Maintaining Standards:Promoting Equality

REPORT OF A DRC FORMAL INVESTIGATION

Professional regulation within nursing, teaching and socialwork and disabled people’s access to these professions

ForewordThere should no longer be ‘no go’ areas for disabled people in21st century Britain.

Yet the Disability Rights Commission’s year-longinvestigation into the regulation of professionals’ health innursing, teaching and social work has concluded that this isexactly the situation within great swathes of the public sector.We have found a culture in which disabled people are morelikely to be asked “what’s wrong with you?” than “what canyou contribute?”

The DRC found over 70 separate pieces of legislation andstatutory guidance laying down often vague requirements for“good health” or “physical and mental fitness” acrossnursing, teaching and social work. These regulations have achilling effect on disabled people, deterring them fromentering or remaining in these professions. They drive peopleunderground, where they are reluctant to speak of theirdisability and do not receive support to which they areentitled; support that could enable them to practise safely andeffectively.

Protection of the public is of the highest importance.However, the DRC’s investigation has found that theseregulations do nothing to protect the public and may indeedoffer a false sense of security.

We recommend the revocation of the legislation, regulationsand statutory guidance laying down requirements for goodhealth or fitness of professionals. There are two reasons forthis: the negative impact on disabled people; and ourconclusion that they offer no protection whatsoever to thepublic. Further action is also needed to promote equality inthese sectors.

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We believe that disabled people have an important role toplay in our public services, including in the professions ofnursing, teaching and social work that form the major focus ofthis investigation. People who are disabled or have long-termhealth conditions have a wealth of skills and personalexperiences that can enrich the work of the public services.

A framework of professional standards of competence andconduct, coupled with effective management and rigorousmonitoring of practice, is the best way to balance theaspirations of disabled people to make their contribution toBritish life and the protection of the public.

Sir Bert Massie CBE Richard Exell OBE

Chairman Lead Commissioner forthe investigation

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ContentsExecutive Summary ..........................................4

Recommendations ..........................................24

Background1. Background to the Formal Investigation ..........................33

Evidence Part 1 –

The regulatory frameworks

2. The Regulation of Nursing, Teaching and Social Work ....463. Health Standards and the Impact of the DDA ....................85

Evidence Part 2 – The purpose and

effects of health standards4. Health standards as an approach to managing risk ..........975. The role of regulatory bodies ..........................................1276. Higher education..............................................................1537. Employment ....................................................................1728. Disclosing disability ........................................................1909. Statistics and research ....................................................205

Conclusions 10. Conclusions ....................................................................218

Appendix A: Earlier Inquiries ..........................................223Appendix B: List of Research and Evidence Reports ......245Appendix C: Members of the DRC’s Inquiry Panel ..........247Appendix D: Inquiry Panel Meetings ..............................248Appendix E: Abbreviations used in this report................252Appendix F: Statistics ......................................................253

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Executive SummaryIntroduction

Between Spring 2006 and Summer 2007, the Disability Rights Commission (DRC) conducted a formal investigationexamining the barriers that disabled people (including peoplewith long-term health conditions)1 face when entering, andstaying in nursing, teaching and social work. Specifically, wehave looked at the barriers posed by the statutory regulation ofhealth in these professions. The investigation coveredEngland, Scotlandand Wales.

The professions of nursing, teaching and social work have ahuge impact on the lives of all British citizens. Their workforcesare substantial, with around half a million nurses, 700,000teachers, and around 80,000 social workers in Great Britain2. It isimportant that these professions reflect the full diversity ofsociety. The DRC believes that disabled people should be able,and encouraged, to play their full part in these professions.

After a decade of important advances for disabled people inmany areas of public life, the barriers faced by disabled peoplein nursing, teaching and social work are still under-researchedand under-discussed. It seems that where disabled people areconsidered, it is as patients, pupils or clients – and not asprofessionals.

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1 The umbrella term ‘disabled people’ is often used in thisdocument. When it appears it refers to all those who have adisability or long-term health condition such that they arelikely to meet the definition of disability in the DisabilityDiscrimination Act 1995. This includes people with sensoryand visual impairments, learning disabilities, mental healthconditions and long-term and/or fluctuating healthconditions such as diabetes, HIV, multiple sclerosis andcancer.

2 Figures from Labour Force Survey January-March 2007

We were surprised to find that, more than 10 years on fromthe passage of the Disability Discrimination Act 1995 (DDA),much of the legislation and guidance that regulates entry tothese professions does not reflect the DDA, and frequentlyundermines disability equality. Standards for ‘good health’ or‘fitness’ determine who can enter and work within theseprofessions. Some of these standards are explicitly set out inlegislation, while others are found within guidance governingentry to education or employment.

With the exception of social work and teaching in Scotland,there are generalised health standards in teaching, socialwork, nursing and other health professions across GreatBritain.

The conclusion of our investigation is that these standardshave a negative impact upon disabled people’s access to theseprofessions; they are often in conflict with the DDA (asamended in 2005); they lead to discrimination; and they deterand exclude disabled people from entry and from beingretained. We therefore recommend that they are revoked.

The DRC agrees that these professions must be regulated forthe protection of the public. We support high standards ofcompetence and conduct, including checks of criminalrecords, so that we can all feel confident in theprofessionalism of those who train and practise in thesesectors. Disabled people have a strong interest in theprotection that the regulatory bodies and these standards ofcompetence and conduct provide.

However, we do not believe that the health standardsthemselves provide protection to the public. We havescrutinised the reports following high-profile cases whereprofessionals have harmed and killed, and do not believe thatregulating the mental or physical fitness of professionalswould have prevented these criminal acts. We thereforerecommend that they are not extended as a matter of courseto other occupations undergoing professionalisation, andthat existing health standards across nursing, teaching andsocial work are repealed.

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About the investigation

The formal investigation looked at three main themes:

1. The regulatory frameworks that operate within the nursing,teaching and social work professions, and particularly thosethat lay down standards for the health or fitness ofprofessionals.

2. The way that health is assessed in practice, at various stages ofa professional’s career, namely studying, qualifying, registeringand working within these professions.

3. The approach that disabled people take towards disclosingtheir disabilities and health conditions to higher educationinstitutions, regulatory bodies and employers; and the policiesand practices of these organisations in relation to disclosure ofdisabilities and long-term health conditions.

The investigation’s methodology had a variety of elements:

• A review of the existing regulatory frameworks coveringnursing, teaching and social work (and a range of healthprofessions including medicine, dentistry and the 13 professions governed by the Health Professions Council)3.

• Research looking at how universities4 and employers5 makedecisions about disabled people’s health within nursing,teaching and social work.

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3 David Ruebain, Jo Honigmann, Helen Mountfield and CamillaParker (2006) Analysis of the statutory and regulatoryframeworks and cases relating to fitness standards in nursing,teaching and social work.

4 Jane Wray, Helen Gibson, and Jo Aspland (2007) Research intoassessments and decisions relating to ‘fitness’ in training,qualifying, and working within Teaching, Nursing and SocialWork.

5 Janice Fong, Chih Hoong Sin, with Jane Wray, Helen Gibson, JoAspland and Data Captain Ltd. (2007) Assessments anddecisions relating to ‘fitness’ for employment within teaching,nursing and social work: A survey of employers.

• Research into the factors that affect disabled people’sdisclosure of disabilities and long-term health conditionsat different stages of the employment journey withinthese professions. 6

• Analysis of written evidence on the issues under scrutiny,from organisations involved in the implementation ofhealth standards, and other relevant organisations (suchas disability organisations and trade unions)7.

• An ‘inquiry panel’ stage, chaired by barrister KaronMonaghan, with an expert group drawn from across thenursing, teaching and social work sectors, that questionedexpert witnesses about the issues raised by healthstandards.

Partly because of inevitable limits to time, money and staffresources, and partly because of the context of the DisabilityEquality Duty, which came into force during the lifetime of theinvestigation in December 2006, we have focused on nursing,teaching and social work in the public sector and notdelivered by private companies.

This investigation has covered three countries and threeprofessions. This summary pulls out the main themes acrossthe professions and countries, and the main differences. Readers who have a specific interest in the detailed findings –particularly the legislation, regulations and guidance – that relate to a specific country or profession are advised toconsult the appropriate sections of this report.

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6 Nicky Stanley, Julie Ridley, Jill Manthorpe, Jessica Harrisand Alan Hurst (2007) Disclosing Disability: Disabledstudents and practitioners in social work, nursing and teaching.

7 Chih Hoong Sin, Janice Fong, Abul Momin and VictoriaForbes (2007) The Disability Rights Commission’s formalinvestigation into fitness standards in the social work,nursing and teaching professions: Report on the call for evidence.

Health standards: their origins and effects

The DRC has found that across Great Britain, nursing andother health professions have similar regulatory frameworks,which all include generalised health standards and arequirement for people to disclose disabilities and long-termhealth conditions. In England and Wales, social work andteaching also have statutory generalised health standards.Scotland differs in that health standards do not apply to socialwork or teaching.

There is a complex array of primary and secondary legislationand statutory guidance laying down requirements for physicaland mental fitness in social work, teaching, nursing and otherhealth professions. Very few of the hundred or so pieces ofstatutory regulation and guidance refer to the DDA, except inteaching.

We have reviewed and analysed these standards and foundthat they are not legitimate competence standards8, becausethey do not determine whether someone is competent topractice in a profession. We found that they frequently lead todiscriminatory attitudes, policies and practices.

In nursing, we found that there is a statutory requirement for“good health and good character” throughout England,Scotland and Wales. There is no acknowledgment of the DDAwithin the legislation or regulations, and the Nursing andMidwifery Council (NMC) has only just started to address thepotentially discriminatory effects of these requirements.However, the NMC and many of the other organisations weconsulted as part of this investigation share our view thatthese regulations are likely to lead to disability discrimination.

In teaching in England and Wales, we found similar health

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8 A competence standard is defined by the DDA as anacademic, medical or other standard applied by or onbehalf of an education provider or qualifications body forthe purpose of determining whether a person has aparticular level of competence or ability”

requirements, despite stringent competence standards andrequirements for good conduct. The DDA is acknowledgedwithin legislation and guidance but we found that thesedocuments are still likely to lead to discrimination. It isnotable that generalised health standards for teachers andtrainee teachers were abolished in Scotland in 2004, with noapparent negative effects.

For social work, we found that there is a requirement for ‘physical and mental fitness’ in England and Wales. Thisrequirement is more stringent for students than for qualifiedsocial workers. Once again, the physical and mental fitnessrequirement does not exist in Scotland, where a framework ofcompetence and conduct is considered sufficient to protectthe public.

We found that within these professions, assumptions arefrequently made that disabled professionals would pose arisk to the public. These three professions are ones in whichanxieties about risk are understandably high, as nurses,teachers and social workers have regular, oftenunsupervised, contact with children, people who are ill or inother ways considered vulnerable.

A number of high-profile instances of murder of patients andpupils (for example by the nurse Beverley Allitt, the doctorHarold Shipman and the school caretaker Ian Huntley) haveled to an increased focus on regulation, at registration butincreasingly in the form of revalidation. These cases continueto haunt the professions, especially nursing where the Allittcase has had the strongest enduring impact.

The regulation of nursing and the approach taken to thehealth of nurses has been directly influenced by the report ofthe Clothier Inquiry, which looked into the crimes perpetratedby Allitt. The regulation of other health professions and socialwork in England and Wales has also been shaped by therecommendations from that report.

Within the teaching profession, the standards appear to derivefrom historical concerns about infectious diseases,particularly tuberculosis.

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There is a current trend towards widening the scope of healthstandards to cover previously unregulated professions as ameans of ensuring public safety.

During this investigation we felt it was important to explorewhether the concerns about risk arising from disability or ill-health were rooted in fact or in prejudice. The DRC’s inquirypanel looked in detail at the Clothier report and foundinconsistencies between the evidence and analysis itpresented and its findings and recommendations.

The Clothier report revealed that there was nothing in thehistory of Beverley Allitt that would have led anyone to predictthat she would commit the crimes that she did. Neither hadthere been a previous diagnosis of a mental health condition.To the extent that the murders could have been prevented, theClothier report identified inadequate management as thereason they were not. Despite these findings, it maderecommendations about health checks for people enteringnursing that have led to a wave of regulation across the healthand social care professions.

We also looked at the relevant Shipman reports, and agreewith their finding that to reduce the likelihood of criminalactivity of the kind perpetrated by Allitt and Shipmanhappening again, what is needed is proper management,supervision, information exchange and prompt action wheninconsistencies and issues appear.

A particular outcome of the Clothier report has been thestigmatisation of people who have, or have had, mentalhealth problems. This has led to people being excluded fromtraining and employment and a consequent reluctance onbehalf of professionals to disclose information about theirmental health. In effect, they are often ‘driven underground’by attitudes, policies and practices that are frequentlydiscriminatory. This can mean that they do not receiveappropriate treatment, support and adjustments to enablethem to practise safely and effectively. This situation is plainlyunsatisfactory to all concerned and cannot be said to aidprotection of the public.

When we asked relevant organisations about the purpose of

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generalised health standards, we found the role of thesestandards in protecting the public was an unexaminedassumption, and not one that was based on any evidence.Ourevidence told us that identification of health conditions is anirrelevance to public safety. Indeed it appears to be a ‘redherring’, detracting from the important issues – identifiedfrom previous tragic cases – of information exchange andmonitoring of conduct.

We asked witnesses to our inquiry panel to give us theirperceptions of which particular disabilities or healthconditions were likely to present a risk to public safety.Although dyslexia, epilepsy and mental illness werefrequently mentioned, witnesses were not able to explainwhat risk would remain for professionals, disabled or not,who had met these professions’ rigorous standards ofcompetence and conduct.

No evidence was presented to us that a diagnosis of mental illhealth is a sufficient predictor of unsafe or poor practice fornurses, teachers or social workers. The impact of any conditionis particular to the individual and their circumstances. Thismeans that, for some people, mental ill health might raiseissues of competence or conduct that could not be avoidedthrough reasonable adjustments. These people would beunable to enter or remain in the profession because of notmeeting those standards. For other people, mental illnesswould be well-managed and therefore irrelevant.

Generalised health standards encourage a diagnosis-ledapproach to the assessment of risk, rather than anindividualised approach. Occupational health organisationstold us that using health diagnoses serves no useful functionat all in predicting future conduct or competence or inassessing risk.

Having gathered evidence from a wide range oforganisations, including all the relevant regulatory bodies,we have therefore come to the conclusion that requirementsfor health or fitness of professionals, laid down in legislation,regulation and statutory guidance, should be revoked.

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The Government9 is increasingly focused on revalidation ofregistration, particularly following the Shipman inquiry.It has recently proposed that all statutorily regulated healthprofessions have in place arrangements for revalidation, bywhich professionals must periodically demonstrate theircontinued fitness to practise.

The Government is also considering the regulation of otherhealthcare professionals.The aim is to standardise regulationacross the health professions and give the Council forHealthcare Regulatory Excellence (CHRE) a pivotal role. Thereare, in addition, moves to increase the professionalisation ofthe whole children’s workforce. The DRC does not object tothese extensions of professional regulation or to theintroduction or extension of revalidation but does not want tosee health standards included. We believe that existing andnew professional regulation should be based on competenceand conduct, and not on health.

The DRC’s investigation found only a very few circumstancesin which it could be justifiable to consider a person’sdiagnosis in isolation (and irrespective of competence andconduct), the major example being the diagnosis of bloodborne viruses. However, like the Nursing and MidwiferyCouncil (NMC), we recognise that a blood borne virus is notjustification on its own for the refusal of registration butshould be an issue for employers in relation to particular jobs.

This investigation has focused on health related standardsand not those relating to character. However, there can be apernicious relationship between the health and characterstandards, which affects disabled people. A failure to disclosea disability or long-term health condition can be used asevidence of ‘bad character” and can lead to disciplinaryaction. This is in the context of a culture, particularly withinnursing, in which people who are disabled or have long-termhealth conditions often do not feel safe to disclose.

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9 The Westminster government has jurisdiction for healthsector regulation across England, Scotland and Wales.

Role of Government and the Regulatory Bodies

Governments in England, Scotland and Wales, as well as theprofessional regulatory bodies, have responsibility both forprotecting the public and for equality for disabled people.There have been some welcome initiatives, particularly inteaching (such as the setting up of the Disabled TeachersTaskforce). However, in other sectors the relationship betweenpublic safety and disability equality goes unexamined.

This investigation has aimed to achieve a balance betweenthese two important concerns, which we believe to bemutually reinforcing, rather than being in conflict. We expectgovernments and the regulatory bodies together to considerthe conclusions of this investigation, including therecommendation to revoke the current health standards inteaching, social work, nursing and other health professions.10

In 2008, Secretaries of State and Ministers (in Scotland andWales) will be reporting on actions their Departments havetaken to promote equality under the Disability Equality Duty(DED), which was introduced by the DDA 2005. These reports should cover what the relevant regulatory bodieshave done to remove barriers to disabled people’sparticipation in the professions.

Regulatory bodies should remove the health standards thatare within their own remits, and should review guidancedocuments based on statutory health standards. If healthstandards are removed, there are still likely to be competencestandards that have an adverse effect on disabled people. Wedo not believe that the standards of competence or conductapplied to disabled people should be lower than those forother professionals. However, all competence standardsshould be reviewed and, where they are found to have anadverse impact upon disabled people, the regulatory body

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10 In Scotland, there are no generalised health standards forsocial workers or teachers, so the recommendation torevoke these standards does not apply

should consider whether they are necessary, and considerhow adjustments can be made under the DDA to the way thatthese standards are assessed.

For example, English language standards may be genuinecompetence standards and therefore not subject to the dutyto make reasonable adjustments under DDA. However,reasonable adjustments do apply to the way these standardsare assessed and in training people to meet these and otherstandards. There is a need for clear guidance from theregulatory bodies about making adjustments to enabledisabled people to reach the required competencies.Responsibility for this guidance should fall to the regulatorybodies because of their guardianship role in relation toprofessional standards.

In relation to fitness to practise cases we considered the meritof the existing approach by the regulatory bodies of treatinghealth issues separately to issues of competence or conduct,by having separate hearings. Some of those we spoke to feltthere were benefits to the individual concerned, such asholding the hearing in private.

Even with the removal of health standards there are still likelyto be competence or conduct cases that have a health ordisability element. In practice we heard it is often difficult todistinguish the different elements.

We believe that the DDA provides a sufficient framework forensuring that conduct or competence cases with a health ordisability element are dealt with fairly and sensitively. Suchhearings are covered by the DDA, and approaches toreasonable adjustments should take two forms.

First, the regulatory body should consider whether there aredisability related reasons for the person’s poor performanceor unsatisfactory conduct that could be (or could have been)addressed through adjustments – such as additional supportin the workplace. These reasons may affect the handling ofthe case.

Second, the regulatory body would need to consideradjustments to the actual process of the hearing, as required

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under the provisions for qualifications bodies under Part 2 ofthe DDA. For example, the hearing could be held in private orthe person under investigation could be allowed extrasupport or other adjustments during the hearing itself.

Higher education

This formal investigation did not include, as part of its scope,the barriers to entry to the professions before the highereducation stage. However, we heard from a wide range oforganisations that disabled people are discouraged frombecoming nurses, social workers and teachers and aresometimes discriminated against before they apply to highereducation. Potential students may not have had a chance toget relevant experience through voluntary work, possiblybecause they have not had access to reasonable adjustments.Others have encountered prejudice in their previouseducational careers, or in voluntary work.

Applicants to higher education have a statutory duty todisclose information about disabilities or long-term healthconditions for nursing courses across Britain, and for socialwork and teaching courses in England and Wales. Proceduresare laid down by the regulatory bodies (as well as theDepartment for Children, Schools and Families (DCSF) in thecase of teaching) for the assessment of students’ health.

People are often uncertain about what information they haveto disclose. Forms and requests for disclosure are often notexplicit about their purpose. For example, whether theinformation is required for making reasonable adjustments,for assessment of a person’s health or fitness, or formonitoring purposes. Health questionnaires are frequentlyintrusive, irrelevant and assume a model of perfect health,asking questions such as: “Are you free from any physicaldefect or disability?”. They often make no mention of the DDA.

The regulatory requirement to disclose undermines the DDA,in that it deters people from asking for reasonableadjustments in higher education, which can lead to them beingjudged as incompetent and unsafe. The health standards foster

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the perception that they are there to prevent people who aredisabled or have long-term health conditions from applying tohigher education courses. Universities themselves expressconcern about the non-specific nature of the health standardsand feel that they do not receive sufficient guidance from theregulatory bodies on managing the compulsory disclosureprocess.

This investigation also found that generalised healthstandards lead to universities and their occupational healthservices attempting to pre-judge the ability of disabled peopleto be able to practice competently and safely at theapplication stage or at entry to courses. It is important thatdisabled students – like all students – are given theopportunity to develop the relevant competencies during thecourse, with adjustments to enable them to achieve them.

We found particular barriers for students with dyslexia,especially within nursing. There is a common perception thatpeople with dyslexia cannot read and are thereforeautomatically a risk. However, the nature of dyslexia variesfrom person to person and many people with dyslexiadevelop effective coping strategies, including practices andprocedures that can enhance safe working for all nurses.

Requirements for written and spoken English, laid down ascompetencies by regulatory bodies and universities, candisadvantage deaf students. English language standards,unlike generalised health standards, are likely to becompetence standards and therefore the standardsthemselves do not need to be adjusted under the DDA.

However, deaf people may be disadvantaged by thesestandards, so reasonable adjustments should be made toenable deaf people to have an equal chance of meeting thesestandards. People who use British Sign Language (BSL) needdeaf nurses, social workers and teachers who cancommunicate directly with them in their first language, so it isimportant that deaf people are allowed to train for theseprofessions. We received evidence from a social work courseand a nursing course that had successfully integrated andsupported deaf students, including first language BSL users.

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Occupational health services play a prominent role indeciding whether an applicant is fit to study and practise,particularly in nursing. Some occupational health providerstake account of the DDA in their practice and take an activerole in suggesting adjustments, while others do not seem tounderstand their role in supporting universities andemployers to meet their DDA obligations.

There are inconsistencies in the use of occupational healthservices. For example, for nursing courses, some universitiesuse NHS occupational health services while others useservices specifically for higher education institutions. Differentservices are likely to be assessing students for different things,for example whether they can complete the course or whetherthey are likely to be able to practise as a nurse.

The investigation found that students often have a particulardifficulty with work placements. This can be because offailures by the university to plan properly for placements, orto communicate the need for adjustments, or to cooperatewith placement providers in planning adjustments.Placement providers often lack awareness of disabilityequality and the DDA, particularly the concept of reasonableadjustments. This issue can be exacerbated by the students’own reluctance to disclose their disability or long-term health condition.

Employment

We looked at what impact the generalised health standardshad on employment practice within nursing, teaching andsocial work. We found that it was occupational health servicesthat were the significant determinant of how nurses, teachersand social workers were assessed. The regulatory bodieshave a much smaller role in the regulation of employmentthan they do in the regulation of higher education. In teachingin England and Wales there is detailed statutory guidance onthe assessment of disabled people’s fitness to be employedas teachers. The tone of these documents does not encouragedisability equality, and the procedures laid down are likely tolead to discrimination.

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The investigation found that public sector employers ofnurses, teachers and social workers routinely use lengthy,over-inclusive and intrusive pre-employment healthquestionnaires. These are costly, not useful and potentiallydiscriminatory because they focus on a person’s diagnosisand not on the requirements of a particular job. Rejectingsomeone on the basis of a diagnosis, when this is irrelevant tothe job, is direct discrimination under the DDA. Occupationalhealth services used by these employers should instead focuson providing ongoing support for employees to retain them inthe workforce.

There are specific jobs where it is necessary to requireparticular standards of health, for example the absence of ablood-borne virus or physical strength for lifting. However,we consider that any medical requirements or assessmentsshould be very closely linked to the actual tasks to beperformed and should be subject to reasonable adjustments.

We conclude that employers should only ask health questionswhen these are relevant and, to avoid discrimination, not untilafter an offer of employment has been made. We believe thatthe practice of asking irrelevant pre-employment medicalquestions should be made unlawful. This is the approach inthe United States, where the Americans with Disabilities Act(ADA) prohibits medical inquiries or examinations before theoffer of a job. Where a disability or health condition meansthat someone is not able to do the job, the job offer can bewithdrawn. In practice, this is likely to be infrequent.

We recommend that employers only use occupational healthservices that have an enabling, DDA-aware approach toproviding these services, focusing on reasonable adjustmentsrather than the screening out of disabled people. Employersshould also ensure that they understand their responsibilitiesunder the DDA. Schools may have particular difficulties asdecisions may fall on Head Teachers and governing bodies.Local authorities should support schools in becoming moreDDA aware.

The DRC heard about the contribution that disabled peoplecan make to the professions of nursing, teaching and social

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work. We also received evidence about the discriminationdisabled people face working in these sectors. Employersshould ensure that they and their occupational healthproviders support disabled people to enter and stay inemployment.

Disclosing disabilities and long-term health

conditions

For people training and working in nursing, teaching andsocial work, decisions about disclosing disabilities and long-term health conditions are not simply personal choices. Thereare two regulatory frameworks that inform these decisions.

First, the health standards themselves lay downrequirements for disclosure and, in some cases, proceduresas well. Second, the reasonable adjustment duty of the DDArequires that higher education institutions, regulatory bodiesand employers know about a person’s disability in order tomake specific adjustments.

The compulsory requirement for disclosure arising from thehealth standards causes confusion and anxiety. People maynot know whether a particular condition needs to bedisclosed, and they may have concerns about theconsequences of disclosing, or of not disclosing.

The effect of the health standards is to create anunwillingness to disclose a disability or long-term healthcondition, which in turn can affect the availability ofadjustments and support.

People with fluctuating conditions, such as depression ormultiple sclerosis, face particular difficulties arounddisclosure and may only disclose when they are faced with acrisis in their education, work placement or employment.

People with mental health problems face particular stigmaand are sometimes singled out for investigation. This arisesout of an association of mental health conditions with risk,reinforced by the recommendations from the Clothier reportand the health standards themselves.

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Few of the organisations that gave evidence to the DRC wereprepared to straightforwardly and unconditionally advisedisabled people to disclose their disability within theseprofessions. Some organisations recommend that disabledpeople have a positive strategy around their disclosure. This would consist of talking about reasonable adjustmentsrather than focusing on medical explanations, and having pre-prepared positive messages to counteract any negativereaction. It is imperative that a culture of trust exists withinthese professions, as disclosure is beneficial to everyone,including patients, pupils and clients.

Negative attitudes towards disabled professionals andstudents do not derive entirely from the health standards. Thestandards reflect, as much as they promote, negativeattitudes towards disability at a societal level and perhapssimply provide a framework for formalising prejudice. Theyact as a deterrent to professionals who might not feelwelcome within the professions anyway. Within theseprofessions, people who are disabled or have long-termhealth conditions are primarily regarded as vulnerablepeople who receive help or care – and not as helpers or carersthemselves.

In Scotland, where health standards for teachers and socialworkers have been removed, we found evidence thatnegative attitudes persist – we were told that “the culture onthe ground has not changed”.

Nursing as a profession seems to be particularly intolerant ofdisabled practitioners. This may be linked to the perception ofnurses as ‘superhuman’ and a desire to maintain theboundaries between those who care and those who are caredfor. Without doubt, the Clothier report has had a lasting effect.Despite more than a decade of legal and social progress fordisabled people, the perception still remains that disability,particularly a mental health condition, automatically meansthe presence of risk.

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Statistics and research

The DRC found a dearth of research or data about disabledprofessionals within nursing, teaching and social work. This was one of the concerns that prompted us to carry out this investigation. Statistics, where available, suggest thatdisabled people are under-represented or are present but notdisclosing their health or disability status and so are notrepresented in the figures.

In teaching, across Great Britain, less than one per cent ofthose on the professional registers have declared a disability.In social work, the equivalent figure is around two per cent.

In nursing, the Nursing and Midwifery Council (NMC) has notyet collected any statistics about disabled people on itsregister, although it has recently started monitoring inrelation to staff. Monitoring is something that the DRCadvised qualifications bodies to do in its 2004 Code of Practiceas a way of ‘determining whether anti-discriminationmeasures taken by an organisation are effective’. Severalregulatory bodies have acknowledged that there areproblems with data collection, due to issues of trust anddisclosure.

In guidance on the DED, the DRC recommends that it may beappropriate to collect information according to impairmenttype, as disabled people with different impairments canexperience fundamentally different barriers. This formalinvestigation has found that disabled people in theprofessions do indeed face different barriers depending upontheir type of impairment. For example, people with mentalhealth problems face particular assumptions and haveparticular concerns about disclosure.

During this investigation, the DRC asked organisations tosend in relevant research they had conducted orcommissioned to inform their own organisational practice, orto contribute to their understanding of the barriers thatdisabled people face. Very little research came to light.However, our investigation also revealed the need for furtherresearch. We heard that organisations such as universities

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need information and guidance from the regulatory bodies,such as guidance about reasonable adjustments. Research,including evidence of good practice, should be undertaken toinform such guidance.

The DRC also heard from a range of organisations about thevalue of disabled role models within these professions, forother disabled professionals and for disabled patients, pupilsand clients. However, we are not aware of any research aboutthe value of role models or of any practical projects or pilotsrelating to this issue. Similarly, the DRC has not found anyevidence about the value of mentoring or networking fordisabled people in these professions and few examples ofmentoring or networking being used to support disabledpeople. Research projects and evaluated pilot projects couldbe used to inform these issues.

There is also a need for further research into the culture withinthese professions – specifically around attitudes towardsdisability and how these attitudes might present a barrier todisabled people working or progressing.

Finally, our literature search11 found little evidence ofpublished or unpublished research about disabled people’sperceptions of barriers to entry and training. Regulatorybodies should carry out or commission research of thisnature to inform impact assessments about their ownpolicies, procedures, practices and guidance documents.

Gathering disability information – through research ormonitoring – is not an end itself, but should be placed in thebroader context of promoting disability equality by using theinformation to help decide where action is most needed,taking such action, reviewing its effectiveness and decidingwhat further work needs to be done. This can be achieved byinvolving disabled people in framing the research questions

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11 Background to the DRC’s formal investigation into fitnessstandards in the nursing, teaching and social work professions:Paper prepared by Chih Hoong Sin, Monica Kreel, CarolineJohnston, Alun Thomas and Janice Fong, DRC 2006

and designing the mechanisms for gathering information.The inadequate research base should not be used as anexcuse for delaying change; but without accurate knowledgeof the barriers faced by disabled people within these sectors,these barriers cannot be successfully tackled.

Medicine, dentistry and other non-nursing

health professions

The DRC’s investigation focused mainly on nursing, teachingand social work. However the review of legislation, regulationand statutory guidance commissioned for this investigation,also covered (for reasons of comparison) the healthstandards, laid down in regulation, in medicine, dentistry and the 13 professions currently regulated by theHealth Professions Council (HPC).This review found thatsimilar regulatory frameworks, including discriminatoryhealth standards, also exist across this wider group ofhealth professions.

Evidence received from the HPC demonstrated a model ofgood practice within the current constraints imposed by thehealth standards. The HPC draws a crucial distinctionbetween fitness to practise and fitness for a particular job in aparticular setting. Registration does not guarantee thatsomeone would be able to practise effectively in all settings.The HPC therefore argues that registration decisions shouldnot be based on the possibility of future employment in aparticular place.

The Commission for Equality and Human

Rights (CEHR)

This investigation is published in the final month of the DRC’slife (September 2007). The CEHR will take over the duties andpowers of the DRC and we hope that it will follow up thefindings and recommendations of this investigationvigorously.

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RecommendationsThe evidence collected for this formal investigation makesa compelling case for the revocation of generalised healthstandards for professionals in nursing, teaching and socialwork. It also makes the case for other actions to promoteequality for disabled people. Below we summarise themain recommendations of the investigation in relation towho is responsible for them.

Many of these recommendations are things which publicbodies should be doing in any event to comply with theirDisability Equality Duty – in particular, the need to conductimpact assessments, so that they can ensure that dueregard is being taken of disability equality.

The Department of Health and the Department

for Children, Schools and Families should:

1. Revoke the statutory regulation of health in nursingacross Great Britain and in teaching and social work inEngland and Wales.

2. Ensure that existing regulation of registration andrevalidation are concerned with assessing competenceand conduct, with effective methods of monitoring andinformation exchange.

3. Not extend the regulation of health to other occupations,to students, or through the introduction of revalidation.All extensions and harmonisation of professionalregulation should focus on competence and conduct andnot include mental or physical fitness or health.

4. Review their guidance to ensure that it is up to date withpresent legislation and is non-discriminatory.

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5. Consider with the relevant regulatory bodies, the findingsand recommendations of this report as part of theresponsibility of Secretaries of State and Scottish andWelsh ministers to report on action their Departmentshave taken to promote equality under the DisabilityEquality Duty in 2008.

The Council for Healthcare Regulatory

Excellence (CHRE) should:

6. Take a pivotal role in coordinating the regulation ofhealthcare professions and quality assuringmechanisms to assess competence and conduct.

The other relevant regulatory bodies across

England, Scotland and Wales should:

7. Remove all requirements for good health or physicaland mental fitness that are within their remits.

8. Review their statutory disability equality schemes andinvolvement of disabled people.

9. Carry out impact assessments of:

• their policies, practises and procedures

• their processes for assessing fitness to practise, for example fitness to practice hearings

• English language standards and competence standards in general

• their main methods of communication with actualand potential professionals.

10. Where competence standards are found to have anadverse impact on disabled people, consider whetherthey are necessary and, if they are, how adjustments canbe made to enable disabled people to meet the requiredstandards.

11. Carry out or commission research on the provision ofreasonable adjustments for students (during university

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based training and work placements) and pull togetherinformation about good practice.

12. Issue guidance to help higher education institutions tomake adjustments to enable disabled people to meet thecompetence standards.

13. Review systematically existing publications andexamine the quality of advice given verbally toindividuals and higher education institutions.

14. Review registration application processes to ensure thatdisabled people are not disadvantaged and ensure thatthere are adequate feedback and complaintsprocedures.

15. Where appropriate, continue to make enquiries inrelation to prospective registrants about conditionswhich are not covered by the DDA, such as alcohol anddrug dependence, paedophilia and kleptomania.

16. Not use a failure to disclose a disability or long-termhealth condition as evidence of “bad character” or assomething that should lead to disciplinary action.

