DDB 45 Royal College of Psychiatrists
The Royal College of Psychiatrists
Submission to the Joint Committee on the
Draft Disability
Discrimination Bill
Summary
- The current Act and the proposals
contained in the Draft Bill are weighted heavily in favour of
physical disabilities; Mental Health is largely ignored.
- People with psychiatric
disorders are experiencing particular difficulties establishing
protection from discrimination under the Disability Discrimination
Act (DDA).
- The DDA definition
of disability needs to be amended, and the statutory Guidance
revised, to better reflect the actual impact of psychiatric disability
on people's lives.
- The three elements
of the definition which we believe need revision are:
1. The list of day-to-day
activities which are currently biased towards physical impairments;
2. The requirement that
a mental impairment has substantial, adverse, long-term effect
on day-to-day activities. This excludes cases of depression where
typically, the effect is severe, but short-term;
3. The requirement that
mental illnesses need to be clinically well recognised, which
is discriminatory.
- It is proposed that the definition
of disability is altered to better cover people with mental health
problems. Specifically it is recommended that the list of normal
day to day activities should be revised to include "the ability
to communicate with others" and to ensure that self-harming
behaviour is covered.
- It is recommended that the requirement
that a mental illness be "clinically well recognised"
should be removed.
- It is recommended
that for individuals whose day-to-day activities are substantially
affected as a result of depression the requirement that the effects
last twelve months should be reduced to six months.
- The DDA is proving
inadequate in addressing recruitment problems. The aim should
be to reduce the actual incidence of discrimination in recruitment.
- We recommend that
the Bill prohibits disability-related enquires before a job is
offered except in very limited circumstances.
1.0
Introduction
1.1 The Royal College of Psychiatrists
is the leading medical authority on mental health in the United
Kingdom and the Republic of Ireland and is the professional and
educational organisation for doctors specialising in psychiatry.
We welcome the opportunity to submit written evidence to the Joint
Committee on the Draft Disability Discrimination Bill.
1.2 We
view the Draft Disability Discrimination Bill as providing the
one legislative framework whose entire purpose is to increase
social inclusion and prevent discrimination. To improve this
would give an important signal that people with psychiatric disabilities
should be fully included in the disability rights agenda, able
to benefit from the power that it confers.
1.3
Our overall standpoint is that people with disabilities are subject
to discrimination and excluded. This includes people with physical
disabilities and those with psychiatric disabilities. The disability
legislation must protect (and apply equally to) all people with
disabilities and must ensure that people with psychiatric disabilities
are not less protected by the legislation than those with physical
disabilities. The changes introduced in the new Bill must ensure
that they provide with psychiatric and other disabilities with
a more effective protection against ill-founded prejudice.
1.4 In
this submission we have used the term 'psychiatric disabilities'
to cover people who have psychiatric disorders and their associated
disabilities. Other terms may be used such as 'people with mental
health problems' 'mental ill-health' and 'mental disorder'. The
terms 'psychiatric disability' or 'psychiatric disorder' should
be considered to be equivalent to these terms.
2.0 Background to the
submission
2.1 Mental Health and
Social Inclusion: Mental ill-health causes and sustains social
exclusion. For
mental health service users there are linked problems of impairment,
discrimination, diminished social roles, lack of economic and
social participation, and disability. Factors contributing to
this are lack of status, joblessness, lack of opportunities to
establish a family, small or non-existent social networks, compounding
race or other discrimination, repeated rejection and consequent
restriction of hope and expectations (Sayce, 2000).
2.2 Mental
Health problems lead to observed 'difference', isolation, discrimination
and exclusion, which in turn exacerbate Mental Health problems
in an endless vicious cycle.
2.3 Provision
of work, educational opportunities and leisure activities for
people with psychiatric disorders can play an essential role in
promoting their inclusion. Work links people to society.
2.4 Work is important both in maintaining
mental health and in promoting the recovery of those who have
experienced mental health problems. Enabling people to retain
or gain employment has a profound effect on many areas of life.
Employment for those with mental illness give opportunities for
them to participate in society as active citizens and barriers
to them doing so are linked to stigma, prejudices and discrimination.
Participating in work and employment can be seen as therapeutic
endeavours, but also as important indicators of a successful outcome.
2.5 Employment
provides a monetary reward and is inseparable from economic productivity
with its profits for the employer and its material benefits for
society. In addition employment provides 'latent benefits', non-financial
gains, to the worker, which include social identity and status;
social contacts and support; a means of structuring and occupying
time; activity and involvement; and a sense of personal achievement
(Warr, 1987).
2.6
Work is particularly crucial for people with mental health problems
as they are especially sensitive to the negative effects of unemployment
and the associated loss of structure, purpose and identity (Bennett,
1970). Already socially excluded as a result of their mental health
problems, this exclusion is aggravated by unemployment.
