Further memorandum from Mind (DDB 129)
I write in response to an invitation from the
Committee to reply to the Minister's oral session yesterday. I
would also like to clarify several points in our evidence.
OVERSEAS DEFINITIONS
The Minister acknowledged that the UK definition
was not the broadest definition of disability. However as we stated
in our supplementary written evidence none of all the laws we
can find in nearly 20 countries is as disadvantageous on its face
to people with mental health problems as ours—we list the
laws in our evidence and copies of the texts of the laws we cite
can be produced if required.
Recent case law in USA does indeed narrow the
definition by removing the effects of medical treatment but we
do not believe this has a discriminatory impact as between mental
and physical impairment and so is irrelevant.
Discussions with staff from Ireland, Australia
and USA reinforce our belief that the definition does not cause
any problems in their jurisdictions. In Australia the definition
(on which the laws of several other countries are based) is under
review by the Productivity Commission. We enclose an extract from
that submission.
OTHERS HAVE
PROBLEMS TOO
It is frequently said that "other groups"
have problems with the definition too and we do not discount that
that may be so. But people with mental illness are not a group—any
more than people with physical illness.
However:
(i)
the Task Force Report recommended action on the three
mental health issues we have raised in our evidence—none
has been taken. The other recommendations to amend the law (rather
than the Guidance) have been acted upon.
(ii)
Unfortunately stigma and discrimination on grounds
of mental health are major social issues—as evidenced most
recently by the Government's three year Mind Out for Mental Health
Campaign (2000-02), the Royal College of Psychiatrists' five year
anti-stigma campaign (1999-2003), the Social Exclusion Unit's
consultation on Social Exclusion and Mental Health (2003) and
countless other pieces of work here and overseas. This degree
of discrimination is simply not the case for some of the other
conditions that have been mentioned to us.
It is said that the move to include cancer and
HIV is out of acknowledgement that there is a problem of stigma—so
we look with interest at the numbers of cases involving cancer
and question why the same argument is not accepted when more cases
show that there is a problem with depression.
CASE LAW
Our argument for change is based partly on our
experience as discrimination lawyers, but principally we rely
on some major studies of case law commissioned by Government and
done by the DRC.
Surveys of cases show that mental health is
the biggest source of problems under the definition. These include:
— The two major studies of the working
of Part II and III of the Act through decided cases (Institute
of Employment Studies Meagher Report (1999) and Leverton (2002)).
In the latter, which surveyed all cases between 1996 and 2000,
58% of all cases of physical impairment met the definition and
15.3% of mental impairment met the definition. Put another way,
354 cases of mental impairment failed, 64 succeeded; 229 cases
on physical impairment failed, 252 cases succeeded.
— The DRC case study of all cases on
the definition of disability from Employment Tribunals in 1998-99
which concluded that the main problem with the definition was
for people with mental health problems.
We were interested to hear of the more recent
survey undertaken within the Department of Work and Pensions and
will be pleased if this shows that matters are improving from
the Leverton result. It is only a numerical survey of cases on
mental health so it does not address the specific arguments we
have made. We are aware that another Institute of Employment Studies
Report was due to be published at the end of March 2004 and believe
that will give the most up to date picture. We would urge the
Committee to seek access to that Report.
Discussions with civil servants after the Minister's
evidence reveal one source of misunderstanding—they have
said to us that in reading several of the cases we cite the problem
is usually one of poor medical evidence. We agree entirely—indeed
that is our point as we demonstrate below.
We have studied all the cases on the definition
which involve mental health that we have found. We have been scrupulous
to rely only on cases that seem unfair in the result and have
discounted cases where a person has failed on the definition but
where we believe their case was unlikely to have merit.
"CLINICALLY
WELL RECOGNISED"
One of our arguments against this legal hurdle
is that it is unfair in principle and in practice—particularly
because detailed medical evidence is required in order to overcome
it. The recent case of Morgan v Staffordshire makes
the situation worse, not better. As a legal journal states "it
marks a significant tightening up of the evidential standard for
establishing a mental impairment consisting of a mental illness".
The need to show a precise diagnosis of a clinically well recognised
illness and not rely on general medical notes of a GP adds significantly
to the cost of bringing cases and acts as a major disincentive
to bring a case. We do not see the necessity for this. We would
prefer the US situation where reference to diagnostic manuals
may be used but is not a legal requirement.
In some instances there can be differences of
opinion on the precise diagnosis especially for first episode
depressive/anxiety disorders and this adds further to the cost.
Cost is cited in all reports mentioned above as a problem. As
the contrast between Balfour Beatty and Morgan v
Staffordshire cases demonstrates, this is not the case for
physical impairment.
At the next stage of the case (namely the effect
on day to day activities), medical evidence may or may not be
required—we do not claim there is a particular discrimination
between mental and physical impairment in this regard.
Our use of the Morgan v Staffordshire
case has been criticised. Instead of making the case for the appropriateness
of "clinically well recognised" it shows up the different
way a physical illness is treated compared with a mental illness
and how that has caused injustice.
The Balfour Beatty case concerned a man
with neck pain. The specialist found there was no physical cause
of it. The applicant was however held to have a "physical
impairment" despite his inability to give a diagnosis. He
failed on the next bit of the definition because he could not
show a "substantial adverse effect" (he was filmed doing
physical work and the tribunal clearly did not believe him). In
short, despite the complete lack of merit in his case he passed
the impairment hurdle. Compare this to Morgan v Staffordshire
in which a woman whose illness was sufficiently severe to have
a substantial adverse effect on her day to day activities and
lasted for 12 months failed because she could not show a precise
diagnosis and therefor a "mental impairment". In the
Balfour Beatty case the court said that the impairment
should be decided on a "common sense" basis—but
not, it seems, for a mental impairment.
DEPRESSION
We have asked for depression to be singled out
and to be subject to a short term because:
— It is a clinical fact that it lasts
up to 6 months in most cases and therefore cannot meet the 12
months requirement (ICD 10, NICE, DSM IV).
— Unlike some other conditions is often
not necessarily recurring.
— We have found examples where the
person is clearly disabled but case is lost—the employer
can hide behind the fact of the 12 month threshold.
We have asked for a moderate proposal which
will screen out stress related disorders of lesser severity .
DEPRESSION AS
A RECURRENT
CONDITION
We agree with the Minister that people with
bipolar disorder and schizophrenia are protected by the recurring
conditions provisions but insist that this is not the case for
depression as in many cases there is not an underlying condition
(see our previous evidence).
For major depression: approximately 80% of people
who have received psychiatric care for an episode will have at
least one more episode in their lifetime, with a median of four
episodes. The outcome for those seen in primary care also seems
to be poor, with only about a third remaining well over 11 years
and about 20% having a chronic course [Anderson et al,
2000].
We do not consider that it will be possible
to remedy this situation through Guidance because the language
of the Act itself appears to preclude the effect we want to achieve.
Some language to amend the law to allow for conditions where the
fact of having the impairment's effects once significantly increases
the likelihood of recurrence would be useful.
Rather than create uncertainty we believe that
our changes will bring a degree of certainty.
We hope that these remarks will help make clear
our position.
Rowena Daw
March 2004
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