Source · Select Committees · Human Rights (Joint Committee)
Recommendation 10
10
Not Addressed
We recognise the risk that permitting detention on the basis of autism or learning disabilities...
Recommendation
We recognise the risk that permitting detention on the basis of autism or learning disabilities under Part 3 of the MHA whilst prohibiting it under Part 2 amounts to a difference in treatment falling under the prohibition on discrimination in Article 14 ECHR. Nevertheless, we share the views expressed to the Committee that, currently, given the alternative for these patients is likely to be detention in prison, this difference in treatment 54 appears justified. This is not, however, an adequate long–term solution. Once again, greater support to autistic people or learning disabilities in the community is needed to divert them away from the criminal justice system. (Conclusion, Paragraph 70) Interface between the Mental Health Act and the Mental Capacity Act
Government response summary AI-generated
The government's response focuses on reasons for not introducing a statutory test for competence for under-16s and commitments to consult on updating guidance in the Code of Practice, entirely failing to address the recommendation for greater community support to divert autistic people and people with learning disabilities from the criminal justice system.
Summary of the government's response below — read the verbatim text to verify.
Government Response
Not Addressed
HM Government · verbatim extract
Not Addressed
We welcome the Committee’s agreement with the government’s approach and recognise the concerns expressed. For a person with a learning disability or an autistic person in the criminal justice system, hospital may be a more appropriate environment to ensure that offenders and defendants are able to access the specialist support they need. Where admission to a mental health hospital is necessary to meet the person’s needs, their care must be person-centred and high quality. For those who are detained under Part 3, the Ministry of Justice and the Department of Health and Social Care are committed to working together to ensure the prison estate meets the needs of people with a learning disability and autistic people, and that knowledge of best practice is shared amongst staff. However, we also recognise the importance of avoiding inappropriate detentions for anyone with a learning disability and autistic people and expect local systems to continue to build on the work they have undertaken over the last decade to improve community crisis services and community forensic support for people with a learning disability and autistic people, alongside wider measures in the Bill itself and as we plan for implementation. Interface between the Mental Health Act and Mental Capacity Act Committee View It is disappointing that the Mental Health Bill has not taken the opportunity to provide greater clarity to the interface between the Mental Health Act and the Mental Capacity Act and to make clear when detention and treatment under one or the other should be authorised. In a legislative scrutiny inquiry like this one, we are not in a position to conclude which of the possible alternative approaches to the interface between the Mental Health Act and Mental Capacity Act would best provide the necessary human rights protection. The Government should, however, carry out an urgent review of the interface between the Mental Health Act and Mental Capacity Act and take prompt action to provide the clarity that is currently lacking.
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