Higher education institutions should:

17. Maintain high professional standards for disabled andnon-disabled students alike but not pre-judge theprofessional competencies of disabled applicants orstudents.

18. Consider the experiences of those higher educationinstitutions that have enabled deaf students to qualifyand practise in these professions, for examples ofgood practice. Higher education institutions shouldalso consider the research carried out, and advicegiven, by higher education institutions that havesupported nursing students with dyslexia.

19. Properly plan work placements for disabled students.Higher education institutions should take steps to ensure

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that, with the permission of disabled students, sufficientinformation about adjustments is shared with workplacement providers

20. Ensure that occupational health (OH) services operate inaccordance with the higher education institutions’obligations under the DDA, that they are enabling and focus on reasonable adjustments and not on medicaldiagnosis. Higher education institutions should ensurethat OH services understand that professions include avariety of roles and that a student may be able toundertake some roles and not others.

21. Ensure that disabled people are not expected to meetcompetence standards at application, or at the beginningof courses, that other students are only expected to meetduring, or at the end of, their courses.

22. Carry out impact assessments of:

• processes for allocating and arranging workplacements

• the provision of occupational health services

• admission procedures.

23. Monitor the numbers and progress of disabled nursing,teaching and social work students, and monitoraccording to impairment category if consideredrelevant. Maximise the reliability of monitoringinformation by comparing it to other available disabilitystatistics. Higher education institutions should considerhow to use this information to inform impactassessments and action.

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Employers should:

24. Not ask irrelevant health questions. Health questions,if relevant to a specific job, should only be asked afteran offer of employment has been made.

25. At recruitment stage, prior to a job offer, limitquestions about disability to those that are concernedwith reasonable adjustments for the recruitmentprocess.

26. Ensure that they use occupational health providersthat understand the DDA, work in a DDA-compliantway, and focus on reasonable adjustments ratherthan medical diagnosis.

27. Monitor staff including the numbers of disablednurses, social workers and teachers, and monitoraccording to impairment categories if this isconsidered to be relevant.

28. Maximise the reliability of monitoring information bycomparing it to other available disability statistics.Employers need to consider how to use theinformation to inform impact assessments and action.

29. Carry out impact assessments of:

• their provision of occupational health services

• their recruitment processes (local authorities should also review the advice and guidance, both verbal and written, given to schools about the employment of teachers)

• the way that work placements are made available to trainee nurses, teachers and social workers.

30. Not use a failure to disclose a disability or long-termhealth condition as evidence of ‘bad character’, andnot use such a failure to disclose to triggerdisciplinary action, unless there are serious concerns

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about conduct or competence arising from this non-disclosure.

31. Test professionals for the presence of blood borneviruses prior to and during employment only in rolesthat involve invasive health treatments, such asworking within a wound.

Occupational health services should:

32. Review, with employers, the questionnaires used togather health information and ensure that assessmentof health is tailored to particular jobs, and that theseassessments are made only after the offer of a job.

33. Be clear about the purpose of their service, forexample, supporting employers and employees toachieve health, well-being and productivity at work,mindful of the range of legal and ethicalresponsibilities of all parties.

34. Ensure a focus on providing long-term support wherenecessary to enable someone to stay on a course orin a job.

35. Under the leadership of the Faculty of OccupationalMedicine, ensure that the practice of all services israised to the standard of the best and thatpractitioners receive training on the DDA anddisability equality.

36. Consider the recruitment and retention of disabledoccupational health professionals.

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All organisations12responsible for the

promotion of careers in nursing, teaching and

social work should:

37. Actively promote entry of disabled people into theprofessions, for example through websites, literature,advertising, promotional events and through careers services.

38. Use monitoring and research information fromregulatory bodies, employers and higher educationinstitutions to determine which groups are under-represented and use impact assessments to identifyhow they can encourage disabled people to enter theprofessions. In doing so, they will be fulfilling theirdisability equality duties.

All relevant organisations should:

39. Take action to tackle the confusion throughout thesesectors on what does and does not constitute a‘disability’ and who is covered by the DDA.

40. Combat the perception within these professions thatdisabled people are vulnerable people who receivehelp or care and cannot be professionals themselves.

41. Tackle the stigma and unwillingness to disclose inrelation to many disabilities and health conditions,particularly mental health.

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12 These organisations include NHS Employers, NHS Scotland,the Training and Development Agency for Schools, theGeneral Teaching Council for Wales, the General TeachingCouncil for Scotland, The Department of Health, the ScottishSocial Services Council and National Workforce Group forsocial work and social care staff in Scotland

42. Take a sensitive approach both to encouragingdisclosure and to handling personal informationfollowing disclosure.

43. Make clear why information about disability or long-term health conditions is being collected, who willsee it and what use it will be put to.

44. Create an inclusive culture and environment thatpromotes disclosure, including where:

• there are role models for disabled people – for example, managers or tutors who are disabledand are open about their disability

• mistakes made by disabled people, particularly ina learning environment, will be expected andtolerated, as they would with any student orpractitioner, and not automatically attributed todisability

• disability is seen as a welcome difference and notas a deficit

• reasonable adjustments are made, and disabledstudents and practitioners are aware that thesehave been made and aware of other adjustmentsthat might be available to them

• colleagues, or in the case of higher education,fellow students, also have positive attitudestowards disability and understand that reasonableadjustments are about equality not preferentialtreatment.

45. Collaborate to increase the very limited evidence baseon the experiences of disabled people in theseprofessions, or excluded from these professions, andthe limited amount of statistical information available.Research should involve disabled people, not only asrespondents.

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Regulators and representative bodies within

medicine, dentistry and other non-nursing

health professions should:

46. Review the findings and recommendations of theDRC’s investigation (including the analysis ofregulatory frameworks) and consider theirapplicability to these other professions.

The Commission for Equality and Human

Rights should:

47. Adopt the findings and recommendations of thisinvestigation and press government for therevocation of the health standards.

48. Stimulate activities to encourage disabled people towork and stay in these professions and take action toaddress the barriers we have found.

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Chapter 1 –Backgroundto the FormalInvestigation1. In May 2006 the DRC launched a formal investigation

into the barriers that disabled people face entering,and staying in, nursing, teaching and social work,focusing on the barriers arising from the statutoryregulation of these professions. During this generalformal investigation, the DRC has worked with a verywide range of organisations and individuals to lift thelid on a complicated and previously under-researchedset of issues.

2. In teaching, social work, and nursing and across otherhealth professions such as medicine and dentistry,there are health related standards that determine whocan enter and remain within these professions. Someof these standards are explicitly set out in legislation,whilst others are found within guidance coveringentry to education or employment. With the exceptionof teaching and social work in Scotland, generalisedhealth standards apply to nursing, teaching and socialwork across Great Britain. The DRC had particularconcerns about the way that these standards affectdisabled people’s access to and retention in theseprofessions, and felt that it was the DRC’s role toquestion whether these standards are compatiblewith the DDA and whether they act to deter orexclude disabled people. Protection of the public isclearly at the heart of professional regulation so it

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was important to also consider whether the currentframeworks serve the interests of the public. Thisinvestigation, therefore, set out to analyse in detailthe relevant regulatory frameworks, their purpose andeffect, and to make recommendations for reform ofprofessional regulation.

3. Through this investigation the DRC aimed to pulltogether, for the first time, much needed informationabout the experiences of disabled people studying,qualifying, registering, and practising within theseprofessions. The differences and similarities ofregulation and practice across the professions, andacross England, Scotland and Wales, were used toexplore good and bad practice and to makerecommendations for change to policy, practice andattitudes towards disabled people as professionals.

4. This formal investigation has now been completed.This report presents the DRC’s findings andrecommendations and is published in accordancewith paragraph 7(4) of Schedule 3 of the DisabilityRights Commission Act 1999. Our recommendationswere listed in the preceding section.

Purpose and Scope

5. The DRC undertook this investigation because ofserious concerns about disabled people’sparticipation within the professions of nursing,teaching and social work13. Statistics from acrossthese professions, where available, suggested that

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13 Initial evidence was gathered from a number of differentsources and was set out Chih Hoong Sin, Monica Kreel, CarolineJohnston, Alun Thomas and Janice Fong (2006) Background tothe Disability Rights Commission’s Formal Investigation intofitness standards in social work, nursing and teachingprofessions. See appendix B for full details of this paper andother papers published by the DRC for this investigation.

disabled people, including those with long-term healthconditions, were under-represented; or were presentbut not disclosing their disability status and so notrepresented in the figures. The DRC’s legal andcasework teams had dealt with a number of cases thatraised concerns about the effect of statutory regulationlaying down general health requirements. A literaturesearch14 also suggested that disabled people faced aculture within these professions, whereby they werenormally seen as people who received help or care,and not as helpers or carers themselves.

6. The scope of the investigation was determined by anumber of factors. The DRC has jurisdiction acrossEngland, Scotland and Wales, so it was important tolook at regulation and practice across these countries.In England and Wales, these three professions –nursing, teaching and social work – have similarregulatory frameworks which all include generalisedhealth standards and a requirement for people todisclose health conditions and disability. In Scotland,there are differences for teaching and social work,which warranted exploration and comparison. Theyare professions in which anxieties about risk are high.Professionals have regular, often unsupervised,contact with children, people who are ill or in otherways deemed to be ‘vulnerable’ and there is currentlyan increased focus on regulation, at registration butalso in the form of re-validation, in the aftermath ofthe Shipman and other inquiries.

7. Nursing, teaching, social workers between them,employ very large numbers of people in the public

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14 The scope and search terms of the literature search are laidout in the Background evidence paper, DRC 2006. The mostsignificant relevant literature is also reported in the paper.See appendix B for details

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15 Figures from the Labour Force Survey, Great Britain,January-March 2007

sector – with around half a million nurses, around700,000 teaching professionals, and around 80 000social workers in Great Britain15. These professionsare significant in everyone’s lives, but can particularlyaffect the life chances of disabled people as patients,pupils or clients. It is important, therefore, that theyreflect the full diversity of society in order to providedisabled people with the services that they deserve,and to lead the way in challenging myths andstereotypes about disability.

Formal investigations

8. The DRC was established as an independent body in2000, by Act of Parliament, to stop discrimination andpromote equality of opportunity for disabled people.The DRC’s goal is a society where all disabled peoplecan participate fully as equal citizens. Under theDisability Rights Commission Act 1999, the DRC wasempowered to conduct a formal investigation for anypurpose connected with the performance of its dutiesunder section 2(1) of the Act.

9. Those duties are:

• To work towards the elimination of discriminationagainst disabled people

• To promote the equalisation of opportunities fordisabled people

• To take such steps as it considers appropriate witha view to encouraging good practice in thetreatment of disabled people

• To keep under review the working of the DDA

10. The terms of reference, which the DRC is required topublish at the launch of the investigation, were:

• To investigate the regulatory framework thatdetermines whether people are consideredmentally or physically suitable to study, qualify,register or work within the occupations of nursing,teaching, social work, (and, for good or poorpractice comparisons, other regulated healthprofessions). To make recommendations forchanges to the regulatory frameworks for nursing,teaching and social work where these areconsidered not to be compliant with the DDA –particularly the new disability equality duties thatrequire action by public authorities to promoteequality for disabled people, as defined in the Act.

• To investigate the implementation of theseregulatory frameworks in nursing, teaching andsocial work in terms of compliance of policies andprocesses and the quality of decision-making. Tomake recommendations for changes to policy andpractice in relation to decision-making ifdiscrimination is found or best practice identifiedthat promotes equality of opportunity for disabledpeople.

• To investigate the experiences of people withimpairments and long-term health conditionsstudying or working within nursing, teaching andsocial work in relation to disclosing informationabout their impairments and long-term healthconditions. To make recommendations for changesto policies and practices on disclosure withinnursing, teaching and social work that wouldencourage people with impairments and long-termhealth conditions to disclose such information.

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Methodology

11. This investigation has, within a short time frame16,lifted the lid on a complex web of regulations,policies, practices and attitudes that contribute tosystemic discrimination against disabled peoplestudying, registering and working within nursing,teaching and social work and those who may beconsidering entering those professions.

12. Following two years of initial research and evidencegathering, the DRC launched this investigation bycommissioning a review of the primary andsecondary legislation and statutory guidance, thatgoverns health standards (and other relevantstandards that impact on disabled professionals)within teaching, social work and nursing and otherhealth professions, such as medicine and dentistry17.This has been published on DRC’s website as“Analysis of the statutory and regulatory frameworksand cases relating to fitness standards in nursing,social work and teaching” prepared on behalf of theDRC by David Ruebain and Jo Honigmann, LevenesSolicitors; Helen Mountfield, Matrix Chambers;Camilla Parker, Mental Health and Human RightsConsultant, November 2006. The purpose of thisreview was to explore the interaction of theprofessional regulatory frameworks with the DDA,and to uncover the differences and similarities inapproach between professions, across England,Scotland and Wales and at different career stages(higher education, registration and employment).Regulations covering professionals registering and

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16 The DRC Act dictates that formal investigations must becompleted within 18 months.

17 A wider group of professions was looked at for this part ofthe investigation for purposes of comparison.

working in GB from EU and non-EU countries werealso considered.

13. The regulatory review also collected and analysedlegal cases and some complaints concerningdisability discrimination or health standards withinthis wider group of professions. The DRC has beeninformed of further cases and complaints of disabilitydiscrimination within these professions in the courseof carrying out this investigation. Some of the casesbrought to the attention of the DRC through the casereview and through other sources are included in thisreport.

14. The DRC believed, from its early evidence gathering,that the cause of disabled people’s apparent under-representation in these professions was unlikely to besimply the regulations themselves. The interpretationof these regulations by higher educations institutions,regulatory bodies and employers also warrantedexploration. A project looking at how decisions aremade about disabled people’s fitness to study andwork within nursing, teaching and social work wascommissioned and carried out by a team from theUniversity of Hull and the Social Care WorkforceResearch Unit, King’s College. This has beenpublished online at www.maintainingstandards.org as“Research into assessments and decisions relating to‘fitness’ in training, qualifying and working withinteaching, nursing and social work”. This research wassupplemented by a survey of employers, published as“Assessments and decisions relating to ‘fitness’ foremployment within teaching, nursing and socialwork: A survey of employers” by Janice Fong, ChihHoong Sin, with Jane Wray, Helen Gibson, JoAspland and Data Captain Ltd.

15. We also commissioned a research project looking atdisabled people’s attitudes towards disclosing

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disability. This was carried out by Nicky Stanley, JulieRidley and Alan Hurst at the University of CentralLancashire and Jill Manthorpe and Jessica Harris atthe Social Care Workforce Research Unit, King’sCollege London. It has been published online atwww.maintainingstandards.org as “Disclosingdisability: Disabled students and practitioners insocial work, nursing and teaching”. The purpose ofthis research was to explore the factors thatcontributed to disabled people disclosing, or notdisclosing, information about their disability to highereducation institutions, regulatory bodies or employerswithin these professions.

16. At the half way point in the investigation, a call forevidence went out to key organisations involved in theimplementation of professional regulations, andorganisations representing people affected by theseregulations (such as trade unions and disabilityorganisations). Evidence was requested across fourthemes – views on the professional regulatoryframeworks and the DDA; policy and guidancedocuments relevant to disabled people or to theimplementation of generalised health standards;relevant research carried out, commissioned or knownto the organisations; and relevant statistics aboutdisabled professionals, students or registrants. A fullreport is published as “The Disability RightsCommission’s formal investigation into fitnessstandards in social work, nursing and teachingprofessions: Report on the call for evidence” by ChihHoong Sin, Janice Fong, Abul Momin and VictoriaForbes.

17. In January 2007 an Inquiry Panel was convened,chaired by a barrister, Karon Monaghan. The panelwas made up of people with knowledge of the threeprofessions, disability issues, occupational health,higher education and the regulatory contexts across

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England, Scotland and Wales18. The panel heardevidence from around 45 organisations, includingregulatory bodies, government departments, tradeunions, researchers, disability organisations, employers,higher education institutions and occupational healthorganisations. The Panel also heard the personalexperiences – positive and negative – of disabled peoplestudying or working within nursing, teaching and socialwork.

18. The involvement of individuals and relevantorganisations has been highly valued throughout thisinvestigation. The regulatory bodies for teaching, nursingand social work across England, Scotland and Wales19

were consulted prior to the investigation and wereinvited to contribute to relevant evidence gatheringstages, including the Inquiry Panel. They all gave theirsupport to the investigation. Under the Disability EqualityDuty, many of the regulatory bodies covering nursing,teaching and social work are listed as public bodiessubject to the specific duties. The DRC has reviewed theDisability Equality Schemes of these organisations20 andhas made recommendations within this report abouthow the regulatory bodies can promote disability

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18 See Appendix C for a list of Inquiry Panel members19 Nursing and Midwifery Council (NMC), General Social Care

Council (GSCC), Scottish Social Services Council (SSSC), CareCouncil for Wales (CCW), General Teaching Council England(GTCE), General Teaching Council Wales (GTCW), GeneralTeaching Council Scotland (GTCS) and Training andDevelopment Agency for Schools (TDA). A Glossary isprovided in Appendix E.

20 GSCC, NMC, GTCE, TDA and SSSC. Other regulatory bodiesincluding CCW, and GTCS are not currently listed asorganisations with a specific disability equality duty. TheGTCW and Council for Healthcare Regulatory Excellence(CHRE) were added as scheduled bodies with specific dutiesfrom 6 April 2007.

equality. However the DRC’s assessments of theseschemes have not been included, as this is part of aseparate statutory process.

19. Disabled people’s organisations, trade unions, highereducation bodies, occupational health organisationsand the regulatory bodies have also fed in to areference group that helped to shape theinvestigation. Disabled people have also contributedtheir experiences through a web-based form, and byemailing the DRC. The DRC’s black and minorityethnic (BME) advisory group and its Mental HealthAction Group have also been consulted.

20. The research projects and other strands of work thatmade up this investigation form an important body ofwork that shines a light on an under-researched field.The main findings from these projects and from theDRC’s Inquiry Panel have been brought together inthis report to inform the conclusions andrecommendations. The separate research reportswhich the DRC commissioned as part of thisinvestigation, and other reports of evidence are listedin Appendix B and published atwww.maintainingstandards.org

21. The DRC is very appreciative of all the organisationsand individuals who have contributed to thisinvestigation, including those individuals whovolunteered to be part of the Disclosing Disabilityresearch project; organisations that responded to theother research projects; individuals who completedthe DRC’s web-based form, and who contacted theDRC project team or helpline with their experiences;those who participated in reference group meetings;those who sent in written evidence and those whogave oral and British Sign Language (BSL) evidenceto the Inquiry Panel. In particular the DRC would liketo thank all the members of its Inquiry Panel and the

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chair Karon Monaghan, who contributed theirprofessional expertise and personal experiences andcommitted so much time and hard work to theinvestigation. Richard Exell, DRC lead Commissionerfor this investigation, also made a valuablecontribution.

22. Finally, we would like to acknowledge all themembers of staff who worked incredibly hard tocomplete the investigation before the end of the DRC.The team comprised Abul Momin, Agnes Fletcher(project director), Alun Thomas, Breda Twomey, CarolStewart, Caroline Johnston, Cathy Casserley, CatrionaNicholson, Chih Hoong Sin, Chris Oswald, GemmaHolloway, Gloria Adoch, Jackie Driver, Janice Fong,Joanna Owen, Jonathan Holbrook, Karen Jones, KatieGrant, Kirsty Ginn, Laura Pollitt, Lisa Boardman,Monica Kreel (project manager and report author),Nick O’Brien, Nicola Pazdzierska, Patrick Edwards,Steve Haines, Tony Hawker, Vicky Forbes and WillDingli.

Structure of the Report

23. Part 1 of this report provides an overview of theregulatory frameworks which impact on disabledpeople wanting to study or work within nursing,teaching and social work. We carried out a detailedreview and analysis of the legislation, regulations andstatutory guidance covering these professions (andother health professions) and this is summarised inChapter 2. We believe this is the first time this hasbeen done, and noticed during the investigation thatorganisations working in these sectors had oftentaken these regulations as given and had not criticallyappraised them. This section is fairly technical, butwe felt it was important to clearly demonstrate wherethe requirements for mental and physical fitness stemfrom, and to question their validity. In Chapter 3 we

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look at the way the DDA gives rights to disabledpeople training, registering and working in theseprofessions and places obligations on all the relevantorganisations, including the new DED. This deals withsome crucial issues about the way the DDA interactswith the professional regulations and questionswhether professional regulations “override” the DDA.

24. In Part 2 we move on to look at how the statutory andregulatory frameworks operate in practice. In Chapter4 we look at how they contribute to a culture wheredisability is associated with risk, drawing on thefindings of previous Inquiries, such as the inquiry intothe crimes of Beverley Allitt. We look at the role of theregulatory bodies themselves, in Chapter 5, and wepresent our findings about the current functions andpractices of these bodies. The investigation’s findingsabout practice within higher education andemployment are discussed in Chapters 6 and 7respectively. An issue that affects every stage ofdisabled people’s careers is the decision about whenand how to disclose their disability status, and howmuch to reveal. This is dealt with in Chapter 8. Ourfindings about the kinds of information aboutdisabled professionals that organisations havegathered through monitoring and research arepresented in Chapter 9, where we also question whyso little research has previously been done.

25. In Chapter 10 we draw together our conclusions.

Use of evidence

26. All the evidence sources – research, the regulatoryreview, written evidence, oral evidence from theInquiry Panel, and stories and cases sent in throughthe website – have been drawn on for all sections ofthis report. The Inquiry Panel was a crucial stage ofthe investigation as it gave us a chance to probe

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some really difficult and sensitive issues. We heardsome shocking stories of discrimination, as well asexamples of good practice. This has been a generalformal investigation, and it is not our intention topoint the finger of blame at specific organisations.

We are aware that organisations, especiallyemployers and universities, are trying to operatewithin a framework not of their own making. Whereevidence is sensitive and appears to implicate anorganisation or reveals personal details, we have notnamed the organisation or the individual (althoughthe DRC holds complete records). Where oralevidence from organisations or individuals has beenquoted directly in this report, they have given theirpermission.

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Chapter 2 – TheRegulation ofNursing, Teachingand Social work1. Early on in this investigation we set out to explore

both the nature and extent of the regulations thatset standards for physical and mental fitness (as well as other standards affecting disabledpeople) in the nursing, teaching and social workprofessions, and the way that these regulations are put into practice.

2. These regulatory frameworks are fully described inthe review prepared for this investigation: “Analysisof the statutory and regulatory frameworks andcases relating to fitness standards in nursing,teaching and social work”21. For comparativepurposes this review also included regulationscovering medicine, dentistry and the 13 professionscovered by the Health Professions Council. It wasthe first comprehensive review of these regulationsand revealed a complex array of primary andsecondary legislation and statutory guidancerelating to health standards. These frameworkswere further explored through our analysis ofwritten evidence provided to the investigation, andduring the Inquiry Panel hearings.

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21 Ruebain et al. See Appendix B for details

3. Our investigation has discovered that:

• Although entry to (and retention within) each ofthe three core professions is subject to theapplication of health standards, there isinconsistency between the professions.

• In relation to teaching and social work, there arestriking differences between the position inEngland and Wales (where there are generalhealth standards for entry into and employmentin these professions), and the approach taken inScotland (where there are not).

• In spite of their considerable volume, theregulations and guidance concerning healthstandards – in relation to nursing and social workin particular – make remarkably little reference tothe DDA, or to the need to avoid discrimination ingeneral.

• There is very real potential for adherence to theregulations, and to the related guidance, to resultin unlawful discrimination against disabledpeople.

• There is significant doubt as to whether ill-health,where it does not result in either incompetenceor misconduct, should be a registration or fitnessto practise issue.

4. This chapter of the report is intended to provide acritical overview of the regulatory frameworks thatdetermine whether people are considered mentallyor physically suitable to study, qualify, register orwork within the professions of nursing, teaching,social work.

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Nursing

The Regulations

5. The Nursing and Midwifery Order 2001 provides forthe regulation of nurses and midwives by the Nursingand Midwifery Council (NMC) across England,Scotland and Wales. The Order makes provision forthe NMC:

• to keep and publish a register of qualified nursesand midwives.

• to set the standards and requirements to besatisfied before a person may be admitted to theregister or parts of it, being the standards itconsiders necessary for safe and effective practiceunder that part of the register. Those standardsmay include requirements as to good health andgood character.

• to prescribe the requirements to be met as to theevidence of good health and good character inorder to satisfy the Registrar that an applicant iscapable of safe and effective practice as a nurse ormidwife.

• to establish the standards of education andtraining necessary for admission to the register,and to make arrangements to ensure that thosestandards are met, and to approve qualifications,courses and institutions which meet its standards.

• to establish and keep under review standards ofconduct, performance and ethics expected ofregistrants and prospective registrants, to issueguidance on these matters, and to makearrangements to ensure that action is taken whenthe fitness to practise of a nurse or midwife is

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impaired by reason of (amongst other things)misconduct, lack of competence or ill-health.

6. The 2001 Order also empowers the NMC toinvestigate and determine whether the fitness topractise of a registrant is impaired (and provides forthe establishment of committees including theInvestigating Committee, the Conduct andCompetence Committee, and the Health Committee).The rules and procedures governing suchinvestigations and determinations are set out in theSchedule to the Nursing and Midwifery Council(Fitness to Practise) Rules 2004.

7. The requirements for registrants to be of good healthand good character are further specified in theNursing and Midwifery Council (Education,Registration and Registration Appeals) Rules 2004.These Rules also contain the NMC’s requirements asto who can provide a supporting declaration as togood health and good character.

Guidance

8. The regulations are supplemented by a considerableamount of guidance on entry into training andregistration for nursing. This includes:

• “Requirements for Evidence of Good Health andGood Character”, NMC Guidance 06/04. Furtherguidance on this issue was approved by the NMCin September 2006.

• “Standards of Proficiency for Pre-RegistrationNursing Education”, NMC Guidance 02/04.

• “Standards of Proficiency for Pre-RegistrationMidwifery Education”, NMC Guidance 03/04.

• “Reporting Unfitness to Practise: A Guide forEmployers and Managers”, NMC Guidance 04/04.

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In addition, the NMC has published a “PositionStatement” on the DDA (see paragraph 25 below).

Demonstrating “good health”

9. As the NMC Guidance 06/04 makes clear, “Evidenceof good health and good character must be met, notonly for initial entry to the register but also at eachrenewal of registration and for readmission followinga lapse in registration, or restoration following astriking-off order under the fitness to practiseprocedures.” As to testing for “good health”, theGuidance advises that “Good health will normally bechecked through a health questionnaire completed bythe applicant and assessed by a local occupationalhealth (OH) department. Where an applicant declaresan illness, the OH department doctor eitherundertakes a medical examination or seeks furtherinformation from the applicant’s GP, or possibly both.Once the OH assessment has been done, theprogramme providers are advised as to the fitness ofthe applicant to undertake the programme.”

10. The language of the Guidance is unhelpful, in that ittreats illness presumptively as a negative indicator inso far as access to training is concerned andaccordingly it is something to be “declared” (muchlike a criminal record). Where a “health problem”arises during training, then again the Guidanceindicates that an occupational health assessment willbe required, so that:

“If a new or existing health condition, such asunstable epilepsy, diabetes or depression, were todevelop or become worse, but was likely to respondto treatment, then perhaps a break in educationwould be required. Once the student had recoveredthey should be reassessed by the OH [occupationalhealth] department to determine if they are fit toreturn to education.”

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11. The concept of “good health”, the Guidance says, is a“relative” one. It is unclear what this is intended tomean but the Guidance says that:

“In other words, a registrant may have a disability,such as impaired hearing, or a health condition, suchas depression, epilepsy, diabetes or heart disease,and yet be perfectly capable of safe and effectivepractice.”

12. The implication appears to be that a healthimpairment or disability will usually operate as animpediment to access to training and registration. The Guidance goes further in identifying certaindiagnoses “which would be likely to affect apractitioner’s ability to practise safely and effectively.”It notes that: “The reasons people are currentlyremoved from the register on grounds of ill healthinclude serious mental ill health, drug addiction oralcoholism, all of which cause the individual to be arisk to themselves or to their patients and clients.”

13. The Guidance makes particular reference toinfections, such as HIV, Hepatitis B or Hepatitis A. It states that:

“An individual who is infected with, for example, HIV,Hepatitis B or Hepatitis A might be precluded frombeing able to practise in some posts. However, suchan infection would not preclude them from beingregistered. It is essential, therefore, that registrantsapplying for posts or registering with an agency areaware of and comply with good health requirementsfor employment as well as for registration.”

14. This is especially interesting because, as we observebelow, the evidence heard by the investigation’sInquiry Panel points to the fact that a diagnosis of ablood borne virus is the only diagnosis per se (that is

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irrespective of competence or conduct) which mightjustify a restriction on practice. The NMC recognisesthat a BBV is not a good reason for non-registration.

15. In September 2006, the NMC approved furtherguidance on the “good health and good character”standards22. The Guidance falls into three parts(Guidance for applicants to pre-registration educationprogrammes; Guidance for pre-registration students;Guidance for UK students applying for entry to theregister, and Guidance for registrants)23. Wewelcome the fact that this guidance refers to the DDA,including the NMC’s own obligations under the Act,and that it reflects a more positive attitude towardsdisabled practitioners. For example it makes thefollowing statements about disability:

“The NMC recognises that the nursing and midwiferyworkforce is likely to benefit from reflecting thediversity of society, including those with directexperience of disability or health issues. Registration isa ‘licence to practise’ and it is for employers to maketheir own assessment on fitness for employment.”

“The NMC does not have a ‘list’ of acceptable orunacceptable health conditions. One person who hasa health condition may be affected differently fromanother person with the same condition. The NMCadvises that in all cases individual assessment ofhealth conditions and disabilities is carried out. To

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22 Apparently with the involvement of “stakeholders with avariety of disabilities”, NMC Disability Equality Scheme,pp 7 and 10.

23 This guidance was not available at the time of undertakingour analysis of the statutory and regulatory frameworksand cases relating to fitness standards in nursing,teaching and social work, which was published inNovember 2006

support this the NMC also advises that practice andeducation staff involved in selection, recruitment ormaking a decision related to the good health of aregistrant should have disability equality training”.

16. Nevertheless, the new guidance continues toemphasise the need for “good health”, stating that“[g]ood health is necessary to undertake practice”, and that “health must be sufficient for the person to be capable of safe and effective practice withoutsupervision”24. This, again, led us to consider the issueof whether health is relevant at all where a nurse meetsthe required competencies, and complies with conductrequirements.

17. The new guidance also continues to emphasise theneed for disclosure and, whilst this is important (andrecognised in the guidance as being so) forreasonable adjustments, the obligation appears to gofurther:

“Disclosure is important; you may consider that yourdisability or health condition would not affect yourcapability for safe and effective practice; however youwould not necessarily at this stage possess sufficientunderstanding of the demands that will be made ofyou as a nurse or a midwife. Disclosing your disabilityor health condition enables early assessment of yourspecific needs and provision of information aboutwhat reasonable adjustments may be available tosupport you in your programme. Disclosure is also astep towards developing your professional behaviour,working towards meeting the requirements identifiedin the Code.”

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24 Paragraph 2.7, emphasis in the original.

18. The reference to the Code (referred to further below)suggests that a failure to disclose may have negativeresults not just in terms of impeding adjustments butalso that it may constitute professional misconduct.

Protecting the public

19. The NMC has issued Guidance to employers andmanagers in the document Reporting Unfitness toPractise: A Guide for Employers and Managers, NMCGuidance 04/04. This guidance identifies the NMC’s“primary aim” as being “to protect the public”. Itidentifies the matters which might “impair” fitness topractise as including “physical or mental ill health”and identifies, in particular, “alcohol or drugdependence and untreated serious mental illness” as“conditions that might lead to a finding that aregistrant’s fitness to practice is impaired”. Apartfrom health, misconduct and incompetence areseparately described as matters which might affect aperson’s fitness to practise. This makes it clear that illhealth per se, in the NMC’s view, without anyassociation with misconduct or incompetence, mayimpair fitness to practise.

20. The NMC Code of Professional Conduct: Standardsfor Conduct, Performance and Ethics25 provides thata registered nurse or midwife must act to identify andminimise the risk to patients and clients andcontinues:

“You must act quickly to protect patients and clientsfrom risk if you have good reason to believe that youor a colleague, from your own or another profession,may not be fit to practise for reasons of conduct,health or competence. You should be aware of the

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25 NMC 2002, as amended 07/04

terms of legislation that offer protection for peoplewho raise concerns about health and safetyissues”.26

Health standards and reasonable adjustments

21. The NMC has published “Standards of Proficiency forPre-Registration Nursing Education” (NMC 02/04)27

and these set out standards of proficiency andstandards of education required for pre-registrationnursing education programmes and apply in England,Scotland and Wales. A similar set of standards applyin respect of midwifery. Standard 2 concerns generalentry requirements for admission to approved pre-registration programmes and entry to the register,and sets out requirements for literacy and numeracyand for good health and good character. The literacyand numeracy requirements, if not reasonablyadjusted, obviously have the potential todisadvantage certain disabled candidates, includingcandidates with specific learning disabilities andBritish Sign Language (BSL) users28. In addition, theGuidance states that:

“Students who declare on application that they havea disability should submit a formal assessment of

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26 It can be noted too that Clause 2.2 provides that: “You arepersonally accountable for ensuring that you promoteand protect the interests and dignity of patients andclients, irrespective of gender, age, race, ability, sexuality,economic status, lifestyle, culture and religious or political beliefs”. Disability is not mentioned.

27 http://www.nmc-uk.org/aFrameDisplay.aspx?DocumentID=328

28 Though if these requirements are competence standards,the duties to make adjustments to these standards wouldnot apply, see Chapter 3, paragraph 11 below.

their condition and specific needs, from a GP or othermedical or recognised authority, to the relevantOccupational Health department. The programmeproviders should apply local policy in accordancewith the Disability Discrimination Act 1995, for theselection and recruitment of students/ employeeswith disabilities. Where appropriate, the institution’sstudent support services should also be involved. TheNMC would require evidence of how such studentswould be supported in both academic and practiceenvironments to ensure safe and effective practicesufficient for future registration.”

22. This means disabled people, where they disclosedisability status29, must submit a formal assessmentof their condition and specific needs from a GP orother medical or recognised authority and thereafterthe NMC will require evidence directed at ensuring“safe and effective practice”. No such requirementsare imposed upon non-disabled students and theserequirements are linked to disability status alone, notfunctional ability or competence. This requirementtherefore has the potential to lead to directdiscrimination30.

