Mental Health Bill [HL]

Debate between Baroness Berridge and Baroness Murphy

Tuesday 14th January 2025 Lords Chamber

[Baroness Berridge (Con)]

I pay tribute to the work that the noble Baroness, Lady Browning, has done in relation to this matter. This is a matter that we considered in great detail in the Joint Committee. I am grateful that that gives us the opportunity to discuss in the round the legal basis on which people are detained. The independent review did not recommend what is currently in the Bill, which is the removal of learning disabilities and autism from the Act. The Joint Committee’s report quotes it saying,

“the risk of completely removing learning disabilities and autism from the Act is too high”.

The noble Baroness, Lady Browning, outlined one of the reasons for that, which is that if you remove the legal basis for detention under the Mental Health Act, then the bucket that these individuals and patients would fall into without Amendment 5 would be the Mental Capacity Act.

In the consideration by the Joint Committee, there is the other danger that—when there is no co-occurring mental health condition—you end up with people coming through the criminal justice system, instead of being detained under the Mental Health Act. That is the worst of all the evils we could be discussing here today and would be completely inappropriate.

I would be grateful if the Minister will ensure two things when we know that these are dangers: first, an increase in diagnoses of co-occurring mental health conditions to use the Mental Health Act; and, secondly, an increase in the use of the Part III criminal justice provisions. It is important that we know the exact statistics for the group with learning disabilities and autism before implementation of the Act. Then we would know whether the Act has caused an increase in diagnoses of co-occurring mental health disorders and an increase in the use of the criminal justice system.

I believe that currently 39% of people detained with learning disabilities and autism are detained under Part III of the Act. I see the noble Baroness, Lady Browning, nodding. It is important that we remember that New Zealand tried this, removing learning disabilities and autism from its mental health legislation. I cannot remember whether it had the co-occurring mental health diagnosis provision, but, only a few years later, it had to amend the law, as it had caused an increased number of learning disabilities and autism patients to come in through the criminal justice system.

What would be the position if the Bill were amended in accordance with Amendment 5? The evidence that we received in Joint Committee was that there would be no patients—that community facilities would be at a level where they could not think of anybody who would need to be detained. I wish the world were thus, but the ideal world portrayed in that way does not exist. Even with the community facilities that we all wish to exist, it seems clear to me that there would be circumstances in which there would still be a need to detain.

I recognise that, in reality, we may see that increase in diagnoses of co-occurring disorders. Physicians may reach for that to protect someone—to detain them to get them treatment. However, it was made clear to us that 28 days is a relatively short time. You can be detained for assessment, but it can take many days to get the level of distress down—I do not want or like to use the word “meltdown”—to assess the mental health of the person and whether there is a co-occurring disorder.

The Joint Committee came up with a special exceptional tribunal that would still allow the Mental Health Act to be used in that small number of cases—once community facilities are as we would like them to be—to continue detention. Why? For the reasons outlined by the noble Baroness, Lady Browning: the protections under the Mental Health Act are much greater. You have the nominated person, you can go to the Mental Health Act tribunal, and—ker-ching—you get Section 117 aftercare, which, of course, is not available under the Mental Capacity Act.

If Amendment 5 were accepted, we would have no Mental Health Act, no co-occurring diagnoses, no criminal justice system—I hope—and no Mental Capacity Act to refer to. If a clinician is in that circumstance where someone is so distressed and they do not have that diagnosis in the 28 days, where is the law? We are not talking about the practicalities here. Where is the law?

In any event, the Mental Capacity Act does not apply to under-16s. So the risk would be an increased use of what we now know as High Court DoLS. These are not DoLS under the Mental Capacity Act. They are DoLS under the inherent jurisdiction of the High Court. They are a most unsatisfactory way of restraining the liberty of under-16s.

Only two or three weeks ago, the Children’s Commissioner issued a report outlining the problem, and outlining that, already, some children with learning disabilities and autism are under a High Court DoLS. It is a matter that your Lordships’ House needs to consider. Nearly a thousand children are detained under a High Court DoLS.

Obviously, the Mental Capacity Act would have applied to 16 and 17 year-olds and adults so where does that leave those vulnerable adults? Where is there a power to detain them? The Mental Health Act and the Mental Capacity Act will both have gone. If clinicians are in that circumstance where there is no co-occurring mental health disorder, there is a vacuum which may end up being filled by the inherent jurisdiction of the High Court using vulnerable adults. We will have created another little bucket of people. I accept the criticism made by the noble Baroness, Lady Browning, about DoLS under the Mental Capacity Act. They are supposed to be replaced by protection of liberty safeguards, but those are not in force yet.

If we accept Amendment 5, are we going to create more work for the High Court with clinicians in that situation because the law will not have provided any means for them to detain? I recognise and repeat that the practicality will probably be a co-occurring mental health disorder but, as far as I understand it, that is where the law will be left if Amendment 5 is accepted.

Although the Mental Capacity Act is far from ideal, I hope the Minister can help us understand what the situation would be if we were to accept the amendment. As I say, for the under-16s it would be more cases under High Court DoLS, as far I understand it.

[Baroness Murphy (CB)]

My Lords, I have an amendment in this group but I want to speak particularly to the amendment from the noble Baroness, Lady Bennett, and to thank the noble Baroness, Lady Berridge, for her good sense. I agree with every word she has said.

I had earlier tabled amendments to Clause 3 and Schedule 1 to give effect to opposing any change in the definition of mental disorder for the meaning of the Act in the same way as Sir Simon Wessely’s committee recommended and I withdrew them in favour of a compromise amendment because I was not sure, to be honest, that I would get here at all today. I have. I am not quite sure how many more I will be able to get to but for the moment I am here so I will speak to this one.

I want to make it clear right from the start that if we had changed our legislation to be a hybrid Bill that was a fusion of a mental capacity and a mental health Bill we would not be in this pickle because we would have capacity-based legislation and therefore we could have proceeded without any of these silly criteria for what is this diagnosis and what is another. As the legislation is at the moment, I believe the move to remove autism and learning disabilities from what is a mental disorder is frankly bizarre, akin to having Parliament establish that for the purposes of legislation, the earth is flat and the sun goes round the earth. Galileo had the same problem. I want to ensure that Hansard will record that not everyone is in agreement with the notion that autism and learning disabilities are somehow separate and different from other mental disorders.

Neurodiversity, which, of course, exists, is the term used to describe statistical outliers from the norm and, of course, as for many other mental states, there can be many positive and interesting aspects of alternative ways of thinking about and responding emotionally to the world that enrich society. I understand that many people with autism and learning disabilities do just that and that is where neurodiversity has been so supported by people who want to ensure that they are recognised as individuals and citizens just as the rest of us are. But that does not change the fundamentals.

I know noble Lords know that I was a professor of psychiatry for many years at the University of London but I ought to mention at this point that I also have a special interest in mental health legislation because I was for six years vice-chair of the Mental Health Act Commission. I co-authored this now much revered code of practice for the 1983 Act. It is actually my only bestseller—if only it did not say Secretary of State on it—and I know first-hand how the Acts and codes are used. That is why I do not get involved in the principles of where this should be. The code does have statutory effect, by the way—I am sorry that the noble and learned Baroness, Lady Butler-Sloss, has left, because I can reassure her it does have statutory force. I was also UK advisor to the WHO on mental health and older people and was exposed to the developments in mental health legislation in other jurisdictions, not only in the UK, with the Scottish and Northern Ireland Acts as they were being developed, but in the Republic of Ireland when it introduced its new Act, and abroad in English-speaking legislatures.