Disability: supplementary provision

I beg to move amendment 167, in schedule 1, page 144, line 16, at end insert—

‘(2A) Without prejudice to the operation of sub-paragraph (2), the mental impairment consisting of or resulting from depression that has ceased to have a substantial adverse effect on a person’s ability to carry out normal day to day activities shall always be treated as if that effect is likely to recur if the person has had within the last 5 years a previous episode of such impairment which had a substantial adverse effect on the person’s ability to carry out normal day to day activities for a period of 6 months or more.’.

We have already referred to this amendment. It deals specifically with the long-term issue of depression. We tabled the amendment to probe whether the definitions in the Bill would adequately cover all those types of disability that fluctuate, but might recur. The amendment is supported by the Disability Charities Consortium, which says that the Bill covers only recurring or fluctuating conditions if they are based on an underlying long-term impairment—in other words, the impairment is long term while its symptoms or effects fluctuate.

The issue of depression goes to point of what the hon. Member for Oxford, West and Abingdon set out when he cited information from the Disability Right Commission. According to my information, people are rarely diagnosed with the related underlying condition, so separate episodes of depression are effectively the effects of the condition and are not covered under the current definition if they do not last for at least 12 months. There are differences of opinion within the medical profession about when episodes of depression are manifestations of an underlying long-term condition, or whether they are discrete episodes. There are often disagreements in court among expert witnesses about the matter.

Acute episodes of depression can be disabling and there is a 70 per cent. chance of having another episode within five years. Depression can carry considerable stigma, in particular with regard to employment. My amendment would rectify that gap in equality legislation, and protect people who experience short-term, recurrent episodes of depression from discrimination arising from their impairment and the surrounding stigma. It focuses specifically on depression alone for the good reasons outlined by the Minister for holding to a definition of “long-term” in the generality. That specific condition is felt not to be well captured by the existing definition.

Having set that out, I am looking to the Minister to say whether she feels that the existing definition of fluctuating conditions, which she touched on in the previous debate, will adequately cover mental illnesses  such as depression, which may not be accurately diagnosed. There is already evidence of cases in which people suffer recurrent episodes but are not adequately protected under the existing law.

That illustrates the problem with the definition of “long-term” in schedule 1 that I probed in amendment 180. I support the idea behind the amendment, although the problem is that it is disease-specific. There are plenty of mental health conditions for which the chance of recurrence might not be as high as the 70 per cent. figure that the hon. Gentleman quoted or about which there is less certainty, less data and less research information on the likelihood of the condition’s recurrence or of the recurrence of the effects. Therefore, the amendment should be seen as illustrative.

All the hon. Gentleman’s points, however, urge the Minister to reconsider her reliance on the wording that the

“effect is likely to recur”, because in many cases in which protection is needed, physicians will find it difficult to say that they believe that the condition is likely to recur. It is far better to have a definition that does not require independent medical reports to stretch to cover what is required by the law, but to have common sense apply. Therefore, the amendment illustrates again that we need to find alternative wording that does not depend on a likelihood that covers a balance of probabilities, which would be the wrong threshold for many disabling and debilitating diseases that can and do recur but are not necessarily likely to recur. The amendment covers just one example of those.

Overall, the broad view is that the issue is one for the medical profession and its diagnosis of depression, rather than for anti-discrimination measures, which already provide for recurring conditions. I remind hon. Members that schedule 1 defines the effects of an impairment being long term, specifically saying in paragraph 2(2):

“If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect”— even if it does not— if that effect is likely to recur.”

If a doctor can say that a condition is likely to recur, if evidence from the past on how the individual has reacted suggests that it is likely to recur, or if the evidence suggests that it is likely to recur, the person will rightly be treated as having a fluctuating illness, which is capable of meeting the definition in paragraph 2. However, if we are talking about an awful personal event that puts someone into depression for a period, but they are not depressed in any other sense and do not have an underlying difficulty, and within five years some other awful event occurs—such things can, unfortunately, happen in that sequence—that quite separate element of perfectly sensible depression, as it were, which is a response to an event in a person’s life and would throw anyone into depression, ought not to make them disabled.