Comment

23. The NMC’s Guidance (06/04) indicates that Parliamentintroduced the requirement for evidence of goodhealth and good character into the 2001 Order toenhance protection of the public following a number

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29 As mentioned above if they do not disclose relevantinformation they risk the sanction of disciplinary action oreven, according to the NMC Guidance, the threat ofcriminal action.

30 See Chapter 3, paragraph 4 below for further discussionof direct discrimination

of high-profile cases involving the health andcharacter of doctors and nurses. This requirement,together with the achievement of standards for entryto and maintenance on the register and compliancewith the Code, helps – it is claimed – to ensure thefitness to practise of all those on the Nursing andMidwifery Council's register.

24. The “high-profile cases involving the health andcharacter of doctors and nurses” included the case ofBeverley Allitt, which, this formal investigation hasfound, still haunts the nursing profession. Thedevelopment of the rules addressing entry intonursing and the approach taken to the “health” ofnurses has been directly influenced by the report ofthe Clothier Inquiry into the crimes of Beverly Allitt.The findings of the Clothier Inquiry are addressed insome detail below (see Chapter 4 and Appendix A)because of the scarring effect they have had on theregulation and the culture of the nursing profession.

25. The NMC Guidance came into effect in August 2004 –nine years after the enactment of the DDA and theyear after the DDA was amended to outlaw disabilitydiscrimination by qualifications bodies. Nevertheless,there is not a single mention of the DDA or disabilitydiscrimination in this important guidance, although itis mentioned in the more recent guidance (seeparagraph 15 above). However, the NMC haspublished a “Position Statement”31 on the DDA.

This is an unusual way to deal with the application oflaw to a public body. This statement expresses thefollowing view of the application of the DDA to the NMC:

“The NMC is pleased to register all those applicantswho have achieved the competencies required of a

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31 Available at http://www.nmc-uk.org/aDisplayDocument.aspx?DocumentID=356

pre-registration programme. In order to register,applicants have to declare and have confirmed by theleader of their programme that they are of goodhealth and character sufficient to ensure safe andeffective care. The NMC believes that, while it may bepossible for an individual with a health problem/disability to achieve the stated competencies and befit for practice on completion, it does not necessarilyfollow that the individual is subsequently employablein all fields of practice. Opportunities will be availableduring a student’s programme for them to considerthe wide range of opportunities open to them onqualification, identifying those which best match theirskills and abilities.”

26. The tone of this statement appears to be based onnegative assumptions about disability, which mayderive from the effects of the Clothier Inquiry, or fromsocietal attitudes towards disability or towardsnurses. In any event we also heard evidence thatmost registered nurses – whether disabled or non-disabled – are unlikely to be suited to every area ofpractice, given the diverse nature of jobs within theprofession, and so we are concerned that disabledpeople are singled out in this way in the NMC’sposition statement.

27. Whilst few people would question the need for nurses– or, for that matter, other professionals – to be of“good character”, health standards (which are thesubject of this investigation) raise more complexissues. The concepts of “character” and “health” are,of course, quite separate. However, they appear to belinked in the regulations and guidance relating tonursing, and we have found that there can be apernicious relationship between the health andcharacter standards. For example, NMC Guidance06/04 states:

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“It is a criminal offence for anyone knowingly to makea false declaration of good health or good character,either as to their own health or character or as a thirdparty signatory. Good health and good characterrelate to fitness for registration not for a particularrole. Registrants who subsequently discover that adeclaration made in good faith was in fact falseshould inform the Council in writing immediately.”

28. We have discovered that a failure to disclose animpairment or long-term health condition can be usedas evidence of “bad character” and could, potentially,lead to disciplinary action. We found this worryinggiven other evidence about the culture within thenursing profession, in which disabled nurses may notfeel safe in disclosing a disability. This is exploredfurther in Chapter 8 of this report.

29. The question of whether ill-health, where it does notresult in either incompetence or misconduct, shouldbe a registration or fitness to practise issue isdiscussed in Chapter 4. Outside of BBVs, oranalogous conditions32, in respect of specific areas ofclinical practice, impairments or long-term healthconditions do not appear to us to be relevant exceptin triggering the need for reasonable adjustments.

Teaching

The Regulations – England and Wales

30. Section 141 of the Education Act 2002 permits themaking of regulations which may provide that variousprescribed activities may be carried out only “by aperson who satisfies specified conditions as to health

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32 The existence of which the DRC’s Inquiry Panel was notable to identify.

or physical capacity”. Those activities include theprovision of education or activities carried out under acontract for a Local Education Authority or schoolgoverning body or Further Education institution, whichregularly bring the person into contact with children.

31. Two sets of regulations have been made under section141: the Education (Health Standards) (England)Regulations 200333 and the Education (HealthStandards) (Wales) Regulations 200434. For all materialpurposes, the two sets of regulations are identical.Regulation 6(1) provides that:

“a relevant activity may only be carried out by a personif, having regard to any duty of his employer underPart 2 of the DDA, he has the health and physicalcapacity to carry out that activity”.

32. Regulation 7 provides that if it appears to an employerthat a person may no longer have the health orphysical capacity to carry out a relevant activity, theemployer must offer the person an opportunity tosubmit medical evidence and make representations,and must consider these and any other medicalevidence available. The employer may require theperson to submit himself or herself for medicalexamination. If the person fails to submit to such anexamination without good reason or refuses to makeavailable medical evidence or information sought bythe medical practitioner, the employer may reach aconclusion on the matter, including a conclusion thatthe person no longer has the health or physicalcapacity to carry out that relevant activity, on suchevidence and such information as is available.

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33 SI 2003/313934 SI 2004/2733

33. Section 142 of the 2002 Act35 permits the Secretary ofState in relation to England, or the Secretary of State andthe National Assembly for Wales concurrently in relation toWales, to direct that a person may not carry out variousprescribed activities (providing education in a school; at aFurther Education institution; or under a contract with aLocal Education Authority; or taking part in themanagement of an independent school; or undertakingwork of a kind which brings a person regularly into contactwith children and is carried out at the request of a relevantemployer).

34. Section 142(4) specifies the only grounds upon which sucha direction may be made. These include a direction “ongrounds relating to the person’s health”. Section 143provides that bodies such as employment agencies,contractors or voluntary organisations must not arrange foran individual who is subject to a direction under section142 to carry out work in contravention of a direction.

35. Section 3 of the Higher Education Act 199836 requires theGeneral Teaching Councils for England and Wales toestablish and maintain a register of those eligible to

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35 Section 142 will be repealed by the Safeguarding VulnerableGroups Act 2006, s 63(2), Schedule 10 when brought into force.

36 See the General Teaching Council for Wales Order 1998 SI1998/2911 which effectively applies many of the sameprovisions to the General Teaching Council for Wales as thoseapplicable to the General Teaching Council for England, underthe Teaching and Higher Education Act 1998, including section1(4) (“(4) In exercising their functions, the Council shall haveregard to the requirements of persons who are disabled personsfor the purposes of the Disability Discrimination Act 1995”). Seetoo, section 8 of the Teaching and Higher Education Act 1998which applies material provisions under the Act in relation to theGeneral Teaching Council for England, to the General TeachingCouncil for Wales.

teach37. Eligibility for the register is also laid down in thissection, and in regulations made under section 3D. A personis not eligible for registration if he or she is barred fromteaching and unless at the relevant time the relevant GTC isor was satisfied as to his suitability to be a teacher.Otherwise, the GTC is required to award Qualified TeacherStatus to those who fulfil the criteria of the Education(School Teachers’ Qualifications) (England) Regulations200338 as amended (in England). These provide, insummary, that the GTC must award Qualified Teacher Statusto persons who (a) hold a first degree or equivalentqualification granted by a United Kingdom institution or anequivalent degree or other qualification granted by a foreigninstitution; (b) have successfully completed a course of initialteacher training at an accredited institution in England; (c)have undertaken any period of practical teaching experiencefor the purposes of that course of initial teacher trainingwholly or mainly in a school, city college, academy,independent school or other institution (except a pupilreferral unit) in England; and (d) have been assessed by theaccredited institution as meeting the specified standards39. Like provision is made in respect of Wales by the Education

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37 Also, section 11 amends section 218 of the Education ReformAct 1988 so that it can be a requirement of being a teacher thatthe person be registered with the GTC.

38 SI No 1662/ 2003.39 Or who has a qualification recognised pursuant to Article 3 of

Council Directive 89/48 EEC. In addition, provision is madeentitling others to registration, including persons who havesuccessfully completed a course of initial school teachertraining at an educational institution in Scotland or NorthernIreland; persons registered as teachers of primary or secondaryeducation with the General Teaching Council for Scotland;persons awarded confirmation of recognition as a teacher inschools in Northern Ireland and persons granted anauthorisation to teach at certain times and a relevantrecommendation, in certain circumstances.

(School Teachers’ Qualification) (Wales) Regulations2004 in Wales40.

36. One of the GTCs’ statutory functions is to advise onvarious matters, including medical fitness to teach. Inaddition, the Councils have a particular duty to advisethe Secretary of State on any matter relevant to adecision as to whether the power to prohibit anindividual from teaching should be exercised in aparticular case41.

Guidance – England and Wales

37. The Department for Education and Employment (as itthen was) issued Circular 4/99 (‘Physical and MentalFitness to Teach of Teachers and of Entrants to InitialTeacher Training’) on 12 May 1999, providing“guidance on procedures for assessing the physicaland mental fitness to teach of those applying forteacher training and existing teachers”. The Circularexplains the purpose of the health standards underthe heading ‘Protecting the Health, Education andWelfare of Pupils’, as follows:

“Teachers and those training to become teachers needa high standard of physical and mental health to enteror remain in the teaching profession, as teaching is ademanding career and teachers have to act in locoparentis for the pupils in their charge. The health,education, safety and welfare of pupils are important indeciding on an individual’s fitness to teach.” (B1.1)

38. For this reason, the Circular states that Initial TeacherTraining (ITT) providers need to assess the medical

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40 SI 2004/1729.41 Repealed by the Safeguarding Vulnerable Groups Act

2006, s 63, Sch 9, Pt 1, paras 2, 3, Sch 10 when in force.

fitness of entrants to teacher training and employersneed to assess the medical fitness of those seekingwork which falls within the definition of “relevantemployment”42. The Circular refers to the DDA andobserves that:

“Disabled staff can make an important contribution tothe overall school curriculum, both as effectiveemployees and in raising the aspirations of disabledpupils and educating non-disabled people about thereality of disability. Many disabled people will bemedically fit to teach, though employers may have tomake reasonable adjustments under the DDA to enabledisabled people to carry out their duties effectively.”(B.2.1)

39. Nevertheless, a medical assessment is required forentry to ITT and then again at entry to employment. Asto ITT, the Circular imposes a competency threshold asfollows:

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42 “Relevant employment” means employment (whichincludes engagement not under a contract ofemployment, for instance as a supply teacher) of thefollowing types:- employment by a Local EducationAuthority, as a teacher (either at a school or furthereducation provider) or as a worker with children or youngpeople; employment (whoever the employer is) as ateacher at a maintained school, a non-maintained specialschool, a further education institution which is eithermaintained by a Local Education Authority or is in thefurther education sector, and until 1st September 1999 ata grant-maintained school; and employment by thegoverning body of a maintained school, a non-maintained special school or a further education provideror until 1st September 1999 at a grant-maintained schoolas a worker with children or young people’ (A.2.3 ).

“Admissions staff for courses of Initial Teacher Trainingshould ensure that all successful candidates have thenecessary competencies for entry to the teachingprofession, taking account of the criteria for such coursesin DfEE Circular 4/98, Requirements for Courses of InitialTeacher Training” (C.1.1) (now the “Qualifying to Teach”standards43).

40. However, in addition to meeting the competenciesrequired, “providers’ selection and admissions proceduresshould ensure that all entrants to training have thephysical and mental fitness to teach, based on the adviceof the provider’s medical adviser” (C.1.3) and “all entrantsto courses must be able to communicate clearly andgrammatically in spoken and written English, and whereappropriate, Welsh” (C.1.2). Specific learning difficultiesare particularly identified as requiring consideration44.Before final acceptance on a course, all candidates offereda firm or conditional place on a course of ITT are requiredto complete and return to the provider a declaration ofhealth questionnaire (C.2.1).

41. A trainee whose health deteriorates during training isrequired to consult the college medical adviser about“any implications for continuing training or for teachingin the future”. Individuals are specifically advised thatthey “should not judge their own fitness to teach outsidethe context of trivial and self limiting ailments.” (C.10.1).

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43 See ‘Analysis of the statutory and regulatory frameworks andcases relating to fitness standards in nursing, teaching andsocial work’ (Ruebain et al, DRC 2006)

44 “It is essential that where a candidate has a specific learningdifficulty (such as dyslexia), this should not interfere with thecandidate’s ability to teach effectively and to secure effectivelearning in the written work of their pupils or trainees. Theonus is on the candidates to prove that their condition doesnot limit their capacity to teach” (C.1.2).

42. The Circular also indicates that sanctions might applyto those who do not declare impairments, so that:

“It is improper for candidates to declare a specificlearning disability on a confidential medicalquestionnaire but not to declare it in theirapplication” (C.1.2)

43. Also, under the heading: Failure to disclose relevantmedical information and providing false information,it states:

“If a trainee is found to have: failed to discloseinformation which would otherwise have made themineligible; given false information, includingappropriate information about medical problemswhich arise during training; failed to comply withconditions imposed by the provider’s medical advisersuch as regular monitoring or check-ups during thecourse; a provider will need to consider removing atrainee from a course” (C.11.1).”

44. Also, according to Circular 4/99, on appointment as ateacher:

“a Local Education Authority or governing body mustnot appoint anyone to, or continue to employ themin, relevant employment unless he or she has thehealth and physical capacity for such employment”(D.1.1).

45. To this end, “all employers of teachers should takeadvice from a medical adviser acting for theemployer” and “for newly qualified teachers, theprospective employer’s medical adviser should obtaindetails of the applicant’s medical history from themedical adviser to the training provider, with thewritten consent of the teacher” (D.2.1).

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46. In addition, of course, appointment to a teaching postin England and Wales (like Scotland) requires that acandidate be registered as a teacher.

47. Circular 4/99 also gives guidance to medical advisers.This states, amongst other things, that:

“The purpose of the provider’s declaration of healthquestionnaire is to decide a candidate’s medicalfitness for teaching and prospect of giving efficientservice in a profession that is very demanding bothphysically and mentally. The provider’s medicaladviser should consider sympathetically the full factsof the case where there is an unfavourable medicalhistory and particularly where a candidate is currentlyfree from signs or symptoms of disease. Deformity orpermanent disability should not of themselves makeup medical reasons for rejection. Given reasonableadjustments by employers and/or changes by trainerssimilar to those falling within an employer’s duty ofreasonable adjustment, it may be possible for suchindividuals to carry out all their duties effectively”(App 1.1).

48. The Guidance requires the medical adviser to classifya candidate in one of three categories:

• Those who are in good health and free fromconditions which might be likely to interfere withefficiency in teaching;

• Those who are in generally good health but whosuffer from conditions which are likely to interfereto some extent with their efficiency in teachingeither all subjects or certain specified subjects,though these conditions are not serious enough tomake the candidate unfit for the teachingprofession. This includes those whose disabilitycould require employers to make reasonable

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adjustment to enable them to provide effective andefficient teaching; or

• Those whose condition is such as to make themunfit for the teaching profession. Candidates shouldnot normally be included in this category unlessthey have a psychiatric or physical disorder likely tointerfere seriously with regular and efficient teachingof either general subjects or the subject in whichthey intend to specialise eg PE or science subjects,or if they have an illness which may carry a risk tothe safety or welfare of the pupils (App 1.3).

49. The guidance advises medical practitioners that:

“It is not within the scope of this guidance to providedetailed assessment of the impact of all medicalconditions on fitness to teach, but key considerationsare:

• the prevention of abuse of children;

• the requirement for teachers to have soundjudgement and insight, and

• the requirement for teachers to be able to respondto pupils’ needs rapidly and effectively” (App1.5).

50. Alongside Circular 4/99, guidance is provided toOccupational Health Practitioners (who will in practicebe undertaking the medical assessments referred to inCircular 4/99) in a document entitled “Fitness to Teach:Occupational Health Guidance for the Training andEmployment of Teachers” (2000)45. This guidance issaid to “complement” Circular 4/99. It gives the reasonsfor addressing “the issue of fitness to teach” ascentring around the requirement to:

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45 Published in December 2000 and commissioned by theDepartment for Education and Employment.

“ensure the health, safety, well-being and educationalprogress of pupils; provide an efficient service which willfacilitate learning for pupils; manage any risk to thehealth of teachers which may arise from their teachingduties including ensuring that those duties do notexacerbate pre-existing health problems; ensure thehealth and safety of other teachers and support staff isnot adversely affected by a colleague being unfit; enableall, including those with disabilities, who wish to pursue a career in teaching to achieve their potential within thebounds of reasonable adjustment.”

51. The same document identifies the “fitness criteria” asfollows:

“To be able to undertake teaching duties safely andeffectively, it is essential that individual teachers:

• Have the health and well-being necessary to deal withthe specific types of teaching and associated duties(adjusted, as appropriate) in which they are engaged.

• Are able to communicate effectively with children,parents and colleagues.

• Possess sound judgement and insight.

• Remain alert at all times.

• Can respond to pupils’ needs rapidly and effectively.

• Are able to manage classes.

• Do not constitute any risk to the health, safety or well-being of children in their care.

• Can, where disabilities exist, be enabled by reasonableadjustments to meet these criteria.”

Guidance is provided to ITT providers in the TTA’s (nowTraining and Development Agency for Schools, TDA) document,“Able to Teach: Guidance for Providers of Initial TeacherTraining on Disability Discrimination and Fitness to Teach”46.

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46 Teacher Training Agency, April 2004. The Training andDevelopment Agency for Schools has since usurped thefunctions of the Teacher Training Agency.

Consistent with the themes developed in Circular 4/99 theguidance states that:

“Teachers and those training to become teachersneed a high standard of physical and mental fitnessto enter or remain in the teaching profession:teaching is a demanding career and teachers have aduty of care towards the pupils in their charge. Thehealth, education, safety and welfare of pupils mustbe taken into account in deciding on an individual’sfitness to teach.”

52. It also repeats the “fitness criteria” seen in “Fitness toTeach”, set out above. “Able to Teach” does describethe DDA (albeit as it was when the guidance waspublished47).

53. Importantly, in addition to the health-relatedstandards, there are competence standards in placefor determining whether a potential registrant meetsthe requirements for qualification as a teacher. Thedocument “Qualifying to teach: ProfessionalStandards for Qualified Teacher Status andrequirements for initial teacher training48” (known asQTS Standards) sets out the standards that must bemet for the award of qualified teacher status and therequirements for initial teacher training. It identifies anumber of competencies, in each case identifying abroad overarching competency (for example“teaching and class management”) and then specificcompetencies which must be demonstrated.

54. The QTS Standards are fixed with some precision.The accompanying guidance, Qualifying to teach:

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47 Therefore without reference to the DED.48 (2006) Formulated by the Secretary of State with the GTC

advising only in respect of the same check

Handbook of Guidance49 sets out extensive guidanceon assessing these competencies. However, as to the“Requirements for initial teacher training” it requiresITT providers to “ensure that all entrants have metthe Secretary of State’s requirements for physical andmental fitness to teach, as detailed in the relevantcircular.” The competence standards are thereforeoverlaid by generalised health requirements whichwe have set out above.

Regulation of teachers in Scotland

55. In Scotland, the regulatory framework is quitedifferent. The requirement to demonstrate medicalfitness for entry into teaching or employment wasremoved in 2004.

56. The General Teaching Council for Scotland (GTCS)has a duty under the Teaching and Higher EducationAct 1998 to establish and keep a register of personswho are entitled to be registered and who apply to beregistered as teachers in Scotland. Conditions forregistration include either that the person is acertified teacher, or has fulfilled requirementsprescribed by the Secretary of State and has beenduly recommended by a governing body forregistration, or that he fulfils prescribed requirementsor, (in the case of a person who is not entitled to beregistered under those paragraphs), “his education,training, fitness to teach and experience are such as,in the opinion of the Council, warrant hisregistration”50. Section 8 of the Act requires theGTCS from time to time to prepare and publish astatement specifying the principles to which they will

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49 Spring 2006, published by the Training and DevelopmentAgency for Schools.

50 section 6(2)(c)

have regard in considering whether a person’seducation, training, fitness to teach and experience“warrant” registration. The Teaching Council (Scotland)Act 1965 (as amended) that established the GTCS51

requires that in exercising its functions the Council musthave regard to the requirements of disabled people.

57. The GTCS also has a duty to keep under review thestandards of education, training and fitness to teach,appropriate to persons entering the teaching professionand to make recommendations with respect to thosestandards to the Scottish Ministers. These include, inparticular, matters which relate to the Secretary ofState’s power to make regulations concerning fitness of trainee teachers to become teachers (in relation to the admission of students to courses of education andtraining for teachers in relevant institutions and therecommendation of students by the governing bodies of such institutions to the GTCS for registration).

58. The Teachers (Education, Training and Recommendationfor Registration) (Scotland) Regulations 1993 providethat a person should not be admitted to a teachertraining course if the principal of the relevant institutionproviding the course is of the opinion that the applicantshould not be admitted on grounds of “personalunsuitability” to be a teacher and unless he satisfies therequirements for admission determined by the Secretaryof State (published annually in the Memorandum onEntry Requirements to Courses of Teacher Training inScotland).

59. These requirements used to provide that the applicanthad to satisfy the medical officer of the relevantinstitution (at both training and registration stages) that,in accordance with directions given by the Council, he

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51 section 1(3)

or she was “medically fit to teach”. Following adecision that the justification for such a criterion for theprotection of children’s health no longer existed52, themedical fitness criteria for registration were removedby the Teachers (Medical Requirements for Admissionto Training and Registration) (Scotland) AmendmentRegulations 200453 (see paragraph 63 below).

60. The GTCS has published a General Code of Practicedated June 2002. It has also published “Standard forFull Registration” which sets out the standard expectedof fully registered teachers. These standards contain alist of competencies that a teacher must demonstratefor full registration. They include understanding andapplying in an educational context, the principle ofequality of opportunity and social practice and the needfor anti-discriminatory practice.

61. The GTCS’s Code of Practice on Teacher Competence(2002) provides a definition of competence in terms ofthe Standard for Full Registration (SFR) and explainsthe steps in the process for dealing with cases of short-lived under-performance and long-running under-performance. This defines the professional knowledgeand understanding, professional skills and abilities and

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52 Ruebain et al, DRC 2006 and see also medical standardsconsultation (April 2004), Scottish Executive,www.scotland.gov.uk/consultations/education/medicallyfit.pdf

53 SI 2004/390. These regulations, essentially, amend theTeachers (Education, Training and Recommendations forRegistration)(Scotland) Regulations 1993 (above) byremoving the requirements for medical fitness. Theseregulations also amended the Teachers (Entitlement toRegistration) (Scotland) Regulations 1991 removing therequirement for medical fitness of nationals of MemberStates of the EU who wish to register with GTC Scotland.

professional values and personal commitment whichall fully registered teachers should “be able todemonstrate in their professional activities” andwhich are described in the SFR.

62. The Protection of Children (Scotland) Act 2003 makesprovision for the Scottish Ministers to create andmaintain a list of persons who are unsuitable to workwith children because they are at risk of harmingthem. A person cannot be registered with the GTCS ifthey are on this list.

Comment

63. The difference in approach to health standards forteachers in England and Wales on the one hand, andin Scotland on the other, is remarkable. In Scotland,the decision to remove the criterion requiring aprospective teacher to be “medically fit to teach”followed a consultation issued on 2 February 2004.The consultation paper noted that:

“Initially these medical standards were introducedmainly for the protection of children; classically, frominfectious diseases such as tuberculosis. This is nowvery rare and full medical examinations are reallyonly helpful in very advanced cases. Other infectionsof a chronic and potentially infectious nature,including HIV, would require laboratory testing, andsymptoms would appear over the three or four yearsof the course. Thankfully today very few people arecarrying life threatening infections that might bepotentially dangerous.”

“There was also a concern that a psychiatric problemcould arise which could endanger the children. Againmedical examinations are not very helpful in thisrespect and cannot predict with any degree ofcertainty the possibility of a dangerous candidate.

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A past history is very much more helpful. It oftenhappens that mental health instability becomesevident during the course being undertaken, revealedby the pressure encountered in studying for adegree”.54

64. The consultation paper also noted that “in recentyears the main purpose of medical examinations hasmoved away from blocking applicants, to identifyingthose who might have a problem and offering themhelp” yet the health standards were predicated on amedical rather than social model of disability. Theconsultation paper concluded that:

“Given that the [GTCS] has no responsibility forensuring that employers comply with the requirementsof the DDA, it is anomalous that admission to theregister – which relates to a person’s capacity to be ateacher – should be dependent upon a person’smedical/physical condition. It is suggested that, if itwere deemed necessary that teachers undergo amedical examination, it would be more appropriatethat this was considered to be an employment relatedissue rather than a registration issue.”

65. In England and Wales, meanwhile, Circular 4/99continues to be of considerable significance.However, the Circular is now very out-of-date(referring to legislation since repealed), and has beenin the process of being reviewed for some time. TheDfES, now DCSF, is currently consulting on revisedguidance to replace Circular 4/99 and the DRC hasbeen invited to comment. The proposed guidance asdrafted is, however, predicated on the assumption

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54 Medical Standards Consultation”, as above, paragraphs 4and 5, http://www.scotland.gov.uk/consultations/education/medicallyfit.pdf

that a “health and physical capacity” standard willcontinue to apply and that much of the existingguidance will remain in place55

66. The “Fitness to Teach” guidance which has beenissued to complement Circular 4/99 adopts a morefocused approach to addressing “fitness” than thatseen in Circular 4/99. It is also more helpful in that itfocuses on the particular work a teacher might berequired to do in any specific post and makesprominent the requirement to make adjustments.Further, “Fitness to Teach” states that:

“providing a blanket list of conditions that areincompatible with teaching duties is not appropriate.Cases should be considered on an individual basis.”

67. In contrast, however, the guidance goes on to identifya list of impairments the diagnosis of which would, ineffect, bar a person from practice as a teacher, forexample:

“a confirmed diagnosis of schizophrenia will usuallymake a career in teaching impossible”

As to bi-polar affective disorder “where there is doubtthe candidate may need to be rejected”

Also:

“depression is not usually a risk to the safety of ateacher’s charges so where there is doubt it isreasonable to allow him/her the benefit of this but

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55 See “Fitness to Teach Guidance for Employer and InitialTeacher Training Providers 2007” Department ofEducation and Skills, SPS07_79. At the time of the DRC’sInquiry Panel, neither the TDA or the GTC had beenconsulted on it.

she/he should be kept under review and counselledthat recurring episodes may make it necessary tochange career”.

68. Adherence to this advice is likely to give rise to directdiscrimination. The advice goes on to list a wholeseries of impairments, in some cases expressing aview as to the likelihood of these impeding access tothe profession.

69. Annexed to the guidance is a “Sample PreEmployment Questionnaire”. This contains twentyfive questions, asking about specific diagnoses andasking very broad questions, including:

“Have you ever had any illness, medical problem ordisability that may currently affect your ability to worksafely as a teacher?”

“Have you ever been treated in hospital?”

Have you seen a doctor in the last year for any 56

kind of health problem?”

70. It is difficult to imagine how any adult might answerall of the questions in the negative, and the value ofpre-employment questionnaires of this nature isexplored further in Chapter 7. However, the medicalapproach in the guidance reflects the emphasis in theregulatory framework in England and Wales onmental and physical health and the significance of“diagnosis” in assessing whether a person isconsidered fit to teach.

71. One positive aspect of the regulatory framework inEngland and Wales is that, unlike the previouslegislation57 which prohibited the employment of a

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56 Emphasis as in the original.57 The Education (Teachers) Regulations 1993.

teacher in relevant employment “unless he or shehad the health and physical capacity for suchemployment”, the Health Standards Regulationsspecify particular activities which a person may onlycarry out if he has the health/physical capacity tocarry out that activity, and the capacity is to beassessed having regard to any duty of his employerunder Part 2 of the DDA. This means that thelegislation now focuses on specific activities ratherthan “employment as a teacher” overall and makesspecific reference to the fact that capacity must bejudged having regard to the non-discrimination andreasonable adjustments duties in the DDA.

Social Work

Regulation and guidance – England and Wales

72. The Care Standards Act 2000 establishes the GeneralSocial Care Council (GSCC) in England and the CareCouncil for Wales (CCW)58. Under this Act thesebodies have statutory duties in relation to registeringand regulating social care workers, and in publishingcodes of conduct and practice in relation to them.Social care workers for these purposes are defined asincluding social workers59.

73. Sections 56 and 57 of the 2000 Act require eachCouncil to maintain a register of social workers andsocial care workers, who must apply to the Councilfor registration. Section 58 provides that where theCouncil is satisfied that the applicant (a) is of good

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58 The GSCC and the CCW were established by the CareStandards Act 2000.

59 As well as managers and those providing personal care intheir homes, and others as may be prescribed byregulations.

character; (b) is physically and mentally fit to performthe whole or part of the work of persons registered inany part of the register to which his applicationrelates; and (c) satisfies conditions relating to training,conduct and competence conditions, it must grant theapplication, either unconditionally or subject to suchconditions as it thinks fit; and in any other case itshall refuse it. The Councils must also have regard towhether a person is included in a barred list inconsidering whether a person is of good character.

74. The General Social Care Council (Registration) Rules200560 address the registration of social workers andprospective social workers by the GSCC. Applicantsfor registration must provide, among other things,evidence of physical and mental fitness to practise “in the field of social care work in which the applicantwishes to work” (regulation 4(3)(a)(iii)). Reflecting thestatutory framework, regulation 4(10) provides thatthe Council shall grant the application for registrationif it is satisfied of the relevant conditions, namely (inessence) as to the applicant’s good character andconduct; the applicant’s physical and mental fitness toperform the whole or part of the work of a socialworker or social care worker; that the applicant’scompetence is such as to make that applicant suitableto perform the work of a social worker and that theapplicant has successfully completed an approvedcourse.

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60 Made by the GSCC, in exercise of its powers under theCare Standards Act 2000.

61 Rule 14(4) enables the Council to “refer to the RegistrationCommittee matters relating to the applicant’s goodcharacter and conduct and physical and mental fitness toperform the whole or part of the work of a social worker”so as to enable the Committee to determine whether it issatisfied as to these matters

75. For registration as a student, the fitness requirementsappear more absolute: in regulation 4(4) a studententrant must provide evidence as to good characterand conduct; and physical and mental fitness topractise as a social worker (that is, without anyreference to “part of the work of social worker orsocial care worker”). 61 Further, the “physical andmental” fitness standards apply rather differently tosocial work students. For social work students, therelevant university will decide whether to admitsomeone onto the relevant course, although they willinform the student that to practise as a social workerthey will need to be able to register with GSCC (orother regulatory body). At the first stage the studentwill be asked to fill in a “social work degreeenrolment form”. Under the heading “ImpairmentCapacities” it offers a series of tick boxes which askthe student to indicate whether they have anyimpairments. For qualified social workers, theapplication form is very similar and includes a healthdeclaration question, a health report consent formand an equal opportunities monitoring form (that asksabout disability).

76. The Care Council for Wales (Registration) Rules 2005deal with registration of social workers or social careworkers and student social workers or social careworkers by the CCW. Evidence as to the applicant’s“good character, as it relates to the applicant’s fitnessto practise” is required. Applicants must also provideevidence of good conduct, physical and mentalfitness to practise in social care work or the field ofsocial care work in which the applicant wishes towork, and of competence.

77. Section 59 of the Care Standards Act requires theCouncils, by rules, to determine circumstances inwhich and the means by which a person’s entry on aregister may be removed, suspended or amended.

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Further, section 65 permits the Councils to make rulesrequiring registered persons to undertake furthertraining. Sections 58, 63 and 67 establish criteria forregistration of social workers and social care workersincluding rules that relate to the completion of anapproved course. The General Social Care CouncilApproval of Courses for the Social Work Degree Rules200262 establish the criteria and procedure foraccrediting social work courses. In particular, theycover the various components of the requiredstandards and the provision of relevant information,including as to candidates’ medical fitness andcharacter in terms of their suitability to work in socialwork. The provisions apply to England.

78. Section 62 of the Act requires the Councils to prepareand publish Codes of Practice laying down standardsof conduct and practice expected both of social careworkers63 and, materially, of persons employing orseeking to employ them. The GSCC and CCW haveboth issued Codes of Practice for social care workersand employers of social care workers (2002, GSCC andCCW). The Codes for employers contain some (albeitlimited) reference to health by providing thatemployers should put in place and implement writtenpolicies and procedures that promote staff welfare andequal opportunities for workers and, while ensuringthat the care and safety of service users is the priority,provide appropriate assistance to social care workerswhose work is affected by ill health or dependency ondrugs and alcohol, and give clear guidance about anylimits on their work while they are receiving treatment.

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62 At http://www.gscc.org.uk/NR/rdonlyres/841C5287-921D-4DDE-B8A5-10F62C97D16F/0/EdandTrRules9may2003.pdfmade pursuant to Sections 63 and 66 of the Care StandardsAct 2000.

63 Social workers are included under this term.

79. The Codes for social care workers provide simplythat such workers comply with employers’ “healthand safety policies, including those relating tosubstance abuse” without any further explicitreference to health.

Regulation of social workers in Scotland

80. By virtue of section 43 of the Regulation of Care(Scotland) Act 2001 the Scottish Social ServicesCouncil (SSSC) is established to promote highstandards of conduct and practice among socialservice workers and in their education and training,including by the approval of courses as set out insubsequent “rules”. Part 1 of the Act establishes theIndependent Scottish Commission for the Regulationof Care to regulate a very wide range of careservices. Part 3 sets out the functions of the SSSC inregistering and regulating social care workers inScotland, and in publishing codes of practice.

81. Section 45 of the 2001 Act permits the SSSC toregulate entry to the register, and section 46provides that it shall not register a person unlesssatisfied that the applicant meets the statutoryrequirements of “good character” and competenceand meets the Council’s educational and trainingrequirements. This is significantly different to therequirements in England and Wales, as there is norequirement for physical and mental fitness.

82. Section 53 permits the SSSC to make Codes ofPractice for Social Workers. Section 56 permits theScottish ministers to pass regulations relating toregistration, and section 57 permits the SSSC tomake rules.

