Memorandum submitted by Mind
INTRODUCTION
Mind welcomes the opportunity to respond to
the Joint Committee on Human Rights' call for evidence on the
compatibility of the Equality Bill with the UK's human rights
obligations.
Many people with experience of mental distress
are regularly denied their human rights, such as the right not
be discriminated against, the right to a private and family life
or, in extreme cases, the right to liberty. Around 9 out
of 10 people with mental health problems have experienced
stigma and discrimination,[221]
denying them the opportunity to live their lives to the full.
Although equality legislation has strengthened
people's rights to fair and equal treatment in the UK, there remain
significant weaknesses in the protection of people with mental
health problems from discrimination. Moreover, as the Equality
and Human Rights Commission has found, there is a lack of knowledge,
particularly among vulnerable groups, about their rights under
equality law and how to assert them.[222]
Mind therefore welcomes the Equality Bill, as
harmonising equality legislation will make discrimination law
easier to understand, so disabled people know their rights and
duty-holders know their responsibilities. Nevertheless, Mind has
concerns about a number of areas where the Bill appears to be
a regression from the protection disabled people currently enjoy
under the Disability Discrimination Act (DDA) and believes opportunities
have been lost to address gaps or inconsistencies in current legislation.
In this submission we respond to some of the
areas where the JCHR has identified potential issues in relation
to the compatibility of the Equality Bill with the UK's human
rights obligations, particularly those with relevance for people
with mental health problems.
Mind is a member of the Disability Charities
Consortium and the Equality and Diversity Forum. This submission
should be read as complementary to their submissions, which we
fully support.
THE DEFINITION
OF DISABILITY
(Q 4)
Mind was disappointed that the Government did
not take the opportunity presented by the Equality Bill to move
towards a definition of disability based on the social rather
than the medical model.
The current definition of disability seems to
be at odds with the UK's human rights obligations under national
and international law. The Human Rights Act enshrines the right
to live free from discrimination. The UN Convention on the Rights
of the Disabled Person creates a duty on states to prohibit all
discrimination on the basis of disability and guarantee "equal
and effective" legal protection to everyone. Mind believes
the protection afforded to disabled people by the current definition
in the Equality Bill is neither effective nor equal.
The complex definition of disability in the
Bill offers ineffective protection because it requires people
to prove their impairment is severe enough to warrant protection
from discrimination.[223]
This means that the focus of much litigation is on whether the
claimant meets the legal definition of disability, not whether
the motivation for the defendant's behaviour towards the claimant
was discriminatory. Currently one in four cases brought under
the DDA are lost because the claimant did not satisfy the definition
and this is the biggest single cause of failed cases.
A definition based on the medical model therefore
creates uncertainty, meaning often the only way to definitively
determine whether a person is disabled is to go to tribunal, which
can lead to costly and stressful litigation. For example, Mr Kappadia
had long term depression but his case had to go to the Court of
Appeal to determine that he was protected by the DDA.[224]
Mrs Gittins was a nurse who was denied employment because she
had Bulimia Nervosa, but the hospital trust concerned successfully
argued that since her impairment did not constitute a disability
under the DDA she was not legally entitled to challenge their
decision.[225]
In both these cases a social model definition
would have shifted the focus of attention from the severity of
the medical condition to whether discrimination had occurred—and
whether the individual's human rights had been breached. The social
model definition would provide more effective protection for disabled
people from discrimination.
The current definition also fails to offer equal
protection from discrimination, both among disabled people and
compared to other protected characteristics. The medical model
definition effectively creates a hierarchy of disabilities, where
some disabled people are not protected from discrimination, because
their impairment is deemed less significant under the definition.
There is no protection for people with fluctuating conditions,
like depression, or with short term but severe conditions. Mr
Compton had attempted suicide and had his job offer withdrawn
as a result, but was held not to be disabled because he could
not establish that the substantial adverse effects of his depression
were likely to last 12 months or more.[226]
This definition problem is not faced by the
other protected characteristics, where there is no subjectivity
in determining whether someone meets the definitions set out in
the Bill. A social model definition would remove unfair distinctions
between those who are and are not entitled to legal protection.