2.7 There is a clear imbalance
in opportunities between people with psychiatric disability and
people with physical disability. Disability
is a contested term in the mental health field, but nevertheless
a useful term that resonates with employers. Historically, the
lack of attention given to 'psychiatric disability' means that
disability law, policy and practice has developed more with physical
and sensory impairment in mind than with psychiatric impairment.
2.8 Examples
of the imbalance in the area of employment between those with
psychiatric and those with physical disability are:
a)
There are low rates of employment in people with severe mental
illness relative to people with long-term physical disability.
People with enduring mental health problems are much less likely
to be economically active than those with physical or sensory
impairments (Labour Force Survey, 2002):
- The long term disabled
with mental health problems as the main difficulty
represent 8% of the long-term disabled of working age. 18% of
this group were in employment in 2000.
- The long-term disabled with no
mental health difficulties represent 84% of the long-term disabled
of working age. 52% of this group were in employment in 2000.
- 30-40% of this group
of people with mental illness are capable of holding down a job.
b)
People with psychiatric disabilities are more likely than any
other disabled group to be economically inactive. When they challenge
discrimination under the DDA, they are most likely to loose at
tribunal.
c) The
OPCS surveys of Psychiatric Morbidity in Great Britain (Meltzer
et al, 1995) found significant levels of unemployment and sickness
absence in those with common mental illnesses (mainly anxiety
and depression).
- Adults with neurotic
disorder were four to five times more likely than the rest of
the sample to be permanently unable to work
- Among the sample with
any neurotic disorder who were unemployed and seeking work, 70%
had been unemployed for a year or more (that is 7% of all people
with a neurotic disorder).
- Compared to the general
population, adults with neurosis were twice as likely to be receiving
Income Support and four to five times more likely to have invalidity
benefit.
d) The
Social Services Inspectorate report (2002) noted that of 7882
people using direct payments to pay for their own support) only
132 were users of mental health services.
3.0 Key Issues in the Disability Bill
3.1 The definition of disability:
This fails to cover many people whose working lives are seriously
affected by their mental health. Mental illnesses including depression
and schizophrenia, which may fluctuate in severity or occur in
episodes, tend to fail to meet the definition. The wording does
not currently have the flexibility to cover many mental health
conditions; for example agoraphobia would currently have to be
labelled as 'impairment to mobility' in order to be seen as a
disability.
3.2 Discrimination in recruitment:
This covers whether employers should be able to request information
about a person's mental health history when they are applying
for a job.
4.0 Arguments for change in definition
4.1 These
arguments are mainly based on two research projects on DDA case
law (Meager et al 1998; Leverton, 2002).
4.2 Two
clear findings of these studies are:
- In comparison with
the labour force as a whole, applicants in DDA cases are substantially
more likely to have depression or anxiety.
- People with mental
health problems were amongst the least likely to win their DDA
claims.
4.3 Applicants
lost in 16% of decided cases because tribunals ruled that they
had not met the statutory definition of disability (244 of the
1,524 cases which reached a preliminary hearing and/or a main
hearing). This was the single most common reason for a claim
to fail. People with mental health problems were most likely to
fail for this reason.
4.4 To
qualify as a disability under the DDA an impairment must have
a substantial effect on normal day-to-day activities. In order
for an impairment to be treated as affecting the ability of the
person to carry out day to day activities it must affect one or
more of the categories of activities contained in the DDA: mobility,
manual dexterity, physical co-ordination, continence, ability
to lift, carry or move everyday objects; speech; hearing; sight;
memory; the ability to learn, understand or concentrate; the perception
of risk or physical danger. This list of categories of day-to-day
activities inadequately captures the effects of many psychiatric
impairments. Such impairment typically has an impact on thinking,
feeling or social interaction, which are not specified capacities
under the DDA definition.
4.5 Recommendations:
It is proposed that the definition
of disability is altered to better cover people with mental health
problems.
- The categories
of day-to-day activities should be revised so that the ability
to "communicate and interact with other people" is added.
People with severe depression may often lose the ability to communicate
with others, which has the same impact on their life as not being
able physically to speak, but it is not adequately covered by
the present law.
- The wording of
the category "perception of physical risk" should be
revised to ensure that it covers people who self-harm, for example
through cutting themselves, or through anorexic or bulimic behaviour.
At present the argument can be successfully made that an individual
who has a clear intellectual perception of the risk of harm, but
chooses to ignore this, is not covered by the Act.
4.6 The
DDA states that a mental illness must be "clinically well
recognised" in order to be capable of constituting a disability
under the Act. There is no such requirement for other forms
of mental or physical impairment.
4.7 There
is no evidence from the case law that this restriction has fulfilled
its declared role of excluding "obscure conditions unrecognised
by reputable clinicians" or "moods or minor eccentricities".
