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Lord Carter: I can confirm that the noble Lord has not changed his mind. In meetings to discuss these amendments he made it clear that this was a probing amendment and that he had no intention of arguing that the subsection should be removed. The problem is that the Bill team has to prepare a speaking note on the basis that it will be argued that the subsection should be left out. That is the difficulty.
Baroness Hollis of Heigham: As is, this amendment seeks to do the opposite of what the noble Lord says. Obviously, I am briefed to respond to what the noble Lord's amendment does, as opposed to what he said. In this case, I can respond very quickly. As my noble friend Lord Carter has made clear, and as is accepted, our concern is to remove a label that had little practical effect but was assumed to carry more than it did. What matters is whether the impairment, whatever its label, has a substantial and adverse effect on daily living.
The test for us, therefore, is not whether we can label the impairment but its impact on everyday life. That is why these words, despite the original fears associated with them, are redundant and why what matters is the test of the effect on life. That allows me to answer to answer the noble Lord's particular questions. There is no question about Parkinson's disease; it is covered by the DDA where the effects tend to loss of mobility and dexterity. Schizophrenia
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was covered in Goodwin v The Patent Office in October 1998. That is covered by the DDA. Like the noble Lord, I very much enjoyed Mark Haddon's book. Again, cases of Asperger's syndrome are not ambiguous: the Hewett v Motorola case of 2004 established that a person with Asperger's syndrome was covered by the DDA. In all those cases the impairment has a substantial and adverse effect on daily living. Therefore, they are covered by the DDA.
I could go on much longer to talk about types of mental impairment and so on, but I am not sure that I need to. That may give the noble Lord the assurances that he seeks. We are looking at where the impairment so affects someone's living situation that, in the same way as if they had a substantial physical disability, they should come within the protection of the DDA.
Lord Morris of Manchester: The noble Lord, Lord Skelmersdale, has made it clear that this is a probing amendment. It has, however, provided the opportunity to recall that it was in this policy area that, in the view of the Disability Rights Commission, there was brought one of the most positive of the Government's changes to the Bill by removing the provision that a mental illness be,
I am sure it would unthinkable for all of us for any suggestion to be made of a return to that wording. Quite clearly that was not the intention of the noble Lord, Lord Skelmersdale.
Lord Skelmersdale: Support from the Labour Party has been deafening this afternoon, has it not? Suddenly, it has erupted. Should I ever decide to join that great party, I wonder whether the noble Lord, Lord Ashley, would write my election address for me.
As I said, and as was appreciated by both those noble Lords, this was a purely probing amendment, which the noble Lord, Lord Carter, confirmed. I asked about Parkinson's disease, schizophrenia and Asperger's syndrome, to all of which I have received very satisfactory answers, and I am grateful. So I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter moved Amendment No. 74:
"( ) In paragraph 2, after sub-paragraph (1)(c), there is inserted—
"(d) in the case of the impairment consisting of or resulting from depression, it has lasted or is likely to be at least a total of 6 months over a two year period.""
The noble Lord said: This is not a probing amendment. It repeats, as an amendment to the Bill, a recommendation of the Joint Committee, which was that,
"people experiencing separate periods of depression totalling six months over a two-year period should be considered to meet the 'long-term' requirement".
The Government did not accept that recommendation on the grounds that, under the DDA, someone would not normally meet the definition of "disability" unless
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any substantial effect of their impairment lasted, or was likely to last, for 12 months. Therefore, disability is normally accepted as being a condition that is permanent or long term.
To qualify as disabled for the purposes of the DDA, the claimant must have an impairment with a long-term adverse effect on normal day-to-day activities. "Long term" is defined to last for a past period of at least 12 months or there must be a likelihood that the period will be 12 months.
Recurrent conditions are also covered if the "substantial adverse effect" of an impairment has not lasted for 12 months but is likely to recur. The aim of this provision was to cover impairments whose effect on day-to-day activities fluctuates. However, case law has shown that the 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. As a result, experts often disagree in court on the issues.
I was helped in the drafting of this amendment by some notes that I received from the noble Baroness, Lady Murphy, who is a consultant psychiatrist. She is not able to be here today, but I shall draw on her notes in what I am going to say.
The requirement that a mental impairment has a substantial long-term effect on day-to-day activities can exclude some severe episodes of depression where the impairment is profound for short, and typically recurrent, episodes over a two to three-year period and the stigma resulting from those episodes can lead to major discrimination in the workplace. Typically, an individual who suffers an episode of hypomania or psychotic depression—the whole lasting for about four to six months—is then held back unreasonably in his or her career for many years after recovery and has no recourse to the protection of the law in dealing with an employer's unreasonable treatment.
Interestingly, before effective antidepressant drugs became available in the 1940s, episodes of severe depression lasted some two to three years and then the sufferer usually spontaneously recovered. Now, medication does not so much cure the underlying episode as lift the symptoms, enabling the patient to return to normal life, although still in a rather vulnerable state, after about four to six months. That is why so many depressions appear to go away and then return in further bouts over the course of some two to three years. Reducing the qualifying period to six months would recognise these clinical realities and would do no more than reflect the continuing vulnerability of the person who has experienced this kind of illness.
There is a real problem here. I hope that the Minister will be able to say that, in some way, depression is caught by the existing situation as it is clearly a recurrent condition. But, from the wording of the Bill, it appears not to be covered. I think that this is an important area where it was wrong of the Government
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not to accept the recommendation of the Joint Committee. I hope that I shall hear some helpful words from the Minister. I beg to move.
Lord Skelmersdale: My name is also attached to this amendment moved by the noble Lord, Lord Carter. All the disability charities and all noble Lords to whom I have spoken welcome the fact that, as I said earlier, mental illness no longer has to be clinically identifiable. However, as the noble Lord, Lord Carter, said, it makes no sense for mental illness to be treated as a temporary condition. Stress is the obvious example. Indeed, it is sometimes used loosely instead of the word "depression". It is not likely to last for more than 12 months, unless of course repeated attacks lead to epilepsy, as it appears to do with a member of my family, or to diabetes. I understand that there is a condition called "stress diabetes".
Be that as it may, stress can, and does, recur with all the effects that we have no doubt seen in others, if not ourselves. Those effects may well have a substantial adverse effect, as Schedule 1 calls it. One simply cannot tell whether it will recur and have the same effect, which is why the noble Lord, Lord Carter, and I currently believe that we need a little extra in the Bill. We believe that mental illness which lasts for six months or more but less than 12 months should still be covered by the Bill.
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