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New government regulations risk discriminating against thousands of public sector workers

A Government Bill planned for the autumn to implement recommendations from the Shipman Inquiry, runs the risk of discriminating against thousands of healthcare workers, the Disability Rights Commission (DRC) said today.

At the end of a year-long investigation into the statutory requirement for ‘good health’ among teachers, social workers, nurses and other health professionals, the Commission warned that tightening the health regulation would reinforce discrimination against people who are disabled or have long-term health conditions.

The DRC’s report* recommends the revocation of requirements for ‘good health’ in these professions and concludes that regulations making “good health” a requirement to train, register or work in public sector professions are: in contravention of the Disability Discrimination Act (DDA); are unnecessary and confusing, and provide a licence to discriminate.

The DRC agrees with the conclusion of the Shipman Inquiry and similar public inquiries over many years that more effective monitoring of practice is the key to public safety. The report has been welcomed by the Nursing and Midwifery Council (NMC).

With the exception of Scotland – where there are no health standards for teachers and social workers - meeting requirements for ‘good health’ is a condition for entry and progress in various public sector professions across Britain. These standards require applicants to be of good health’ or ‘good physical and mental fitness’. The DDA though requires employers not to treat people unfairly on grounds of their disability and to make reasonable adjustments when their practices and policies place disabled workers at a substantial disadvantage.

The DRC investigation found that:

hardly any of the 100 pieces of primary and secondary legislation regulating teaching, social work, nursing and other health professionals laying down requirements for ‘good health’ make any mention of the DDA;
the effect of the health standards in nursing in particular has the effect of stigmatising people with current or past mental health problems - prompting either their exclusion from employment or a reluctance to disclose their conditions and to get support;
regulatory requirements to disclose health conditions undermine equality by deterring people from asking for the reasonable adjustments to which they are legally entitled. Making ‘reasonable adjustments’ mean that many people who are disabled or have long-term health conditions can practise safely and effectively;
occupational health services play a major role in determining whether someone is considered fit to study (particularly in nursing), and whether someone is considered fit to work. The DRC found some good occupational health practice that helps universities or employers to understand their obligations under the DDA. It also found practice that discriminates against disabled people;
the use of pre-employment health questionnaires – including long lists of irrelevant questions – is widespread. Examples include: “Have you ever been in hospital?” and “When was the date of your last period?”;
the requirement for applicants and students in higher education to demonstrate ‘good health’ acts as a barrier to disabled people wanting to enter these professions. Disabled applicants for higher education institutions are judged more harshly than non-disabled applicants and are subjected to intrusive and often irrelevant questioning about their disabilities, because of the regulations.
The DRC investigation has highlighted a prevailing perception of risk attached to disabled people in these professions, with the Beverley Allitt and Harold Shipman cases having had an enduring, scarring effect on the health sector. However, the investigation uncovered no evidence that professionals who are disabled or have long-term health conditions present a risk to the public nor that requirements for ‘good health’ serve any useful purpose.

In implementing some of the recommendations of the Shipman Inquiry, the Government’s recent white paper, ‘Trust, Assurance and Safety’, considers extending re-validation (periodic assessment of fitness to practise) and student registration in the health professions. It proposes that “common standards and systems be developed across professional groups which would benefit patient safety”.

The DRC agrees with tightening and more effectively monitoring professional standards where this relates to competence and conduct. However, we do not want statutory requirements for good health’ further extended. Indeed, as part of this overhaul of regulation, we believe such requirements where they already exist should be removed. Professionals should be judged by their competence and conduct and not by whether they have a disability or health condition.

Sir Bert Massie, Chairman of the DRC, said:

“We found over 100 separate pieces of guidance on standards of health across teaching, social work, nursing and other health professions that not only conflict with the DDA but foster a culture that excludes disabled people. The result is to stigmatise and deter people who are disabled or have long-term health conditions from entering or staying in our public services, parts of which often experience acute skills shortages.

“Extending requirements for ‘good health’ would increase the potential for discrimination, while doing nothing to protect the public. Indeed, these requirements may offer a false sense of security by implying that inappropriate candidates are weeded out. What we all require, as users of public services, are rigorously applied professional standards of competence and conduct that are regularly monitored, with sharing of relevant information across institutions – systems which the Shipman and other inquiries indicated as needing improvement.”

Sarah Thewlis, Nursing and Midwifery Council (NMC) Chief Executive, said:

“We have a statutory duty as a regulator to protect the public by ensuring that anyone coming onto our register is fit to practice safely. We have had discussions with the DRC and welcome the report as it reflects the other work we are doing around diversity. Although the issues raised were not exclusive to the NMC as all healthcare regulators are facing similar challenges, we are committed to delivering standards and guidance that strike an effective balance between protecting the public and supporting the professional development of nurses and midwives.”

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