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Baroness Gardner of Parkes: I should like to make the point that my statement was not linked to the noble Lord's last remarks. I think that we are at cross-purposes. If you are already in a position and an employer sees that you are liable to become disabled in the future, you would be covered by normal industrial law. If you have been in a post for two years, you cannot be dismissed without good reason or for being unable to do the job. In such a case, your inability would be the cause of your disability.

My question was related to first going for employment. There is a point here. There are certain cases, such as nursing very sick people, handling foodstuffs, or risky jobs in which someone might cut their hand and someone else become infected from the blood when an HIV test might be necessary and desirable with appropriate counselling in advance. Texaco, for example, ask that as a routine question and insists that everyone takes an HIV test. That is the point that I was bringing to the Minister's attention for his consideration in the future.

Lord Mackay of Ardbrecknish: I did understand the point that my noble friend made to me about HIV. Another noble Lord accompanied a delegation to me on this issue. That was one of the points raised.

I return to the remarks of the noble Lord, Lord Monkswell. I suspect that he has fallen into the trap that I thought somebody might fall into. The previous series of amendments, which I was not prepared to accept, were about perception. This amendment is about disability. The disability may have been cured, it may have abated, or whatever. It may no longer affect the person. On that day,

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or in that week, they may not fall within the definition of the Bill. But they would clearly have fallen within that definition in the past, and would have had the protection of the Bill in the past. That is what this amendment is about. It is not about perception. It is about a real disability that somebody has had in the past. Therefore, much as I admire the noble Lord's neat attempt to tie me backwards, if I may put it that way, from this amendment that I am proposing, to the last one, which I rejected, I do not believe that the link suggested by the noble Lord exists.

On Question, amendment agreed to.

4.15 p.m.

Schedule 1 [Provisions Supplementing Section 1]:

Lord Carter moved Amendment No. 4:

Page 28, line 6, leave out from ("mental") to end of line and insert ("disorder").

The noble Lord said: In moving this amendment, I shall also speak to Amendment No. 5 to Schedule 1. Before I do so, perhaps I may make a general point which affects this amendment and perhaps others that we shall consider. Listening to discussion on the previous amendments, I wondered whether we were discussing a disability and discrimination in employment Bill. We should remember that the Bill is about employment, access, goods and services and premises. Virtually all the discussion on previous amendments related to the concerns of employers. But there are other areas of interest that we should consider.

The purpose of these two amendments is to deal with paragraph 1(1) in Schedule 1. The paragraph states:

    "'Mental impairment' includes an impairment resulting from or consisting of a mental illness only if it is a clinically well-recognised illness".

The aim is to ensure that mental disorder is included within the term "mental impairment" for the purposes of this Bill. As the Bill is drafted, people suffering from mental illness are required to comply with an extra condition before they can seek the protection of legislation. As I just read out, a mental impairment must include a mental illness only if it is "a clinically well-recognised illness". The term "clinically well-recognised illness" is not further defined. We are advised that that is likely to cause lengthy legal and medical arguments as to whether the person seeking to enforce the right is suffering from a clinically well-recognised illness.

Amendment No. 5 refers to the fact that the term does not even relate to the powers of compulsory detention. Under the Mental Health Act 1983, a person can in certain circumstances be detained on the grounds of his or her mental disorder. It is often referred to as being sectioned.

The definition of "mental disorder" is extremely wide. It includes mental illness and also any other disorder or disability of the mind. However, under the Mental Health Act 1983 there is no requirement that the person detained must be suffering from a clinically well-recognised illness. That means that a person could be detained in hospital against his or her wishes and still not fall within the definition of mental impairment.

We are advised that inclusion of the term "mental disorder" in "mental impairment" will help to avoid such inconsistencies. It would also introduce a workable term,

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one with which legal and medical practitioners are familiar. "Mental disorder" is not the most acceptable of terms. It is certainly not ideal, but it is a term that is well-recognised. I have had to deal with it before in relation to other Bills.

When this subject was discussed in the other place, the Minister for disabled people, Mr. William Hague, argued against such an amendment on the following basis. He stated:

    "We are clear also that there is no function in the Bill to cover moods or mild eccentricities and to say that they constitute a disability".

That seems to me to be a fairly curious statement. He continued:

    "Nor do we want to open up the possibility of claims which are based on obscure conditions unrecognised by reputable clinicians, which courts and tribunals would find extremely hard to assess".

That seems to me to be a complete failure on the part of the Minister concerned to understand the nature of a mental illness.

That response confuses the term "mental impairment" with the definition of disability. My amendment seeks to ensure that mental impairment includes the conditions which fall within the term "mental disorder". However, it is important to realise that that is only part of the definition of disability. As drafted in the Bill, the definition of disability requires that mental impairment has:

    "a substantial and long-term adverse effect on [a person's] ability to carry out normal day-to-day activities".

A person who suffers from a mental disorder but does not meet all those criteria would not be considered disabled for the purposes of the Bill.

Let me return to the quotation from the Minister for disabled people. I find it hard to understand, in a Bill which the Government have produced, that the Minister with responsibility for disabled people should feel that "moods or mild eccentricities" would have:

    "a substantial and long-term adverse effect on [a person's] ability to carry out normal day-to-day activities".

The Government have argued that the reason for imposing that additional condition is because mental illness has a much greater scope for doubt than other mental or physical impairments. I hope the Minister can explain why the Government consider that mental illness is likely to cause more difficulty than any other impairment. As I said, in order to fall within the definition of disability, the impairment has to fulfil certain other stringent criteria.

We feel that the requirement that mental illness has to be clinically well recognised is an unwarranted additional hurdle which will create confusion and uncertainty. For example, the definition proposed in the Bill does not include certain groups of people with learning difficulties, those with personality disorders or those who have suffered some brain damage. As I said, in relation to mental illnesses, only those which are clinically well recognised will be included.

We are advised that there are a number of mental disabilities which are not specifically covered by recognised diagnoses. It is widely established that psychiatric assessment and diagnosis reflect an imprecise science and can vary considerably between different clinicians. Also, the Government's definition fails to

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specify the required qualifications of the clinicians who may be called upon to say whether or not an illness is clinically well recognised.

There were discussions at Second Reading and on previous amendments about the inappropriateness of relying on a medical model within which there are considerable differences of opinion to establish a legal definition. The Government's definition will cause considerable uncertainty which can only be removed, we feel, through litigation to clarify its meaning. As I said, the proposed amendment makes use of the statutory definition of mental disorder, which is already well established.

The definition of disability must not only be clear but flexible to take account of the differing conditions which cause disability and their variable effects on individual disabled people. Some amendment through regulation will be necessary in the course of time to reflect the medical achievements and changing social conditions; the regulations as laid down in the Bill should not be used to exclude the broad categories of disabled people or people with disabling illnesses.

The amendments that we propose may not be perfect. However, this is Committee stage. I hope that the Minister will accept that they are a genuine attempt to help to solve a problem which I know concerns many people in both the mental health area and the legal profession outside this Chamber. I beg to move.

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