Most people in such a situation would not want to be classed as disabled. It would be extremely difficult to know what anyone else could do to help them through the interim period, when they have been perfectly healthy  because the impact of such an event has not been playing upon them. It is the reverse of what the hon. Member for Oxford, West and Abingdon said. We should not be looking for a way of defining every instance of depression to ensure that it is within the protection of disability provisions. If something is likely to recur, that person obviously has a long-term illness and must be protected. That is the way around the problem, as common sense, which he prays in aid, and medical evidence require it to be.

I want to probe the Minister on one point about medical evidence. If someone has a condition and there is a fair amount of consensus among medical practitioners regarding diagnosis and the likelihood of recurrence—this returns us to the point made by the hon. Member for Oxford, West and Abingdon—what she says is perfectly fair and straightforward and will capture all the cases at hand. However, the case put forward by the DCC shows that there is a lack of consensus about the diagnosis of depression in the medical community, and there is a debate about whether it is an underlying condition or whether there are separate episodes. That is why the amendment focuses specifically on depression. There is an argument about the likelihood of recurrence, with no particular agreement reached, and it could end up with cases going to court and experts arguing with each other. That might be inevitable, and the court would then have to take a view.

What information does the Minister have, and what research has the Department done, on depression or any other long-term conditions? To what extent are there differences in medical opinion? Is the diagnosis and the likelihood of recurrence in any way controversial, likely to be challenged or at variance? Some people have an underlying condition and suffer recurrent bouts of depression and its disabling effects. It is not in anyone’s interest to force such people into a courtroom or a situation in which they have to weigh up different medical experts against each other. As far as they are concerned, they have a disabling condition that periodically recurs. Will the Minister give more information about the state of medical opinion on that condition?

As with all conditions, the question of whether depression is likely to recur must be a question of fact, and medical evidence will help the determination of that. Obviously, it is likely that such matters will be determined as a question of fact long before they get to court, but there is a limit on what one can do in statute to clarify every possible situation that might arise. I think that the provision is clear, and if the diagnosis is not, that is outwith what can be captured within discrimination legislation. We cannot set down a list of criteria that can be used to determine whether depression is likely to recur. That would be outwith our expertise.

All we can do, which seems a very adequate measure and I think that it works, is set out a fair definition based on, “Is it likely to recur?” The hon. Member for Oxford, West and Abingdon equates that with the balance of probabilities and all sorts of things that it is not equated with in any way or case. It is an ordinary question: is it likely to recur?

The hon. Member for Forest of Dean gave an example—I hope that I am not misquoting him—that there is a 70 per cent. chance of depression recurring within five  years if it is not a situational depression. Should evidence suggest that someone has depression that is likely to recur, that person will be well protected. When it is not possible to say whether it is likely to recur, we are in a hinterland that can only be determined by evidence of earlier recurrences or by medical opinion. At that point, we are outside the territory of the provision.

The definition of “long-term” is important and we must distinguish it from people who have a short-term problem or who have a disability as correctly termed. Making an exception for the condition covered by the amendment would probably be unfair on people who have conditions that are subject to the same problems of definition. The hon. Gentleman has adequately probed the issue raised by the disability charities, and probing is what they sought. He has done that job and can now withdraw the amendment to let us go forward.

Before I do that, I want to say that given that there is a fair bit of dispute and debate about the issue—she is quite right, there are other conditions—perhaps we can place some guidance on the record. Once the Bill has progressed through the House and the other place, perhaps the EHRC, when it is drawing up its statutory guidance, will consider fluctuating conditions and see whether its guidance is as comprehensive as possible and gives employers and others who will be relying on it a proper understanding of the nature of fluctuating conditions.

Indeed, there will be guidance. There is provision in clause 6 for a Minister to issue guidance to help determine whether a person is disabled. If we can probe the uncertainties of this any further, of course we will do so.

I am grateful for that helpful intervention. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.