David Stanton (Cork East, Fine Gael) | Oireachtas source

I am pleased to have the opportunity to join this debate on the Equality (Miscellaneous Provisions) (No. 2) Bill 2017. I thank the Deputies opposite for bringing this matter to the floor of the House for debate. As Deputy Rabbitte said, it is an important issue and I know that other Deputies also agree with that.

As the House is aware, the Bill seeks to prohibit discrimination on the basis of a person’s mental health status. Mental health problems are a common human experience and it is believed that they affect around one in four people in any given year. We can all agree that supporting people who experience difficulties with their mental health is hugely important. It is something that can happen to anyone at any time in his or her life and children and adults who find themselves in this situation need, and are entitled to, protection and access to the appropriate services as well as our empathy and understanding.

The development of mental health services is a priority for the Government. The recent budget provided an additional €55 million to progress new developments in mental health, which brings overall HSE mental health funding to nearly €1 billion in 2019. The HSE is also developing a 24-7 contact line, crisis text line and other e-mental health digital responses. Additionally, it is working with sports, community and voluntary croups to develop resilience and ultimately reduce the demand for mental health services.

I will now address the Bill, as presented by my colleagues. It was interesting to hear the reasons and rationale behind the Bill and I welcome this opportunity to respond and contribute to what I am certain will be a good debate. The Bill, as published, provides for the amendment of the Employment Equality Act 1998 and the Equal Status Act 2000 by prohibiting discrimination on the basis of a person’s mental health status. In essence, it seeks to broaden the definition of disability in the equality legislation by introducing a new sub-category known as mental health status. If agreed, it would be illegal for employers or service providers to discriminate against an individual on the basis of his or her mental health status.

It is important to set out the Government’s position in respect of this proposed legislation. In short, while the Bill is well intentioned, the Government cannot support it for a number of reasons which I will outline. First and foremost, the Government has been advised by the Attorney General that the proposed provisions are unworkable and that it would be difficult, if not impossible, to see how they could operate in practice. In the first instance, it would be hard to imagine how an assessment of mental health status would be determined for the purposes of a claim. I will return to this point shortly.

In their explanatory memorandum, the sponsoring Deputies note that the Bill aims to bring mental health status into the human rights remit and we can all agree that this is a laudable aim.

However, the Attorney General has indicated that a new provision is not needed to ground the existing legislation on a human rights basis, as the existing legislation is already on a human rights footing.

I might add that the views of the National Disability Authority also were sought, and the authority, which Members will be aware is independent, has indicated that the proposed amendments seem unworkable to it. The House will be aware that are currently ten grounds for discrimination in our equality legislation, namely, gender, civil status, race, family status, sexual orientation, age, membership of the Traveller community, disability, religion and housing assistance in regard to the provision of residential accommodation. The Deputies' Bill, as initiated, proposes to add "mental health status" to these grounds. In their Bill, "mental health status" is defined as "emotional, psychological and social wellbeing". However, an individual’s emotional, psychological and social well-being is not easy to define precisely. Well-being is an unclear, changeable and nebulous state and is too vague an indicator to be used effectively in law. In the context of equality legislation, it could be very difficult for employers and certain service providers to take action to guard against claims of discrimination in the face of such vague criteria. Thinking ahead to the possible repercussions, it is not difficult to see how the "mental health status" ground being proposed could facilitate even vexatious claims and spurious allegations.

Introducing this concept into the equality legislation could have other unintended consequences. It is known, for instance, that the stress and anxiety associated with a job interview, exams or any similar situation, which is part and parcel of everyday life and which are things we all have to navigate, can affect different people to varying degrees. It is arguable that enactment of the Bill could prevent the use of any assessment tools, as they might be found to discriminate against persons who are less well equipped to deal with the stress, which can affect their emotional, psychological and social well-being.

It is not just because there are inherent problems with the Bill that the Government is opposing it. There is also a positive reason for the position the Government is taking, namely, that we already have clear, well-established equality legislation in place that protects people with mental health difficulties from discrimination. The legislation the Deputies are seeking to amend, the Employment Equality Act 1998 and the Equal Status Act 2000, prohibit discrimination on the basis of disability, which has been found to encompass conditions such as depression, anxiety and stress. In a 2007 ruling, the Equality Tribunal found that an employer had "discriminated against the complainant on the disability ground" and that "the condition or illness which the complainant was suffering from in the course of her absences; depression, stress and anxiety fall within the definition of disability". Therefore, it is already there. The definition of disability has been used in case law to include dyslexia and alcoholism. The Workplace Relations Commission's latest reports this month on recent cases confirm that work-related stress is commonly accepted as coming within the scope of the disability ground. In light of this broad interpretation of the existing disability ground, I cannot see why it would be a good idea to introduce a new and nebulous ground into the legislation.

I am sure the majority of Members will agree with me when I say that our legal systems are effective in the prohibition of discrimination and victimisation and the promotion of equality. People experiencing mental health difficulties are legally protected and individuals who believe they have been discriminated against because of mental health conditions can and do access the mediation, conciliation, facilitation and advisory and adjudication services provided by the Workplace Relations Commission. I was perturbed to hear the Deputies say that people have been discriminated against and have not sought out this means of redress, which is in place and has been used by others. I urge colleagues who are aware of people who allege they have been discriminated against on mental health grounds to make use of the facility that is in place. There is no need to change the law. That facility is in place and it is being used.

I have listened carefully to the sponsoring Deputies this evening, and they have not put forward any compelling evidence that would suggest there is a deficit in the law in terms of protection for people with mental health issues. The Deputies, in their explanatory memorandum acknowledge that disability is one of the ten grounds of discrimination set out in the Acts and that mental health is included within the definition of disability. Their argument is that the definition of disability within the Acts provides a restrictive medical definition of disability. I am afraid I cannot accept this argument. As I mentioned, the definition of disability in the Acts is very broad and has been held to include stress, depression and anxiety, as I outlined.

Furthermore, while the Bill purports to move away from the medical model, it is hard to see how any discrimination cases could be advanced without evidence from a medical practitioner or other health professional. How does one prove, for instance, that one has a mental health issue? If a self-certification model is what is being proposed in the Bill, then I believe it would also be problematic, and I am sure the Deputies would agree with me on that, as it would just not be credible and would expose employers and service providers to potentially spurious claims.

I am aware the Ceann Comhairle has initiated some work for Members and staff of the Houses with regard to well-being, and some very good work is being done, but well-being is a continuum. Throughout the course of a day all of us can be in good form, bad form, fed up or very fed up, and so on, depending on what comes at us, how we are feeling and our physical and mental health. It is a continuum and it changes all the time. Well-being is very nebulous. Social well-being is not defined. I believe what we already have in place is good and strong enough, it is being used and has already been used to great effect. More people should use it. We should let people know that we already have the legislation in place and if people are discriminated against on the grounds of disability, which includes mental health, then they have a means of redress which is already in place.

I thank the Deputies for bringing forward this Bill. It deals with a very important issue. I do not doubt their sincerity in this regard. The Government agrees with the Deputies as to the need to support people with mental health difficulties. This Bill, as the Attorney General and the National Disability Authority have said, is not workable, it is not needed and could be counterproductive in terms of increasing support and understanding of people with mental health issues. I hope the sponsoring Deputies will consider the issues I have outlined to the House this evening and not press the Bill.

See this speech in context