83. The Regulation of Care (Requirements as to Care

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Services) (Scotland) Regulations 200264 specify thatproviders of care services shall not employ anyperson in the provision of a care service unless thatperson is fit to be so employed. A person who is “notphysically and mentally fit for the purposes of thework for which the person is employed in the careservice” is to be treated as not fit to be so employed.This concerns specific work at a specific service,rather than imposing a condition for entry to theprofession, training, registration or generally foremployment.

84. The Scottish Social Services Council (Registration)Rules 2006 regulate the registration of social workersand social service workers in Scotland. These rulesrequire that for registration an applicant65 mustprovide evidence as to good character, as it relates tothe applicant’s fitness to perform the work expectedof persons registered in that part of the register inwhich registration is sought; and good conduct andcompetence.

Comment

85. As with the teaching profession, there are significantdifferences between the way that social workers areregulated in England and Wales on the one hand, andin Scotland on the other. In Scotland, unlike inEngland and Wales, there is no specific requirementto demonstrate any physical or mental fitness inorder to obtain registration, as the assessment offitness is regarded as a matter for employers todetermine.

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64 SSI 2002/114 as amended65 The position of students is also addressed but there are no

material differences; rule 4(2)(d), and 4(3)(a)(i).

86. In addition, under Section 43(2) of the Regulation ofCare (Scotland) Act 2001, the SSSC has an expressduty to promote equal opportunities in the exercise ofits functions, a duty that does not appear within theCare Standards Act 2000, covering England and Wales.

87. In relation to England and Wales, we heard evidencethat the requirement for physical and mental fitness,as set out in Section 58 of the Care Standards Act2000, has been controversial since it was firstproposed66. The GSCC expressed the view, however,that it is their duty to implement it in a way that isconsistent with the DDA and that they believe theyhave found a way to do so. In so far as registration isconcerned, according to the GSCC, they have made a“policy decision that where a medical condition wasdeemed relevant, [they] would normally remind theapplicant, when registering them, of their duty towork safely within the boundaries of their healthcondition and to inform their employer, if this wasrelevant. Mostly this has been done simply as adviceat the point of registration rather than through theimposition of formal conditions on registration”67.Nevertheless, the fact remains that the Councils havea statutory duty to refuse registration if they are notsatisfied that the applicant meets these conditions68.

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66 BASW written evidence to DRC and evidence to DRC’sInquiry Panel. Also comments from the DRC’s MentalHealth Action Group

67 GSCC written evidence to the DRC68 Section 58. There is a right of appeal, under section 68, in

relation to registration decisions.

Chapter 3 – HealthStandards and theImpact of theDisabilityDiscrimination Act1. We have already noted that the regulatory regimes

governing health standards in the nursing, teachingand social work professions make only scantreference to the DDA. Nevertheless, this Act – whichhas been significantly extended and amended inrecent years – is very relevant to the application ofthese standards to disabled people. This chapterprovides an overview of the way in which the DDAimpacts upon the application of health standards.70

In essence, the DDA applies in two distinct ways: first,it imposes duties on individuals and organisations notto discriminate against disabled people in performingcertain functions. Second, since December 2006, ithas imposed wider obligations upon publicauthorities to work towards disability equality.

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70 This is a complex area of law, and it is not our intention togive a detailed analysis of the DDA’s provisions in thisreport. The DRC has published a range of Codes ofPractice which provide in depth guidance on theoperation and effect of the Act’s provisions in respect ofdifferent areas of activity.

Duties under the DDA

2. It is important to note that the DDA imposes duties ona range of organisations involved in the assessmentand application of health standards. These include:

• Employers and prospective employers of nurses,teachers and social workers71.

• Further and higher education providers concernedwith the recruitment and training of studentnurses, teachers and social workers72.

• Organisations which provide work placements tosuch students in the course of their training73.

• Each of the regulatory bodies which are relevant tothis investigation – such as the Nursing andMidwifery Council and the Care Council for Wales– in registering individuals as being fit to practiceas nurses, teachers or social workers. The DDAapplies to such organisations74 in this regardbecause they are “qualifications bodies”75.

• Organisations performing any of the abovefunctions which are “public authorities”, and thussubject to the disability equality duty (seeparagraph 15 below).

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71 Detailed guidance on the application of the DDA toemployers is provided in the DRC’s Code of Practice onEmployment and Occupation(http://www.drc.org.uk/library/publications/employment/code_of_practice_-_employment.aspx).

72 Detailed guidance on the application of the DDA isprovided in the DRC’s Code of Practice (revised) forproviders of post-16 education and related services(http://www.drc.org.uk/library/publications/education/code_of_practice_post_16.aspx).

73 See Chapter 9 of the DRC’s Code of Practice onEmployment and Occupation.

.

3. It is self-evident that a particular organisation may beperforming a range of functions (it may be aplacement provider as well as an employer, forexample), and so will be subject to more than one setof duties under the DDA. Nevertheless, whilst theprecise statutory provisions are located in differentparts of the DDA depending upon the nature of thefunction in question, (and leaving aside for a momentthe over-arching disability equality duty), the basicstructure and content of the duties is the same ineach case. It comprises:

• a duty not to discriminate against a disabledperson in performing the relevant functions.Unlawful discrimination occurs if an organisation’streatment of a disabled person amounts to“direct” discrimination or to “disability-related”discrimination (these concepts are explained inparagraphs 4 and 5 below).

• a duty to make reasonable adjustments in relationto disabled people (see paragraphs 6 to 10 below).

• a duty not to subject a disabled person toharassment for a reason which relates to hisdisability.

• a duty not to victimise a person for doingsomething which is protected for this purposeunder the DDA.

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74 And to the TDA and DfES (now DCSF) in connection withtheir operation of the “Skills test” within the teachingprofession in England and Wales

75 Such organisations fall within the DDA’s definition of aqualifications body because they each hold a register ofthose who can practice within their respective professions(registration being a qualification which is needed for, orfacilitates engagement in, the particular profession).Detailed guidance on the application of the DDA toqualifications bodies is provided in the DRC’s Code ofPractice on Trade Organisations and Qualifications Bodies(http://www.drc.org.uk/library/publications/employment/code_of_practice_trade_organ.aspx).

Forms of discrimination

4. “Direct discrimination” occurs where a disabled personis treated less favourably than others – not having thesame disability – are (or would be) treated in the samecircumstances, and where the treatment is on theground of the person’s disability. Where less favourabletreatment arises out of an organisation’s generalised,or stereotypical, assumptions about disability or itseffects it is likely to be direct discrimination. Directdiscrimination cannot be justified, and so this kind oftreatment is always unlawful.

5. “Disability-related discrimination” also arises out of theless favourable treatment of a disabled person.However, while direct discrimination generally occurswhen the reason for the less favourable treatment isthe disability itself, disability-related discriminationoccurs when the reason relates to the disability but isnot the disability itself. It is therefore a wider categoryof less favourable treatment. This type of treatmentmay be justified (in which case it does not amount todiscrimination), but only where it can be shown thatthe reason for it is both material to the circumstancesof the particular case and substantial.

Reasonable adjustments

6. A failure to comply with a duty to make reasonableadjustments also amounts to unlawful discrimination. It should be noted that such a failure cannot now bejustified76.

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76 The defence of justification in relation to reasonableadjustments is now restricted to the DDA’s provisions ongoods, services and facilities (Part 3 of the Act). It is likelythat any claim relating to the application of professionalstandards would be brought under the DDA’s provisions onemployment and occupation (Part 2) or education (Part 4).

7. A duty to make reasonable adjustments applies inrespect of all of the activities mentioned inparagraph 2 above77. The duty arises whenever aprovision, criterion or practice applied by or onbehalf of the organisation in question, or anyphysical feature of premises it occupies, places adisabled person at a substantial disadvantagecompared with people who are not disabled. Wherethe duty arises, the organisation must take suchsteps as it is reasonable for it to have to take in allthe circumstances to prevent that disadvantage – inother words it has to make “reasonableadjustments”.

8. The duty is subject to certain limitations. Inparticular, it only applies in circumstances78 wherethe person or organisation who would have to makean adjustment knows, or could reasonably beexpected to know, that the disabled person is indeeddisabled, and that he or she is likely to be placed ata substantial disadvantage. In the case of anapplicant or potential applicant for a job (or for awork placement, entry to a course, or registrationwith a regulatory body as the case may be), the dutyonly arises if the organisation knows, or couldreasonably be expected to know that the disabledperson concerned is, or may be, an applicant. Thisgives significance to the issue of disclosingdisability. For the disabled applicant, student or

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77 The nature and scope of the duty differs in certain respectsin its application to further and higher education providerscompared with its application to employers, workplacement providers and qualifications bodies. Thesedifferences are explained in Chapter 5 of the DRC’s Code ofPractice for Providers of Post 16 Education

78 For further and higher education institutions there is alsoan “anticipatory duty” in respect of physical features

employee, reasonable adjustments will not beavailable unless the organisation which needs tomake them knows that he or she is disabled and at adisadvantage. Disabled people therefore need to feelconfident that disclosing disability – on a job orcollege application or within a workplace – will leadto adjustments rather than to discrimination.

9. In addition, those who are subject to the reasonableadjustments duty need to ensure that they haveproper procedures for collecting and handlinginformation from disabled people about theirimpairments or health conditions. Such informationmay come through different channels, such as froma doctor or nurse engaged in providing occupationalhealth services for the organisation, or from a linemanager, tutor, or human resources manager. Anysuch information will need to be brought together soas to make it easier for the organisation to fulfil itsduties under the DDA, although confidentialityclearly needs to be respected in this process.

10. On occasion it will also be necessary fororganisations to work together in ensuring thatreasonable adjustments are made. For example, itwould be reasonable to expect the provider of awork placement to co-operate in this regard with thehigher education institution sending the student.

Competence standards

11. A further limitation on the duty to make reasonableadjustments applies in respect of what the DDAterms “competence standards”. In short,qualifications bodies and further and highereducation providers are not obliged to makeadjustments to the application of a competencestandard to a disabled person. The standard must

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still be applied in a non-discriminatory manner, ofcourse, and where qualifications bodies or highereducation institutions seek to show that lessfavourable treatment of a disabled person isjustified79, this has to be done by reference to specialcriteria80.

12. A “competence standard” is an academic, medical orother standard applied for the purpose of determiningwhether or not a person has a particular level ofcompetence or ability. It is important to identifywhether a particular measure or standard constitutesa competence standard – irrespective of the labelattached to it by the organisation in question –because this will determine whether a duty to makeadjustments arises81. In relation to medicalstandards, physical abilities may constitute“competence standards” for certain narrow areas ofwork – for example, having a certain standard ofmanual dexterity will be required to carry out specificmedical procedures. However, a general requirementfor good health or for physical and mental fitness will

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79 Justification is only relevant where the treatment inquestion would otherwise amount to disability-relateddiscrimination, as treatment which amounts to directdiscrimination (because it is based on generalised orstereotypical assumptions about a disability or its effects,for example) will necessarily be unlawful.

80 Justification is only possible where it can be shown thatthe competence standard is (or would be) applied equallyto people not having the disabled person’s particulardisability, and that its application is a proportionate meansof achieving a legitimate aim.

81 Chapter 8 of the DRC’s Code of Practice gives examples toillustrate when standards might properly be described ascompetence standards.

not be a competence standard if it does notdetermine a particular level of competence or ability.

13. There is generally a difference between acompetence standard and the process by whichattaining that standard is determined. For example,the awarding of many qualifications depends onpassing an examination. Having the requiredknowledge to pass that examination is acompetence standard, whereas the process of sittingthe examination may not involve or impose such astandard. This is an important distinction because,for a disabled candidate, the method of assessmentmay need to be adjusted whereas the academicstandard itself (the competence standard) would notneed to be.

14. A key issue for this investigation has been whethergeneralised health standards, for examplerequirements for “good health” or “physical andmental fitness” (overviewed in the previous chapter)meet the definition of a competence standards forthe purposes of the DDA. As explained above, theywill only do so to the extent that they are a genuinedeterminant of a particular level of competence ofability. Generalised health standards, where they donot constitute genuine competence standards, arenot excluded from the reasonable adjustment duty,either in the way they are tested or in the applicationof the standard itself. Further, where the standardsare applied differentially, to the disadvantage ofdisabled people, then they are likely to be directlydiscriminatory and therefore unlawful (whether ornot they meet the definition of competencestandards).

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The Disability Equality Duty

15. Following the enactment of the Disability DiscriminationAct 2005 (which inserted new provisions into the 1995Act), public authorities have new duties, over and abovethe duties described above. In particular, in carrying outits functions, every public authority must have dueregard to the following:

• the need to eliminate unlawful disabilitydiscrimination

• the need to eliminate harassment of disabled people

• the need to promote equality of opportunity betweendisabled persons and others

• the need to take steps to take account of disabledpeople’s disabilities even where that involves treatingdisabled people more favourably

• the need to promote positive attitudes towardsdisabled people

• the need to encourage participation of disabledpeople in public life.

16. This general DED applies to public authorities generallywhich, for these purposes, include bodies “…certain ofwhose functions are functions of a public nature” andwill therefore embrace certain commercial andvoluntary sector bodies which are, whether under acontract or other arrangements, in effect exercising afunction which would otherwise be exercised by thestate – and where individuals have to rely upon thatperson for the exercise of the governmental function82.Whether functions carried out by a private or voluntary

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82 Detailed guidance on the application of the DED isprovided in the DRC’s Codes of Practice on The Duty toPromote Disability Equality(http://www.drc.org.uk/library/publications/disability_equality_duty/the_duty_to_promote_disability1.aspx).

sector organisation are “functions of a public nature”is ultimately a matter for the courts, but suchfunctions are likely to include those which regulatethe standards for entry into the professions.

17. In addition, specific disability equality duties areimposed by regulations made under the DDA83. The public authorities listed in Schedule 1 to theRegulations (which include many of the regulatorybodies, further and higher education providers, aswell as many of the employers, with which thisinvestigation is concerned) are required to publish aDisability Equality Scheme (and to take the stepsidentified in the scheme within three years of itspublication). A Disability Equality Scheme must state:

• the steps the authority will take towards fulfilmentof its general duty

• the ways in which disabled people have beeninvolved in its development

• the authority’s methods for assessing the impactor likely impact of its policies and practices onequality for disabled people

• the authority’s arrangements for gatheringinformation about the effect of its policies andpractices on disabled people in employment(including recruitment, development andretention), education, service provision and publicfunctions more generally and for making use ofsuch information in complying with the generalduty.

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83 Disability Discrimination (Public Authorities)(StatutoryDuties) Regulations 2005 SI 2005/2966. See also DisabilityDiscrimination (Public Authorities) (StatutoryDuties)(Scotland) 2005, Scottish SI 2005/ 565.

The DDA’s relationship to regulations

governing health standards

18. Nothing is made unlawful by the DDA if it is requiredby an express statutory obligation84. This means thatthe DDA is not prioritised over other legislativemeasures. However, this exception only applieswhere a statutory obligation is specific in itsrequirements, and it is therefore of narrowapplication. Acts done pursuant to a statutorydiscretion are not excluded from the effects of theDDA. With the exception, arguably, of the healthstandards applied by the GSCC and CCW, none of thegeneralised health standards with which thisinvestigation is concerned are applied in necessaryperformance of a statutory obligation. Instead, thelegislative schemes grant permissive powers to theregulatory bodies (and the Secretary of State) tointroduce such standards85. Consequently, theirapplication to disabled people is subject to the dutiesunder the DDA outlined above.

Conclusion

19. The scope of the protection against discriminationwhich the DDA offers disabled people has grown veryconsiderably since the Act originally came into force.It now provides comprehensive anti-discriminationmeasures across education and training, workplacements, registration and employment. This mightbe expected to have had a significant impact onpolicy and practice with the nursing, teaching andsocial work sectors across Great Britain – and indeedto have raised questions about the very existence and

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84 DDA, section 59.85 The health regulations applicable to employment and

teaching are made expressly subject to the DDA, seeChapter 2 above.

application of health standards. The ScottishParliament clearly did consider the changed climatecreated by the DDA and removed health standards forteachers, following consultation.

20. It might also be expected that the framework of rightsand duties established by the DDA would now bereflected in the huge amount of primary andsecondary legislation and statutory guidance whichgoverns entry and retention within the professions.However, with the exception of the teachingprofession, we have found this not to be the case.There is no mention of the DDA within the legislation,regulations or statutory guidance relating to socialwork and only occasional reference in the legislationand guidance applicable to nursing. As we shallexplain in the remainder of this report, a radicalrethink of the regulatory framework is now required ifthe professions are to maintain standards within aculture which also promotes equality.

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Chapter 4 – Healthstandards as anapproach tomanaging risk1. The DRC felt it was important to explore the origin

and purpose of the regulatory frameworks layingdown generalised health standards (reviewed inChapter 2). During the Inquiry Panel phase of theinvestigation, we had the opportunity to ask therelevant regulatory bodies what they considered theorigin and the purpose of these standards to be, andit became apparent that they had not previouslyconsidered this question in any detail, nor had theyconsidered whether the maintenance of thesestandards was proper and lawful. The assumptionfrom most of the organisations we talked to86 wasthat these standards were given in law and thereforebeyond their influence or remit. However, to theextent that the regulatory bodies had considered thefundamental purpose of health standards, they toldthe DRC that these standards were there for theprotection of the public.

2. We do not underestimate the importance of public

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86 This assumption was not exclusive to regulatory bodies –most organisations we talked to including, for examplesome trade unions, professional bodies, and universitiesheld the same view.

protection, so were particularly interested in whetherthe goal of protecting the public was being servedby the health standards currently in place. This wasone of the key priorities for the DRC in consideringthe findings and recommendations arising from thisinvestigation. The DRC also fully recognises that thecore function of each of the regulatory bodies withwhich we are concerned is the protection of thepublic87, and we were aware, even before theinvestigation was launched, that the recent andcontinuing expansion of professional regulation hasbeen driven by concerns about public safety.Previous cases where professionals, or those in acaring role, have been responsible for catastrophicincidents have heightened these concerns. Thesecases, and the reports, policies and practices arisingout of them were referred to in all the evidencestrands of the investigation, and in particular byorganisations giving evidence to the DRC’s InquiryPanel. For this reason, Karon Monaghan, chair of theInquiry Panel decided to review the findings and

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87 “The main objective of the [Nursing and Midwifery]Council in exercising its functions shall be to safeguardthe health and well-being of persons using or needing theservices of registrants” (Article 3(4) of the Nursing andMidwifery Order 2001 (SI 2002/253); “It shall be the duty ofthe [Social Care] Council[s] to promote ….(a) highstandards of conduct and practice among social careworkers; and (b) high standards in their training.” (section54(2) and (3), Care Standards Act 2000); “The principalaims of the [General Teaching] Council for England inexercising their functions are—(a) to contribute toimproving the standards of teaching and the quality oflearning, and (b) to maintain and improve standards ofprofessional conduct amongst teachers, in the interests ofthe public” (section 1(2), Teaching and Higher EducationAct 1998).

recommendations of previous inquiry reports88

relating to the cases of Beverley Allitt, Harold Shipman,and Ian Huntley89, and the inquiry relating to the deathof Victoria Climbie.

3. The reports relating to Allitt and Shipman have provedsignificant in several ways. They have highlighted theoccasions on which the public interest has been veryseriously jeopardised by the activities of individualpractitioners and provided a narrative which revealswhat steps, if any, might have been taken to prevent ormitigate the effects of the incidents concerned. Theyhave also affected the professions’ perception ofdisability and its relationship to risk to the public. Theconnection between the findings and the consequentpolicies and practice affecting disabled practitionershas not always been coherent. The Inquiry reports arediscussed in detail in Appendix A, but below weexplain the effects of these reports on professionalregulation and the culture within nursing, teaching andsocial work (and other professions). This formalinvestigation has also gathered evidence and opinionsfrom a wide range of organisations about theassociation of disability and risk, and about theeffectiveness of using medical diagnosis as a predictorof risk. This evidence is presented below.

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88 The Allitt Inquiry: Independent Inquiry relating to Deathsand Injuries on the Children’s Ward at Grantham andKesteven General Hospital during the period February toApril 1991”, (1994) HMSO (“The Clothier Report”); “TheVictoria Climbié Inquiry: Report of an inquiry by LordLaming” (2003) HMSO; “The Bichard Inquiry Report”(2004) HMSO; “The Shipman Inquiry Report” (the firstreport and the fifth report) (2002) and (2004) Cm 6394.

89 The reports from the inquiries relating to the murderscommitted by Ian Huntley and the death of Victoria Climbiewere found not to be significant for this investigation.

4. Generalised health standards within nursing appearto derive from the Clothier Report and itsrecommendations90. In social work, health standardsbrought in to reflect the arrangements applicable tothe other main regulatory bodies were contentious91

when they were introduced. In relation to theintroduction of health standards for social workers, theDepartment of Health wrote, in 2000:

“The driving force behind the GSCC is protection forservice users, their carers and the general public andraising standards of service provision. What we wantto achieve with this health test is to prevent peoplefrom registering, or remaining registered with theGSCC if they are not physically and mentally fit toperform the whole or part of the work of a socialworker. Having a health test is a common feature ofregulatory bodies. We are therefore putting socialworkers on the same footing as other professionsrather than treating them differently92.”

5. Within the teaching profession, the standards appearto derive from historical concerns about infectiousdiseases, particularly tuberculosis, but concerns about“physical and mental fitness” are reflected inregulations from 199393 and in statutory guidance94

from 1999.

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90 Evidence to DRC’s Inquiry Panel from severalorganisations who mentioned the Allitt case, and NMCguidance 06/04

91 BASW written evidence to the DRC, BASW evidence toDRC’s Inquiry Panel, and information from the DRC’sMental Health Action Group.

92 Letter from John Hutton to BASW – received as writtenevidence

93 The Education (Teacher) Regulations 1993 refer to “healthand physical capacity

94 Circular 4/99

6. The Government has taken up many of therecommendations of the Shipman Inquiry in itsrecent White Paper, “Trust, Assurance and Safety95”,and plans to widen the scope of regulation to coverpreviously unregulated health professions, toprovide for periodic re-validation (re-registration)and potentially for student registration across allhealth professions in England, Scotland and Wales.The White Paper proposes that “commonstandards and systems should be developed acrossprofessional groups where this would benefitpatient safety”. The relevance for this investigationis that a wider group of students and practitionersworking within the health sector would becomesubject to generalised health standards. The DRChas also learned that guidance is being drafted96 toensure that existing legislation (Education Act 2002covering England and Wales) which allows for theregulation of the Early Years Professional workforce(but in practice has focused on teachers) is appliedconsistently to this wider group of students andemployees97.

It is therefore timely to consider the roots of theseregulatory frameworks and to question whetheridentifying ill health or disability is an effective wayto reduce or eliminate risk.

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95 “Trust, Assurance and Safety – The Regulations of HealthProfessionals in the 21st Century” (2007) Cm 7013

96 By the Children’s Workforce Development Council(CWDC)

97 Although the development of new guidance gives theopportunity for a fairer application of existing rules toEarly Years Professionals (and to trainees), such guidanceis likely to have the effect of reinforcing the requirementsfor physical and mental fitness.

7. The Clothier Report was the outcome of the AllittInquiry98, following the conviction of Beverley Allitt oncharges of four murders, three attempted murders andsix charges of causing grievous bodily harm. As is wellknown, Beverley Allitt was a nurse at the time the crimesfor which she was convicted were committed and hervictims were all children and patients in a children’sward at Grantham and Kesteven General Hospital.Unsurprisingly the case attracted a huge amount ofmedia attention and public interest.

8. The Clothier Inquiry initially considered Allitt as anindividual, considering her personality, health, trainingand entry to the nursing profession99. The Inquirylooked in particular “for two possible warning signs”100.Firstly, whether Beverley Allitt’s behaviour and attitudes“revealed anything unusual about her personality” andsecondly whether there was evidence in her medicalhistory that “her attitude to her own health was suchthat she should not be entrusted with responsibility forthe health of others”101. The Clothier Report made itclear that:

“If by excluding people with certain clearly definablecharacteristics we could be sure of excluding those whomight harm vulnerable patients, then it would be worthtaking the risk which such a policy would entail ofincidentally excluding some people who would havemade good nurses. The problem lies in determiningwhich, if any, of Allitt’s characteristics are clear indicatorsof possible danger”.102

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98 It was carried out on the instructions of the Secretary ofState for Health and was chaired by Sir Cecil Clothier.

99 Clothier Report, paragraph 1.8100 Paragraph 2.1.2101 Paragraph 2.1.2102 Paragraph 2.1.4

9. The DRC would agree that if excluding people withcertain clearly definable characteristics wouldguarantee the exclusion of people who might harmpatients, then such a policy might be justified. Thiswould require very careful consideration as there isalways the danger of over inclusiveness in anybarring rule. Any such rule would have to beproportionate, but the public interest would weighvery heavily in support of such a rule. However, asthe Clothier Report makes clear, what the BeverleyAllitt case showed was that there were no clearlydefinable characteristics apparent in her which wouldhave alerted anyone to the risk that she laterpresented. Although she had a history of “incurringminor injuries”, the Clothier Report stated “it is verycommon to seek attention in this way and a similartendency can be seen, and was seen at the time, inother teenagers. It is not an indication of secretmurderous intent”.103

10. Although Allitt was later (that is, after she hadcommitted the crimes) labelled with a diagnosis ofMunchausen’s syndrome (and also Munchausen’ssyndrome by proxy), the Clothier Report found thatthere was nothing in the history of Beverley Allitt thatwould have led anyone to predict her behaviour orher crimes. It is also important to note that there hadbeen no previous diagnosis of a mental healthcondition, or mental ill health. The Report found thatdeath and injury could have been prevented by bettermonitoring, supervision and the exchange ofinformation on conduct, although it is likely that evenwith proper and efficient management structures inplace, the earlier deaths and injuries perpetrated byBeverley Allitt could not have been prevented. Thereport itself acknowledges that not every kind ofcriminal behaviour can be predicted and prevented:

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103 Paragraph 2.2.6

“expert evidence from independent persons points tothe conclusion that a determined and secret criminalmay defeat the best regulated organisation in thepursuit of his or her purpose”104.

This is an important observation because it remindsus that predicting the most extreme examples ofhuman behaviour – “the statistical outliers”, as theywere described to the DRC’s Inquiry Panel105 – is notpossible. However, proper management, supervisionand prompt action upon clues or evidence ofmisconduct will reduce the likelihood of the mostserious criminal activity occurring or continuing.

11. Despite these findings of the Allitt Inquiry, theClothier Report made a number of recommendationsfor the health screening of nurses. Significantly, too,for subsequent practice within the nursing professionit adopted the suggestion of the Chairman of theAssociation of NHS Occupational Physicians(ANHOPs) that applicants who show one or more ofthe following, namely excessive absence throughsickness, excessive use of counselling or medicalfacilities, or self harming behaviour such asattempted suicide, self laceration or eating disorder,should not be accepted for training until they haveshown the ability to live an independent life withoutprofessional support and have been in stableemployment for at least two years106.

12. The Clothier report itself recommended that its“recommendations might usefully be applied to otherprofessions which give access to patients”107.

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104 Paragraph 1.12105 Evidence to DRC’s Inquiry Panel from Dr John Meehan106 Paragraph 5.5.16107 Paragraph 5.5.3

Further, the Bullock report into the events leading to thetrial of Amanda Jenkinson108 endorsed therecommendations in the Clothier Report andrecommended that they be extended to cover all healthcare professionals. In addition to the cases of BeverleyAllitt and of Amanda Jenkinson, the other case that wasfound to be of direct relevance to this formalinvestigation109 was that of Harold Shipman. TheShipman Inquiry reports have led to further scrutiny ofprofessional regulation and one outcome has been theWhite Paper, “Trust, Assurance and Safety” (see alsoAppendix A for further information about the ShipmanReports).

13. The Shipman Inquiry reports identified personality traitssuch as “profound dishonesty”110, as well asShipman’s early addiction to pethidine111. On the basisof the evidence to the Shipman Inquiry of psychiatrists,it appeared that Shipman may have had “a rigid andobsessive personality; may have been “isolated” andmay have had ‘difficulty in expressing emotions’; ‘poorself-esteem’ and that ‘for most of his adult life, he was

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108 Amanda Jenkinson was a nurse who was convicted andthen acquitted on appeal of causing grievous bodily harmwith intent to a patient, having allegedly sabotaged thepatient’s intensive care ventilator: “Report of theIndependent Inquiry into the Major Employment andEthical Issues Arising from the Events Leading to the Trial ofAmanda Jenkinson”, Nottingham: North NottinghamshireHealth Authority (1997) Bullock, R. It can be noted that theBullock Report is not available on the internet and is notavailable in the usual libraries. It was a Report predicated onthe guilt of a person subsequently acquitted.

109 Although the Climbie and Soham Murder Inquiries drewconclusions about systemic failures within social work,education and in relation to the police.

110 Paragraph 13.41, First Report.111 Paragraph 13.47, First Report.

probably angry, deeply unhappy and chronicallydepressed’.112” However, the Inquiry Report madeit clear that these traits were not in themselvesenough to explain why Shipman became a serialkiller and, on the evidence available, thepsychiatrists could not explain how thesecharacteristics could lead to such extremeconduct.113 It concluded that it could “shed verylittle light on why Shipman killed his patients”114.The Inquiry and First Report placed emphasis onensuring that “a doctor like Shipman would neveragain be able to evade detection for so long”,rather than on eliminating the possibility thatsomeone with serious criminal intent would be ableto practise115. What the Shipman inquiry foundwas that the measures in place that might haverevealed at an earlier stage that Shipman waskilling his patients were not properly effective.

14. The Shipman Inquiry made no recommendationsabout the assessment of health of doctors forregistration or re-registration. The Fifth ShipmanReport notes that “it is clear beyond argument thatShipman would have done well in an appraisal, asit currently operates. He would have producedevidence that many aspects of his clinical care wereof a high standard. He could have produced theresults of audits; the topics would have beenchosen by himself and he would not haveconducted an audit into the mortality rate amongsthis patients” and so on116. The Report statesinstead that “another Shipman” might be detected

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112 Paragraph 13.50, First Report.113 Paragraph 13.51, First Report.114 Paragraph 13.57, First Report. 115 Paragraph 14.20, First Report. 116 Paragraph 26.200 Fifth Report

by clinical governance activities, namely “a frameworkthrough which National Health Service organisationsare accountable for continuously improving the qualityof their services and safeguarding high standards ofcare by creating an environment in which excellence inclinical care will flourish”117.

15. In conclusion, the Clothier Report was the onlysignificant report118 of recent years that made specificrecommendations for managing risk to the publicthrough the use of health criteria as part of professionalregulation (although the Shipman Inquiry has led toproposal for broadening regulation). Having carefullyconsidered the Clothier Report, Karon Monaghan, whochaired the DRC’s Inquiry Panel, came to the conclusionthat the recommendations of the Clothier Report didnot follow logically from its findings, and that thereport was therefore “extremely flawed”. Neverthelessit appears that the “good health and good character”requirements for health professionals were brought inbecause of the recommendations of Clothier. NMCguidance 06/04 states:

“Why has good health and good character beenintroduced?

Parliament introduced the requirement for evidence of good health and character into the [Nursing andMidwifery] Order [2001], to enhance protection of the public, following a number of high-profile casesinvolving the health and character of doctors and nurses.”

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117 Paragraph 26.203 and paragraph 12.2. 118 The Bullock report endorsed its recommendations but

was based on a case that turned out to be a miscarriage ofjustice.

16. In relation to the “two year rule”, recommended byClothier, the Department of Health publishedguidance in 2002 on mental health and employmentin the NHS119 which contradicts thisrecommendation. This guidance included thefollowing statements:

“Recent tragedies, however exceptional, in whichhealth professionals have killed or assaulted patients,have focused attention on the implications ofpsychiatric problems at work (Clothier 1994). Howeverthe Clothier report raised unrealistic expectations thatpsychiatric screening could be an effective filter anddiverted attention from other more important factorscontributing to the case.”

“A further outcome of the Clothier report has beenthe stigmatisation of people who have experienced orare experiencing mental health problems, leading tothe use of inappropriate criteria to exclude peoplefrom employment and a reluctance on the part ofNHS employees with mental health problems todisclose this information, where appropriate. Thisoften results in additional worry for them andpotentially jeopardises employment if non disclosureis subsequently discovered.”

“The government believes people who have adisability or an impairment should be able toparticipate fully in society and live as independentlyas possible. For most people of working age thechance to get and keep a job is central to theirindependence and participation in society. The sameshould be true for people who have a disability orimpairment.120”

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119 “Mental Health and Employment in the NHS” (2002),Department of Health, 2002

“An opinion was expressed to the Clothier Inquiryinto the case of Beverley Allitt that suggested noapplicant for a post in the NHS, who had a previousmental health problem, should be accepted foremployment unless they had been free of drugs andother support for a period of at least two years.”

“This proposition was not taken up by theDepartment of Health but has been accepted by someoccupational health professionals and used as areason for recommending some applicants be refusedposts. This guide supersedes previous guidance onthe subject and makes it plain that all cases should bejudged on an individual basis. It will not beacceptable to use the ‘2 year rule’ as a reason forrefusing employment”121.

However the DRC has received evidence that the twoyear rule is still applied by some occupational healthpractitioners in the assessment of those applying fornursing training and also sometimes in operationwithin the social work profession122.

17. Given the DRC’s understanding that the generalisedhealth standards were rooted in a desire to protectthe public, we were keen to find out from all therelevant organisations whether they concurred withthis view, and if so whether they felt that generalisedhealth standards were a proven method of reducingrisk to the public. The DRC was surprised to note thatmost organisations consulted as part of thisinvestigation had not previously considered thisquestion. Although conditions such as dyslexia,

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120 p 9121 p 29122 Evidence to DRC’s Inquiry Panel from NHS Education

Scotland

epilepsy and mental health conditions werefrequently mentioned as impairments that would giverise to concerns about public safety, organisations(including those that issued guidance on these issues)were not able to explain how that risk would arisegiven comprehensive and properly applied standardsfor competence and conduct.

