Equality (Miscellaneous Provisions) (No. 2) Bill 2017: Second Stage [Private Members]

I move: "That the Bill be now read a Second Time."

The Equality (Miscellaneous Provisions) (No. 2) Bill of 2017 concerns mental health discrimination. Every day, people with mental health difficulties face discrimination in accessing services, accommodation or getting jobs. This Bill is aimed at ending that mental health discrimination.

Anyone can experience a mental health problem. One in four of us will. We have come a long way in destigmatising mental health. However, while stigma has been weakened, it still exists in respect of mental health in Ireland. There is still a fear that people will treat one differently if one is open about suffering a mental health issue. There are still those who wrongly believe that people with mental health problems should not do important jobs. There is still a persistent and incorrect perception among a minority that the outlook for recovery is poor. That is wrong.

This Bill amends Irish equality legislation, including employment legislation, by creating a stand-alone ground for mental health within our equality legislation in order to strengthen, clarify and expand it by giving it a more human rights based definition. It contains a more broad definition of mental health status and includes a person’s emotional, psychological and social well-being. By creating a stand-alone ground it also puts mental health discrimination front and centre within our equality legislation. Currently, under equality and employment legislation, it is unlawful to discriminate on the grounds of disability, and that includes a mental illness. However, the disability ground restricts mental health to a narrow medical definition and it is hidden away under the disability ground. This ground of disability is retained.

So why do this? Since the original Employment Equality Act and the Equal Status Act were passed, our understanding of mental health has developed significantly. In the past 20 years we have grown to understand that mental health is not just the absence of disease or illness. It is a complex combination of a person’s physical, mental, emotional and social health factors. However, people with mental health difficulties continue to face discrimination in housing, employment and State services, especially indirect discrimination. That can lead to isolation, which exacerbates mental illness, and they become trapped in a cycle of illness by discrimination and stigma.

Since being elected a Deputy and appointed mental health spokesperson I have met many people who have suffered discrimination based on their mental health status. I am often told that the fear of prejudice and discrimination holds them back from seeking help. In 2010, a study entitled Hear My Voice: Challenging Mental Health Prejudice and Discrimination, by Dublin City University’s school of nursing, on behalf of Amnesty International Ireland, showed that as many as 95% of Irish people who have mental health issues say they have been treated unfairly because of their condition. Almost two thirds of the 300 study participants interviewed reported having been avoided or shunned because of a mental health problem. As many as 61% of individuals said they had been treated unfairly by family members while 43% claimed to have faced discrimination when it came to retaining a job. One third experienced difficulties when applying for work with the result that two thirds had decided not to seek some roles. Survey participants also reported unfair treatment in areas such as education. It must be remembered that this study was carried out some ten years after discrimination based on mental illness was made illegal.

Colm O'Gorman of Amnesty International was reported as saying at the time that while there is no clear evidence of overt direct discrimination by the State against people with mental health problems in national laws, policies or practices, the real issue was the hidden indirect discrimination that people with mental health problems face when they experience inequality in education, housing, work and other areas. Mr. O'Gorman added: "We know that people with mental health problems have lower employment rates and are more likely to have left education early, suggesting the reported unfair treatment from the research is having a very real impact on people’s lives."

I understand the Government is opposing the Bill. It appears it is doing so on the grounds that it might expose employers to legal action or it will be difficult to enforce. The whole purpose of the Bill is to strengthen equality legislation to act as a preventive measure and any employer who complied with the equality legislation would have nothing to fear. If those arguments were accepted as an excuse we would have no equality legislation. Most LGBT discrimination has been and is of an insidious nature and is often difficult to prove. Discrimination based on gender is similar, but we do not say that because it is difficult to prove we tolerate it. The opposite is the case. It is the most insidious and indirect discrimination that we must guard against. It is precisely because it is a wrong and that it is hard to prove that we must take a legislative stand against it. We must make it clear, in black and white, that discrimination of any kind is unacceptable.

Regarding the difficulty of enforcement, I would point out that the Domestic Violence Act 2018, a very welcome and important Act in the criminal code, includes under section 5(o) the grounds of psychological and emotional welfare of a victim. Those terms, therefore, are already a part of Irish law and will need to be interpreted by the courts. It is difficult to understand the Government's objection to the use of the terminology in this Bill.

I am very disappointed with the Government’s decision to try to block legislation that will strengthen anti-discrimination laws. If this was really about enforcement, any real concerns could be teased out on Committee Stage. Instead, just like the mental health parity legislation, which the Government killed with a money message, it appears the Government is so embarrassed by its own failure to legislate on mental health that it is taking a knee-jerk reaction to any opposition efforts to do so.

