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Lord Carter: My Lords, I listened carefully to the arguments produced on this by my noble friend the Minister in Committee. All of us can agree from our experience that we have known people who have had what I would describe as a minor incident, usually skin cancer, which has been dealt with by one visit to hospital and that is the end of it. As I am sure your
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Lordships know, Members of this House have had that experience, and they would not regard themselves as disabled.
I tried to produce an amendment to deal with this, saying that if the Government intend to introduce such regulation to prescribe certain sorts of cancers, they should be absolutely certain that this would not lead to discrimination. From the explanation that I received from my noble friend, and in a letter that I think was circulated, it was clear that I had drawn the amendment much too tightly, so it would have led to all sorts of judicial review and so on. I might have used a phrase about the Government prescribing, having had a reasonable expectation on the basis of the evidence before them after consultation.
4.30 p.m.
As I understand it, the intention is not to deal with discrimination against people with cancers that do not require substantial treatment. However, the Government have not seen evidence that such discrimination is occurring. We have all received evidence, although I cannot remember it coming from anyone except Macmillan Cancer Relief. There is clearly some difference between the evidence that the Government have seen and the experiences suggested in the House.
Because of the February break, we have three weeks between Report and Third Reading, which is very unusual. Before Third Reading, would it be sensible for the Government to get together with the relevant bodies—the DRC, the Marie Curie Research Foundation, Macmillan and so on—to review the evidence that those organisations have? Then we could consider at Third Reading the process of consultation, the way the regulations—if they are used—would be drafted, and whether there is any way to approach the matter from the angle that I adopted previously, which was whether the Government were reasonably satisfied on the evidence before them that the prescription would not produce discrimination.
I am not clear that the regulations will be affirmative or negative. If they were affirmative—if we had the chance to discuss them—that would be helpful. I shall be interested to hear what my noble friend says.
Lord Walton of Detchant: My Lords, at first sight, new sub-paragraph (2) looks entirely reasonable, because it is perfectly clear that certain people with minor forms of skin cancer cannot be regarded as being disabled, in the normal course of events and in everyday parlance. Where exactly would the Government draw the line? What kind of prescription would they introduce? There are cancers, such as the basal cell carcinoma of the skin often referred to as a rodent ulcer, which are not life-threatening and do not metastasise. However, in my professional career, I have seen such rodent ulcers—neglected because the patients did not seek advice—eroding the skull and tissues to such an extent as to constitute a very significant disability.
If one is to talk about skin cancer, what about melanomas? As noble Lords know, malignant melanoma is often a progressive and fatal disease. My
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concern about the clause is how on earth the exclusions could be properly prescribed so as not to be discriminatory.
Lord Oakeshott of Seagrove Bay: My Lords, moved by the previous two speeches, I want briefly to declare an interest—I hope that it is not a stigma. I have had rodent ulcers. I have been over to St Thomas' a couple of times and am assured that there is no further problem; indeed, my father had them for some time. That does not feel like a disability. I certainly do not feel in any way discriminated against or likely to be so.
In the spirit of what was said by the noble Lord, Lord Carter, I wonder whether it is possible for the Government to consult and think further to see whether a line can be drawn. I feel uncomfortable about pressing any particularly strong point of view, to be honest; I am merely speaking from my personal experience.
Baroness Darcy de Knayth: My Lords, I put my name to the amendment and would like to support it strongly. I very much back up what was said by the noble Lord, Lord Carter. I hope that the Minister will have time to consult. If not—at the very least—I hope that she will give a very firm assurance in Hansard that the Government will not bring in the measure until they have consulted the DRC, Macmillan Cancer Relief and others.
Baroness Howe of Idlicote: My Lords, I shall be very brief. Having listened to the debates in Grand Committee and today, I am convinced that there must be some changes. To have certain cancers excluded cannot be right, given that we are very much talking about perceptions. They are either all in or all out. I hope that the noble Baroness will be able to take note of what has been said, by an arrangement to bring forward something acceptable at Third Reading or by agreeing to the amendment.
Baroness Hollis of Heigham: My Lords, most of us speaking today acknowledge that this is an uncomfortable area, to use the words of the noble Lord, Lord Oakeshott, because most of us have experience within our family and friends of a range of cancers, and know that we can no more group them together than a range of orthopaedic illnesses or problems. They are very different in terms of the effect—and the disabling effect—on the individual. That is why we are dealing with what is rightly a highly sensitive issue.
I want noble Lords to consider for a moment the policy and the implications of changing it. The policy was developed in response to the recommendation of the Disability Rights Task Force in 1999, which found little evidence of discrimination against those people with a cancer likely to require minor treatment. At paragraph 11 of its report, it stated:
"We saw little evidence, however, that there was discrimination against those with, say, benign tumours requiring no treatment or some skin cancers which might require minor treatment. We therefore felt that deeming everyone with cancer, irrespective of whether significant treatment was required or not, as disabled would not be publicly acceptable".