18. The investigation heard that generalised healthstandards encourage a diagnosis led approach to theassessment of risk. We also heard repeatedly thatdiagnosis cannot be understood without a personalnarrative because the impact of any mental healthcondition or impairment is particular to the individualand their circumstances. Two expert psychiatricwitnesses, for example, told the DRC’s Inquiry Panelthat a diagnosis of mental illness did not create orsignify risk123. Mind, the mental health organisation,called mental health diagnoses “contentious andvariable”124. Disability organisations and othersexpressed real concerns about reducing any disabilityto a particular diagnosis or label. This applied beyondmental health, for example, to MS, epilepsy ordyslexia125. In the words of one witness, diagnosis“tells you nothing”126. It is always important toconsider the person’s individual circumstances, whichmay include both their functional impairment and thebarriers that they face in their particular job (or whiletraining), and their coping strategies.

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123 Evidence to DRC’s Inquiry Panel from Dr John Meehanand Dr Max Henderson

124 Mind evidence to DRC’s Inquiry Panel125 The DRC heard from ADO, BDA and universities that a

diagnosis of dyslexia covers a very wide spectrum oflearning differences or difficulties.

126 Evidence to DRC’s Inquiry Panel from NottinghamUniversity

19. Evidence from psychiatrists, from occupational healthpractitioners and from other organisations also told usthat using health diagnoses and testing or screeningfor health served no useful function at all in relation topredicting future conduct or competence or mostimportantly, assessing future risk. The DRC thereforeconsiders that whilst it is proper for governmentdepartments and regulatory bodies to be concernedabout a person’s behaviour or conduct, as well astheir competence, they should not be advocatingframeworks or systems of assessing people’ssuitability for professional life based on diagnosis.

20. The one partial exception to this we identified wasthat the existence of a blood-borne virus (BBV) mightbe material to risk in specific areas of clinical practicewhere a professional is required to carry out exposureprone procedures (EPPs) that is, to work inside awound or body cavity127. Interestingly, it is the onecondition which does not exclude a nurse fromregistration, and the DRC agrees that this should notbe a registration issue, as it relates to specificfunctions and not to ability to practise in general. Asseen above, the NMC Guidance provides that:

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127 EPPs are procedures where there is a risk that injury to theworker may result in exposure of the patient’s open tissuesto the blood of the worker. These procedures include thosewhere the worker’s gloved hands may be in contact withsharp instruments, needle tips or sharp tissues inside apatient’s open body cavity, wound or confined anatomicalspace where the hands or fingertips may not be completelyvisible at all times. It is fairly uncommon for health careworkers to have BBVs that require restrictions fromcarrying out EPPs – evidence to DRC’s Inquiry Panel fromDr Linda Bell, Chairperson of the PABS Pre-employmentsub-group, a Scottish Executive Health Department Short-Life Working Group

“An individual who is infected with, for example, HIV,Hepatitis B or Hepatitis A might be precluded frombeing able to practise in some posts. However, such aninfection would not preclude them from beingregistered.”128

The NHS too has appropriate arrangements to ensuresafe practice by those with BBVs. There may beconditions analogous to BBVs, in that the merediagnosis of the condition (irrespective ofconsiderations of competence or conduct) identifies arisk, but during the course of the formal investigationthe DRC heard very few examples of how such riskswould arise129. Where such risks do arise they couldbe dealt with in relation to specific employment orwork placements.

21. Otherwise, we consider, in the light of the extensiveevidence we received on this issue, that in relation toany of the professions we studied, an academic,competence and conduct framework (with reasonableadjustments, where appropriate, including as to howany standards are to be achieved) with a focus on theskills actually needed is entirely sufficient to meet theneeds of the profession. Competencies should bereviewed to ensure that they are designed around theskills and knowledge needed for that profession,bearing in mind that there are a variety of job roleswithin each profession and that most people – whetherdisabled or not – would not be suited to all of them.Testing a person for their competencies and ensuring

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128 NMC Guidance 06/04, pp 3-4129 For example we heard of a health care worker with

recurrent chest infections due to cystic fibrosis, who wouldpresent a risk to certain patients and would need to berestricted from working in certain hospital areas or withcertain types of patients – evidence from Dr Linda Bell

that those who commit serious acts of misconductcannot practice is a much more rational basis forregulating the profession than arbitrary healthstandards. A diagnostic label is valueless inmeasuring competence and conduct. Health might bematerial to compliance with competence or conductstandards, or may not be, but diagnosis is irrelevantin determining competence or conduct.

22. Even in the case of blood-borne viruses (BBVs), theyare very unlikely to create a risk (with reasonableadjustments) in most jobs although may create a riskin specific jobs. The proper time rationally thereforeto test for a BBV, or to ask for a declaration of BBVs,is at entry into a particular job, for which the tasks tobe performed have been clearly identified. Thisapproach to BBVs is recognised and supported by theDepartment of Health and the NMC.

23. Additionally, it is important to note that the relevantInquiry Reports looking into tragic events in thecaring professions (and in particular the ClothierReport) found that diagnosis or medical assessmentswould not have prevented the deaths and injuries thatoccurred. Instead, these reports found thatmonitoring, supervision, and the efficient andappropriate exchange of information on conduct andoutcomes may have mitigated the severity of thoseevents. There is, then, a very real danger that thegeneralised health standards contribute towardscreating a false sense of safety.

24. When the DRC, through its Inquiry Panel, askedrelevant organisations about the value of healthstandards operating independently of competence orconduct, they were not able to offer any coherentexplanation as to their value. Many organisations(including regulatory bodies) did not support thecontinuation of these standards. Such support as

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there was from some organisations was predicatedon the fact that they existed in law and that it wasbeyond the remit of that organisation to changethem. The vast majority of the organisations that wetalked to had not considered the purpose oreffectiveness of the standards in any detail before, ifat all. Neither had they considered in detail thequestion of how these standards impact on disabledpeople. The DRC was surprised at this, particularly fororganisations that were responsible for writingguidance on the application of the standards and arenow subject to the DED.

25. As mentioned above, the health standards forteaching in Scotland have been repealed and noneexist in relation to social work in Scotland. Both theGTCS and the Scottish Executive gave evidence thatthey were not aware of anything lost by their repealin teaching130. The Scottish Social Services Council(SSSC) too, believes that the regulatory frameworkwithin which it operates is sufficient to deal with risk,by focusing on competence and conduct, and onlyconsidering health where it has an impact either oncompetence or conduct:

“Where regulatory bodies do have health as acriterion for registration, people suffering fromconditions where it is not possible to predict theimpact of the disability at any one time, may faceparticular difficulties. It is important that each case istreated on its own merits. It is the impact of acondition that needs to be judged in relation to therequirements of a particular post131”

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130 Evidence to DRC’s Inquiry Panel from GTCS and ScottishExecutive Education Department Teachers Division

131 Written evidence from SSSC

Health standards and attitudes towards

disability

26. In reviewing statutory and non-statutory documentsfor this investigation, the DRC noticed a prevailingnegative attitude towards disability, including anassumption that disability is likely to have a negativeeffect on a person’s ability to train or practice. Forexample, we saw NMC guidance132, which appearedto be underpinned by a negative assumption, statingthat a registrant “may have a disability and yet becapable of safe and effective practice in nursing”,suggesting to the reader that the normal expectationwould be for disability to be a barrier. In teaching, theNational Union of Teachers (NUT) made a similarobservation about document 4/99:

“The way in which Circular 4/99 is constructed resultsin the circular, and the framework which flows from it,supporting the medical model of disability and a‘deficit’ model. The overall tone of Circular 4/99suggests that disabled staff are a very small numberof staff and the way in which disabled staff arereferred to is paternalistic and confused. For example,the circular says that “disabled staff can make animportant contribution to the overall schoolcurriculum, both as effective employees and in raisingthe aspirations of disabled pupils and educating non-disabled people about the reality of disability”. Thissentence suggests that the default position will bethat disabled staff are not “effective” employees”.133

27. It is hard to imagine language of this kind beingaccepted or permitted if were used, say, in relation tofemale professionals. While the DRC recognises thatregulatory bodies have – in some cases very recently

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132 NMC guidance 06/04 (see Chapter 2, paragraph 9 above).133 Written evidence from NUT

and possibly in response to the DRC’s formalinvestigation – reviewed their guidance, we areconcerned by these underlying assumptions andunderlying messages that disabled people’s ability towork in these fields competently and safely issomehow in doubt. It is particularly concerning whenthese ambivalent messages about disabled peoplecome from the regulatory bodies themselves, orfrom government departments.

28. The DRC received a considerable amount ofevidence134 about negative attitudes towards peoplewith mental health problems within theseprofessions, and that a history of mental ill healthwas considered an indicator that someone may notbe fit to study, register or work. For example:

“I was told I was unfit as we have to be careful you’renot a Beverley Allitt . . . Yes I usually lie about mymental health as I’ve had problems when I’vedisclosed in spite of working in mental health”(Nurse with depression, England 2000)135

“At the end of my student year I had to complete amedical form. I was then interviewed by a doctor,who had to gauge whether I was physically andmentally fit to be a teacher. One of the problems wasthat the medication used to control my long-termmedical condition is also used as medication againstdepression. . .” (Teacher, Scotland, 2003 – before thehealth standard for teaching was removed)136

“Disclosing my mental health history to the[regulatory body] has proved to be a totally negative

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134 Through Disclosing Disability research, through writtenevidence, Inquiry Panel, from website and throughevidence of legal cases

135 sent to DRC through website136 Evidence sent to DRC through website

experience. I question the expertise of thecaseworker, who has demonstrated no understandingor knowledge of mental health issues. The stupidityof the [regulatory body’s] approach is demonstratedby the fact that if I had chosen not to disclose, therewould not have been a problem. Only honeststudents/staff are being penalised, so the unsuitablecandidates are not being identified”(Student with depression, 2006)137

29. There are deep-seated beliefs about the connectionbetween disability and risk. Mental health isfrequently referred to, but we heard similar prejudiceabout a range of other impairments and healthconditions including dyslexia (particularly in relationto nursing), epilepsy, sensory impairments, mobilityimpairments, and long-term health conditions thatmay cause fatigue. The DRC came across thefollowing cases (amongst others) that appear toreflect these beliefs:

• A university wanted to defer an applicant’s entry toa nursing course. When asked to provide ajustification for this, the university stated that theclaimant’s deafness might create a risk to patientsafety. This could arise in “circumstances ofconsiderable ambient noise, individuals’ facescovered by masks and an emergency in progress”.(Nursing, Scotland – 2005)

• A student with a mental health condition wasinformed by the university that it normallyexpected applicants to be drug andpsychotherapeutic intervention free for a period oftwo years138 before commencing the course but

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137 Evidence sent to DRC through website138 This case also demonstrates that the now abandoned

“two year rule” arising from the Clothier and Bullockreports has influenced practice within social work.

that this would not be necessary providing theuniversity received a supportive letter from aconsultant psychiatrist. This psychiatrist would beasked to affirm whether or not the person was fitto be a trainee social worker and whether theapplicant would pose a risk to him/herself, otherstudents or staff, or the trainee social worker’sclient group. The university argued that inrequesting such information it was exercising itsduty to determine fitness for purpose and a duty ofcare to the applicant, staff and other students.(Social work, England – 2003)

• A student on a teacher training course was toldthat she was not suitable, on health grounds, afterdisclosing that she had a mental health condition(borderline personality disorder), even though thestudent’s consultant psychiatrist supported her.The university stated that, in accordance withGeneral Teaching Council for Scotland’sregulations, it could not allow her to train as ateacher until it had received confirmation that shewas fit to teach from the university’s ownoccupational physician, who did not support hercontinuing participation on the course. (Teaching,Scotland 2003 before the health standard wasremoved in 2004)

• A woman was refused a place on an adult nursingcourse. This was on the basis of an occupationalhealth report that had raised concerns about herability to complete the course due to her dyslexia.(However, the report stated that with support theclaimant would be able to do quite wellacademically, and pass her clinical assessments).In response to a request for further information,the university stated that it was required to makean “unreserved statement that a studentcompleting the course is a fully fit and properperson to function as a nurse”. The university also

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stated that if the claimant were to be registeredshe would be licensed to work in any and everyclinical environment, including areas where thespeed and pressure of work would not allow theclaimant to utilise the strategies she haddeveloped to cope with her dyslexia. Theuniversity believed that the claimant would nothave been able to operate universally and safely asa nurse once she had completed the course.(Nursing, England – year unknown)

30. There was considerable anxiety expressed directly orreported to the DRC’s Inquiry Panel about the “risk”of nurses with dyslexia. The response appears to bebased on the prejudice that nurses with dyslexiamight pose a risk in administering medicine orunderstanding clinical instructions, the consequencesof which could be life threatening. However, the DRChas found that although literature exploring theexperiences of nursing students with dyslexia is“exceptionally limited”, there have been no empiricalstudies “identifying nurses with dyslexia as unsafe intheir practice”.139 There is, though, some evidence of“hyper vigilant practices” – people with dyslexiaworking “exceptionally safely” because they build inextra checks within their working practice, out of afear of making mistakes.140 Nurses with dyslexia,and those working to support them, have alsoidentified a range of practices and procedures thatcan enhance safe working for all nurses, such asusing standard forms for passing on telephone

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139 Morris D and Turnbull P (2006) Clinical experiences ofstudents with dyslexia, Journal of Advanced Nursing,Vol.54, No.2, pp. 238-247 cited in the Written Evidencefrom the Adult Dyslexia Organisation

140 Evidence to DRC’s Inquiry Panel from Adult DyslexiaOrganisation

messages or for handover notes. This was summedup by the phrase “dyslexia friendly – user friendly”,meaning that practices that enable a nurse withdyslexia to work safely and competently, wouldcontribute to a safe working environment for allnurses. This is relevant because research shows thatnurses who do not have dyslexia may also havedifficulty with record keeping and drugcalculations141 .

31. For student nurses with dyslexia, good practice wasidentified at a number of universities, whereby thesestudents are properly supported at university and onwork placements, and hospitals receive training andsupport around dyslexia142. The DRC does notbelieve that dyslexia and nursing is an exception tothe general principle that properly enforced standardsof competence and conduct are sufficient to ensuresafe practice.

32. The DRC received evidence that health standards candiscourage disabled people from applying to train inthese professions143. One university told us that theyhad received a number of enquiries to the effect of “I have a disability, can I apply to do the course?144”The Royal College of Nursing told the DRC that:

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141 Taylor H, 2003. An exploration of the factors that affectnurses’ record keeping. British Journal of Nursing 12 (12)751-758, cited in Research in assessments and decisions,Jane Wray et al, DRC 2007

142 Examples given were University of Southampton andUniversity of Nottingham

143 Evidence to DRC’s Inquiry Panel from trade unions, fromANHOPS, and from universities

144 Written evidence from Bishope Grosseteste University inrelation to teacher training

“The RCN also support nursing students and ouradvisers and officers tell us that the requirement to beof “good health” can be problematic for many studentsand potential students. We believe that some potentialnurses could be put off training by an image thatnurses have to be ‘super human’. This is an imagecreated by the media but also by the nursingcommunity itself”

And that:

“There are many groups of staff who have significantdifficulties applying to become, training as and workingas registered nurses. Those we are most concernedabout include staff with experience of mental ill health,those with blood borne infections (HIV and Hep A & Bas examples), people who have illness such as ME andFybromyalgia and those with dyslexia.145”

33. We heard evidence about the deterrent effect of thesestandards even from regulatory bodies themselves. TheGSCC told us that disabled people were, or were likelyto be, put off from applying for entry into theprofessions. In written evidence, the GSCC stated thatalthough it does not believe that the regulatoryframework would disadvantage disabled people, itrecognises that disabled people are likely to have theopposite perception, and as a result the GSCC has“attempted to provide re-assurance to anyone whomight feel that their registration will not be accepted”.

34. Several organisations146 expressed the view that whilethey may not feel that health standards in themselveshave a negative impact on disabled people, the way in

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145 Written evidence from RCN, which represents 400 000members across the UK

146 Including ALAMA, University of Brighton, University ofBradford, Health Professions Council, BMA, Chief NursingOfficer Welsh Assembly

which they are interpreted or implemented can bediscriminatory. The vague wording of healthstandards, for example the requirement for “goodhealth and good character”, is likely to lead to avariety of interpretations and to decisions that arebased on subjective judgements147. The way that thestandards are implemented within higher educationand employment, and the role of the regulatorybodies in ensuring that disabled people are notdiscriminated against, and not deterred from enteringthese professions are explored below in subsequentchapters of this report.

35. In addition to the effect of these standards in creatinga climate that excludes people from entry orprogression, there is also a profound effect on thewillingness of disabled people to disclose theirdisability (where they are able to keep this hidden),which in turn has an effect on the availability ofadjustments. Issues around disclosure are dealt withbelow in Chapter 8.

36. Nevertheless it would be unreasonable to place theblame for all negative attitudes towards disabledpractitioners in the professions (or students aspiringto join the professions) on the health standards.These standards, as laid out in statutory and non-statutory documents, may also be reflecting prevalentnegative attitudes towards disability. They provide atool to act out negative attitudes and operate as adeterrent to practitioners who might sometimes notbe welcome in the profession anyway. The DRCreceived evidence which led us to conclude that suchattitudes sometimes exist independently of the healthstandards148 and that attitudinal change was itself

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147 Several universities told the investigation that there wasnot enough guidance to help them implement thesestandards in a way that was non-discriminatory

important. In Scotland, where generalised health standardsfor teachers have been removed, there is evidence thatnegative attitudes towards disabled people continue. Forexample, Skill told the DRC that in teaching courses inScotland, “the culture on the ground has not changed inthese institutions”, and that teachers and student teachersare still encountering problems149.

37. The culture of nursing, in particular – paradoxically givenits core “caring” functions – seemed often to be intolerantof disability.150 Scullion, for example, asserted that“disability has only recently appeared on the equalopportunities agenda within health” and that within thehealth professions it may be viewed as a medicalphenomenon “synonymous with illness, deviation ordependence”151. The media promotes an unhelpful imageof nursing, but the profession perpetuates these attitudes:

“I hear this perception that nurse equals superhuman, I hear it so many times – qualified nurses who develop ahealth problem or disability in the course of their careerand need to take time off. When they return to work,they’re told: ‘Oh, you can’t be a nurse if you are not onehundred per cent fit’, whatever that might be”.152

38. This model of nursing eschews perceived “weakness”within the profession. Those requiring “care” are patients;

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148 Evidence of negative attitudes towards disability was found inthe three professions. See for example, Background paper,Chih Hoong Sin et al, DRC 2006. Also. evidence to DRC’s InquiryPanel from a range of organisations including Mind, Skill, ADO.

149 Evidence to DRC’s Inquiry Panel from Skill150 The culture in which doctors practise, in contrast, seems to be

more supportive of colleagues and there appear to be moresystems in place to support doctors (GMC evidence to DRC’sInquiry Panel).

151 Background paper, Chih Hoong Sin et al, DRC 2006152 Evidence to the DRC’s Inquiry Panel from RCN

nurses deliver it and any perceived blurring of theboundaries is unwelcome and threatening to the selfimage of nursing.153 Without doubt too, theBeverley Allitt effect is significant. The Allitt casefeeds into an anxiety about disabled or “unwell”people in the profession, as we have describedabove.

39. In social work too, previous research has drawnattention to attitudinal barriers and it is claimed that“disabled people are at times expected to remain inthe position of being helped, rather than becoming ahelper” Negative attitudes from clients towardsdisabled people “are sometimes not challenged orare used as an excuse to discriminate againstdisabled employees”154.

40. Across all three professions, there is a belief that thework is demanding and requires “stamina”; and thatdisabled people may not have the necessaryattributes. For practitioners with mental healthproblems, there is a misconception that they wouldnot be able to cope with stressful situations. Howeverwe heard evidence that that there is no direct

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153 Evidence to the DRC’s Inquiry Panel from Mind told ushow this arises in the context of mental health services“We have heard stories of mental health nurses whohave then themselves become service users. They talkabout how the nurses, when they have been inpatients,have been particularly uncaring and unpleasant to themand treating them almost as a traitor to the professionbecause they have made the profession vulnerable to thisboundary being breached”.

154 Sapey, Orton and Turner 2004 Sapey B, Turner R(Lancaster University) and Orton S (SWAP) (eds) (2004)Access to Practice: Overcoming the Barriers to PracticeLearning for Disabled Social Work Students. SWAPItsn.

relationship between stress and mental healthconditions – for many people with mental healthproblems, work stress is not a factor in triggering arelapse.

41. The DRC noted that within guidance or otherdocuments from regulatory bodies or otherorganisations there was an overall lack of positivemessages155 about disabled people working withinthese professions. However, we heard from a rangeof organisations that disabled people have particularqualities to offer to the professions.156 Being carefulto avoid stereotyping, these may include empathy forother disabled or vulnerable people deriving from theexperience of being disabled (and perhaps beingmarginalised and discriminated against), or simplybeing a role model for patients, service users orpupils. For example, in teaching:

“As a dyslexic teacher the most important thing isthat I empathise with the pupils who have specialeducational needs. When I’m in school I use many ofthe spelling strategies that are taught through theNational Literacy Strategy and pupils comment that itis good to see a teacher using these and otherspelling strategies, a dictionary or a spell checker inthe classroom, and not just seeming to pluckspellings out of the air”. (Newly qualified graduate infirst teaching job)157.

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155 Except for Skill publications “Into Nursing” and “IntoTeaching” and Skill website, which feature positive casestudies. See http://www.skill.org.uk/

156 Evidence to DRC’s Inquiry Panel, from Unison, Universityof Salford, University of Manchester, Skill and others.

157 Written evidence from the Adult Dyslexia Organisation.

And, for example, in nursing: “I have a false arm but it is more comfortable for menot to wear it. During my training, one ward managermade me wear it as she said that my scar wasunsightly . . . On one occasion, I was treating ateenage girl who had recently had her armamputated. Later, she told another member of staffthat I had inspired her. I didn’t realise that I hadhelped her in any way, as she was just coming out ofanaesthetic and was quite groggy – and I was justgetting on with my nursing”.158

Conclusion

42. The generalised health standards across nursing andsocial work derive from the Beverley Allitt case andthe Clothier report – although the findings of theClothier report did not demonstrate that anystandards or screening for mental and physical fitnesswould have prevented the crimes she committedagainst patients. The standards were neverthelessbrought in, extended across other professions, andare still being extended, through the Government’sWhite Paper and the professionalisation of the widerchildren’s workforce. There is no evidence that theuse of generalised health standards is an effectiveway of determining or managing risk. Thesestandards, while not solely responsible for theexistence of antipathy towards disabled people in theprofessions, reinforce this view and provide someobjective justification for it. They are evidentlyimportant in affecting the culture of the professionsand the general attitude towards disabled peoplewithin them.

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158 “Can’t do nursing with one hand!” Experiences of nurseNikki Heazell reported in Background paper, Chih HoongSin et al,DRC 2006

Chapter 5 – The role ofregulatory bodies1. Since 2004159, the regulatory bodies160 covering

nursing, teaching and social work in England,Scotland and Wales have had obligations under theDDA as qualifications bodies161 because they holdprofessional registers, and registration is aqualification which is needed for, or facilitatesengagement in, a particular profession or trade. TheTraining and Development Agency for Schools (TDA),although it does not hold the professional register,operates the skills test that teachers must pass –separately from their teacher training – in order to berecommended for registration. This means that it isalso a qualifications body. As these organisations,including Council for Healthcare RegulatoryExcellence (CHRE), are public authorities, they arealso covered by the disability equality duty (DED).Below we look at evidence we have received abouthow these organisations have responded to theseduties.

Nursing

2. The NMC first published guidance on “good healthand good character” in 2004. Since the start of the

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159 The change came in as an amendment to the DDA 1995160 NMC, GSCC, SSSC, CCW, GTCE, GTCS and GTCW161 Excluding the CHRE

DRC’s formal investigation it has reviewed thisguidance and approved new guidance in 2006, inorder to meet obligations under the specific disabilityequality duty162. The NMC told the DRC that sincethe Nursing and Midwifery Order (2001), does notdefine the NMC’s responsibilities for people withdisabilities and long-term health conditions, the NMCdecided to consider these as an aspect of its goodhealth requirements and to address its DDAobligations as part of the revised guidance. The NMCalso states that it chose the social model of disabilityover the medical model, to inform its new “goodhealth and good character” guidance. The DRC notesand welcomes the fact that this guidance refers to theDDA, including the NMC’s own obligations under theDDA, and that this guidance reflects a more positiveattitude towards disabled practitioners. However thenew guidance still requires universities to check andassess the health of disabled people, separately fromtheir conduct or competence, so still has the potentialto lead to discriminatory practice.

3. Evidence from the higher education sector shows thatthis sector has difficulty in interpreting the “goodhealth and good character” requirements and thatuniversities are concerned that decisions aboutwhether someone is fit to train or fit to practise areoften made subjectively at a local level. They alsoexpressed concern that they did not know what wouldconstitute a reasonable adjustment to meet theserequirements.163 We also heard that the good healthand good character requirements are interpreted verydifferently by different universities164. The issue of

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162 Decision of the NMC (06/16), pp10-11163 For example, written evidence from University of Brighton164 Universities’ evidence to the DRC’s Inquiry Panel, which

demonstrated good and bad practice

how guidance is interpreted by higher educationinstitutions is discussed below in Chapter 6.

4. Research commissioned by the DRC showed thatdisabled people sometimes perceived theregulatory bodies to be remote and threateningorganisations165. Evidence from individuals andfrom universities shows that there is not enoughinformation for disabled people about theprocesses around disclosure to regulatory bodies,for example, how an individual’s case would be (orwas being) dealt with. For example:

“I disclosed the information that I had epilepsy … I was sent no information from them [the NMC]about disabilities, how they treat it within theNursing and Midwifery Council, the kind of supportthat’s offered or anything else”.167

5. The DRC also heard that for practising nurses, theNMC’s role in removing nurses from the registercan be used as a threat and can lead todiscrimination by employers168. However, NMCguidance on reporting issues of “unfitness”169

(whether for conduct, competence or healthreasons) does not mention the DDA and does notadvise employers about how to ensure that they donot discriminate in carrying out this function.

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165 Disclosing Disability, Nicky Stanley et al, DRC 2007165 Written evidence to the DRC from University of Bradford167 Disclosing Disability, Nicky Stanley et al, DRC 2007168 Written evidence from RCN, and evidence to DRC’s

Inquiry Panel from RCN169 Reporting unfitness to practice: a guide for employers

and managers http://www.nmc-uk.org/aFrameDisplay.aspx?DocumentID=65

6. For people with fluctuating conditions (including, forexample mental health conditions and MS), therequirement for nurses to re-register and to declarethat they meet the good health and good characterrequirement every three years was a real source ofworry. For example:

“when I re-register in two years time I will have tosign to say I’m of sufficiently good health … but thenthere may be a time in that period when I’m not, andthe concern for me is … that I’ll have to sign that at atime when I’m unwell … so if that comes in when I’mrelapsed, how do I sign, what do I say?…. I’m notsure what they would do”.170

7. It is important to note though that in relation tonursing the DRC did not find, during its investigation,any evidence of complaints of disabilitydiscrimination against the NMC in the use of itspowers to remove people from the register (or torefuse re-registration). However we came acrosscases and complaints where the “good health andgood character” requirements were used asjustification for discrimination against disabled peoplebeing refused entry onto hiher education courses.

8. The NMC publishes “Fitness to Practise, AnnualReports”. During 2003-2004, the annual report showsthat the Health Committee dealt with 250 cases and40.5% of those cases concerned mental illness andonly 4.5% concerning “physical illness”. Theremaining cases concerned drug and alcohol abuse.The prominence of mental illness in fitness to practicecases raises the possibility of direct discrimination,although the DRC does not have any informationabout the detail of these cases and therefore does notknow, whether or not disability discrimination was a

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170 Disclosing Disability, Nicky Stanley et al, DRC 2007

factor. It would be advisable for the NMC to lookclosely at the issues raised by these cases and theway that these cases are reported. The DRC notes thatthis annual report refers to “allegations” ofdepressive illness, suggesting that having an illness issomething analogous to a criminal act.

9. The NMC has not yet collected any statistics aboutdisabled people on its register, although it hasrecently started monitoring in relation to staff.Monitoring is something that the DRC advisedqualifications bodies such as the NMC to do, in its2004 DDA Code of Practice as a way of “determiningwhether anti-discrimination measures taken by anorganisation are effective”171. The other regulatorybodies relevant to this investigation172 have all beenmonitoring registrants for disability equality purposessince 2004. The NMC has told us that it will shortlystart to do this in compliance with the DDA 2005,(DED).

10. The NMC has published a Disability Equality Scheme,identifying the NMC’s duties under the DDA. It statesthat the NMC “have not yet established concretemeasures by which to assess the impact of all ourfunctions upon the promotion of equality ofopportunity for people with disabilities and theelimination of unlawful discrimination”173. Much ofthe Scheme identifies what the NMC propose to dothrough its action plan. This action plan identifies thatover three years the NMC will take certain steps tomeet its general equality duties under the DDA and isbuilt around several core areas including regulation.

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171 DDA Code of Practice, Trade organisations andqualifications bodies 2004 DRC/TSO

172 Except the CHRE which does not hold a register173 p 6

The action plan, however, suggests that as to the“health and good character” requirements, adequateaction has been taken by the Decision of the NMC(06/16) approving its new Guidance174

Teaching

11. Although good health is a requirement for entry toinitial teacher training and for remaining on theGTCE’s or GTCW’s registers, these regulatory bodieshave only a limited role in determining who is andisn’t considered fit to teach (by advising the Secretaryof State on a decision to prohibit an individual fromteaching). The responsibility for “mental and physicalfitness” lies with DCSF, both through guidancedocuments that it issues, and also in relation toindividual cases. In Wales the National Assembly andthe DCSF share these functions. The situation is clearlydifferent in Scotland because generalised healthstandards for teachers have been removed.

12. In 2005, the GTCE convened a Disabled TeacherTaskforce to:

• Raise awareness of the current policies andpractices that cause difficulties for disabledstudents to access teacher training and enter theteaching profession.

• Encourage national organisations to act onremoving barriers and promoting opportunities fordisabled people entering the teaching profession,either unilaterally or through collaborative projects.

• Develop a programme of action, which guidesnational partners to make progress leading to fewerbarriers and more opportunities for people withdisabilities entering the profession.

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174 pp10-11.

13. Members of the Taskforce include statutory agenciessuch as DCSF, TDA, GTCW and GTCS, as well as disabledpeople’s organisations. Pulling these organisationstogether to agree a framework for action is a positiveapproach to looking at disability equality issues withinteaching, and is it to be recommended for othersprofessions. The Taskforce supported the DRC’sinvestigation and the DRC agreed to feed its findingsfrom this investigation to the Taskforce. It is importantthat three General Teaching Councils take forwardinformation gathered from the Taskforce, to inform theirpolicies and practice. The GTCE also has a statutory rolein advising the DCSF (and in the case of the GTCW, theNational Assembly for Wales) on matters relating to theteaching profession, including medical fitness to teach.The DRC would, then, expect the GTCE and GTCW toadvise government on the DRC’s findings andrecommendations concerning the statutory healthrequirements for teachers.

14. The GTCE has recently started monitoring for disabilityamongst its registrants but has concerns about thecompleteness and quality of data relating to bothdisability and ethnicity. Figures for 2006 show that only0.15 % of newly qualified teachers have disclosed adisability. The GTCE acknowledges within its disabilityequality scheme this poor data is a hindrance to movingforward on disability equality issues.

15. The GTCW gave us registration data for 2006/7 only,which show that seventy seven newly qualified teacherswho registered in this year declared a disability,comprising only 0.2% of registered teachers that year.The GTCW conducted research about the teachingworkforce in Wales and produced an action plan175,

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175 Action plan for the recruitment and retention of teachers inWales, GTCW 2003 www.gtcw.org.uk/documents/recruitment/GTCW%20Retention.pdf

which included specific recommendations to addressthe barriers faced by disabled teachers. The reportstated that:

“In 2000/01 students with disabilities were under-represented on ITET [Initial Teacher Education andTraining] courses in Wales at 4% of all trainees. Thisincludes students registered as dyslexic. This compareswith an estimated 11% of the economically active UKpopulation. However it may not be a useful comparisonas the requirements for undertaking a course of ITETand achieving QTS [Qualified Teacher Status] includecertain health requirements which may exclude manyindividuals who are registered as disabled”.176

The DRC recommends using data to inform policy andaction. Analysis of data, such as the data comparisonmade above, would indicate to us that the healthstandards should be questioned (for example, throughan impact assessment) rather than used as an uncriticalexplanation for the exclusion of disabled people.

16. The GTCW also participated in research carried out byTeaching and Disability Wales177 which raisedconcerns about the requirements for physical andmental fitness and the difficulties faced by highereducation institutions trying to implement thesestandards. It is not clear how GTCW acted on thesefindings.

17. The GTCS sent us statistics for applicants to theTeaching Induction Scheme which showed that in 2006there were only 31 applicants that had disclosed adisability, comprising 1.1% of applicants. It has

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176 Cited in written evidence to DRC from GTCW177 Reducing barriers to participation by people with disability

in the teaching profession, TADW 2003,www.newport.ac.uk/tadw

published an Annual Statistics Digest for 2005178

which includes registration data broken down interms of gender and age, but not disability orethnicity.

18. We note that the GTCS is the only regulatory bodycovering these three professions that has a dutythrough its establishing legislation to “have regard tothe requirements of persons who are disabledpersons for the purposes of the DisabilityDiscrimination Act 1995”. We have also noted abovethat some organisations consider that the removal ofhealth standards in 2004 has not changed attitudes todisabled teachers in Scotland. The GTCS shouldconsider how it can use research, monitoring dataand involvement of disabled people to fulfil its ownduty. It is surprisingly not yet covered by the specificDisability Equality Duty.

19. The Training and Development Agency for schools(TDA) is a qualifications body as it operates the Skillstest which all students need to pass as part of therequirement for the award of Qualified TeacherStatus. It also has responsibility in England for settingprofessional standards for teachers. Followingconsultation with the DRC and other organisations,the TDA has recently revised these standards andremoved the requirement for “spoken English”,which disadvantaged British Sign Language userswhile maintaining its standard for literacy. Thischange has recently been approved by DfES (nowDCSF) and the new standards are operational fromSeptember 2007. The TDA also has responsibility forpromoting the teaching profession in England but theDRC has not received any evidence that the TDA hastaken steps to specifically promote teaching as acareer to disabled people.

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178 On GTCS website www.gtcs.org.uk

Social work

20. The GSCC told this investigation that although therequirement set out in the Care Standards Act 2000for mental and physical fitness was controversialwhen it was proposed, it nevertheless believes that ithas found a way of implementing these provisionsin a non-discriminatory way, consistent with theDDA. It considered its guidance, issues ofconfidentiality, and consulted the DRC about itsapproach before instituting new registrationprocedures. In written evidence, GSCC stated:

“Our approach to this issue was first to considerwhat type of health condition may have an effect onan individual’s ability to work safely as a socialworker. We defined a set of criteria which wouldguide applicants as to the issues which we mightneed to know about in order to meet our statutoryduty.”