It is now over three years since the expert group review of the Mental Health Act 2001 reported. It made 165 recommendations. We have had three Ministers with responsibility for mental health in that time but, to date, the Government has legislated for only one of those recommendations. Despite many promises, we have not even seen the heads of a Bill yet. I appreciate that does not come under the Minister of State's remit but it does come under the Government's general remit and that of the Minister for Health.

I hope the rest of the House will support this Bill going to committee where it can be further scrutinised.

I thank Deputy Browne for sharing his time and for bringing forward the Bill. It has been a good day in the House where we had a lot of discussion, first, with statements on CAMHS earlier and now this Equality (Miscellaneous Provisions) (No. 2) Bill 2017.

Fianna Fáil is bringing forward this Bill to end discrimination against those who suffer with mental health issues. The Equality (Miscellaneous Provisions) (No. 2) Bill will amend Irish equality legislation to ensure that persons can no longer be discriminated against on the basis of a mental health issue.

Our Bill introduces a stand-alone mental health ground of discrimination. This ground contains a broad definition of mental health status and includes persons' emotional, psychological and social well-being. Currently, it is unlawful to discriminate if a person has a disability, and that includes mental illness. However, the ground restricts mental health to a narrow medical definition. Our Bill puts mental health discrimination front and centre with equality legislation. It puts mental health as a stand-alone ground and gives it a human rights based definition.

It is crucial that every person is treated with dignity, fairness and respect, regardless of his or her mental health status. The Bill will serve as a further step towards bringing Ireland in line with international standards and equality and understanding of mental health as a human rights issue and not just a medical issue.

The Equality (Miscellaneous Provisions) (No. 2) Bill seeks to amend the Employment Act 1998 and the Equal Status Act 2000 to expand the definition of mental health. In 1998 and in 2000, respectively, Fianna Fáil introduced the Employment Equality Act and the Equal Status Act. Disability is one of the nine grounds of discrimination set out in the Acts.

While the definition of disability in the Bill includes mental illness, the definition within the Acts provides a restrictive medical definition of mental health. Attitudes, stereotypes and prejudices about mental health can lead to discrimination. People regularly tell us that they have been discriminated against because of their mental health status. These are people who find themselves treated less favourably than someone else solely because of their mental health status. For this reason, Fianna Fáil has brought forward this Bill with a broadened definition of mental health to prevent discrimination on mental health grounds on a human rights basis.

We are at a stage where we have openness and honesty and when asked if they have medical conditions, people are finding it is okay to say they are not okay and to be honest with their employer. They have come through the time when we did not talk about mental health issues. The reason the Bill is before us is that people are dealing with and talking about their issues. It is important for employees with mental health issues to feel they will be treated equally and not differently from someone with a disability.

The Bill aims to solve three problems. First, it will help employees who have had a mental health issue. It does so by tackling one of the obstacles facing those who suffer from a mental health issue in their employment, namely, discrimination. If enacted, it will be crystal clear for employers and employees alike that discrimination based on mental health status is against the law. Second, it will address the need to prohibit any attempt to limit services based on a person's mental health status. The legislation will make it illegal to limit the provision of services based on a person's mental health status. Discrimination on the grounds of mental health status violates the very principle of equality for which we all seek to strive. Third, the Bill promotes equality by seeking to protect those who have been subjected to discrimination. It is crucial that every person is treated with dignity and respect, regardless of his or her mental health status. This Bill will serve as a further step towards bringing Ireland in line with international standards on equality and understanding on mental health as well as human rights. It is not just a mental health issue.

I ask the Minister of State and the Government to reconsider and allow this legislation to proceed to Committee Stage. It warrants that very basic support.

With the agreement of the House, we will hear Deputy Buckley's contribution and then have the Minister of State's response.

I thank Deputies O'Loughlin, O'Callaghan and Browne for bringing this important Bill to the House. This is in keeping with the recent trend of raising awareness in the House of mental health issues and their equal place alongside physical health issues. Just as everyone will experience varying levels of physical health in the course of life, we all struggle daily to maintain and preserve our good mental health. That struggle is all the more difficult when it is done in silence. We know this when it comes to physical health all too well. For decades, public health measures have promoted the idea that looking after one's health is something on which people should take the initiative by discussing issues with friends, family and, above all, professionals to ensure appropriate action is taken when necessary. Awareness of our personal physical health on a daily basis has never been better. This is the model we must adopt for mental health and much effort has been made in this regard.

