Memorandum submitted by the Royal College
of Psychiatrists
The Royal College of Psychiatrists wishes to
respond to several questions raised in the inquiry.
1. Did the government consider defining disability
according to a social rather than medical model, which would be
in line with what is increasingly recognized as international
best practice?
1. The Royal College of Psychiatrists strongly
supports the social model of disability and the change to the
definition of disability that this would involve. The commonly
held model of illness, (also called the medical model), emphasises
the episodic nature of disorders, which is less appropriate in
the present context than a model emphasising the enduring problems
associated with some mental illness.
2. As Dr Boardman has put it "The 'illness
model' assumes that an episode occurs for which treatment is available
and a cure achieved. Such a model may be useful when applied to
acute mental illness, especially in the context of acute in-patient
services or for many of the problems seen by mental health services".
In contrast, disabled people cannot [necessarily] expect a "cure",
but can adapt to changed circumstances and can increasingly expect
adjustments in the world around them to enable them to participate.
In this sense, "disability", unlike "illness",
brings into focus the need to remove barriers in social attitudes,
practices, policies and the built environment.
3. Therefore this "social model of
disability" offers a more helpful conceptual basis for understanding
and promoting employment opportunities for people who use mental
health services and offers more hope of recovery of social roles.
It better captures the experience of discrimination and exclusion
central to the lives of many mental health service users and addresses
the barriers to employment. It is consistent with the views of
users and people with disabilities and it assists in achieving
dialogue with employers.i
As Thornicroft has put it "Framing the
wider social problems associated with having a mental health problem
as disabilities, not only highlights many of their own experiences,
but also has the advantage that the individuals with these problems
have rights to particular benefits rather than considered as the
'worthy poor' to receive discriminatory charity"ii
DISCRIMINATION
4. For people with mental health problems
it is the prejudice and misinformation which is the main barrier
to their social inclusion, to employment prospects and to their
access to such social essentials as housing and leisure activities.
Common myths around mental illness are that mental illness is
self-inflicted, that it is dangerous, that people with mental
health problems are out of control and that mental illness is
not something from which a patient can recover, that it is a life
sentence. On the contrary as many as two thirds of those who experience
mental illness have a complete or partial recovery to the extent
that they can actively participate in economic and social life.
The myths, perpetuated to an extent by sections of the media,
continue to feed prejudice and limit the opportunities of people
with a current or previous mental health condition.
EVIDENCE OF
CASE LAW
5. Surveys of cases have shown that mental
health is the biggest source of problems under the definition
of disability in the DDA. These include two major studies of the
working of Part II and III of the Act through decided casesiii
In the latter, which surveyed all cases between 1996 and
2000, 58 per cent of all cases of physical impairment met
the definition and 15.3 per cent 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.
6. The Disability Rights Commission also
did a 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.
DEPRESSION
7. The problem with the medical model is
aptly illustrated with reference to depression. Under Schedule
1 paragraph 2 of the Equality Bill the "impairment"
must have "a substantial and long-term adverse effect on
his ability to carry out normal day-to-day activities." Long
term is defined to be a past period of at least twelve months
or likelihood that the period that an impairment will have substantial
effects will be 12 months. These provisions cause real problems
for people with depression. Depression is typically severe though
relatively short-lived As NICE reports in its 2007 Guidance
on Management of Depression, "depression is usually a time
limited disorder lasting up to six months"iv.
8. Despite the relatively short period of
dysfunction, discrimination against the person with depression
is commonplacev Furthermore, once there is a medical record of
having had depression in the past; however distant or short-lived,
discrimination is common. This is particularly so in insurance
and entry into training or occupations. Mind has reported that
they regularly have to advise employees who have been dismissed
because of a "nervous breakdown" but who are well enough
to return to work after several months, that they probably have
no protectionvi. Reports from the Employment Tribunals also show
this to be a consistent problemvii as did cases collected by the
Disability Rights Commission in 2004.
"One recent example concerned a man where
the tribunal actually were trying to work out if they could tot
up the 12 months because, a classic situation, this man had
had an episode of depression, had been in perfectly satisfactory
employment for many years, went through a period of depression,
was off work sick …He satisfied every aspect of the
definition except the fact that, within about five months, he
started to recover… So, by about six months, he was keen
to get back to work and, by about nine months, he was probably
ready to be back to work—he was still on medication—but
he had been dismissed because he had depression"viii.
9. In addition, those experiencing depression
may not seek medical advice at the point at which their symptoms
first manifest. This may be due to fear of stigma and/or of the
treatment they may be prescribed. This means that whilst applicants
to an ET may well have been depressed for the requisite period,
there will be no medical record to establish this.