21. The health conditions identified by the GSCC in itsregistration guidance are: conditions that may causeseizures; conditions that may result in short-termmemory loss or lapses in memory; treatment ormedication you are taking that may result in short-term memory loss or lapses in memory; seriouscommunicable diseases; serious mental ill health, orits treatment; and substance dependence includingsubstance dependence for which you are receivingtreatment.

22. The GSCC also told the DRC:

“We made a policy decision that where a medicalcondition was deemed relevant, we would normallyremind the applicant, when registering them, of theirduty to work safely within the boundaries of theirhealth condition and to inform their employer, if thiswas relevant. Mostly this has been done simply as

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advice at the point of registration rather than throughthe imposition of formal conditions on registration”.179

23. The GSCC gave evidence to the DRC explaining howshortly after these procedures were implemented, itrefused registration to a number of people in relation tohealth because the assessment was, on medical advice,that they presented a risk to service users eitherbecause their condition was not deemed to be wellmanaged or because they did not have sufficientinsight into their condition. Three cases relating toindividuals with bi-polar disorder were taken to theCare Standards Tribunal on appeal and the GSCC lostthese cases. The GSCC told the DRC that because thesecases raised issues relating to discrimination arisingfrom the statutory requirements it was important forthe GSCC to “draw these issues to the attention ofgovernment”.

24. One of these cases concerned a man who had workedin social care for 30 years, was employed as a socialworker by a local authority, and had a diagnosis of bi-polar disorder that he had lived with for 17 years. Hechallenged the GSCC’s decision that his registration in2005 should be subject to conditions, and alsochallenged the delays in processing his application. Inhis evidence he stated:

“The GSCC asked me “do you have a physical ormental health condition that may affect your ability toundertake your work in social care?” I answeredopenly, honestly and probably naively. Their responsehas been exclusive not inclusive, oppressive notsupportive. I believe this system to be discriminatoryand to have discriminated against me”.180

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179 Written evidence from GSCC180 From witness statement of applicant, sent to the DRC for

this investigation

25. The DRC has received evidence that leads us tobelieve that the GSCC is still finding it difficult toapply the statutory requirement for mental andphysical fitness in a way that does not lead todiscrimination. We received a number ofcomplaints181 about delays and intrusive proceduresfor investigating fitness. For example:

“My university has not been concerned about myfitness to practice due to my mental health problems,so they have let me take the MA in social work, whichI have nearly completed. However, the GSCC is nowinvestigating my fitness to practise. I am mostannoyed not because they are investigating me as Iappreciate they need to put the welfare of vulnerableservice users first, but rather because of the ways inwhich they are doing so. I first alerted the GSCC tomy mental health status in October 2005, yet theyhave only begun their investigation recently182,which is making it difficult for me to register withagencies and find employment. Had they actedsooner, this would hopefully not be a problem. Also,they have been contacting members of staff at myuniversity asking for confidential information withoutmy permission. I have been treated with suspiciondespite my total willingness to be open and honestwith them, and I feel it is an ironic example for thesocial care council to be setting – it is totallyinappropriate. I decided to be open with the GSCCabout my mental health problems, as I feel it wouldbe inappropriate and unprofessional of me to dootherwise. I hoped that because I have nothing tohide or to be ashamed of, the GSCC wouldinvestigate my fitness in partnership with me and myuniversity and practice setting. However, they have...made me feel as though I have something to be

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181 Sent to the DRC via its website182 Information received in August 2006

ashamed of and punished for, rather than recognisingthe additional expertise my experience gives me as apractitioner”

The DRC received three other very similar complaintsabout GSCC procedures following disclosure ofmental health conditions, such as depression, to theGSCC.

26. The DRC also heard at length about a DDA case183

against the GSCC being taken by a social workstudent with HIV who was subjected to lengthy delaysto his registration, because he disclosed informationabout his HIV status to the GSCC but had notdisclosed to his university (as he did not believe thathis HIV status was relevant to his fitness to study orpractise as a social worker). This anomaly was pickedup by the GSCC who informed the student’s courseleader that “student applicants must discloseinformation about their HIV status to the University –and that failure to do so may have implications forconsidering the applicant’s character andconduct”184. The course leader expressed concernsthat a letter to the university from the GSCC aboutthis student implied that the Care Standards Act 2000(requiring mental and physical fitness) supersededthe requirements of the DDA. The course leader wasalso concerned that this case (and the lack ofguidance from the GSCC) meant that she did notknow whether she should be advising applicants tothe social work course to declare health conditionsthat she considered to be irrelevant to the profession,because the GSCC may subsequently withhold ordelay the students’ registration.

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183 Evidence from social work student and his solicitor to theDRC’s Inquiry Panel

184 Evidence sent separately to the DRC in relation to this case

27. In relation to the GSCC’s disability equality duty, ithas produced a single Diversity Equality Scheme witha two page action plan covering all the diversitygrounds. The scheme does not address issuesrelating to disabled people as registrants, but focuseson disabled people as service users (ie clients ofsocial workers) and as employees of the GSCC. Aspart of its action plan for the scheme the GSCC makesa commitment “to identify all relevant policies andfunctions, carry out impact assessment and developaction plans for developing function and policy”.Additionally, on its website the GSCC states:

“We are aware that there have been some concernsabout parts of our legislation and questions aboutwhether it is discriminatory in relation to healthrequirements. . . it is possible that this scheme willneed to be reviewed in light of theirrecommendations and that their report will inform areview of our legislation by Government.”

28. The DRC considers that, in the light of the findingsand recommendations of this investigation, the GSCCfocuses closely on its registration functions, policiesand procedures around registration as part of itsDiversity Equality Scheme.

29. The GSCC has started to carry out disabilitymonitoring of students and registrants. The GSCCtold us that it does not hold data relating to allapplicants for registration, because many decline tofill in the monitoring form. The data provided showsthat around 2% of qualified social workers havestated that they are disabled. It is interesting to notethat these figures are much lower than the figures intheir data packs relating to disabled students and aspart of their disability equality duty the GSCC coulduse this information to consider issues arounddisclosure in relation to its registration function.

140

30. The Care Council for Wales gave evidence to theDRC185 that applicants for entry onto the register ofsocial care workers are asked to disclose any healthcondition on application that they feel might affecttheir ability to undertake their social care duties andagain, on renewing their registration and on notifyingthem of any changes to their health. Their evidencestated that 120 risk assessments have been carried outon declarations of health. No applicants forregistration have been refused registration or hadconditions imposed because of physical or mentalhealth conditions. Post registration, if any allegedmisconduct is considered to have been caused orcontributed to by physical or mental ill health, thematter will be considered by a Health Committeewhich sits in private.186 The DRC has not heard anycomplaints relating to the CCW’s policies or practicesin carrying out its registration function. The CCWbelieves that it meets its DDA duty to review itscompetence standards, and also ensures thatdecisions made about “application, renewal, refusal orremoval do not discriminate against disabled people.The Council will review its conditions or standards toensure that the potential for denying a disabledperson the possibility of meeting the standards in thefirst place, is fully recognised and addressed”.

31. The CCW monitors for disability and has recordedthat around 78% of registrants have returned equalopportunities monitoring forms and out of those,2.2% have declared a disability.

32. The requirement for mental and physical fitness doesnot apply to social work registration in Scotland. TheSSSC told the DRC187:

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185 CCW written evidence to the DRC186 Ibid.187 Written evidence to the DRC from SSSC

“An individual’s mental or physical fitness may be anissue in so far as the condition may have an impact onthe conduct or competence of a worker. The SSSC hason occasion asked an individual to undergo medical(including psychiatric) assessment. The SSSC has nopowers to require such assessment; all suchassessments have been undertaken voluntarily. In asituation where misconduct is alleged, where anindividual explains his/her behaviour as beingattributable to ill/health disability, the Council may obtainan independent health assessment to ascertain whetherthe relevant condition is appropriately controlled.”

“Where regulatory bodies do have health as a criterionfor registration [as is the case for social work inEngland and Wales], people suffering from conditionswhere it is not possible to predict the impact of thedisability at any one time, may face particulardifficulties. It is important that each case is treated onits own merits. It is the impact of a condition that needto be judged in relation to the requirements of aparticular post”

33. The SSSC goes on to say:

“The regulatory framework for social service workersin Scotland is compatible with the DisabilityDiscrimination Act. As described above, health is not acriterion for registration with the SSSC. The SSSClooks at conduct and competence in general terms. It is for the employer to check the impact of anindividual’s physical or mental condition on his/hersuitability for a particular post and to make reasonableadjustments under the DDA”188

This is a model of regulation that the DRC strongly endorses.

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188 Written evidence to the DRC from SSSC

34. In responding to requests for cases under the DRC’scase review, the SSSC gave an example of how theissue of a person’s mental health had arisen as part ofconsideration of an applicant’s competence orconduct, rather than as an issue in isolation. Theapplicant had been convicted a number of yearspreviously of causing damage to property (and wassubsequently detained under the Mental Health Act).The applicant cited a long-term mental healthcondition as a factor contributing to the incidents. The SSSC obtained a psychiatric report and wassatisfied that the condition was under control, his lifecircumstances had changed significantly and that theapplicant did not pose an increased risk. Theapplication for registration was accepted.

35. The SSSC has started to monitor its registrants fordisability. Figures from 2005 show that there were 160disabled registered social workers comprising 2.4% ofall registered social workers in Scotland in that year.

Other Health Professions

36. The DRC also received evidence from the HealthProfessions Council (HPC) about how it interprets andoperates health standards across the 13 professionsthat the Council regulates in England, Scotland andWales189. We believe that this is a model of goodpractice within the constraints of generalised healthstandards. The HPC is required to set standards ofeducation, training, conduct and performance and to

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189 The thirteen professions currently regulated are artstherapists, biomedical scientists, chiropodists/podiatrists, clinical scientists, dieticians, occupationaltherapists, operating department practitioners,othoptists, paramedics, physiotherapists, prosthetistsand orthotists, radiographers and speech and languagetherapists.

ensure that such standards are met. The HealthProfessions Council (Registration and Fees) Rules2003 require all registration applicants to provide areference as to their physical and mental health,including a declaration that the referee is satisfiedthat the applicant’s health does not affect his/herability to practise in the profession to which theapplication relates. The HPC has published Standardsof Proficiency including both generic elements, whichall registrants must meet, and profession-specificelements. However, it has also published a “DisabledPerson’s Guide to becoming a Health Professional.”Through the publication of this Guidance and its workaround the health related standards, the HPC hasadopted a more disability friendly approach. It toldthe DRC that the DDA is compatible with the HPC’sregulatory framework, provided that the Standards ofProficiency are the focus of any decision made aboutsomeone’s fitness to practise in a profession. Thiswill, however, only work provided if in a regulator’sstandards are modern, clear, outcome-focused, andhave been carefully assessed to ensure that they arethe threshold standards required for registration, anddo not contain any element which is unnecessarilydiscriminatory.

37. The HPC told us that any decisions reached need tobe taken about individuals, with detailed individualassessment of how the Standards of Proficiency canbe met. As a regulator, the HPC is concerned that thestandards are met, and not how they are met.Meeting the standards can include any reasonableadjustments that an education provider, or employeror anyone else wishes to put into place. The HPC issimply concerned that the standards are met, and thatpractice is safe and effective.

38. The HPC also recognised that there is an importantdistinction between fitness to practise, and fitness fora particular job in a particular setting. Registration

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does not guarantee that someone would be able topractise effectively in all settings. It is therefore vitalthat registration decisions are not made based on aperceived possibility of future employment in aparticular place.

39. Their Disabled Person’s Guide to becoming a HealthProfessional advises that:

“We do not want to have a definite list which mightprevent some people from registering. We want tomake sure that decisions are made about individualsability to meet our standards and practise safely“

“We need to know that these standards are beingmet, but we do not need to know how the standardsare met. What this means is that registered healthprofessionals can make adjustments in their ownpractice to meet our standards without beingconcerned that they can’t be registered with us”.190

40. This promotes a ‘can-do’ approach to disabledprofessionals. It is not over rigid or formalistic. Itencourages inclusiveness and reasonableadjustments. Consistent with this more progressiveapproach, the HPC does not insist on disclosure for itsown sake:

“We wouldn’t necessarily expect someone to disclosethe fact they were HIV positive to us, provided theywere abiding by Department of Health guidelines onsafe practice. They might decide they want to discloseto their employer so they get the back up andnecessary safety protocols and anything else thatthey need to ensure the safety of their patients. I think

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190 HPC Guide, Disabled Person’s Guide to becoming aHealth Professional, p 12.

people might decide to disclose to different people atdifferent times for different reasons”.191

41. The DRC explored with all the regulatory bodiesconsulted through this investigation the possibleeffects of repeal or removal of generalised healthstandards and found two potential negativeoutcomes. One potential outcome would be a lack ofguidance from the regulatory bodies about issuesrelating to health or disability, which could lead todifferent approaches in different higher educationinstitutions192. Another concern was that moreresponsibility would be shifted onto employmentdecisions.

42. The DRC therefore strongly recommends that, even ifthe generalised health standards are repealed, theregulatory bodies issue guidance on reasonableadjustments, in particular in training and education,and the impact of disability on practice. This guidancemust be consistent with the DDA and promote theobjectives contained within the DED, as is required bylaw. We also recommend improvements tooccupational health practice in employment. Highereducation issues are considered below in Chapter 6and employment issues are looked at in Chapter 7.

43. In relation to removal from the register the DRC heardthe view that the existing approach by regulatorybodies of treating health issues separately to issuesof competence or conduct, by having separatehearings, was designed so that health and disabilityissues could be dealt with more benignly. We alsoheard that it is often difficult to clearly draw

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191 Evidence to DRC’s Inquiry Panel from HPC.192 Evidence DRC’s Inquiry Panel from NHS Education

Scotland

boundaries between different types of cases. Inpractice, where someone has a health issue thatbrings their fitness to practise under scrutiny for thepurposes of possible removal from the register,investigation is normally triggered by concerns aboutcompetence or conduct.

44. As we have already argued, we do not believe thathealth should be considered as an issue in itself, forregistration, re-registration, or removal from theregister. If health standards are removed, there arestill likely to be conduct or competence cases relatedto health or disability. The DRC is clear that for thesake of public protection, standards for disabledprofessionals should not be lowered, and the DDAdoes not require this. However, under the DDA thereis a requirement for reasonable adjustments to theway that standards are assessed. For fitness topractise cases involving health conditions orimpairments covered by the DDA, approaches toreasonable adjustments should take two forms. First,the regulatory body should consider whether thereare disability related reasons for the person’s poorperformance or unsatisfactory conduct that could be(or could have been) addressed through adjustments– such as additional support in the workplace. Thesereasons may affect the handling of the case. Second,the regulatory body should consider adjustments tothe actual process of the hearing. For example, thehearing could be held in private or the person underinvestigation could be allowed extra support or otheradjustments during the hearing itself. Makingadjustments to the actual hearing would be arequirement of the qualifications body provisions ofPart 2 of the DDA193, which prohibit discrimination inwithdrawal of a qualification (or registration), or in

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193 Amended in 2004

varying the terms on which a person holds aqualification (or registration). Discrimination, ofcourse, includes a failure to comply with a duty tomake reasonable adjustments.

45. The argument that the current system of hearings is amore compassionate approach for professionals whohave health or disability related reasons for conductor competence issues does not, in our view, justifythe maintenance of a separate health standard asdisabled people now have a right to reasonableadjustments that would ensure that their cases weredealt with appropriately.

46. Even with the removal of generalised healthstandards, there will be specific competencestandards that impact on disabled peopledifferentially and could lead to discrimination. Thisinvestigation received evidence about Englishlanguage standards and noted that these may havean adverse impact on first language BSL users. At thesame time the DRC heard evidence about thecontribution that BSL users can make to nursing,teaching and social work. It is therefore important,given regulatory bodies’ and higher educationinstitutions’ responsibilities under the DED, that theyreview their competence standards and, where thesestandards are found to be necessary and legitimate,that they offer guidance on how disabled people canbe supported through the use of adjustments to meetthese standards, so that the standards can be fairlyapplied.

47. This review should follow the process and principlesdescribed in the Code of Practice: Trade Organisationsand Qualifications Bodies (2004), DRC, in particular:

“If unlawful discrimination is to be avoided when theapplication of a competence standard results in less

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favourable treatment of a disabled person, thequalifications body concerned will have to show twothings. First, it will have to show that the applicationof the standard does not amount to directdiscrimination. Second, it will be necessary to showthat the standard can be objectively justified. This ismore likely to be possible where a qualifications bodyhas considered the nature and effects of itscompetence standards in advance of an issue arisingin practice. It would be advisable for qualificationsbodies to review and evaluate competencestandards.”

“This process might involve:

• identifying the specific purpose of eachcompetence standard which is applied, andexamining the manner in which the standardachieves that purpose;

• considering the impact which each competencestandard may have on disabled people and, in thecase of a standard which may have an adverseimpact, asking whether the application of thestandard is absolutely necessary;

• reviewing the purpose and effect of eachcompetence standard in the light of changingcircumstances – such as developments intechnology;

• examining whether the purpose for which anycompetence standard is applied could be achievedin a way which does not have an adverse impacton disabled people, and

• documenting the manner in which these issueshave been addressed, the conclusions which havebeen arrived at, and the reasons for thoseconclusions”.194

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194 Code of Practice: Trade Organisations and QualificationsBodies (2004), DRC Paragraph 8.41

48. The DRC also considers that, adopting the modelseen in section 1(4) of the Teaching and HigherEducation Act 1998 and section 1(3) as amended ofthe Teaching Council (Scotland) Act 1965, all theregulatory bodies (including the CHRE because of itsoverarching functions) should be subject to a duty intheir establishing legislation “to have regard to therequirements of persons who are disabled persons”.

49. We consider that, for the avoidance of doubt, theregulatory schemes provided for in, or under, thelegislation addressing fitness to practise in theprofessions should be made expressly subject to theDDA. This avoids the confusion around the impact ofthe DDA on regulatory schemes which have a basis inlegislation, and will avoid a situation where theseregulatory schemes override or are assumed tooverride the DDA (because of Section 59195) TheDDA, in the main, covers them (as described above)but such a change would avoid confusion. Presently,the fact that the regulatory schemes have a legislativecontext can promote the belief that the DDA does notaffect them. If the regulatory schemes provided for inor under the legislation addressing fitness to practicewere made expressly subject to the DDA, it would beclear to all that the schemes had to be compliant withthe DDA.

50. Where responsibility for regulation is spread acrosspublic bodies (most notably in the case of teaching),each should be made statutorily responsible forcoordinating action in order to promote disabilityequality. The interrelation between the variouspowers to regulate the professions afforded todifferent public bodies (in particular in relation toteaching) makes allocating and identifying

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195 As explained above at Chapter 3, paragraph 18

responsibility for disability equality very difficult. Thisshould be remedied by the identification of clear linesof responsibility.

51. The DRC was surprised to note that the Council forHealthcare Regulatory Excellence (CHRE) was notoriginally a scheduled body in the DisabilityDiscrimination (Public Authorities)(Statutory Duties)Regulations 2005 SI 2005/2966 and accordingly wasnot required to prepare a Disability Equality Scheme.This has changed since the making of furtherregulations adding the CHRE as a scheduled bodyfrom 6 April 2007.196 The Care Council for Wales(CCW) and the General Teaching Council for Scotland(GTCS) are still not scheduled bodies. We can find noexplanation for this. We strongly urge that this deficitbe remedied. The CCW and the GTCS have importantresponsibilities in relation to the regulation of all theprofessions with which we are concerned. It is criticalthat their functions are performed in a way whichcomplies with the DED (to which they are subject) andthe requirement to produce and act upon a DisabilityEquality Scheme will facilitate that.

Conclusion

52. The regulatory bodies have different roles within theirprofessions. In teaching in England and Wales,responsibility for health standards and competencestandards is spread across the GTCE, GTCW, TDA andthe government departments. It is important thatseparately for each sector, the statutory and

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196 2007/618. These regulations also added the CyngorAddysgu Cyffredinol Cymru (The General TeachingCouncil for Wales) which, for reasons too which areunclear, was not originally a scheduled body (though theGTCE was so scheduled).

regulatory organisations work together to useavailable information (and gather further informationfrom data, research, consultation and involvement ofdisabled people) to inform the policies that theyoperate, and their practices. Where regulatory bodieshave an advisory function to governments, theyshould advise government about the discriminatoryeffects of health standards, where health standardsexist. All the regulatory bodies, across England,Scotland and Wales should review their competencestandards, to ensure that any negative impacts ondisabled people can be reduced or removed. Theyshould all provide guidance on reasonableadjustments and should consider what otherguidance to provide to encourage others (such ashigher education providers) to adopt an enablingapproach to disabled people in (or wanting to enter)nursing, teaching and social work.

53. Changes should be made to the legislationestablishing the regulatory bodies so that as part oftheir functions they are required to have regard to therequirements of disabled people. Confusion aroundthe circumstances in which professional regulationtakes precedence over the DDA could also beeliminated through legislative change. Some of theregulatory bodies are currently not listed as havingspecific duties under the Disability Equality Duty,namely CCW and GTCS. This should be remedied.

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Chapter 6 – Higher Education1. The regulatory frameworks for nursing, teaching

and social work197 impact strongly on the highereducation of future professionals and thisinvestigation has received a large amount of evidencefrom this sector. The DRC has heard from a widerange of organisations – including universities,occupational health organisations and disabledpeople’s organisations – about the impact ofgeneralised health standards and procedures forassessing health at entry to higher education. We alsoreceived evidence about the particular issues faced byDeaf students (ie those who use British SignLanguage, BSL) and students with dyslexia; and weheard about the difficulties faced by disabled studentswith a range of impairments when they move onto, orbetween, practice placements. These issues related tothe training of professionals are discussed below.

2. Although the DRC did not look in detail at the barriersthat operate before the higher education stage198, 17we heard evidence that even before disabled peopleapply for higher education courses, they have alreadybeen discouraged and sometimes discriminated

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197 See above at Chapter 2198 The DRC considered looking at other issues, for example

advice given by careers services, but did not have thecapacity to do so as part of this formal investigation. Otherpublic sector organisations could carry out furtherresearch about barriers at various career stages as part oftheir information gathering for disability equality schemes.

against. One issue is that potential disabled studentsmay not have had a chance to get relevant experiencethrough voluntary work, sometimes because theyhave not had access to reasonable adjustments.Others may have had some relevant workplaceexperience, but these experiences were negative. Onestudent told the investigation:

“I am registered as partially sighted and was on anaccess to nursing course at a local college. The staffmade studying extremely hard as I was repeatedlyasked ‘do you think you’re up to this?’ I applied to alocal hospital to work shadow but when I went for thepre-shadowing session I was told by the person incharge that as a partially sighted person I could notbe a nurse as I wouldn’t be able to see the full lengthof a ward, see the instruments or fill in thepaperwork. I gave up the access course and thoughtsof training to become a nurse”.199

3. Across the three professions, applicants to coursesare asked to disclose disability through theadmissions processes, such as UCAS, NMAS andGTTR200. The way that the UCAS form is devisedcould lead applicants to feel confused about thepurpose of this request for information aboutimpairment or disability, and confused about whetherdisclosure was compulsory or not (especially if thedisabled applicant did not want to requestadjustments).

4. Applicants are also required to disclose informationabout their health or disability to universities at the

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199 Evidence sent to the DRC through the website. Thisexperience happened in England in 2005.

200 The admission service for universities; Nursing andMidwifery Admissions Service and Graduate TeacherTraining Registry respectively

201 The university told the DRC that it is currently reviewingthis form

202 Research into assessments and decisions, Jane Wray etal, DRC 2007

application stage. This disclosure is required byuniversities to meet their statutory obligations (socialwork and teaching), and regulatory requirements ofthe NMC (nursing). Procedures are laid down by theregulatory bodies (as well as the DCSF or DIUS in thecase of teaching) for the assessment of students’mental or physical fitness. The exception to this, aswe have seen, is for social work and teachingstudents in Scotland.

5. One university in England201 uses an “admissionshealth disclaimer” which states:

“The DoH [Department of Health] and GSCC requireacademic institutions to ensure the fitness andsuitability of those people wishing to train asqualified social workers during and at the point ofentry to the profession. In line with the code ofpractice for social workers and the requirements forregistration with the GSCC, we ask you to inform usof any physical, mental, emotional or legal difficultythat might affect your ability to either carry out ourstudies or undertake the work placements as part ofthis degree programme. This information will help usto provide any additional support you may need as astudent at the university. Moreover, if you have adisability and need any reasonable adjustments forthe interview please indicate below. . .”

6. Through this investigation, the DRC has learned thathigher education institutions also ask for a declarationof health and/or disability before or at the admissionsinterview202. This could potentially be used to informthe decision about whether to offer the applicant a

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place although it may just be part of the university’ssystem for gathering information relating toreasonable adjustments for the course or for theinterview.

7. Shortly after starting a course in teaching, nursing orsocial work, in line with guidance from the regulatorybodies (and DfES/ DCSF), students are generallyrequired to disclose again, either by signing a self-declaration of health, or by filling in a healthquestionnaire. Research203 commissioned for thisinvestigation shows that for nursing and teachingcourses, the main method for obtaining healthinformation is the use of a self-completed healthquestionnaire, but for social work it usually takes theform of a self-declaration of good health. This isconsistent with the guidance from the differentregulatory and statutory bodies204.

8. The DRC has seen an example205 of a healthquestionnaire based on statutory guidance (4/99)used by one university in England for teaching andeducation related courses that involve placement in aschool. It is very intrusive and over-inclusive and asksthe student to state if they have “ever had” any of 25different health problems, including menstrual orgynaecological problems, thyroid or gland problems,any blood disease, kidney disease or bladder trouble,

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203 Research into assessments and decisions, Jane Wray etal, DRC 2007

204 Surprisingly there is evidence from a university inScotland that a self-completed health questionnaire isrequired for entry to teaching. This may be a mistake onthe part of the survey respondent, or a reflection of thefact that the university is not aware of the removal of thehealth requirement for trainee teachers in Scotland.

205 Sent as part of written evidence from a university

206 A separate Declaration of Disability form addressesreasonable adjustments using the samedisability/impairment categories as the UCAS form

any allergy or depression. The form asks separately –“Have you ever had treatment by radium orradiotherapy or with chemotherapy?”, “Are you ableto recognise and distinguish all the various colours?“Are you free from any other physical defect ordisability?” “Have you ever left employment ongrounds of ill-health or unsatisfactory attendance?”

9. The declaration of health form and accompanyingguidance makes no mention of the DDA, although the concept of reasonable adjustment is possiblyaddressed in the question “Do you need or would itassist you to have any special provision made toenable you to fulfil your training and/or subsequentemployment?”206

The student is required to sign a multiple declarationat the bottom of the form that includes:

• “I understand that this form will be received by theacademic registrar, and if deemed necessary,referred to the occupational health consultant at[name of] Hospital”

• “I understand that I may be responsible for theexpenses of any medical examination or reportwhich may be required

• “I understand that failure to disclose informationor giving false information may result intermination of my offer and subsequently of mycourse.”

10. It is not surprising that the university told the DRCthat students can perceive the fitness to teachrequirements as a barrier to entering initial teachertraining, and that the department receives a number

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of enquiries to the effect of “I have a disability, can Iapply to the course?”207 This university alsocommented that “the fact that the regulatoryframework exists appears to foster perceptions that itis there to prevent disabled people from applying –work needs to be done to overcome theseperceptions.”

11. The DRC has also heard several examples of goodsupport for students, once they are on a course. Forexample

“On day one X came in and said, `my name is X, I’mthe Disability Officer, none of you need to tell me now in this group … but if anybody has a disabilityissue or they have something that they want to speakabout then come along to my room’, and I think thatthat was done in the most effective way, because shetold us right at the start … so when I did feel I neededsomeone it was easy for me to go along and seeher.208”

12. Research commissioned for this investigation aboutentry to training for these professions found thatthere is a “clear link between the regulations, theguidance issued by the regulatory bodies and howdecisions are made about fitness”. It showed that“education providers are following the currentguidance laid down by the regulatory bodies”209.Whilst the guidance is clear in that it tells universitieswhen and how they should undertake health checksor ask for disclosure, organisations told the DRC thatit is not detailed enough to enable them to make

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207 Written evidence from the same university208 Social work student, reported in Disclosing Disability, ....

Nicky Stanley et al, DRC 2007209 Research into assessments and decisions, Jane Wray et

al, DRC 2007

210 For example, written evidence from University ofBradford in relation to social work.

211 Although evidence shows that some universities areattempting to provide this support during the course, forexample when a student starts a new module. Forexample, written evidence from University of Brighton

212 Research into assessments and decisions, Jane Wray etal, DRC 2007

objective decisions about whether someone is fit toundertake a course. Universities have also expressedconcern that they do not receive any guidance from the regulatory bodies about how to deal with thecompulsory disclosure process210 and how to support students through this.211

13. The difficulties this causes are evident in documentssent to the DRC by universities, where there is a hugeamount of detail about facilities and reasonableadjustments that the university provides for its students(for example, offering information in alternative formats,support with the Disabled Students Allowance, andcounselling services), but very little evidence of specificguidance around the DDA and the health or fitnessrequirements of the regulatory bodies. This was alsoborne out in the research commissioned by the DRCwhich found:

“While all education providers have attempted toaddress their obligations under the DDA by havinggeneric policies on disability, not all education providerswere found to have policies that addressed the particulardifficulties of balancing fitness requirements and therequirement for disclosure with the rights of disabledpeople… Currently, there is insufficient detail in policiesproduced by most institutions to address this”.212

14. There are several possible explanations for this lack ofclarity around procedures for making decisions about

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health or fitness within higher education. It is likelythat course tutors, university administration andoccupational health services find it difficult to marrytogether two apparently contradictory approaches todisability. Universities are required to operatestandards that are not of their own making. Thesestandards contradict the widening participationagenda213 and the enabling approach to disabledstudents in higher education evident in manyuniversities. Higher education institutions may alsobelieve that statutory health or fitness requirementsoverride the DDA, or they may regard generalisedhealth standards as competence standards which donot need to be adjusted.

15. For nursing courses in particular, occupational healthplays a prominent role in making decisions about anapplicant’s fitness to study214. For teaching andsocial work courses, the role of occupational healthservices is less prominent although still referred to byabout half of the teaching and social work coursesthat responded to the DRC’s research. However theuse of occupational health does not necessarilyindicate a medical approach to making decisionsabout someone’s fitness to study as differentoccupational health services operate in differentways. Some occupational health providers are veryDDA-aware and take an active role in suggesting anddiscussing adjustments, whilst we heard that othersdo not seem to understand their role in ensuring thatthe institution meets its DDA obligations. The DRC,through its Inquiry Panel, heard about inconsistencies

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213 For example see circular letter to higher educationinstitutions from HEFCEhttp://www.hefce.ac.uk/pubs/circlets/2005/cl02_05/

214 Research into assessments and decisions, Jane Wray etal, DRC 2007

215 Evidence to the DRC’s Inquiry Panel from NHS Educationfor Scotland

216 Research into assessments and decisions, Jane Wray etal, DRC 2007

217 Research into assessments and decisions, Jane Wray etal, DRC 2007

in the way that occupational health services areprovided to universities. For example, for nursingcourses some universities use NHS occupationalhealth services, while others use services for highereducation institutions. The different services are likelyto be assessing students for different things – eitherlooking at whether someone is fit to complete thecourse or fit to be a nurse215. Several organisationsmentioned this confusion about whether universitiesshould be checking for fitness for purpose (ie beingable to complete the course) and fitness to practise(being able to work within all areas of the profession).

16. Research commissioned by the DRC216 found thatunder half of all education providers surveyed had aformal procedure for making decisions regardingfitness to undertake or continue on a course and thiswas usually in the form of a fitness committee orassessment panel. Having formal processes such asthese may provide an opportunity for issues oradjustments and support to be considered, but we donot have any evidence about whether such panelsare, in fact, enabling for disabled people. This is anarea that warrants further research. The DRC wouldalso like to see the involvement of disabled people inmaking these decisions. We found that teachingcourses are less likely to involve disabled people inmaking decisions about suitability for courses thannursing or social work courses.217

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17. The DRC heard detailed evidence from a nursingapplicant218 who was effectively barred twice fromentering nursing:

“In 1999, I applied for an Accelerated NursingDiploma for graduates. I informed both the universityI applied to and the relevant Occupational Healthdepartment that, due to missing fingers, I havelimited dexterity; I was transparent about my situationat every stage of the application. I met withOccupational Health staff who asked me to completea few “practice” clinical skills. They concluded that Idisplayed adequate manual dexterity, and with aletter of support from them, I was accepted onto thecourse.”

“However, when I started the course, university staffvoiced great concern that I would not be able to weargloves for particularly dextrous clinical procedures asthe spare fingers might “get in the way”. When Ienquired who I should speak to about the situation,the university sent me to Occupational Health, butunfortunately, although they had initially supportedmy application, they didn’t seem to know what to dowith me either. Their advice was basically to find adifferent career, and on one occasion I was evenasked by an Occupational Health nurse whether myMum felt bad about the way that I looked (I have afacial difference).”

18. In 2006, the same applicant decided to “test the wateragain”. She received a positive response fromadmissions staff and was referred to a lecturer with a specific remit for disabled students. She alsoreceived positive advice from the NMC – their

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218 Written evidence, including an article “Never theTwain…” written by nursing applicant, Amanda Bates,and evidence to the DRC’s Inquiry Panel.

response was that “universities should arrange aninformal interview for disabled potential applicants,held in the spirit of safety and openness, in whichrelevant issues can be discussed”. The applicantarranged a pre-application interview with thedesignated lecturer, as advised.

“I was given no indication as to what the meetingwould entail and indeed little preparation seemed tohave been put into it. I was led to a clinical skillsroom by the lecturer (only she and I were present)where I was asked to demonstrate my dexterity intasks such as attaching a needle to a syringe andopening packs of gloves. I completed all the tasks setand as a result, I was told that I could apply, but that Imight fail some of the competencies required forregistration… not the most encouraging outcome. Iwas also told that it would be too expensive toprovide gloves that fitted my fingers. I do not knowwhat her costings were to reach this conclusion.There was no suggestion of the Disabled Student’sAllowance (DSA), or indeed any other form of analternative (less expensive) adjustment.