That was the Disability Rights Task Force's advice to the Government, partly on the basis of which we framed the policy that we have. We should take its remarks extremely seriously. In all honesty, since that report, I have not seen evidence to suggest any change in its view—not the Government's view—on cancers requiring minor treatment attracting discrimination in the same way as cancers that require substantial treatment, either in employment or among service providers such as the insurance industry. If we had evidence of systematic discrimination, we would be concerned.
There are 20 or so cancer charities, all of which—including Macmillan Cancer Relief—were sent on 19 December a copy of the Government's consultation document, asking for their views. The consultation period does not end until some time in March, so there is still plenty of time to respond, but 19 of the charities have not sought to respond on the issue at all. Macmillan—it says that it did not receive the document, which I do not understand, as it was sent out with the others—is the only one that has.
I shall pick up the point made by the noble Lord, Lord Walton of Detchant. There is no hidden agenda. Paragraph 4.10 of the consultation document on the Bill lists the most common cancers that are considered not normally to require substantial treatment. Some were mentioned by the noble Lord, Lord Skelmersdale. They are basal cell carcinomas—rodent ulcers, as they are often called—most squamous cell carcinomas of the skin, Bowen's disease, in situ skin cancers that do not affect the full skin thickness and can be treated easily and simply, and in situ cancer of the cervix uteri that it is likely can be treated successfully and fully by cone biopsy.
"The Government recognises, however, that it could be unfair to exclude a person with one of these cancers which does not normally require substantial treatment from protection under clause 17, if he or she was, exceptionally, considered to require substantial treatment".
In other words, the point made by the noble Lord—which I hope was well taken by me—that a person may come late to diagnosis and the condition continues, or that exceptionally the condition may develop into something more serious, is explicitly covered by the consultation document to the Disability Discrimination Bill, and the list of those cancers that we propose should be excluded is based on the steer of the Disability Rights Task Force report.
The implications have changed. The task force considered whether people with any type of cancer should be covered from the diagnosis, and concluded that they should not because it wanted to protect the integrity of the definition of "disability" in the Act. This is not about trying to catch as many people as possible, but about ensuring that disabled people properly enjoy civil rights that have been improperly denied them for too long.
I defer absolutely to the medical expertise of the noble Lord, who I am sure will intervene if I am incorrect. I understand that a person who is diagnosed with a basal
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cell carcinoma faces the inconvenience of a visit to the outpatients department, but it is a simple procedure to remove the cancer and that would normally be the end of it. Are we seriously contemplating that such a person is disabled and should continue to be treated by the DDA as such for life? I do not think that that is right. I acknowledge that some people will be frightened and may assume the worst when they are diagnosed with cancer. It may be generational: older people still talk about the big C in ways that younger people do not. Sometimes that fear is justified, but at other times it is not.
We do not accept that a person who has a cancer requiring minor treatment would consider themselves to have a long-term disability. We have had no evidence that employers, service providers or the general public would accept it as disability. That goes for cancer that can be quickly treated and eliminated as much as for other short-term physical or mental conditions.
How can we promote a wider understanding of disability and of the discrimination that it attracts, and address it in civil rights language if we deem all people who have ever had treatment for a cancer, such as squamous cell carcinomas, or a rodent ulcer that has been easily and completely eliminated, to be disabled?
We all have experience of cancer, whether personally or among members of our family or friends. Someone in my family died of cancer. Another close friend had a minor skin complaint—a cell carcinoma—for which she effectively had lunch-time treatment. The first would have been amused and the second would have been rather shocked, but both would have been astonished if they were treated in the same way as coming within the framework of the DDA. I continue to believe that our approach is the right one.
I turn to the questions raised by my noble friend Lord Carter, and rightly pressed by the noble Baroness, Lady Darcy de Knayth. We are currently consulting on whether we have got the list of excluded cancers right and what should be covered by the term "substantial treatment".
At this stage it might be helpful if I were to clarify—I am sorry for any misunderstanding—that malignant melanomas are distinct, dangerous, difficult to remove, and require precautionary monitoring lest they recur and further treatment is required. That means that they are always likely to require substantial treatment, and will always come within the framework of the DDA.
We shall consider carefully the evidence that we receive in response to this consultation which closes on 18 March this year. Your Lordships have concerns, and, as you know, I do my best to try to meet those concerns. Following the remarks of my noble friend and the noble Baroness, Lady Darcy de Knayth, I want to give the House an undertaking that we will not exercise the regulation-making power to exclude any cancer from the extended definition of disability provided for by Clause 17(3) of the Bill until we have reviewed what evidence may be available about discriminatory behaviour towards people with those
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cancers. Of course, all relevant bodies, including the Disability Rights Commission, Macmillan, and so on, will be embraced in that consultation exercise.
4.45 p.m.
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