant changes, but they do not amount to the significant widening of the definition of mental disorder that people sometimes ascribe to the Bill. It has been argued that the Bill allows individual clinicians to decide what a mental disorder is. It does not. The reality is that psychiatry moves on. The European Court of Human Rights recognises that in its refusal to state definitively what constitutes ““unsoundness of mind”” for the purposes of the convention. Mental health legislation—perhaps inevitably, but certainly pragmatically—relies on the clinical professions taking the lead in defining and classifying mental disorder. But that is not to say that, Humpty Dumpty-like, mental disorder means whatever a clinician says it means. When we talk of clinically recognised mental disorders, we mean disorders recognised as such by clinicians at large. That does not necessarily mean exactly what is listed in the International Classification of Diseases or the American Diagnostic and Statistics Manual. Those publications do not purport to be the last word in what is a mental disorder, and they too get out of date, but they offer a good starting point for assessing what is likely to be regarded clinically as a mental disorder. The noble Lord, Lord Owen, and the noble Baroness, Lady Kennedy, suggested that a clear line should be drawn for the medical profession. It is conceivable, I suppose, that some day a Government might attempt to put in the legislation a detailed statement of what is and is not a mental disorder. I doubt that it would be popular with the psychiatric world, but a Government might be compelled to do so if it concluded that the profession was taking an approach that was unsupportable in a democratic society. I do not think that we are anywhere near that position right now. I should also say something else about the context within which the question of exclusions should be considered. There must, of course, be safeguards against improper use of the Act, but the definition of mental disorder is by no means the only place, or indeed the most obvious place, to look for such protections. There are already safeguards in the procedures for detention. No single professional can have someone detained. The criteria for detention impose further strict limitations. Then there are the many other external safeguards, both within the Act and beyond it. There is the Mental Health Review Tribunal, together with the Mental Health Act Commission, and the merged body which will take over its role in future. There are the clinical governance arrangements that all mental health service providers must have. There is professional regulation and, above all, as the noble Lord, Lord Soley, said in Committee, the rule of law. Of course, those protections are not perfect, and not every professional attains the high standards of the majority. Mistakes get made, even by the most conscientious of professionals. We must all, collectively, work together to improve standards across the board; but I urge the House, in thinking about this amendment, not to forget that there is an intricate and extensive network of safeguards that goes far beyond what is achieved by refinements to the definition of mental disorder and exclusions from it. The exclusions proposed in the amendment are of two types: those that would substantively limit the disorders in respect of which the powers in the Act could be used to help and protect people; and those which, in the words used by the noble Earl, Lord Howe, in Committee, are markers designed to send signals about how the Act should, and should not, be used. Substance misuse is, I think, in the former category. In my experience, the Government are often challenged to say why their proposals represent an improvement. In this case, I feel justified in asking the same question of the noble Lords in whose name this amendment stands. For the past quarter of a century, the Act has excluded dependence but no other substance-related disorder, yet psychiatric hospitals are not full of drunks sleeping it off or drug users being kept away from their dealers by nominal nursing care. Why should anyone think that that will change as a result of the Bill? Why do noble Lords want to exclude from the Act those people who are now properly detained because of a substance use related disorder? If they do not want to do that, why none the less are they willing to take the risk of it happening? As many noble Lords know far better than I—