“. . . she then said that she needed to double-checkthe list of competencies required for registration. Sheleft the room and a few minutes later returned with abooklet detailing the competencies. She mused themfor a minute or so, and then advised me againstapplying for Adult Nursing (having told me 5 minutespreviously that I could apply) as the “spare” fingerson the gloves could compromise the effectiveness ofcertain clinical skills. It was then suggested to me thatI try the Mental Health Branch instead.”

19. This case highlights the problem of universities oroccupational health services attempting to judge theability of someone to practise competently and safelyat the application stage or at the beginning of the

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course219. All students would have difficulties inmeeting competencies before they have learnt how todo so, but disabled students appear to be judgedmore harshly, having to prove competency at theoutset. This amounts to discrimination, as acompetence standard is being applied differentially todisabled students (on application to the course) andnon-disabled students (during the course, or at theend of the course), purely on the basis of a person’sdisability. One occupational health doctorcommented, of his own experience as a medicalstudent, “if someone put a stethoscope on me on dayone I wouldn’t be able to hear a heart murmur”220

20. Within each of these professions there are a variety ofroles, and the applicant or student may not knowwhat they are suited to, or what they want to do, untilthey have finished the course. The approach fromsome universities is more cautious than at others,with tutors and occupational health services trying topredict whether someone will succeed on the courseand succeed in practice. This is motivated firstly bynot wanting to “let students down” by allowing themto spend possibly three years on a course when theywill not be allowed to register, or be able to get a job. The DRC heard the view that:

“A person’s health status is important both on entryto the profession and beyond. That is, the studentmust be ‘registerable and employable’. It is ethicallyunacceptable to accept a student for training – who

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219 Evidence to the DRC’s Inquiry Panel from ScottishExecutive, Nursing, Midwifery and Allied HealthProfessional Directorate

220 Dr Hamish Paterson, Clinical Director of NewcastleOccupational Health

221 Written evidence from Equality Challenge Unit (ECU)222 Written evidence from SSSC, and evidence to the DRC’s

Inquiry Panel from Mind and others223 Evidence to DRC’s Inquiry Panel from Radar

even if they manage to get through the student stage –would then find themselves unable to get a job at theend of it”221

Universities may also be reluctant to waste a fundedplace on someone who will not be able to completethe course, to register, or who will have difficulty infinding work.

21. However, the DRC has real concerns about an approachthat attempts to predict disabled people’s likely chancesof success on the course or in their careers before theyhave had a chance to prove themselves, especially in acontext of negative assumptions about the capabilitiesof disabled people. This is likely to lead todiscrimination, if disabled people have to demonstratecompetency in specific tasks or skills at any earlierstage than for other applicants or students. Predictingfuture outcomes is also likely to lead to particulardisadvantages for people with fluctuating ordegenerative conditions222, as there is a danger thatoccupational health services will make thesepredictions based on diagnosis. Disability organisationsgave us a clear message. They labelled the attitude thatdisabled students should be protected from later failureor rejection as “paternalism”, and told the DRC thatdisabled students – like all students – must be allowedto try, and to fail, as well as to succeed223.

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Work placements

22. Trainee nurses, teachers and social workers all spendsome part of their training time on practiceplacements. The DRC heard evidence indicating thatdisabled students who may have been well supportedat university can often experience disadvantage atthis stage224. This occurred sometimes because offailures by the higher education institutions toproperly plan for placements, or to communicate theneed for adjustments or co-operate with placementproviders in planning these adjustments . Thereappears to be a lack of clarity around placementproviders’ obligations to make reasonableadjustments225, and a lack of knowledge on the partof the placement provider about disability equality,the DDA and reasonable adjustments226.

One university told the DRC227:

“Problems can arise when attempting to securepractice placement for students . . . Although we haveoffered a student a place, organisations might not beable, or be unwilling to offer a placement eg a familycentre operating from a converted council house hasno wheelchair access to upstairs office and meetingrooms”

23. The organisation, Skill, and others also raised theissue of the attitudes and awareness of workplace

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224 Evidence to DRC’s Inquiry Panel from Skill, UCU andGTCE

225 Written evidence from Bishop Grosseteste Universitybased on research amongst disabled students, whichreported that there is a need for better liaison betweenthe university and placement provider

226 Evidence from UCU and from Unison 227 Written evidence from University of Kent

228 This approach to sharing information is in line with theDRC’s Code of Practice on employment and occupation

229 Jean White, 2006, “Supporting pre-registration nursingstudents who are dyslexic in clinical practice”, quotingfrom Nursing Standard 2005a p7. Written evidence sent tothe DRC from Office of the Chief Nursing Officer, Wales

assessors – that they need to understand theirobligations under the DDA, particularly in makingadjustments to enable the student to demonstratecompetency. Skill told us that having workplaceassessors who were, themselves, disabled would helpto spread a better understanding of disability.

24. Issues around disclosure and the placementproviders’ knowledge of the student’s disabilitycompound these difficulties. Education institutionsshould take steps to ensure that enough informationabout the need to make adjustments is shared withplacement providers (with the permission of thedisabled student), to the extent necessary to ensurethat these adjustments are made without a studenthaving to go through repeated disclosures to theplacement providers. This is subject to the need torespect confidentiality228. It is usually possible topass on information about adjustments withoutpassing on any medical information. Disabledstudents on practice placements are likely to feeluncomfortable about disclosing to their newcolleagues on the placement and may prefer todisclose selectively, only to those who need to know.

25. The DRC learned that in May 2005, a case wasreported to the Royal College of Nursing about astudent with dyslexia who had been forced to wear abadge during a practice placement which said “I am adisabled student”.229 This clearly represents theextreme end of bad practice in relation to disclosureon work placements.

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Dyslexia

26. The operation of health and competence standards tothose with specific learning difficulties (dyslexia inparticular) requires separate mention. Looking atstatistics for students in higher education it isinteresting to note that the proportion of students with adiagnosis of dyslexia in higher education is very high ascompared to the proportion of students with otherdisabilities. In fact, where figures are broken down intoimpairment type, dyslexia often makes up around halfof disabled students230 and can give the impressionthat more progress has been made on disabled people’saccess to higher education than is actually the case formost impairment groups.231 Evidence from the highereducation sector shows that there has been progressmade on properly accommodating students withdyslexia, and because of the availability of this supportmore students with dyslexia are willing to disclose.However, this should not mask the fact that dyslexia isoften seen negatively within nursing and teaching, andoften seen to be incompatible with practice within theseprofessions232. Assumptions made about dyslexia (forexample relating to risk and incompetence) createbarriers to entry to courses233 and the existence ofgeneralised health standards promote a climate wherepeople with dyslexia can be judged at entry to courses,rather than after they have had a chance to prove theircompetence on the course, with reasonable adjustmentsto enable them to achieve these competencies.

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230 For example see GSCC’s data packswww.gscc.org.uk/About+us/Statistics/

231 Evidence to DRC’s Inquiry Panel from amongst others, UCU232 Evidence to DRC’s Inquiry Panel evidence from UNISON

(who also mentioned dyspraxia in the context of nursingand concerns about drug administration).

233 Written evidence and evidence to the DRC’s Inquiry Panelfrom Adult Dyslexia Organisation (ADO)

234 There are also issues around the cost of adjustments, asthe Disabled Students Allowance is not sufficient to payfor the necessary amount of sign language interpretation

235 Evidence to DRC’s Inquiry Panel from University ofManchester and from a social work team manager inTrafford

236 University of Manchester237 University of Salford

English language standards

27. In Chapter 2 we noted that requirements for writtenand spoken English, laid down as competencies byregulatory bodies and universities, can disadvantageDeaf students (including students who use BritishSign Language, BSL). There are slightly different legalimplications here, as explained previously. Englishlanguage standards, as opposed to generalised healthstandards, are likely to be competence standards, butnevertheless may lead to discrimination234. Firstlanguage BSL users235 are effectively being expectedto be bi-lingual and have told the DRC that they aredisadvantaged because of this requirement. TheDRC’s Inquiry Panel heard evidence about a socialwork course236 and a nursing course237 which havesuccessfully integrated and supported Deaf (signlanguage users) students, who had qualified,registered and gone on to work as social workers andnurses. The course providers explained that with theright adjustments it was possible for Deaf students tomeet the other competencies. Deaf people have aneed for Deaf teachers, nurses and social workerswho can communicate to them in their first language.The course leader for the University of Salford mentalhealth nursing course told the DRC’s Inquiry panel:“In 1999 I was a charge nurse [in a mental health anddeafness Unit in Manchester] and basically some ofthe healthcare assistants were Deaf people whosefirst and preferred language was sign language. The

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first language of this Mental Health Unit is BritishSign Language. A number of times I found myselfshoulder to shoulder with one of my deaf colleagues,and because of their proficiency in sign language andtheir cultural understanding of what was going on,they were much more effective in dealing with thesituation than I was. Ethically I found that slightlyuncomfortable because at the time they couldn’tqualify as nurses”.238

28. The DRC would advise, then, that regulatory bodiesand universities review their competencies in the lightof the experiences of university courses that haveenabled Deaf students to qualify and practice.However, it is important that Deaf practitioners (orany disabled practitioners) are not pigeon-holed asthey don’t not necessarily need or want to workwithin specific disability “niches”.239

Conclusion

29. The DRC has found evidence of discrimination in thehigher education sector against students wanting totrain in nursing, teaching and social work. This isdespite the positive and enabling practice that is oftenpresent in the sector, and a desire to widen access tohigher education for disabled students. There are realdifficulties in marrying up the two approaches – onthe one hand the positive encouragement of disabledstudents into higher education, and on the other the

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238 The DRC was told that this was the motivating factor insetting up the Deaf Peoples Access Nurse EducationProject

239 And in fact, we heard evidence from the University ofManchester that in the case of Deaf social workers these“niches” are not clear cut as Deaf service users are likelyto have hearing family members who will also need to becommunicated with.

regulatory frameworks laying down standards forhealth or fitness that require compulsory disclosureand often lead to discriminatory policies andpractices.

30. Universities follow the procedures laid down bystatutory and regulatory bodies, but outcomesdepend on how the universities or their occupationalhealth services judge a student’s or applicant’sfitness. The DRC is opposed to the practice of judgingdisabled applicants or students at entry point for theirfuture competence, or for their likely success within aprofessional career.

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Chapter 7 –Employment1. In carrying out this investigation the DRC explored

whether the health standards had any effect onemployment practice within these professions, andhow decisions are made about fitness for work. What we found was that occupational health practice– irrespective of any fitness or health standards – wasa much more significant determinant of how nurses,teachers and social workers were assessed. Theregulatory bodies have a much smaller role in theregulation of employment than they do in relation totraining in these professions.

2. Given this background, then, the investigation hasinevitably drawn evidence from occupational healthpractitioners and organisations, and we areparticularly grateful for the co-operation of this sectorin our evidence gathering. We have also carried outresearch with employers, and heard evidence fromemployers, trade unions and disabled professionalsthemselves. This evidence is reflected in our findingsbelow.

Role of regulatory bodies and health standards

in employment

Nursing

3. Within nursing the regulatory body for England,Scotland and Wales, the NMC, only has a very limitedrole in relation to employment as its primary role is toset standards for training and maintain standards ofthose on the register. The NMC specifically states that

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240 http://www.nmc-uk.org/aFrameDisplay.aspx?DocumentID=1567

241 Reporting unfitness to practice: a guide for employersand managers http://www.nmc-uk.org/aFrameDisplay.aspx? DocumentID=65

242 Written evidence to the DRC

“Registration is a ‘licence to practise’ and it is foremployers to make their own assessment on fitnessfor employment” (NMC guidance 06/16).

4. However it offers some guidance to employers, forexample in the document “Advice sheet onemployers’ responsibilities” which advises employers(amongst other things) that “a systematic process ofsupport and supervision should be in place to helpidentify problems with the performance of staff.Employers should implement good employmentpractice to ensure the early identification of staffhealth problems”240. This document does not offerany advice to employers about equality issues or theDDA.

5. The NMC also offers guidance to employers onreporting issues of “unfitness” to the NMC241.Although this document states that fitness to practisemay be impaired by mental or physical ill-health itdoes not mention the DDA at all, which is worryinggiven that the RCN242 told the DRC that this is anarea where potential discrimination can occur:

“We support the NMC’s statement that healthconditions and disabilities are not automaticallyincompatible with registration and are encouraged bytheir commitment to treat all issues on an individualbasis. This is of special concern where the frameworkallows people other than the registrant to reportconcerns or complaints. Our members tell us that linemanagement often threaten to ‘report to the NMC’

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over matters relating to ill health and disability, wherethe nurse is, perhaps not complying withmanagement action for other reasons…Our concernhere relates to the subjectivity of the test for “goodhealth and good character” and that this opens uppossibilities for direct and indirect discrimination.”

6. The only clear advice offered by the NMC in relationto assessment for employment is part of the NMC’sguidance 06/04243 which discusses practitioners withblood borne viruses. This document, which refers tothe Department of Health guidance on seriouscommunicable diseases states that:

“An individual who is infected with, for example, HIV,Hepatitis B or Hepatitis A might be precluded frombeing able to practise in some posts. However, suchan infection would not preclude them from beingregistered. It is essential, therefore, that registrantsapplying for posts or registering with an agency areaware of and comply with good health requirementsfor employment as well as for registration.”

Teaching

7. For the teaching profession in England and Wales,there is statutory regulation concerning fitness atentry to employment but this stems from the DfES(now DCSF) rather than the GTCE or GTCW. Therelevant health standards for entry to employment areset out in the document 4/99 and related guidance foroccupational health. These documents have beenconsidered in Chapter 2 above and although theyexplicitly refer to employers’ obligations under theDDA and to the need for reasonable adjustments, it is

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243 http://www.nmc-uk.org/aFrameDisplay.aspx?DocumentID=219

244 Written evidence from NUT245 DfEE 2000

the view of the DRC that they are still likely to lead todiscrimination. The NUT told us:

“the way that Circular 4/99 is drafted does not makeit clear enough that the regulatory framework set outin Circular 4/99 is subject to Disability DiscriminationAct 1995…This is not a clear explanation of the lawand ignores the clear statutory duty on employers tomake reasonable adjustments in order to facilitateaccess for disabled teachers to continuingemployment”.244

8. Medical advisers (occupational health practitioners)are advised to classify applicants into threecategories – those in good health, those withconditions but who can nevertheless practise asteachers with reasonable adjustments, and thosewho are unfit to teach. There is also specificguidance to occupational health practitioners inFitness to Teach: Occupational Health Guidance forthe Training and Employment of Teachers245, whichgoes into detail about the implications of specificmedical conditions and impairments. Annexed tothis guidance is a sample pre employmentquestionnaire, containing 25 broad questions,including: “Have you seen a doctor in the last yearfor any kind of health problem? If so please givereason(s)”; “Are you waiting for any treatment,operation or investigation?” and “Are you on anymedication at present?”

9. The DRC has not been able to establish the extent towhich this occupational health guidance is followedby OH practitioners in relation to teachers, but hasseen evidence that the three category approach is

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frequently used by occupational health practitionersproviding advice to employers in the publicsector246.

10. There appear to be no regulations or statutoryguidance that refers to the health of teachers inScotland, now that the generalised health standardfor the training and employment of teachers inScotland has been removed247.

Social work

11. In social work in England and Wales, Section 62 ofthe Care Standards Act 2000 requires the Councils toprepare and publish codes of practice laying downstandards of conduct and practice expected of socialcare workers and of those employing or seeking toemploy them. The GSCC and CCW have both issuedcodes of practice for social care workers andemployers of social care workers (2002, GSCC andCCW), which contain limited advice on health issuesbut do not advise employers on assessing fitness.

12. In Scotland,248 regulations specify that providers ofcare services shall not employ any person in theprovision of a care service unless that person is fit tobe so employed. A person who is “not physicallyand mentally fit for the purposes of the work forwhich the person is employed in the care service” is

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246 Dr John Ballard, “Pre-employment Health Screening”, OH at Work 2006; 3(3): 18-25 and OH at Work 2006; 3 (4): 22-30

247 This is notable, because for social workers in Scotlandthere are still some requirements for health that relate tospecific employment.

248 The Regulation of Care (Requirements as to Care Services)(Scotland) Regulations 2002 (SSI 2002/114 as amended)

249 Regulation 7 of the Regulation of Care (Requirements asto Limited Registration Services) (Scotland) Regulations2003 (SSI 2003/150) makes similar provision in relation tolimited registration services.

250 Employers’ survey, Janice Fong et al, DRC 2007251 Figures from the Employers’ survey, Janice Fong et al,

DRC 2007

to be treated as not fit to be so employed.249 Asnoted above (in Chapter 2, paragraph 83) this relatesto specific work at a specific service, as there are nogeneralised health standards for training orregistration of social workers in Scotland, only arequirement for good conduct and competence.

Pre- employment health screening

13. Across nursing, teaching and social work the processof assessing fitness to work starts at the pre-employment stage. A survey of employers carried outfor this investigation250 found that all respondingemployers indicated that they asked applicants for adeclaration of health and/or disability. 68 out of 69responding employers indicated that such adeclaration was solicited “on application form”. Onlyone indicated that it solicited such information “atcommencement of employment”. No respondingemployer indicated that it first solicited thisinformation after short listing, during an interview,after the job had been offered or at any other stage.Almost half of the employers surveyed (46%) acrossthese three professions use self-certification healthquestionnaires issued with the application form. Self-declarations of good health, and health references arealso used by 23% and 17% of responding employersrespectively.251

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14. Previous research, and evidence given to the DRC byoccupational health practitioners, has indicated thathealth questionnaires are often poorlyconstructed252. As with the sample questionnaireprovided in the “Fitness to Teach” document, theyoften ask questions that are irrelevant in assessingfitness for any job (such as questions aboutmenstrual problems or family history).Questionnaires are generic, that is, not tailored forspecific jobs. Within the NHS, for example,individual Trusts will have their own questionnaires,but these will operate across all job roles.

15. The DRC regards the lengthy intrusive pre-employment questionnaires used regularly by publicauthorities as inappropriate, lacking in usefulness,and potentially discriminatory, because of their focuson diagnoses which are irrelevant to the work. Theyare also considered by many occupational healthpractitioners to be a waste of resources, asoccupational health departments have to sift throughthe information contained within them. The DRCheard from occupational health practitioners who feltthat their services could be better used in providingon-going support for employees to keep them in theworkforce253. In the United States, the Americanswith Disabilities Act has prohibited any health ormedical inquiry before a firm offer of a job has beenmade.

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252 Dr John Ballard, “Pre-employment Health Screening”,OH at Work 2006; 3(3): 18-25 and OH at Work 2006; 3 (4):22-30, and evidence to DRC’s Inquiry Panel from Dr JohnBallard, and Dr Linda Bell, occupational healthpractitioner

253 Evidence to DRC’s Inquiry Panel

254 Evidence to DRC’s Inquiry Panel255 Dr John Ballard, “Pre-employment Health Screening”, OH

at Work 2006; 3(3): 18-25 and OH at Work 2006; 3 (4): 22-30256 Evidence to DRC’s Inquiry Panel from Newcastle

Occupational Health257 However, the Inquiry Panel also heard that there is no

evidence that medical diagnosis enables an accurateprediction of sickness absence.

16. The purpose of pre-employment screening is unclearbut there appears to be a culture whereby certainpublic sector employers assume that they needdetailed knowledge of an applicant’s healthhistory254. Some research has previously beencarried out on this255, and some is on-going256, butassessing fitness for the job, predicting sicknessabsence257, health and safety issues, and DDA issues(either identifying whether people are covered by theDDA or assessing the need for adjustments) are allpossible reasons for screening. Employers aresometimes unclear whether they are collecting thisinformation for health and safety reasons (either toprotect the applicant, other employees or the public),for DDA purposes or even for disability monitoringpurposes.

17. The DRC heard evidence and accepts that there canbe a role in specific jobs for enquiring about, ortesting for, specific conditions (for example, blood-borne viruses) or physical capacities to ensure that aperson can carry out a specific job safely. However,we consider that any such tests should be closelylinked to (and objectively justified by) the tasks to beperformed and be subject to reasonable adjustments.

18. A related issue, as we have seen within highereducation, is that the purpose of asking forinformation about disability or health is often notcommunicated adequately to the applicant. Job

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applicants are required to fill in the forms byemployers, and are told that “failure to disclose anyinformation may lead to managerial actions beingtaken in the future”258. This would signify to adisabled applicant that the information was beingasked for to screen people out, rather than to enablethe employer to consider adjustments. It is important,then, that the purpose of any health assessments isidentified and made explicit to candidates to ensurethey do not operate to discourage those disabledpractitioners who are qualified to do the job.

19. We noted that evidence from occupational healthpractitioners told us that very few disabled peoplewere being turned down by occupational healthbased on pre-employment health screening259.However it is hard to know how managers or HRdepartments deal with the information that is fedback to them from occupational health. As mentionedabove, research conducted for this investigation260

shows that an overwhelming majority of employers inthe three professions covered by this investigationrequire pre-employment health screening of someform prior to a job offer. Other research involvingdifferent samples of public sector employers showsthat around 25% of employers in the NHS, and about40% of other public sector employers261 require pre-employment health questionnaires to be returnedbefore the job offer is made262. In order to ensure

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258 Evidence to Inquiry Panel from Newcastle OccupationalHealth

259 For example, evidence to Inquiry Panel from Dr Ira Madan260 Employers’ survey, Janice Fong et al, DRC 2007261 Figures from Dr John Ballard, collected as part of

“Pre-employment Health Screening” research262 The figures are not directly comparable as the two research

projects differ in terms of objective, sample andinstruments used.

that judgements about suitability are not tainted byknowledge of an impairment or health condition it isimportant that any health assessments that might beneeded pre-employment should be made after (andas a condition of) an offer of employment.

20. At the recruitment stage, prior to a job offer, it isnormally only necessary to ask about disability in thecontext of reasonable adjustments (either for theinterview or for employment), unless there is a veryspecific health requirement for a job, such as theabsence of blood-borne viruses and specific nursingroles. The DRC does not consider it necessary, as wassuggested by the Clothier Report, that occupationalhealth or other medical records should follow anemployee through his or her career. This may deteropenness, create fear and importantly it will not helpidentify risk. The DRC’s Inquiry Panel heard fromoccupational health practitioners and psychiatristswho told us that a diagnostic label is not by itself apredictor of risk to others or the disabled person. Acompetence and conduct approach to professionalregulation would ensure that people who were notable to practice safely or effectively were not on theprofessional registers and therefore not employablewithin these professions.

Responsibility for decision-making

21. The employment provisions of the DDA place theresponsibility of making decisions about employmentwith the employer and not with the medical adviser,such as an occupational health doctor or nurse. TheDDA Employment Code of Practice states:

“where medical information is available, employersmust weigh it up in the context of the actual job, andthe capability of the individual. An employer shouldalso consider whether reasonable adjustments could

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be made in order to overcome any problems whichmay have been identified as a result of the medicalinformation263”

22. Across the professions, but particularly in relation tonursing and social work, occupational healthdepartments play a significant role in makingdecisions about applicants and employees’ fitness towork264. For teaching applicants, the local educationauthority (where relevant) is also involved. However,in relation to the final decision about whether or notto employ someone with an impairment or healthcondition, evidence suggests that a wider spectrum ofpersonnel are involved and that employers retaincontrol of the final decision in the majority ofcases265.

23. For teachers, the way that these decisions are made isless clear cut. For community schools in England, thelocal authority is the employer, although many of therecruitment and employment responsibilities aredelegated to the school. The responsibility fordecisions, therefore, falls on the Head Teacher andboard of governors. However, the local authority hasa role to play in providing support (such as HRadvice, and DDA-aware occupational health services).The NUT told the investigation:

There is a low level of understanding of the definitionof “disability” within schools and among governing

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263 DDA Code of Practice, Employment and Occupation 6.15DRC/TSO 2004

264 Employers’ survey showed that across the 3 professions72.5% of employers indicated that they would seekoccupational health advice in deciding if an applicant wasfit to be employed. In nursing, this figure was 100% ofresponding employers

265 Employers’ survey, Janice Fong et al, DRC 2007

266 Written evidence to the DRC from NUT267 Evidence sent to DRC’s website from teacher whose DDA

case went to the Court of Appeal, where she wassuccessful. See also Review of Statutory and RegulatoryFrameworks, David Ruebain et al, DRC 2006. See also[2004] EWCA Civ 859

bodies and local authorities as employers. Thismeans, therefore, that the ‘Fitness to Teach’regulations are not applied by heads and governorswith due regard to the DDA, because there is a patchylevel of understanding about what the DDArequirements mean in practice and about who iscovered by the term ‘disabled’ when interviewing andmanaging disabled teachers266

Head Teachers and boards of governors clearly needto have sufficient understanding of the DDAimplications of their decisions and this appliesespecially to foundation schools and academieswhich have a much greater degree independencefrom the local authority.

24. The DRC heard, too, that issues around reasonableadjustments can be harder to resolve within a schoolcontext – both because of funding concerns andbecause of knowledge and awareness. For example:

“I am sight disabled. I was suspended by myemployer who said that I was mentally unfit to teachchildren, when all their medical evidence said that Iwas perfectly fit to teach. They took this action afterthey had failed to enlarge documents for me for yearsand I had instructed a solicitor to help me. Ieventually had to leave my job. The local authoritythen tried to prevent me from working as a supplyteacher”267

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Another teacher reported:

“I have now had to change schools, since I was beingdiscriminated against, along with many otherteachers, and I lost the will to fight against the newmanagement. However, things at my new school arenot much better and I just feel like giving up as ateacher . . . It may seem radical but when you have togo upstairs to use the phone, get a cup of coffee or toget access to your classroom before 8.30 in themorning, with my condition it is becoming more andmore favourable to give up. I have tried . . .discussing the situation with my line manager andhead teacher”268

Improving practice

25. The DRC’s Inquiry Panel heard extensively about therelationship between occupational health andemployers, with concerns from occupational healthorganisations that they do not work closely enoughwith employers. Occupational health organisations toldus that their members did not want to be given therole of dealing with employers’ difficult cases (whichmay or may not relate to health), or of makingjudgements about whether an employee is covered bythe DDA. There was also concern about the role theyare expected to play in predicting sickness absence,based on medical information.

26. The Association of Local Authority Medical Advisers(ALAMA) told the DRC that it was concerned that manyemployers delegate decisions about fitness to work tooccupational health professionals who have very littleknowledge of exactly what the regulatory frameworksare for each profession. ALAMA told us that:

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268 Case study from NUT’s written evidence

269 Written evidence to the DRC from Association of LocalAuthority Medical Advisers (ALAMA)

270 Written evidence to the DRC from National Union ofTeachers (NUT)

“occupational health professionals are often putunder considerable pressure over the question as towhether or not a person has a disability and often feelthere is an unreasonable expectation by HR andmanagement that they (OH) alone should make thedecisions regarding ‘fitness’ for the job. There is aconsiderable tendency to ‘medicalise’ the problemand push the problem to OH for decisions absolvingmanagement of their responsibilities”.269

27. NUT raised a similar issue:

“Occupational health professionals at times makerecommendations that fit too easily with employers’prejudged conclusions about the fitness of teachersfor continued employment. A decision on anemployee’s employability [is difficult to challenge]once an occupational health report has been made. In the light of this barrier, it is clearly vital thatoccupational health fulfil a role which is consistentwith the spirit of the DDA”.270

28. Occupational health organisations told the DRC thattheir role should be more integrated into theworkplace and that they need to work more closelywith employers. For example an OH doctor told us ofhis experiences providing OH services to an NHSTrust:

“An occupational physician should be part of theorganisation, know who to talk to and how to getthings organised – not sat in an office in a medicalcentre not even being in the hospital, or evenknowing the department. Last Thursday we spent all

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day looking around the Acute Psychiatric Departmentof the local Trust. I was amazed at the workingconditions and environment. I thought, thank God wewent round. You should be doing that on a dailybasis”.271

29. We were told that this approach is also the mosteffective way for occupational health to support themanagement of sickness absence – by understandingthe causes of the absence that are often related onlyloosely, or not at all, to a health condition orimpairment.272

30. It is especially important that OH departments orproviders work with employers around reasonableadjustments. As noted in Chapter 3, there is nojustification in law for a failure to make reasonableadjustments and they always need to be considered bythe employer, even if the employer later decides thatthere are no reasonable adjustments that could bemade, or that would be effective. This would apply evenin a situation where occupational health has advisedthat someone is unfit. It is of concern, then, that thethree category approach (classifying people as fit, fitwith adjustments, or unfit) is still used by 40% ofoccupational health providers in the NHS and the rest ofthe public sector, when feeding back to employersabout pre-employment assessments.

A further 10% of these providers feed back simplythat someone is fit or unfit273.

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271 Evidence to DRC’s Inquiry Panel from Newcastle PCTOccupational Health

272 Evidence to DRC’s Inquiry Panel from Newcastle PCTOccupational Health

273 Dr John Ballard, “Pre-employment Health Screening”, OHat Work 2006; 3(3): 18-25 and OH at Work 2006; 3 (4): 22-30

274 DDA Code of Practice Employment and OccupationDRC/TSO 6.16

275 Research into assessments and decisions, Jane Wray et al,DRC 2007; and Employers survey, DRC 2007

276 Scottish Executive Health Department, OccupationalHealth group, peer review audit and benchmarking sub-group (known as PABS)

31. The DRC strongly favours an approach tooccupational health which provides an opportunityfor the employer, occupational health practitioner and the disabled applicant or employee to discussreasonable adjustments, in line with good practiceand with the DDA Code of Practice. The Code advisesthat employers making decisions about theemployment of disabled people “should seek theviews of the disabled person about their capabilitiesand about reasonable adjustments274. Within anemployment context, unlike the higher educationcontext, the involvement of disabled people indiscussions and decisions about fitness for the job is rare275.

32. Having heard evidence from occupational healthorganisations, the DRC is aware of the currentdevelopment by these organisations of good practicemodels and endorses them. For example, thePABS276 group, sponsored by the Scottish ExecutiveHealth Department is working on an approach tooccupational health assessment that moves awayfrom a medical model of assessing fitness andrecognises that knowledge of a specific diagnosis isonly important as a starting point for understandingsomeone’s functional limitations within a specific job.This group is working on a questionnaire with theminimum amount of questions, which relate to how aperson sees themselves, any functional problems thatthey have and any reasonable adjustments they need,instead of “99 questions on various aspects of their

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health in the past”. They told us that they want tofocus on functional ability rather than on medicaldiagnosis because “in employment, medicaldiagnosis really doesn’t matter, it is the function thatis the key issue and what adjustments they mightrequire”277.

33. It is vital that the old model used for assessing fitnessbased on diagnosis or medical history is replaced bya functional model, with the emphasis on theidentification of reasonable adjustments. The DRCsupports further work by occupational healthorganisations to develop good practice that promotesthe social model of disability, compliant withemployers’ DDA and DED duties. Occupational healthproviders should have adequate training on disabilityand the duty to make adjustments. Employers shouldensure that the occupational health services they use,and their own processes for interacting with theseservices and making decisions are DDA compliant.Public sector employers of nurses, teachers and socialworkers should review all their health and disabilityrelated policies in the light of the DED to ensure thatthey promote reasonable adjustments andinclusiveness.

Conclusion

34. The influence of the statutory and regulatoryframeworks requiring physical and mental fitness isless obvious at the employment stage. This isunsurprising as the regulations covering nursing,teaching and social work are mostly focused onhigher education and registration (except in teachingin England and Wales where regulations are alsodirected at entry to employment). Nevertheless there

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277 Evidence to the Inquiry Panel from Dr Linda Bell,occupational health consultant.

is a widespread practice of health screening, which isfrequently not related to the specific job role. This hasthe potential to lead to discrimination, and to putdisabled people off applying for jobs or fromdisclosing disability.

35. The DRC found that the use of pre-employmenthealth screening questionnaires is widespreadalthough we did not find evidence that disabledpeople are routinely turned down for jobs solely onthe basis of these questionnaires. However,occupational health organisations told us thatquestionnaires have other drawbacks – they do notpromote an enabling approach to disability (as theylead to predictions and assumptions based ondiagnosis), and they are a waste of resources foroccupational health practitioners who have to assessthem. Different occupational health practitionerscurrently work to different models. Employers shouldensure that that they only use occupational healthservices that are DDA and disability aware and focuson reasonable adjustments.

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Chapter 8 –DisclosingDisability1. Throughout this investigation we heard that disabled

people feel anxious about disclosing their disability toregulatory bodies, to higher education institutionsand to employers, because they assume that thisinformation will be received negatively. There aredeep-seated assumptions about disability and risk,reinforced by the professional regulations andguidance. This chapter looks at the requirements todisclose, and the factors that encourage disabledpeople to do so.

2. The definition of disability we have used throughoutthis investigation is the DDA definition, “a physical ormental impairment which has a long-term andsubstantial effect on a person’s ability to carry outnormal day-to-day activities”. This definition is broadenough to include people with obvious physicalimpairments as well as hidden impairments and long-term health conditions.

3. People with visible impairments may have feweroptions about disclosure or non-disclosure, but willstill need to decide whether to declare their disabilityon application forms, or registration forms and willhave to consider how much information they want toshare with education institutions, regulatory bodies oremployers. Where people have multiple impairments,they may decide to disclose some information, butkeep other information about a more stigmatised

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278 Disclosing disability, Nicky Stanley et al, DRC 2007279 06/04 “Requirement for evidence of good health and

character”280 Physical and Mental fitness to teach of teachers and

entrance to initial teacher training – Department forEducation and Employment – 1999

condition, such as a mental health condition, secret.For example:

“I don’t mind disclosing about my back, I guess forme it doesn’t carry the embarrassment factor, I meananyone can get physically ill but mental illness is adifferent thing, there’s a stigma related to it and it’snot something that you talk about”.278

4. This investigation has found that for disabled peoplein teaching, nursing and social work, decisions aboutdisclosing disability are not simply personal choices.As described in Chapters 2 and 3 of this report, thereare two potentially conflicting regulatory frameworksthat inform these decisions. First, the generalisedhealth standards themselves lay down requirementsfor disclosure and, in some cases, procedures fordisclosure as well. Second, the reasonableadjustment duty of the DDA requires that highereducation institutions, regulatory bodies andemployers know about a person’s disability in orderto make specific adjustments.

