Mental Health Bill [HL]

I am not arguing against that position. I shall come back to that matter shortly, if I may. As many noble Lords know far better than I, there is a spectrum to acute intoxication just as with many other mental disorders. No one is ever likely to be detained because they are mildly depressed; major depression is a different matter entirely. Of course, no one is going to be detained just for being drunk, but sometimes it makes good clinical sense to detain someone who is profoundly intoxicated and hallucinating or suffering other psychotic symptoms which put them or other people at risk. The symptoms may recede with the intoxication, which can sometimes take days, or it may turn out that they are symptoms of another disorder. The noble Lord, Lord Adebowale, said that he had experience of people with dual diagnosis—that is, substance dependence and mental illness—being refused services because of current exclusions. He gave an example of where exclusions are being misunderstood or misused to exclude people from the help that they need. On sexual identity and orientation, one significant change has been made to this amendment since we debated it in Committee; namely, the change from ““sexual behaviours”” to ““sexual identity or orientation””. We continue to believe that an exclusion for sexual identity or sexual orientation in the way that they are normally regarded—that is, heterosexuality, homosexuality and bisexuality—is simply redundant. Noble Lords are familiar with the arguments on that, so I shall not repeat them. The noble Countess, Lady Mar, referred to ME. That is an issue of diagnosis not definition. We cannot use legislation to tell clinicians how they are to diagnose patients; that is a matter of professional practice. If there are problems of poor practice, they must be tackled as such. On criminal acts and cultural, religious and political beliefs, the remaining elements of the amendment are there to send signals that the Act is not to be used to exert social control, that criminal, antisocial or merely difficult behaviour is not, of itself, proof of mental disorder, and that diagnosis must be based on patients as they are, which includes their cultural, religious and political background, assumptions, values and beliefs. I simply cannot agree that people will be detained because of their cultural, religious or political beliefs. Those are sentiments with which the Government wholeheartedly agree and that are clearly set out in the illustrative draft code of practice that we have issued. Indeed, the noble Lord, Lord Adebowale, suggested that the code of practice should be strengthened in this and other areas. We would certainly welcome his help in doing that. As my noble friend Lord Hunt of Kings Heath wrote in his letter of 31 January to all noble Lords, difference is not to be equated with disorder. We still disagree on whether the way to send out and emphasise these messages is to amend the Act to purport to exclude these matters from the definition of mental disorder. The House is familiar with our arguments in this area and I will not repeat them in detail. However, we are more than ever confirmed in our view that otiose exclusions can achieve nothing except the risk that they will be misapplied or interpreted in an unintended way. Perhaps if I were a certain type of patient detained in a high-security hospital following a conviction for a serious offence, I might be getting quite excited at the possibility that this House was seriously considering adding the exclusion for criminal acts. Of course, I would realise that it was not intended to lead to my discharge while I still needed treatment in hospital, but I would certainly be thinking about ways in which I, and my lawyer, could try to persuade a tribunal that that is none the less its legal effect. There may be few such patients, and one would hope they would not succeed. However, I do not think that we should take that risk. It has also been argued that these exclusions would engender trust in the Act, but the Government do not think that they would. I understand the need to engender confidence, especially among the black and ethnic-minority community, but I do not see how people who do not trust professionals to make the right decisions will have their minds changed by these declaratory exclusions when the same people will have to apply them. It has been argued that the Government should accept this amendment as a sign of good faith and, in particular, their commitment to eliminating discriminatory attitudes and practices within mental health services. I note the comments made by the right reverend Prelate the Bishop of Coventry and many other noble Lords. However, had the Government come forward with these exclusions and said, ““Look, here is proof of our commitment””, I wonder how readily others would have been convinced. We will be, and we want to be, judged by the action we are taking, not least through our Delivering Race Equality programme, and not by whether we agree to include some well meant but otiose words in the Bill. The earlier debate on the elimination of discrimination in relation to principles is very important in this regard. I hope that that may be dealt with at Third Reading. Many noble Lords have contrasted the Government’s approach with that taken in Scotland, Ireland, New Zealand and a number of other Commonwealth jurisdictions. It is not my place to comment on the wisdom of approaches taken by other legislatures, although I caution against the assumption that what works well in one legal system can automatically be transferred to another. Indeed, one does not need to look long at legislation from other countries to see the immense, almost bewildering, variety of ways in which legislatures have tried to define mental disorder or, as the case may be, the types of mental disorder to which they wish their particular legal framework to apply. The approach we have taken is one of simplicity. This is not because we necessarily take a different view of the disorders that should potentially engage powers of compulsion, although on paraphilias we take a different view from that of the Scottish Parliament. It truly is more the case that we are wary of putting words in the Bill that are legally unnecessary, however much we agree with their underlying sentiment. I have listened carefully to the important debate this afternoon. I have reread the debate that we had in Committee and have heard all the arguments put forward in the discussions which my noble friend Lord Hunt has had in the past three weeks. The Government have listened to all the arguments and fully agree that this legislation must not be used to wrongly subject any individual to mental health treatment. However, in relation to substance misuse, sexual identity and sexual orientation, we do not think that an exclusion is needed or that it is the right thing to do. On the rest, while we agree with the objective, we do not agree with the proposed means of achieving it. We do not believe it will deliver the benefits sought by its proponents and fear that it will create a risk to the effective working of the Act, something which is best avoided. I would be grateful if the noble Earl, Lord Howe, would reconsider his amendment.