Autism and the draft mental health bill in England and Wales: Unintended consequences?

Abstract

The Draft Mental Health Bill for England and Wales proposes a range of changes to the Mental Health Act 1983. Among these is a proposal to amend the definition of ‘Mental Disorder’, which would mean that people with a primary diagnosis of autism or learning disability would be excluded from most of the civil sections of the Act. If enacted, this will be the first occasion in English and Welsh law where a legal definition of autism is created. While we argue that there are inherent difficulties in creating legal definitions of clinical problems, this ‘legal Autism’ appears to be substantially disconnected from a clinical understanding of autism, and its breadth could potentially encompass conditions beyond those currently identified as autism. Moreover, numerous potential unwanted practical consequences may arise from these changes, partly because of uncertainty about the legal position of presentations that share features with autism, uncertainty about the process of assessment of ‘legal Autism’, and potential perverse incentives placed on local authorities. We argue that particular groups of people likely to be impacted by these changes are those who not only present with profound clinical impairments, but also who pose significant risks to others. We urge serious consideration is given to these issues in the legal debate of the Bill.