Furthermore, reported cases and research show that the requirement
to prove that a condition is clinically well recognised is disadvantaging
some people with genuine mental health conditions. This was a
major concern for applicants' representatives interviewed in Meager
et al (1998). A common problem was that "many people with
quite severe mental illnesses may not have a clear diagnosis,
or may have different diagnoses at different times, which will
make it difficult to satisfy this element of the definition".
4.8 The
concerns of some employers focused on the need for clinical evidence
to support mental health claims in order to deter "exploitation".
A person claiming a mental disability is no more likely to fabricate
his symptoms than an individual with an unexplained but disabling
physical condition. Tribunals are well experienced in assessing
the credibility of a person's evidence. If credibility is an issue,
it is open to an employer to instruct medical evidence to assist
in proving malingering or fabrication.
4.9 Recommendation: It is recommended
that the requirement that a mental illness be "clinically
well recognised" should be removed.
4.10 To
qualify as a disability, an impairment's substantial adverse effects
must either last at least twelve months or, if the effect is shorter,
must be shown to be likely to recur. The last is designed to cover
people who experience recurring conditions. This requirement is
proving a persistent problem for people with depression and anxiety
disorders.
4.11 For
people who have experienced a series of severe depressions, each
individually lasting less than a year, these cases can be ruled
not to be disabled. The applicant may argue that because they
have a recurring depressive illness this should be covered. However,
unless he or she can show a persistent low grade depression (sometimes
diagnosed as dysthymia) technically they will have an impairment
which recurs rather than a continuing impairment with recurring
effects. This means they will not be protected by the DDA.
4.12 We
recommend a reduction in the time limit targeted at people with
depression, but do not propose that the twelve-month requirement
is reduced for everyone. Whilst many cases are lost because the
applicant fails to satisfy this requirement, these relate to conditions
which do not usually have a substantial impact on the applicant's
life, nor do they attract significant social stigma (e.g. temporary
back, neck or shoulder difficulties). In contrast, experience
of a substantial depression, even one which is short-lasting and
is not likely to recur, does attract considerable stigma.
4.13 Depression
is a common and worldwide phenomenon which in many cases should
be considered a chronic or recurring disorder with significant
disabilities. Widening the definition is not likely to include
people without "real" disabilities as there is compelling
evidence that even a short period of depression could have serious
life-long consequences which 'disable' the individual.
4.14 Recommendation:
It is recommended that for individuals whose day-to-day activities
are substantially affected as a result of depression the requirement
that the effects last twelve months should be reduced to six months.
5.0 Arguments for tackling discrimination
in recruitment
5.1 39%
of mental health users in a MIND Survey felt that they had been
denied a job because of their psychiatric history (Mind 1996).
The fear of discrimination acts as a deterrence to disabled people
applying for jobs. In the same survey, 69% of mental health users
had been put off applying for jobs for fear of unfair treatment
5.2 These
fears of mental health service users appear to be well justified.
Glozier (1998) tested the attitudes of major UK companies to mental
heath problems of potential employees. Two hundred personnel managers
were asked to assess the employment prospects of two job applicants,
based on vignettes identical except that one was diagnosed as
having depression and the other as having diabetes. The applicant
with depression had significantly reduced chances of employment.
Manning and White (1995) found similar problems for people with
schizophrenia.
5.3 Although
it is open to disabled people to challenge recruitment discrimination
through the DDA, this is a very poor second best to reducing the
actual incidence of discrimination in recruitment. A powerful
way of achieving this would be to reduce the opportunity that
employers have to discriminate. If an employer does not know that
an individual has a disability, they will be unable to make prejudiced
judgements on this basis.
5.4 The
DRC (2003) recommended that the law should be change so that disability
related enquiries before a job is offered should be permitted
only in very limited circumstances. This is a recommendation of
the Taskforce which the Government has rejected, but they may
like to reconsider this decision because of the clear and pressing
need for this proposal. Many employers still ask medical questions
about applicants' disabilities prior to job interview and selection.
This enables employers who wish to discriminate to simply reject
disabled applicants at an early stage. It is extremely difficult
to prove such discrimination. In any event some disabled applicants
are discouraged by questions from even proceeding with their application.
5.5 Recommendation:
We recommend that the Bill prohibits disability-related enquires
before a job is offered, except in very limited circumstances.
The Royal College of Psychiatrists
February 2004
References
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value of work in psychiatric rehabilitation. Social Psychiatry
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Disability Rights Commission
(2003) Disability Equality: Making it Happen. First Review
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Glozier (1998) The workplace effects
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and Environmental Medicine 40, 783-800.
Labour Force Survey (2000)
National Statistics. London.
Leverton, S., (2002) Monitoring
the Disability Discrimination Act 1995 (Phase 2), London:
Department for Work and Pensions.
Manning, C. & White,
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Meager, N., Doyle, B., Evans, C., Kersley,
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