Monica Kreel

Equality and Human Rights Commission

EHRC

• Independent advocate for equality and human rights in Britain.

• Aims to reduce inequality, eliminate discrimination, strengthen good relations between people and promote and protect human rights.

• Challenge prejudice and disadvantage and promote the importance of human rights.

Duties and powers under Equality

Act 2006• Duties:

– Equality and diversity (s 8)– Human rights (s 9)– Groups (s 10)– Monitoring the law and monitoring progress (ss 11

and 12)

• General powers:– Information and advice (s 13)– Codes of practice (s 14)– Inquiries (s 16)– Grants (s 17)

Enforcement powers (equality enactments)

• Conduct investigations, including issuing unlawful act notices, and requiring action plans

• Enforce the public sector duties– assessments and compliance notices

• Apply to the court/tribunal in relation to unlawful adverts• Provide legal assistance to individuals• Apply to the court for an interdict• Enter into binding agreements• Make arrangements for the provision of conciliation

services

Discrimination in the professions

• Carrying on work of the Disability Rights Commission

• Carrying on work of the Commission for Racial Equality

• Potential for work on new areas, for example religion or age discrimination

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DRC’s formal investigation

Formal Investigation looked at health requirements or “fitness standards”

Triggered by:Concerns about low numbers of disabled

people in professionsLegal cases that alerted DRC about

discriminatory regulatory requirements for “good health”

DRC’s investigation

• Investigation lasted for over a year

• Final report published by DRC in September 07

• See summary report or full report at:

www.maintainingstandards.org

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Evidence gathering• Legal review of legislation, regulations and

statutory guidance covering teachers, social workers, nurses, doctors etc

• Written and oral evidence from regulatory bodies, professional bodies, unions and other organisations

• Research projects to look at how decisions about fitness are made, and disclosure of disability

• Barrister Karon Monaghan QC talked to regulatory bodies and expert witnesses about health requirements and risk

Main Findings on regulations

• Health requirements exist for students and professionals across teaching, social work and all health professions.

• Social work and health professions – statutory requirements for “good health and good character”

• Teaching – statutory requirement for “physical and mental fitness”

Origins of regulations

• Beverley Allitt case and Clothier report• No prior indications of mental health problems.

She was diagnosed with a descriptive label after crimes were committed.

• Nevertheless recommendations of Clothier report led to health requirements being introduced

• Shipman Inquiry concluded that supervision, monitoring, and sharing of information are key

Effects of regulations

• Reinforce association between disability and risk, particularly in relation to mental health

• Make disabled people feel reluctant to disclose – particularly in relation to mental health

• Requirements imposed at entry to higher education, at registration and employment

• Requirements spreading to new groups of workers being registered – e.g. social care assistants and dental nurses

Effects in Higher Education

• Health requirements can lead to discriminatory processes from universities

• Health requirements put people off applying and create the impression that disabled people are barred.

• Health requirements make disabled people reluctant to ask for adjustments to which they are entitled under DDA

“I was told I was unfit as ‘we have to be careful you’re not a Beverley Allitt’... Yes I usually lie about my mental health as I’ve had problems when I’ve disclosed – in spite of working in mental health”

Nurse with Depression, England 2000

“At the end of my student year I had to complete a medical form. I was then interviewed by a doctor, who had to gauge whether I was physically and mentally fit to be a teacher. One of the problems was that the medication used to control my long-term medical condition is also used for depression”

Scotland, 2003 – before health standards for teaching in Scotland were removed

Regulatory Bodies• Disability discrimination raised against

GSCC through Care Standards Appeal Tribunal or through employment tribunal

• Difficult to implement health requirements without discriminating

• GSCC, NMC, GTCE, Council of Deans, Faculty of Occupational Medicine said they wanted to remove statutory health requirements

Risk to the public• Risks of disabled and non-disabled professionals

must be minimised• Diagnosis is not a good indicator of competence

or conduct, or of risk.• Health screening will not weed out people with

criminal intent• All professionals should be judged for their

competence and conduct - those who can’t practise competently and safely and whose conduct is poor should not qualify and should not be registered

But...

• Health requirements may be relevant to specific jobs or specific tasks but not to registration e.g. blood borne viruses

• Reasonable adjustments must be made, to comply with DDA and ensure safety

• Alcohol and drug abuse are not covered by the DDA

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Recommendations

• General health requirements should be removed as they are not an indicator of competence, conduct or of risk

• Regulatory bodies must look at their competence standards and their guidance to universities and employers

• Public sector organisations should promote disability equality, under their disability equality duty obligations

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Competence standards

• The DDA has special provisions in place concerning competence standards for general (GCSEs and A-level for example), degree and professional qualifications and registration

• Relevant provisions are in DDA Part 4 (for higher education providers and general qualifications) and Part 2 for professional regulatory bodies

Competence standards

• A competence standard is defined as an academic, medical or other standard applied by or on behalf of a qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability

• Therefore a general health requirement is not a competence standard

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Disability Discrimination

•  Competence standards are standards that are meant to be applied equally to everyone

• Competence standards must not directly discriminate against disabled people.

• The duty to make reasonable adjustments does not apply to competence standards

But....

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Disability discrimination

• Where such standards are found to constitute disability-related discrimination a special justification test applies 

• Where the common application of a competence standard results in disability-related discrimination, the standard can only be justified if it is a proportionate means of achieving a legitimate aim.

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“Proportionate means of achieving a legitimate aim” gives a limited justification to discrimination but only where qualifications bodies can show that, based on evidence, the competence standard is necessary...

Qualifications bodies must review their competence standards to be able to justify them

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And finally...

• There must not be “no go” areas for disabled people

• Lots of organisations in the chain – and lots of barriers to qualifying as a professional

• Good practice too!

• Who is taking overall responsibility?

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