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Lord Addington: Very briefly, the committee heard a great deal of evidence about that and it became clear that, as currently drafted, the Bill does not cover depression, in particular, which must be the most common form of mental illness. That is a debilitating condition, the most common one going, but the Bill that is intended to provide help and support on this issue is flawed. The Government should change that and I encourage them to recognise that they have left a hole here and to fill it.
Baroness Wilkins: Very briefly, I support the amendment. Depression attracts significant discrimination and the amendment is badly needed.
Baroness Hollis of Heigham: My noble friend Lord Carter went to the core of the problem when he made the distinction, medically appropriate or not, that is commonly held between episodes of depression that are regarded as symptoms of an underlying condition, which is covered, and a discrete episode engendered perhaps by bereavement, perhaps by the birth of a child. Someone may have given birth to a child and then, 18 months later, suffered a bereavement and suffered a second period of depression physically—medically—unconnected to the first. Should that enjoy the protection of the DDA? That is where the core of the discussion lies.
Let me describe the background. The issue of DDA coverage of mental illness, especially depression, has attracted a lot of interest, and I want to assure the Committee that, notwithstanding everything that has been said, the DDA already provides significant protection for people with depression.
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The DDA definition of disability covers people who have depression where the effects of that impairment are substantial and have lasted or are expected to last at least 12 months, but there is also special provision for people whose impairment has recurring effects. Those ensure that an impairment that ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities is treated as continuing to have a substantial adverse effect if that effect is likely to recur.
Conditions with effects that occur only sporadically or for short periods qualify for DDA protection, provided that they are part of the same underlying impairment and that the effects are likely to be substantial and to recover beyond 12 months after the first occurrence. That can include depressive illness such as dysthemia, which is a persistent mood disorder.
Let us take a case. A person goes to his GP with symptoms of depression that started about a month earlier. However, his medical records show that he has previously been diagnosed with dysthemia. The man has had several previous episodes of depression, each lasting two or three months, over a period of several years. The doctor provides him with a medical certificate citing dysthemia as the nature of the impairment. Although the person has currently been unwell for only one month, the episode is part of an underlying condition that has a recurring substantial adverse effect on his ability to carry out normal day-to-day activities, and he is therefore covered by the DDA.
The Bill will therefore improve the position of people with mental illnesses. By removing the requirement that a mental illness must be "clinically well-recognised", we are making it more straightforward for some people with mental illnesses, including depression, to prove that they are disabled under the Act. Of course, the gateway remains sturdy—the person must still prove that his impairment has a long-term and substantial adverse effect on his ability to carry out day-to-day activities—but it does remove the barrier that we know has been causing difficulties.
The amendment would go much further in a way that would disturb the fundamental nature of the Act. The line to define "long term" must be drawn somewhere and I believe that 12 months is the right place. Let us consider the example of the young mother with no history of depressive illness. She has a second child in June 2005 and experiences a period of severe post-natal depression, lasting for eight months until December 2005.
However, following medical treatment, she experiences no further episodes of depressive illness. Although her depression lasted for more than six months in two years, I do not believe that anyone would consider her as disabled. That post-natal depression might recur not with the next child but with the child after that and again rectify itself in three, six or eight months.
It is not clear to me that that person would or should qualify under the DDA. If we reduce the time requirement for depression to include people such as that mother with the single episode in DDA coverage,
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it could be argued for other conditions, such as a broken limb or severe injury. The DDA provides rights of significant value and it is important that we have proper and robust gateways to entitlement.
The amendment would also introduce an unacceptable level of complexity. The disabled individual, and those with duties under the Act, would need to keep detailed records to provide evidence to establish whether, or refute that, a person had met the "six months over two years" rule. Such complexity would not help those who have only recently gained new duties under the Act and who need time to understand their responsibilities.
I do not like to use this phrase too often but I think that we have the balance right here. Rightly, we have accepted that depression can be, and often is, a severely disabling illness and that it may be exhibited only in recurrent episodes some time apart—six months, two years, or whatever—but is none the less part of an underlying illness. The doctor will diagnose it as such and that person will come under the protection of the DDA. We do not want to link discrete, circumstance-based episodes of depression to give coverage under the DDA for which it was never designed.
I hope that, with that reassurance, my noble friend will feel that we are meeting the spirit of the Act while ensuring that those who should not come within its protection remain outside.
Lord Carter: I am extremely grateful to the Minister. I am not wholly surprised by her answer, although I shall obviously want to read it and take advice. It still does not square with the evidence that we received. Interestingly, during the passage of the DDA into law in 1995, William Hague, who should get credit for the introduction of that Act—it was the first step on a long road and he deserves credit for it—mentioned depression along with other commonsense examples of mental illnesses where the person affected would be classed as disabled. Official statistics on the population covered by the DDA definition of disability include depression in the list of health problems and disabilities.
However, this is not the time to continue the debate. I shall read what the Minister said and take advice, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter moved Amendment No. 75:
"( ) In paragraph 4(1) at the end there is inserted—
"(i) ability to care for oneself;
(j) ability to communicate and interact with others;
(k) ability to perceive reality"."
The noble Lord said: The purpose of the amendment is to improve the coverage of mental health conditions within the definition of disability by including those capacities that are most likely to be severely affected for people with eating disorders, depression, anxiety disorders and schizophrenia.
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Ability to communicate and interact with others is also likely to be severely affected for people with autistic syndrome disorders. The amendment again follows a recommendation of the Joint Committee. The Government seemed to imply in their answer—it would be helpful for the Minister to address this when she replies—that many such cases of concern are in fact caught by the DDA. It would be helpful to have that confirmed.
However, the day-to-day capacities listed in the Bill are predominantly physical. In order to prove that he or she is disabled, a claimant is therefore required to show a substantial adverse effect on a capacity that is not necessarily the most relevant. The National Autistic Society pointed out that existing disability discrimination legislation was ambiguous about certain forms of autistic spectrum disorder, especially Asperger's syndrome. Many people with ASD find it impossible to decipher the social signals that the rest of us take for granted. That impairment has a serious impact on their daily lives—in particular, their ability to communicate and interact with others.
The DDA includes a list of activities that must be affected if an individual is to be classed as disabled under the terms of the Act. As communication and interaction with others is not listed in the Bill, the NAS argues that people with ASD who do not have an accompanying learning disability are not adequately covered by the DDA.
It is interesting that the Joint Select Committee considering the Mental Health Bill, on which I serve, is also looking hard at this area. It is considering the definition of mental illness for the purposes of that legislation. When the Minister reflects on our debate today, she might want to look at the transcripts of the Joint Select Committee's discussions on this subject in order to ensure that the provisions in this Bill, when it becomes law, are in line with what is likely to be provided in the Mental Health Bill. I beg to move.
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