DISCRIMINATION ARISING
FROM DISABILITY
(QS 11 & 12)
Mind does not believe that clause 14 sufficiently
restores "disability-related discrimination" to the
situation before the Malcolm judgment. In particularly, the knowledge
requirement in 14 (2) is a regressive step back from the
pre-Malcolm situation.
The knowledge requirement places great faith
in the ability of duty-holders to recognise that certain behaviour
is related to a disability, particularly in relation to mental
health. Stigma and misunderstanding surrounding different conditions
is widespread and this can lead to mistaken assumptions about
a person's mental health. For example, the effects of some medication,
such as slurring words which can be a side-effect of anti-psychotic
drugs, may be mistaken for drunkenness. Equally, mental distress
is often invisible, so behaviour is not always easily attributed
to an underlying mental impairment, and stigma leads to many people
choosing not to disclose a mental health condition. Therefore,
the knowledge requirement would limit the scope of the protection
of people with mental health problems under the Bill.
The example given in the Explanatory Notes relating
to a person with a learning disability suggests that people with
hidden disabilities would have to anticipate potential discrimination
in any given situation and disclose their disability at the outset,
in order to be able to subsequently claim discrimination on grounds
of disability. This is entirely inappropriate and impractical,
meaning people with invisible disabilities are almost exempt from
this part of the Bill, which leaves a large group, including people
with most mental health problems, effectively unprotected from
discrimination.
MULTIPLE DISCRIMINATION
(QS 16 & 17)
Mind is concerned that if a provision on multiple
discrimination is confined to two protected characteristics some
individuals may be denied legal protection against unfair and
unequal treatment. People with mental health problems can often
experience discrimination on the basis of a combination of three
grounds.
There is considerable evidence of intersectional
multiple discrimination based on gender, ethnicity and mental
health, with men from certain black and minority ethnic (BME)
groups more likely to experience disproportionately aggressive
and intrusive treatment by the police and by mental health services.
Gay men often experience multiple discrimination on the grounds
of their gender, sexuality and mental health, and the British
Association for Counselling and Psychotherapy (BACP) has identified
negative attitudes towards gay men among some therapists.[227]
Mind does not believe that allowing claims on
two or more grounds would introduce new burdens on those who have
responsibilities under the law. Providing that duty-holders are
complying with good practice in relation to each of the separate
protected characteristics, they should not risk falling foul of
the law on discrimination based on two or more characteristics.
Mind's also believes multiple discrimination
should be extended to indirect discrimination and harassment.
Harassment based on multiple grounds is prevalent and people should
be able to seek legal redress whether they experience harassment
on one ground or several. Moreover, some of the discriminatory
practices faced by people with mental distress relate to the treatment
of an entire group (or sub-group) of people, so indirect discrimination
may be more relevant in those cases. At any rate, it is not always
clear until the full facts are heard whether a case under consideration
is direct (discrimination caused directly) or indirect (discrimination
caused by the imposition of a provision, criterion or practice).
To deny people the option of claiming under indirect discrimination
would be legally impractical and fail to address much of the multiple
discrimination which occurs.
Mind
June 2009
221 Time to Change (2008) Stigma Shout: Service user
and carer experiences of stigma and discrimination. Rethink, Mind
and Mental Health Media. Back
222
EHRC (2009) Human Rights Inquiry: Report of the Equality and Human
Rights Commission Back
223
Claimants must demonstrate that their impairment has a "substantial
adverse effect on day to day activities" as well as that
these effects are long term, that is, have lasted or likely to
last 12 months or for the rest of the claimant's life. Back
224
Kappadia v L B Lambeth 2000 Back
225
Gittins v Oxford Radcliffe NHS Trust EAT/193/99 Back
226
Compton v Bolton Metropolitan Council, Manchester, Case No. 2400819/00 Back
227
King, M., Semlyen J., Killapsy H., Nazareth I., Osborn D. (2007)
A Systematic Review of Research on Counselling and Psychotherapy
for Lesbian, Gay, Bisexual and Transgender People, Report for
the British Association for Counselling and Psychotherapy. Back
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