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Disability Discrimination (Amendment) Bill [HL]
8.28 p.m.
Lord Ashley of Stoke : My Lords, I beg to move that the House do now resolve itself into Committee on the Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Ashley of Stoke.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Dean of Harptree) in the Chair.]
Clause 1 [Persons deemed to be disabled]:
Lord Bragg moved Amendment No. 1:
- Page 1, line 5, at end insert "—
The noble Lord said: This amendment stands also in the names of the noble Lord, Lord Morris of Manchester, and the noble Baronesses, Lady Wilkins and Lady Darcy de Knayth. In moving the amendment, I shall speak also to Amendments Nos. 2 and 3.
The purpose of the amendment is to remove any unnecessary qualification from the definition of disability: that any mental impairment relied on to meet the definition must be "clinically well recognised".
The requirement is discriminatory. It reinforces a widely held, but erroneous, view that mental impairments are of an entirely different category to physical impairments. A disabled person who has been partially paralysed by polio does not have to prove that polio is a "clinically well-recognised" impairment. It imposes an extra legal hurdle on people with mental health problems that is not applied to those with physical impairments, which may be difficult to overcome because of medical disagreements.
Preoccupation with correct labelling distracts the court from the real issue: has this person an impairment which substantially limits normal day-to-day activities? The court may tend to feel that if this cannot be diagnosed, it cannot be serious. However, the NHS recently asserted the 40 to 60 per cent of medical symptoms cannot be explained medically, and of the 10 most commonly presented symptoms in general practice, only 15 per cent will have a clearly attributed physical cause after one year.
Secondly, despite a move towards court-appointed medical advisers, there is the problem of the cost of medical reports—which affects many disabled applicants. For people with mental health difficulties, the burden of producing expensive medical reports—for which applicants may have to pay £2,000 or more—already screens out many meritorious applications and contributes to making the legal process extremely intimidating.
I entirely support the notion that tribunals may need to be assisted in interpreting a "mental impairment", but the better approach is to reserve this for statutory guidance, with reference to expert material where appropriate. Adopting a diagnostic approach would stop the present position whereby, in the absence of medical reports, lawyers may be forced to act as doctors and to argue whether a particular set of symptoms was a "clinically well-recognised illness". Instead, they would have a legal duty to follow the guidance and turn to the World Health Organisation Classification of Diseases where there was any uncertainty.
I turn to Amendment No. 2. Its purpose is to give people with short-term but severe depression the protection of the DDA through broadening the definition of "disability".
To qualify as disabled for the purposes of the DDA, the claimant must have an "impairment" with,
While some people with depression have a recurrent condition and gain the protection of the Act, others find that they fall outside it because the depression has not lasted 12 months; or because, although it has lasted 12 months, its effect on normal day-to-day activities
One person in 20 will suffer some level of depression at some time in their life, but it is still not fully understood. The problem of "short-term" depression may often fall into the category known to lay people as a "nervous breakdown". It is characterised by a chemical imbalance in the brain, which in some cases can be accentuated by life events (as in post-natal depression). This type of depression can often react quite quickly to medical treatment, perhaps in two or three months; corrective medication can thus result in a smooth and expeditious return to work. It is estimated that 20 per cent of people who have a first episode of manic depression do not get another; over 30 per cent of those with depression have no further episodes. These people would not, therefore, be covered by the provision in the definition for recurrent conditions.
The reasons for disability discrimination legislation to cover people with short-term depression are: first, discrimination against them is commonplace; and, secondly, proof that will bring them within either the 12 months or the recurrent conditions rules is particularly difficult.
If a person suffers any impairment such as a stroke or a heart attack for a short term, and apparently recovers to full health, he or she is much less likely to suffer discrimination than the person with a period of mental illness on his or her record.
There is a precedent for a pragmatic approach to the definition. The Government have accepted the task force recommendation to amend the definition so as to include cancer and asymptomatic HIV because there is evidence that people with these conditions face stigma and discrimination. They should be similarly concerned for the discrimination faced by people with mental problems.