We have had successful and positive public health campaigns on mental health issues. Campaigns promoted reaching out, talking to someone one trusts and checking up on friends and family. We have heard the slogan, "It is okay not to be okay", but is that the case? While the meaning of that statement is good and right and based on ideals we must pursue, the truth is our laws do not reflect this approach. As far as an employer is concerned, the law says it is not okay not to be okay but it is okay to discriminate against those with mental health issues. This in turn tells people who may need help to stay quiet because it is not okay and they may be worse off if they take action. By making it a violation of employment equality legislation to discriminate against people on the basis of their mental health status, we affirm the anti-stigma slogan. We say not only that it is okay not to be okay, but it is okay and right to speak up and seek help.

This House has rightly spoken out against discrimination on grounds of physical impairment. I do not see any difference with this measure, which does more than close a gap in legislation, as some may hope. It addresses a real need because this kind of discrimination is happening in private and public employment. It is happening to people who have sought help and those who have not sought help. It is even happening to people who do not need help but about whom suspicions have arisen regarding their mental health as a result of a climate of stigma which persists, even if it has diminished. I have spoken to many people with stories of this kind of discrimination, which has created fear, damaged their health and may result in them seeking care. This is unacceptable and must be made a thing of the past. Who knows how many others stayed silent, hurting themselves and not seeking help for fear of being stigmatised or discriminated against. Work, after all, is an important part of who we are in society and central to our lives. The fear of losing one's job for economic reasons can cripple a person physically and psychologically and goes on and on. Surely this fear will be compounded terribly for a person who suffers in silence.

To follow up on the earlier debate on child and mental health services, CAMHS, while this Bill is welcome, simply banning discrimination is not enough when our mental health services are in such disarray. Psychiatric nurses, the backbone of our services, are engaged in industrial action by refusing to do overtime. They do this not to hold the State to ransom as some right-wing commentators might say but to fight for a better service and decent treatment which go hand in hand. We cannot have good mental healthcare and bad conditions for workers in mental health services. We must listen to nurses and work and bargain with them because no one wants a better service than they do, and I defy anyone to contradict that.

I am glad Fianna Fáil has introduced this Bill, which I welcome. I also welcome the positive comments made by Fianna Fáil Deputies on the industrial action taken by nurses. However, I ask them to put their money where their mouth is because nurses tell me that Fianna Fáil is talking out of both sides of its mouth. It can run with the hare and hunt with the hounds. A party which backs up a Government that threatens nurses and which votes for a budget that perpetuates the problem is trying to do just that. I am hearing from nurses that they are not buying it. I thank the Fianna Fáil Deputies who put forward the Bill and if I have offended them, I recommend that they direct that feeling of offence at the leadership of their party because their genuine work on this issue is being very much undermined.

I urge the House to support the Bill. I look forward to discussing it further and exploring possible improvements to strengthen the text on later Stages.

We are departing a little from the normal order. The Minister of State has a maximum of 20 minutes to respond to the debate.

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 groups 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 there 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.

I will brief. I thank the Minister of State for his contribution. I also thank Deputy Pat Buckley for his measured contribution and, as always, he is very on top of the whole issue of mental health. This has been a good week for mental health. It was at the forefront of the discussion on juvenile crime. This afternoon we had statements on child and adolescent mental health services, CAMHS, and I thank the Ceann Comhairle again for facilitating that, and this evening we had a debate on mental health discrimination. Overall, it has been positive week for mental health. The more we can discuss it in this Chamber, the better.

I take this opportunity to push a message to the Taoiseach that we should establish a permanent mental health committee of the Oireachtas. The temporary one we had was very effective. It proved itself. We need a permanent one in order that we can continue to hold the HSE and other bodies to account to deliver on our necessary mental health services.

I accept the bona fides of the Minister of State in this respect, however, I respectfully disagree with him. For a law to work, it must be clear. Citizens must be able to know their rights very clearly. The Minister of State spoke about how the classification of a mental illness under the disability legislation has been expanded but if a citizen has to go rooting around case law to know his or her rights, that is not a positive situation. Our law should be very clear. Citizens should know their rights clearly from the legislation. That is not the case currently because people simply are not exercising their rights under the existing legislation. I also disagree in terms of not expanding it. It needs to be expanded. We have a much better understanding of the importance of mental health today. I am pressing the issue.

Question put.

In accordance with Standing Order 70(2), the division is postponed until the weekly division time on Thursday, 7 February 2019.

That concludes the business of the week.

The Dáil adjourned at 6.20 p.m. until 2 p.m. on Tuesday, 5 February 2019.