10. In 2004 the College gave evidence
to the Joint Scrutiny Committee on the draft Disability Discrimination
Billix. The Committee recommended that the definition of disability
be changed in order to accommodate this problem. The House of
Lords later passed an amendment to a similar effectx but this
was not accepted by the government who decided that the issue
of the social model of disability needed to await another day.
RECURRENT CONDITIONS
AND DEPRESSION
11. Depressive illnesses also have a strong
tendency to reoccur. At least 50 per cent of people following
their first episode of major depression will go on to have at
least one more episodexi with those experiencing their first episode
of depression before the age of 20 being particularly susceptible
to relapse.
12. Under Schedule 1 of the Equality
Bill if the "substantial adverse effect" of an impairment
has not lasted for 12 months but is likely to recur, the
person will also be covered. The aim of this provision is to cover
impairments whose effect on day-to-day activities fluctuates.
However case law has shown that this provision is not effective
in the case of depression. There are differences of view within
the medical profession as to whether (and when) episodes of depression
are manifestations of an underlying condition and when they are
discrete episodes.
13. As NICE Guidelines 2007 state "Our
understanding of the aitiology and underlying mechanisms of depression
remain putative and lacking in specificity"xii As a result
experts often disagree in court on the issues. Furthermore, doctors
often, understandably, feel reluctant to testify that a person
with a first episode is likely to have a recurrence.
T first suffered from depression in 1993 and
then again in 1996. He was treated with medication and counselling
until 1998. He was then employed from April to July 1999, at which
time he was told his employment would be terminated at the end
of his probationary period. On dismissal T experienced episode
of depression. Yet T was not covered by the DDA because in intervening
periods the applicant did not suffer any substantial, adverse
effect on day-to-day activities at the time of the applicant's
employment and at the date of the hearing the applicant was free
of any substantial adverse effectsxiii.
14. OTHER QUESTIONS
ON DISABILITY
Why is discrimination on the basis of association
and perception not explicitly prohibited on the face of the bill,
in order to provide greater clarity for employers and service
providers?
Was consideration given to including carer status
as a protected characteristic, or to giving carers a legal right
to seek reasonable accommodation? If so, why was it rejected?
The College is disappointed that the crucial
role of carers in providing support for disabled people is not
expressly covered in the Bill. The role of carers is central to
the wellbeing of service users with mental illness, especially
at times of crisis. They can play a crucial role in their recovery
and as part of a "reasonable adjustment" give ongoing
support to a person who is in the workforce. The stigma of mental
illness can be readily attached to them as to the service user.
They need to be assured that their status is protected.
REFERENCES
i Advances in Psychiatric Treatment (2003) 9:
327-334 Work, employment and psychiatric disability (Jed
Boardman)
ii Thornicroft G (2006) "Shunned" (Oxford
University Press, Oxford)
iii Institute of Employment Studies, Meagher
Report (1999) and Leverton (2002)
iv Clinical Guideline 23 10 May 2007,
Depression, full guideline, p. 15 In addition, several studies
have supported the observation that, no matter what the triggering
event for depression, the duration in a majority of cases is likely
to be around six monthsiv. [Evidence discussed in Hammen Depression
(1998) Psychology Press PP30-31]
v Glozier found that where two job applications,
one disclosing a diagnosis of diabetes the other one of depression,
were submitted to 200 personnel managers, the "applicant"
with depression had significantly reduced chances of employment.
Glozier N (1998) "the workplace effects of stigmatization
of depression" journal of occupational and environmental
medicine 40, 783-800 Manning and White found systematic discrimination
by employers against those with mental health problems: Manning
C & White P (1995) "attitudes of employers to the mentally
ill" Psychiatric Bulletin 19, 541-3]
vi Evidence to the Joint Committee on the Draft
Disability Discrimination Bill , Evidence 119
vii For example see Chaudhery v London Borough
of Newham EAT/237/02/ILB]
viii Rowena Daw , Joint Committee on the Draft
Disability Discrimination Bill, Tuesday 30 March 2004
ix Joint Committee on the Draft Disability Discrimination
Bill, Tuesday 30 March 2004
x HL Deb 08 February 2005 vol 669 cc665-92
xi (Kupfer, 1991 30) Long-term treatment
of depression. Journal of clinical psychiatry, 52 (suppl.5),
28-34. DF Giles, RB Jarrett, MM Biggs, DS Guizick and AJ Rush
Department of Psychiatry, University of Texas Southwestern medical
center, Dallas. Americal journal of Psychiatry 1989; 146: 764-767.
xii NICE, Guidelines on Management of Depression,
December 2007 p. 19
xiii Taylor v Sunterra Europe ltd unreported,
DRC Survey 2004
June 2009
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