Reports from the employment tribunals also show this to be a consistent problem. In one recent case the applicant took five months' sick leave for depression and was on medication for over a year, but the tribunal was still not satisfied that,
If the substantial adverse effect has not lasted for 12 months but is likely to recur, the person will also be covered. The aim of this provision was to cover impairments whose effect on day-to-day activities fluctuate. For instance, with epilepsy or multiple sclerosis the underlying condition remains but the adverse effects are variable. When the Disability Discrimination Bill was before this House in 1995, the noble Baroness, Lady Hollis, welcomed the provision for recurrent conditions because it would cover illnesses such as depression. However, that may have been too sanguine a hope, as recent cases demonstrate.
In singling out a specific aspect of mental health for this amendment, there is no intention to make a special plea for one disability over another; the intention is to highlight and to target a serious and well-documented problem.
I turn finally to Amendment No. 3. The purpose of the amendment is to improve the coverage of mental health conditions within the definition of disability by including activities which are most likely to be severely affected for people with eating disorders, depression, anxiety disorders and schizophrenia.
Discrimination against people with mental health problems, in employment, in access to goods and services and in access to education, sadly, remains endemic in our society. However, several aspects of mental ill-health do not fit well into the DDA category of "day-to-day activities" and people can discover that they are denied the protection of the Act when on a commonsense view they should be covered.
The list of day-to-day activities was framed with physical impairments in mind and contains six physical activities and only two mental ones. The list of activities specifies speech; hearing; eyesight; continence; ability to lift, carry or otherwise move everyday objects; mobility; manual dexterity; physical co-ordination and continence; memory; ability to concentrate, learn or understand; and perception of the risk of danger.
The most relevant activities for people with mental health problems are "memory or ability to concentrate". This is amplified in guidance issued under the Act which states:
During the passage of the DDA through Parliament in 1995, the view that the list of day-to-day activities was too narrow was raised in this House. Lord Mackay of Ardbrecknish, for the government, explained that there should be no problem for this group because no doubt their speech and mobility would be affected by their impairment if not their ability to concentrate. However, the problem is that one of these activities must be substantially affected and this might not be so, as has been amply demonstrated in cases involving schizophrenia.
The essence of that condition lies in the disordered perception of reality rather than inability to concentrate. The case leaves the legal status of schizophrenia as a disability profoundly doubtful. At least 250,000 people have been diagnosed as having schizophrenia—that is a large number of people who potentially face serious levels of discrimination in our society and may find it difficult to prove that they are covered.
Another category of cases involves people who suffer from anorexia nervosa or other eating disorders. It is both their ability to care for themselves and their perception of reality that is disordered, rather than an inability to concentrate or learn.
While "failure to perceive danger" is covered under Schedule 1(4)(1)(h), it is often tragically the case that people with severe mental health disorders are only too aware of the physical dangers to which they expose themselves; they do so to cause themselves harm or in
Likewise, depression does not necessarily fit into the list of day-to-day activities. People who have a severe depressive condition may exhibit a variety of symptoms. Disruption to normal sleep patterns, withdrawal from social life, loss of appetite, intermittent panic attacks, and a persistent pattern of self-harming may all be characteristic of a diagnosis of severe depression. None of these is satisfactorily encapsulated in normal day-to-day activities.
It might be possible to overcome the problems I have outlined through another form of words. It might also be possible for the Act to be amended by regulations. However, the best solution to end the bias in the definition against people with a mental health impairment would be the amendment proposed. Perhaps I may add that the Disability Rights Commission shares my concern in this area.
Finally, are the Government aware of the strength of concern indicated by these amendments? Will the Minister tell the Committee what they intend to do? I beg to move.
( ) in paragraph 1(1) omit "only if the illness is a clinically well-recognised illness","
"long-term adverse effect on normal day to day activities".
"Long-term" is defined to be a past period of at least 12 months or the likelihood that the period will be 12 months.
"the effect of the applicant's impairment had a long term effect as it had not lasted at least 12 [consecutive] months".
"Account should be taken of the person's ability to remember, organise her thoughts, plan a course of action and carry it out, take in new knowledge or understand spoken or written instructions".
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