Under the 1983 Act, people with a learning disability and autistic people can be detained for both assessment and treatment under section 2 of the 1983 Act. People with a learning disability may also be detained for treatment under section 3 of the 1983 Act when their learning disability is associated with abnormally aggressive and seriously irresponsible conduct. This qualification does not apply to autistic people. We have seen that some people with a learning disability and autistic people can be subject to lengthy detentions, which may not provide a therapeutic benefit. Section 3 and Schedule 1 of the Act introduces new definitions to be inserted into the appropriate places within the 1983 Act. These amendments have the effect of removing, for the purposes of Part 2 of the 1983 Act, people with a learning disability and autistic people from the scope of the conditions for which a person can be detained for compulsory treatment under section 3 of the 1983 Act. People with a learning disability and autistic people will only be able to be detained for treatment under Part 2 of the 1983 Act if they satisfy the conditions set out in section 3 of the 1983 Act, which includes that they have a co-occurring psychiatric disorder which is not learning disability or autism (as explained in paragraph 37).
	This change in how the 1983 Act applies to patients with a learning disability and autistic people under Part 2 of the 1983 Act seeks to ensure that people are only admitted when they have a psychiatric disorder that warrants hospital treatment, which has a reasonable prospect of providing a therapeutic benefit for their psychiatric disorder. The changes also mean that it will no longer be possible to place a person with a learning disability or an autistic person on a community treatment order (CTO) unless they have a co-occurring psychiatric disorder that meets the detention criteria. This is supported by the guiding principle of least restriction.
	The changes to the way the 1983 Act applies to people with a learning disability and autistic people detained for assessment or treatment will not apply under Part 3 of the 1983 Act (i.e. individuals accused of, or serving a sentence for committing a crime). For this cohort of people, the only alternative to detention in hospital is detention in prison. Consultation with experts following the publication of the 2021 White Paper found that, on balance, detention in hospital is considered more appropriate in the majority of cases than detention in prison, to ensure that people in this cohort are able to access the specialist support they may need. The Ministry of Justice is satisfied that the current application of the detention criteria to people with a learning disability and autistic people detained under Part 3 of the 1983 Act enables professionals to make the right decisions for people in this cohort, including where this requires diversion from criminal justice settings into a hospital setting.
	Section 3 of the Act amends Section 1 of the 1983 Act. Subsection (2) modifies the meaning of mental disorder under the 1983 Act by including new definitions of "autism", "learning disability" and "psychiatric disorder". Autism and psychiatric disorder were not previously defined in the 1983 Act. "Psychiatric disorder" is a new term which covers mental disorder other than learning disability or autism. The definition of "learning disability" is also amended to remove reference to "social functioning", drawing a greater distinction between learning disability and the new definition "autism". Schedule 1 of the Act then makes amendments across the 1983 Act, to apply these new definitions. The effect of this is that people with a learning disability and autistic people will not be able to be detained for compulsory treatment under section 3 of the 1983 Act unless they have a psychiatric disorder, which by the definition, excludes learning disability and autism. They will also no longer be able to be made subject to community treatment orders under section 17A.
	Subsection (2)(b) inserts a new subsection (2A) in section 1 of the 1983 Act which sets out that, for the purposes of the 1983 Act, a person’s learning disability has "serious behavioural consequences" if it is associated with abnormally aggressive or seriously irresponsible conduct by the person. This currently applies, for the purposes of Part 2, in relation to people with a learning disability in respect of section 3 detention for treatment, section 7 guardianship, section 17A community treatment order, renewals of authority under those provisions and Tribunal discharge criteria from those provisions. Under the changes made by Schedule 1, it will only apply in relation to guardianship. The Act makes no change to the way the "serious behavioural consequences" threshold applies in respect of people with learning disability under Part 3 of the 1983 Act because there is no change to the way the 1983 Act applies to them for the purposes of the Part 3 detention criteria.
	Subsection (2)(c) omits the previous definition of learning disability under subsection (4) of the 1983 Act.
	Subsection (3) inserts the new definitions of "autism", "learning disability", "psychiatric disorder" and "serious behavioural consequences" into section 145 of the 1983 Act for interpretation purposes.
	Subsection (4) explains the effect of the Schedule 1 amendments to the 1983 Act. Schedule 1 amends section 3 of the 1983 Act to prevent individuals from being detained on the basis of their learning disability or autism. It also makes related changes in relation to the application of the 1983 Act to autism and learning disability.
	These changes do not apply to Part 3 patients, those who are involved in criminal proceedings or under Sentence, who will continue to be liable to be detained pursuant to the previous threshold. Paragraph 8 of Schedule 1 sets out the new definition of "relevant disorder" which applies for Part 3 patients, including autism and learning disability which has serious behavioural consequences. Paragraphs 11(2) to (5) and (10) provide that CTOs are available for these patients, where relevant. Paragraphs 11(6) to (9) provide for renewals of detention for unrestricted hospital order patients. Paragraphs 12 to 15 make consequential changes throughout the treatment provisions of the 1983 Act for Part 3 patients. Paragraph 17 clarifies that this definition should apply to discharge assessments by the Tribunal for patients subject to Part 3 detention, and paragraph 18 and 19 provide for the same application for restricted patients. Paragraphs 20 to 25 make transitory modifications to ensure the new definitions are given effect in the event these provisions are commenced before section 7, which provides for the new discharge criteria.
Autism and learning disability Section 3: Application of 1983 Act: autism and learning disability