Monica Kreel

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• Monica Kreel
• Equality and Human Rights Commission

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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.

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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)

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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

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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

6
DRCs formal investigation

• Formal Investigation looked at health
  requirements or fitness standards
• Triggered by
• Concerns about low numbers of disabled people in
  professions
• Legal cases that alerted DRC about discriminatory
  regulatory requirements for good health

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DRCs 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

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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

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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

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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

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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

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• I was told I was unfit as we have to be
  careful youre not a Beverley Allitt... Yes I
  usually lie about my mental health as Ive had
  problems when Ive disclosed in spite of
  working in mental health
• Nurse with Depression, England 2000

14

• 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

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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

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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 cant practise
  competently and safely and whose conduct is poor
  should not qualify and should not be registered

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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

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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?