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
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