5. As we have seen above the NMC sets out inguidance279 a requirement for disclosure at thepoints of entry to training, registration and re-registration. In teaching, statutory guidance280 forEngland and Wales requires disclosure of disability inorder to assess fitness at entry to training and toemployment. For social workers, the registration rulesfor England and Wales covering students andqualified social workers require evidence as to

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physical and mental fitness to practise. Even wheresocial workers (or student social workers) considerthat their disability or impairment does not affecttheir fitness to practise, there is still a risk in notdisclosing as that person’s honesty and integrity maybe brought into question if they decide not todisclose, resulting in a situation where they fall foul ofthe “good character” requirement.

6. We have noted that the reasonable adjustment dutyof the DDA arises in respect of employment, allemployment related activities such as workplacements, and qualifications bodies (includingregulatory bodies that hold professional registers),only when the organisation knows of a disabledperson’s disability. Further and higher educationinstitutions also have a duty to make reasonableadjustments, although this duty breaks down intofeatures that are focused on meeting the needs ofindividual disabled people (for which they wouldneed to have knowledge of a person’s disability) andother features that are anticipatory and aimed atdisabled people in general.

7. Without information about a disabled person’s needs,the institution – whether employer, qualificationsbody or in some circumstances a higher educationinstitution – may not have an obligation to makeadjustments and may not know what adjustments tomake. This creates an imperative for disclosure insituations where a disabled person is disadvantagedwithout adjustments, and the DRC advises through itsDDA codes of practice that organisations take asensitive approach both to encouraging disclosureand to handling information following disclosure.

8. Qualified nurses, teachers and social workersapplying for jobs are required to fill in intrusive pre-employment health questionnaires, often asking

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281 Disclosing disability, Nicky Stanley et al, DRC 2007282 Evidence to DRC’s Inquiry Panel from several witnesses283 Grewal et al (2002) Disabled for life, Attitudes towards,

and experiences of, disability in Britain, DWP ResearchReport 173

284 Disclosing disability, Nicky Stanley et al, DRC 2007

for information that is irrelevant to the job they areapplying for, or to any job. As well as these formalprocesses, students, registrants and employees willneed to evaluate each situation they find themselvesin, and consider when and where to discloseinformation about their disability, and how much tosay. This is described in research commissioned forthis investigation as a series of decisions andnegotiations281. Changing from a higher education toa work placement environment, or from workplacements into employment presents the disabledperson with fresh decisions about disclosure. It islikely that disclosure is required again in any newenvironment in order to get adjustments made and toavoid the disadvantage that would arise if theadjustments were not made. Specific difficulties andbarriers faced in education, work placements oremployment are key triggers for disclosure, but whendisclosure comes part way through the programme orplacement, it is more difficult for higher educationinstitutions or placement providers to ensure thatappropriate adjustments are put in place282.

9. An issue that surfaced throughout this investigationwas that students and practitioners are oftenuncertain about what types of disability, impairmentor health conditions need to be disclosed. The DRCrecognises that around half of people covered by theDDA do not recognise themselves as disabled283,and people with conditions such as heart disease orcancer, relate better to the term “long- term healthcondition”284 rather than the term “disability”.

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10. There is a further group of people who recognise theirrights under the DDA but would be reluctant to labelthemselves as disabled. For example, Deaf people whouse British Sign Language often consider themselvesto be a linguistic group instead – “Deaf people are signlanguage users first and issues of impairment comesecond”.285 Students and practitioners with dyslexiaalso find the existing labels difficult to accept. Somepeople with dyslexia describe it as a learningdifference that means doing things in a certain way,rather than as a disability. One person describeddyslexia as a “social inconvenience” rather than as adisability or impairment and certainly did not perceiveit to be a long term health condition.286

11. Within nursing, teaching and social work, the DRCheard of several cases in which disabled people facedsanctions from employers, universities or regulatorybodies, because they had not disclosed informationabout their disability, because the wording of thequestion did not match their experiences. In one DDAcase taken by a nursing student, the university referredto the fact that the claimant had not disclosed hiscondition, but he responded that he had not ticked thebox saying that he had a ‘psychiatric illness’ asAspergers Syndrome is not a psychiatric illness287. Inanother case a university said that a nursing applicant,with a hearing impairment, had not declared adisability on her application form. She responded thatshe ticked “no” to the question on “disability/specialneeds” as she did not regard herself as disabled288.

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285 Evidence to the DRC’s Inquiry Panel from University ofManchester

286 Disclosing disability, Nicky Stanley et al, DRC 2007287 Review of Statutory and Regulatory Frameworks, David

Ruebain et al, DRC 2006288 Review of Statutory and Regulatory Frameworks, David

Ruebain et al, DRC 2006

289 Review of Statutory and Regulatory Frameworks, DavidRuebain et al, DRC 2006

12. This investigation has also found that disabled peopleoften feel uncertain about the relevance of theirimpairment or long-term health condition to thespecific context in which they are being asked, andtherefore do not know whether to disclose or not. TheGSCC registration form, for example, asks applicants:

“Do you have a physical or mental health conditionthat may affect your ability to undertake work insocial care?”

Where students are asked to disclose only relevantinformation they need to make their own judgementabout whether their impairment would affect theirtraining or practice, and the student’s view of what isrelevant may well be different from the institutioncharged with making the assessment.

13. The regulatory review commissioned by the DRCidentified how the uncertainty around requirementsto disclose can have negative consequences. In onecase, a social worker was dismissed from her trainingpost, because she had not disclosed her statement ofspecial educational needs in her application. She wasinformed that the non-disclosure of herdyslexia/dyspraxia was a breach of trust under theCode of Practice for Social Care Workers. Theapplication form asked applicants whether they had adisability. At the time the claimant completed theapplication form she had no reason to suppose thather dyslexia/dyspraxia was a disability as she had notreceived any assistance for this for about nineyears.289

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14. During the investigation, the DRC receivedevidence290 about a social work student whoseregistration with the GSCC was delayed by sixmonths over and above other students who appliedfor registration at the same time, because he hadrevealed his HIV status in his registration form to theGSCC, but not to the university:

“I was told over the phone that there was somediscrepancy because I declared my HIV status toGSCC and I hadn’t declared to it the educationprovider and it called into question my integrity andhonesty, traits that a social worker must portray.Therefore it questioned my future… to be registeredas a social worker. They also said the reason why I’mnot registered as yet is because they are getting legaladvice on what to do and how to proceed – thatscared me to death”.291

15. Within the sample used for the “Disclosing disability”research only three of the participants (out of 60)interviewed had not disclosed at all within theirprofessional settings, but the experiences and extentof disclosure of the remaining 57 was very varied292.

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290 Papers sent by a solicitor, by Unison, and by a highereducation institution; and evidence to the Inquiry Panelfrom a tribunal applicant and the applicant’s solicitor

291 Tribunal applicant’s evidence to DRC’s Inquiry Panel292 This was a qualitative study, with a self-selecting sample,

which sought to explore issues around disclosure. Thereare difficulties in carrying out quantitative research, toascertain rates of non-disclosure because of the verynature of the issue. Organisations should consider how toexplore non-disclosure through their own research andinformation gathering, and through comparisons of theirown and external data. This was not something the DRCwas able to do within the timeframe of this investigation.

293 Disclosing disability, Nicky Stanley et al, DRC 2007

Whilst some described having disclosed fully at everyopportunity within their profession, others haddisclosed only one of a number of impairments orhealth conditions, disclosed only at particular stagesof their careers, or to particular organisations orindividuals within them, or had understated theextent of their disability. Participants’ accounts oftheir experiences of disclosing disability acrossEngland, Scotland and Wales, and the reactions theymet from organisations following disclosure, wereclassified by the researchers into positive, negativeand mixed. Around a third of the accounts werepositive, a third negative and the remaining thirdwere mixed stories of good and bad experiences.Practising nurses and student social workers were theprofessional groups more likely to convey a negativestory around their experiences of disclosure.

16. The reasons for participants’ decisions to disclose ornot to disclose in different contexts were furtherexplored in the study. One of the main barriersidentified to disclosure was the uncertainty andconfusion about disclosure procedures and theresultant fear that applicants would not be successfulin their chosen career if they disclosed293. Disclosurewas regarded by some disabled students andpractising professionals as a high risk strategy. Peoplewith mental health problems reported that they facedparticular stigma, and this unsurprising finding wassupported by written evidence and evidence to theDRC’s Inquiry Panel where organisations frequentlyrevealed that they associate mental health conditionswith risk. Despite a fear of the consequences ofdisclosing, a desire for honesty, or a fear of theconsequences of not disclosing influenced students’and practitioners’ decisions.

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17. Students and practitioners want to retain control ofinformation that they disclose (ie not haveinformation passed between agencies without theirconsent). They need reassurance about the disclosureprocedures, about who will see the information andabout how it will be used. Students and practitionerswithin nursing, teaching and social work saw theirrelevant regulatory body as remote and potentiallythreatening – some participants describing it as “BigBrother”. The process of disclosure to the regulatorybody was experienced as impersonal and there was asense that the consequences of such disclosure294

was beyond the control of the disabled person. Theyalso expressed concern that they received little in theway of an individualised response from regulatorybodies or information concerning the consequencesof disclosure295. Disabled people may not see anybenefits from disclosing to a regulatory body,especially if they do not require any adjustments inrelation to the registration process (for exampleinformation in an alternative format).

18. In the employment sphere, there are contractualobligations not to lie on application forms or healthquestionnaires. This influences disabled people’sdecision to disclose even if they fear thatassumptions about, for example, sickness absencewill be made about them. Practising nurses, teachersand social workers also expressed concern about theconsequences of non-disclosure on their ability topractise safely, and felt that by disclosing, the onuswas shifted onto the employer to make adjustmentsto their working environment296.

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294 Disclosing disability, Nicky Stanley et al, DRC 2007295 Disclosing disability, Nicky Stanley et al, DRC 2007296 Disclosing disability, Nicky Stanley et al, DRC 2007

297 Disclosing disability, Nicky Stanley et al, DRC 2007298 Disclosing disability, Nicky Stanley et al, DRC 2007299 Disclosing disability, Nicky Stanley et al, DRC 2007

19. Research commissioned by the DRC shows thatknowledge of the DDA gives disabled professionalsconfidence about disclosing disability297. For example, one social work student reported:

“It [the DDA] gives me confidence that I can disclose,I can tell them that I know that I’ve got legal backingshould I need it and I’ve got some legal rights [so]that they can’t discriminate. They can’t turn round andsay, ‘you’re not fit to practise’”298

20. Within the education or work environment, disabledpeople wanted to see evidence that the institutionwas prepared to support disabled people, andevidence that there were other disabled people in thesame higher education institution or workplace.These were found to be important factors thatencouraged disclosure299. Established practitioners,with a track record of achievement in a particular job,felt less vulnerable and more confident in disclosing.The converse of this is that those new to theprofessions – students, people on practice placementsand new employees – are likely to feel more anxiousabout revealing information about health or disability.After disclosure in a particular workplace, it can taketime for an employee to win the support andconfidence of colleagues. The sense of security thatan employee develops over time in a particularworkplace following disclosure is often not carriedacross to a new work setting. The perceived risks ofdisclosure within a new setting can mean that peopleprefer to stay within a job. This would clearlyconstrain disabled professionals in their careerprogression.

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21. Disabled people must be able to feel that they havecontrol over the information that relates to them andtheir disability300, so they need reassurances aboutthe purpose of the disclosure and about processesthat follow disclosure. The institution asking forinformation about disability should be clear aboutwhether this is for the purpose of assessing fitness,for reasonable adjustments, or for disabilitymonitoring. The DRC saw evidence from universitiesof good practice, for example forms asking forinformation about disability that clearly explained thereasons for asking, and in some instances, providedadditional information about support offered to helpthe disclosure process301. In the employment sphere,however, we have seen that occupational health pre-employment questionnaires are often very unclear,partly because a single form may be used for severalpurposes, but also because the forms are ill-considered and not specific to the job.

22. The DRC also found that students are not givensufficient information about procedures followingdisclosure, that is, they are not told how theirdisclosure of disability will be dealt with. Forexample, one university’s form states:

“the university may have a legal obligation to pass on(or not to pass on) this information. Advice on thisissue can be sought from the relevant professionalbody, and/or the University’s Data ProtectionOfficer”302.

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300 Disclosing disability, Nicky Stanley et al, DRC 2007 andWray J., Fell B., Stanley N., Manthorpe J., Coyne E., 2005.The PEdDS Project: disabled social work students and placements. The University of Hull. Available at:www.hull.ac.uk/pedds/documents

301 Written evidence to DRC302 Written evidence from a University

303 Written evidence from University of Bradford

We also heard from universities that they in turn donot receive sufficient information from the regulatorybodies about how to support students with thecompulsory disclosure process303.

23. Within higher education, students expressed concernabout the need to repeatedly disclose to differentwork placements. The duties to make adjustments areseparately imposed on universities and on placementproviders, so it is important that education providerstake steps to ensure that enough information aboutthe need to make adjustments is shared withplacement providers (but not necessarily any medicalinformation about the student’s impairment orcondition), so that students do not need to repeatedlydisclose. However, universities should respectstudents’ rights to confidentiality and seek permissionto pass on information.

24. Disability organisations, unions and student advisorstold the DRC’s Inquiry Panel about their advice todisabled students and professionals on the issue ofdisclosure. Organisations agreed that there werepositive reasons for disclosing disability, especially inrelation to being able to get reasonable adjustmentsin higher education or in work. It was also consideredpreferable for information about a person’s disabilityto come from the disabled person, in terms that thedisabled person themselves set out – with anemphasis on abilities, needs and rights rather than anemphasis on medical conditions or functional deficits(ie things that the person cannot do). Theseorganisations also recognised that the stress resultingin keeping a condition hidden from tutors, employers,or colleagues is an important issue for disabledpeople.

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25. However, it was striking that few of the organisationsthat gave evidence to the DRC were prepared tostraightforwardly and unconditionally advise disabledpeople to disclose their disability within theseprofessions. Some organisations recommend thatdisabled people have a positive strategy around theirdisclosure. This strategy would consist of talkingabout reasonable adjustments rather focussing onmedical explanations, disclosing to particularindividuals, and having pre-prepared positivemessages about disability. The Adult DyslexiaOrganisation304 explained that it would advisepeople with dyslexia studying or working within theseprofessions to assume that the reaction to disclosurewould be negative, but to be ready with “threepositives” to counteract any negative reaction. Mindtold the DRC305 that it would explain the pro’s andcon’s of disclosure, but would not give firm advice ordirection about this issue.

26. Disability organisations, unions and student advisorsexpressed the view that while it is for individualdisabled people to make the day-to-day decisions ondisclosure; the onus should be on universities,regulatory bodies and employers to create “safeconditions” for disclosure and a positiveorganisational culture regarding disability. Mostimportantly, the DRC was told that organisationalculture has a huge influence on whether, and howmuch, disabled people are willing to disclose. A “positive organisational culture” was described as having the following characteristics:306

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304 Evidence to DRC’s Inquiry Panel305 Evidence to DRC’s Inquiry Panel306 Evidence to the DRC’s Inquiry Panel from ADO, Mind, Skill,

Radar, and findings from Disclosing Disability, NickyStanley et al, DRC 2007

307 Several witnesses mentioned the importance of rolemodels but interestingly a literature search undertaken bythe DRC in 2005, reported in Chih Hoong Sin et al, DRC2006, revealed very little published research about thevalue of disabled role models to disabled people in aneducation or employment context.

308 Evidence to DRC’s Inquiry Panel from Adult DyslexiaOrganisation

• An environment where there are role models307

for disabled people – managers or course tutorswho are, themselves, disabled and have disclosedtheir disability to staff and students.

• Mistakes made, particularly in a learningenvironment, by disabled people will be expectedand tolerated, as they would with all students andpractitioners, and not readily attributed todisability.308

• Disability is seen as a welcome difference and notas a deficit.

• Reasonable adjustments are made, and disabledstudents and practitioners are aware that thesehave been made and are aware of otheradjustments that might be available to them.

• Colleagues (or in the context of higher education,fellow students) also have positive attitudestowards disability and understand that reasonableadjustment is about equality, not about preferentialtreatment.

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Conclusion

27. It is clear from our evidence about the regulatoryframeworks, and from DDA cases and personaltestimonies, that the threat to a person’s careerfollowing disclosure is a real one, and that safeconditions for disclosure within nursing, teaching andsocial work do not exist. We have also seen that thehealth standards, with their implicit assumptionsabout the “risk” from disabled people within theseprofessions, discourage positive organisationalcultures. There is evidence that disabled people,where they recognise that they are covered by theDDA, gain real confidence from this legislation andfeel empowered to negotiate with their highereducation institutions about adjustments as a resultof it. In contrast to this, the DRC’s Inquiry Panel heardrepeatedly that the regulations requiring good healthor physical and mental fitness create a climate wheredisability is not perceived positively, so affectingpeople’s willingness to disclose and to ask foradjustments.

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309 Background paper, Chih Hoong Sin et al, DRC 2006310 Both the initial and updated searches were run across the

following databases British Library Inside Web, Ingenta,DRC Electronic Library Catalogue, British HumanitiesIndex, Applied Social Sciences Index and Abstracts,Medline, Web of Science

Chapter 9 –Statistics andresearch1. In this chapter we explore the issues around gathering

evidence and data about disabled people in nursing,teaching and social work, in the light of what we havelearnt from conducting this investigation. An importantfactor in triggering the DRC’s formal investigation wasthat, despite indicators that disabled people werefacing barriers entering professions such as nursing,teaching and social work, there was very little data orresearch to enable us to analyse the problem. The DRCconsidered that a formal investigation would help tofocus attention on this area and lift the lid on issuesthat had been previously under-explored.

2. In early 2005, the DRC carried out a literature search toidentify evidence across England, Scotland and Walesof disabled people’s career paths from their earlycareer aspirations through to job retention within theseprofessional sectors309. The initial search was notrestricted to issues around health standards as theintention was to gain an overview of the widerevidence base around disabled people’s professionalcareers, to enable the DRC to identify key barriers310.From this search only 42 documents were identified asbeing relevant.

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3. Leaving aside guidance documents, papers writtenfrom a medical rather than sociological perspective,and news stories based on personal testimony, therewas very little research to be found about disabledpeople within these professions. The material thatwas relevant often pointed to barriers related toperceptions of disabled people’s fitness to study orwork in these professions.

4. The relative lack of data or research was in itself aninteresting finding that pointed to cultural issueswithin these professions that have been looked at aspart of this investigation. Disability has only recentlybeen recognised as an equalities issue within thehealth sector311 312, and the culture within bothnursing and social work appears to be one wherethere is discomfort about boundaries betweenprofessionals and patients or clients being blurred.The fact that disabled people are reluctant to disclose,partly because of generalised health standards,affects the information gathering process, but also theprofile of disabled people’s concerns within theseprofessions. This may result in disabled people’sissues being marginalised, and issues being seen asindividual rather than institutional problems.

5. The statistics from across these professions, as wellas anecdotal evidence from organisations workingwithin these professions, raised concerns thatdisabled people were either under-represented withinnursing, teaching and social work, and/or were not

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311 Scullion P (2000) Disabled people as health serviceemployees. How to break down the barriers, NursingManagement, Vol.7, No.6, pp. 8-13

312 Clinton M, Robinson S and Murrells T (2004) Creatingdiversity in the healthcare workforce: The role of pre-registration nurse education in the UK, Journal of HealthOrganization and Management, Vol.18, No.1, pp. 16-24

disclosing disability which would affect the reliabilityof the reported statistics. As part of this formalinvestigation, the DRC explored existing data in anumber of ways. We looked at how data was collected,explored barriers to data collection and compiled datathat was sent to the DRC. (See Appendix F for tables ofstatistics relating to disabled nurses, teachers andsocial workers).

6. Through the call for evidence we asked organisationsto send in their data, and to explain how the data wasgathered, including the wording of questions used onthe monitoring form or other formats for solicitingsuch information. Seventeen organisations sent in dataas part of this exercise; and other organisations sent usdatasets following meetings or their appearances atthe DRC’s Inquiry Panel. Out of these 17 organisations,it was interesting to note that many of them onlystarted collecting data very recently. The earliest datawas from 1996. We also noted that no organisationswere able to send us the full range of data that weasked for.

Regulatory bodies

7. The regulatory bodies, as we have established, have akey role to play in improving access to the professions.Statistical information about the number of disabledpeople on the professional registers is a vital step inbringing about change. Surprisingly, then, the NMChas not previously carried out disability monitoring ofits registrants, and is only just starting to do this (fromDecember 2006), presumably to meet its disabilityequality duty. The remaining regulatory bodies thathold registers provided statistics, presented below.

8. In teaching, according to figures provided by the GTCE,there were 815 disabled newly qualified teachers in2006 making up 0.15% of all newly qualified teachers

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in England. Figures provided by GTCW showed thatthere were 77 disabled registered teachers accountingfor 0.2% of all registered teachers in Wales in 2006.According to GTCS statistics, there were 31 disabledapplicants to the Teacher Induction Scheme inScotland in 2006, accounting for 1.1% of applications.

9. For social work, the statistics were similarly low. InEngland the GSCC’s figures demonstrated that therewere 1,489 disabled qualified social workerscomprising 1.95% of all qualified social workers in2006. The CCW’s data showed that there were 94disabled social work registrants – 2.15% of socialwork registrants in Wales in 2006. The SSSC’s figuresshowed that there were 160 disabled registered socialworkers comprising 2.4% of all registered socialworkers in Scotland in 2005.313

10. Around half of the organisations that sent usmonitoring data had statistics broken down intoimpairment type, although different impairmentcategories were used across the respondingorganisations. For organisations covered by thespecific DED, the DRC’s code of practice314 advisesthat:

“Disabled people with different impairments canexperience fundamentally different barriers, and havevery different experiences according to theirimpairment type. It will often be necessary thereforeto monitor outcomes according to impairment type tocapture this information.”

“Whether or not it is appropriate to collect

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313 Written evidence to DRC314 DED Code of Practice

http://www.drc.org.uk/employers_and_service_provider/disability_equality_duty/explaining_the_duty.aspx

315 3.66 and 3.67316 This corresponds to 3.67% of all registered social work

degree students317 This corresponds to 0.59% of all registered social work

degree students318 GSCC data pack 2005-6

http://www.gscc.org.uk/About+us/Statistics/

information according to impairment group willdepend upon whether an authority is ready and ableto make use of that information. . . 315”

11. This means that even for organisations covered bythe specific DED (such as the regulatory bodies), theDRC recognises that those organisations must maketheir own decisions about whether to monitoraccording to impairment type. However, whereimpairment information is available, the importanceof having this detail of data in relation to theseprofessional sectors soon becomes apparent. Forexample, statistics for student social workers showthat out of registered students (degree course) 40%316 of those declaring a disability are those withdyslexia and only 6%317 of those declaring adisability have a mental health problem318. Thisindicates likely under-disclosure and/or under-representation of those with mental health problems,even within the population of disabled student socialworkers who have disclosed. It may also reflect thereality that we have already discussed, that thosewith dyslexia are more likely than some otherdisabled students to be supported in higher educationgiving them an incentive to make themselves known,in order have access to adjustments.

12. Only two of the organisations that sent us data toldus that they collect data in such a way that it can becross-referenced with other variables (eg age, genderor ethnicity).

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Disability questions

13. Different definitions of disability, and the way inwhich these definitions are expressed in questions,can lead to wildly divergent estimates of disabledpeople in any population. For the purposes ofmonitoring, questions need to be based on the sameassumption so that in bringing different monitoringstatistics together, organisations can be confident thatthey are comparing like with like. Around half of theorganisations that sent data to the DRC askeddisability questions based on the definition ofdisability in the DDA. Some organisations, forexample, explain the DDA definition of disability(importantly, as the definition is wider than acommonsense assumption of what “disability”means) and ask individuals to tick a box if they feelthat this definition applies to them.

14. The DRC’s evidence gathering guidance319, written toadvise organisations in meeting their DED duties,suggests three possible models of questions to use,depending on the purpose. The first is the modelmentioned above (based on the DDA definition); thesecond is a question about impairment type; and thethird is a question about barriers faced by therespondent. The DRC is not prescriptive about whattype of question should be asked, but explains in itsguidance that the organisation should make thatdecision itself, based on the purpose of the evidencegathering. More than one question can be used incombination.

15. This investigation has found considerable confusionamongst higher education institutions, employers and

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319 DRC (2006) The Disability Equality Duty. Guidance onGathering and Analysing Evidence to Inform Actions,London: DRC.

320 DRC (2006) The Disability Equality Duty. Guidance onGathering and Analysing Evidence to Inform Actions,London: DRC. (p. 44)

321 In written evidence and to the DRC’s Inquiry Panel

regulatory bodies about the different purposes ofasking for a disclosure of disability. This is notsurprising, as under the current regulatoryframeworks of generalised health standards and theDDA (including the DED) some organisations mayneed to ask for disability information for threeseparate purposes – assessing fitness, asking aboutadjustments and monitoring. Given the negativeculture towards disability perpetuated by the health-related standards, combining a monitoring questionwith a fitness assessment question is likely to lead tounder-disclosure for the purpose of monitoring. Suchan approach would clearly make it harder for publicauthorities to fulfil their DED duties.

16. The DRC guidance on evidence gathering for thepurposes of the DED notes that “Any questions whichare going to be used to monitor the numbers andexperiences of disabled people who are employees orservice users should be carefully introduced toexplain why you are collecting this information, theuse it will be put to and assurances aboutconfidentiality. It is also important to emphasise thecommitment of your organisation to promote equalityof opportunity and to explain how you will publishthe anonymised information you have gathered.Experience shows that setting out the context forquestions in this way significantly increases responserates”320.

17. Some organisations relevant to this formalinvestigation have acknowledged321 that as theirdisability statistics (where they exist) are reliant onpeople’s willingness to disclose, they may under-

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report the incidence of disability322. One organisationtold the DRC that although it asks a disabilityquestion, it does not present statistics on disabledpeople, as perceived “under-reporting and under-disclosure by members” render these figuresunreliable. The organisation is currently seeking toredress this by explaining the purpose of monitoringand the meaning of the definition to members323.

18. Another organisation that collects statistics ondisabled people offered the following cautionaryremark in interpreting the statistics it provided:

“Although every effort is made to encourageprospective and current students to disclose adisability, we are aware that there will always be anelement of under reporting as many students do notwish to disclose a disability and others are not awarethat they are considered to be disabled under theDDA”324.

19. The handling of “non-responses” can also affect theinterpretation of disability statistics. Where there is norecorded answer, it is important to distinguishwhether this is because an individual has been giventhe opportunity to respond but chose not to, orwhether an individual was not asked (possiblybecause an organisation has only recently addeddisability monitoring to other monitoring, and somepeople were never given the opportunity to answerthis question). This has implications for theassessment of coverage, and hence on establishing

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322 Hurstfield J, Aston J, Mitchell H and Ritchie H (2004)Qualifications Bodies and the Disability DiscriminationAct, Institute for Employment Studies Report 417,Brighton: Institute for Employment Studies

323 Written evidence from NUT324 Written evidence from Institute of Education

325 This issue was raised by the GTCE who expressedparticular concern about the reliability of their data

326 Disclosing disability, Nicky Stanley et al, DRC 2007327 Written evidence from Institute of Education.

with any confidence the likely number or proportionof disabled people within a population.325

20. Disclosure of disability is not a one-off event and maybe requested, or indeed required in law, numeroustimes. Disabled people make decisions aboutdisclosure depending on the perceived risks andbenefits of doing so326. This leads to furtherchallenges in interpreting different sets of datacollected by the same organisation, under differentcircumstances and for different purposes. Oneorganisation gave us this example:

“Some students disclose a disability to the DisabilitiesSupport Office in order to obtain support, but requestthat this information is not included in their studentrecord, despite assurances that this information willremain confidential”327.

Research

21. Given the small amount of existing research that theDRC discovered in its own literature searches, wewanted to know if there was any additional researchthat could inform the investigation. As part of the callfor evidence, organisations were asked to providedetails of any published or unpublished research thatthey had carried out or commissioned. Anotherreason for asking questions about research was thatwe wanted to understand whether organisations, inpursuance of disability equality, were taking steps tofind out about barriers faced by disabled peoplewithin their institutions (or within the profession moregenerally), to use this information as a basis for

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action. However, having asked for information aboutresearch projects through our call for evidence andthrough contact with organisations as part of theInquiry Panel, we have not become aware of anysignificant amounts of additional research that we didnot know about when we embarked on this formalinvestigation. There is no rich seam of informationabout disabled people in nursing, teaching or socialwork that is being used to drive change in thesesectors. In fact, there is very little. Below we havepresented our findings about the kinds of researchthat organisations have undertaken, or are in theprocess of carrying out or commissioning. Publishedresearch in the public domain has been reviewed inthe DRC’s background paper.328

22. The DRC was interested in research about (orincluding) disabled people within nursing, teachingand social work; and research relevant to specificorganisations only. In relation to profession-wideresearch, we found that two of the regulatory bodieshave carried out general research relating to theworkforce, that have some findings relevant todisability. For example, the SSSC told us that they arecarrying out research on the views of service usersand carers regarding the skills requirements for socialservices workforce. The GTCW conducted researchabout the teaching workforce in Wales, with the aimof producing an action plan on the recruitment andretention of teachers, and also participated inresearch looking at the barriers to disabled peopleentering and progressing in the teachingprofession329. The only national research initiated by

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328 Background paper, Chih Hoong Sin et al, DRC 2006329 Reducing barriers to participation by people with

disabilities in the teaching profession, TADW 2003www.newport.ac.uk/tadw

330 Janet Powney et al, University of Glasgow inconjunction with Heidi Safia Mirza, CRES, “Teachers’Careers: the Impact of Age, Disability, Ethnicity, Genderand Sexual Orientation, DfES, 2003.http://www.dfes.gov.uk/research/data/uploadfiles/RR488.doc

331 ABAPSTAS and BATOD. BATOD is an association ofDeaf and hearing teachers of Deaf children

332 This guidance was directed at the social work sectorgenerally (in England and Wales), not specifically forstudents at the University of Hull.

333 NASUWT, NUT and RCN

a statutory body looking at disabled professionalsthat we are aware of is a piece of work commissionedby DfES to look at the impact of (amongst otherissues) disability on teachers careers330. Thisinvolved a postal survey of over 2000 teachers, andinterviews with teachers and school governors andtwo organisations representing disabled teachers331.This research found that disabled teachers are morelikely than other groups to think about leaving theprofession, and that over 40% of teachers surveyedbelieved that disability would negatively influence ateacher’s career progression. The DfES did not giveany indication about how they had used this research.

23. The GSCC referred to a research project carried outby the University of Hull, which looked at disabledsocial workers and their experience of practiceplacements and led to national guidance332 producedby the same university for disabled students andthose involved in their education and practiceplacements.

24. Two unions and a professional body333 had alsoconducted research that touched on issues relating totheir disabled members. For example, the RCN

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carried out a survey of its members generally (ie notjust disabled members) to look at nurses’ well-beingand working lives, that resulted in a number ofrecommendations for employers. It found that 40% ofdisabled nurses had experienced bullying. NUT toldthe DRC that it had conducted a poll of teachers, butthe DRC has received no further information aboutthis work. NASUWT told the DRC that it hadundertaken detailed research and consultation withdisabled members, but once again the DRC did notreceive any further information.

25. Overall, very little evidence was sent to the DRC ofsurveys or research conducted by organisations toinform their organisational practice. This may bebecause this research was considered to be tooinformal (for example taking the form of consultation)to pass onto the DRC’s investigation. Or it may bebecause very little research of this type has beencarried out. It is also difficult to identify from theevidence of national research that we know about,how national organisations, such as the regulatorybodies, government departments or unions, haveused the information gained from their own or otherorganisations’ research to influence policy or practice.

Conclusion

26. Historically there is a paucity of robust andcomparable information on disability with no onesatisfactory data source, even at the national level.Within the professional sectors that are the subject ofthis formal investigation, data gathering aboutdisability is very new. One regulatory body has notyet gathered any disability data about its registrants.Looking more widely at research, there is very little toinform the sector about the barriers that disabledpeople within these professions face, or to help theseorganisations in tackling these barriers. Where

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research of this nature has been carried out, it is notclear how this has informed policy or practice in therelevant sectors.

27. Gathering disability information is not an end itself,but should be placed in the broader context ofpromoting disability equality by using the informationto help decide where action is most needed, takingsuch action, reviewing its effectiveness and decidingwhat further work needs to be done. This can beachieved by involving disabled people in framing theresearch questions and designing the mechanisms forgathering information. The inadequate research baseshould not be used as an excuse for delaying change;but without accurate knowledge of the barriers facedby disabled people within these sectors, thesebarriers cannot be successfully tackled.

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Chapter 10 –ConclusionsWe conclude that the statutory regulation of ‘good health’and ‘physical and mental fitness’ for students andprofessionals in nursing, teaching and social work has anegative impact on disabled people and offers no protectionto the public. Statutory health standards are discriminatory,and lead regulatory bodies, universities and, in somecircumstances, employers to discriminate against disabledapplicants, students and professionals.

Disabled people have a crucial role to play in Britain’s publicservices. Further action is needed to promote equality inthese sectors, including in Scotland where there are nogeneralised health standards for teachers or social workers,but where discrimination in these professions persists.

The scope of the protection against discrimination which theDDA offers disabled people has grown very considerablysince the DDA originally came into force. It now providescomprehensive anti-discrimination measures acrosseducation and training, work placements, registration and employment.

This might be expected to have had a significant impact onpolicy and practice with the nursing, teaching and socialwork sectors across Great Britain – and indeed to have raisedquestions about the very existence and application of healthstandards. The Scottish Parliament clearly did consider thechanged climate created by the DDA when it removed healthstandards for teachers, following consultation.

It might also be expected that the framework of rights andduties established by the DDA would now be reflected in the

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huge amount of primary and secondary legislation andstatutory guidance which governs entry and retention withinthe professions. However, with the exception of the teachingprofession, this is not the case. There is no mention of theDDA within the legislation, regulations or statutory guidancerelating to social work and only occasional reference in thelegislation and guidance applicable to nursing.

A radical rethink of the regulatory framework is nowrequired if the professions are to maintain standards withina culture which also promotes equality.

The generalised health standards across nursing and socialwork derive from the Beverley Allitt case and the Clothierreport – although the findings of the Clothier report did notdemonstrate that any standards or screening for mental andphysical fitness would have prevented the crimes shecommitted against patients. The standards werenevertheless brought in, extended across other professions,and are still being extended, currently through theGovernment’s White Paper and the professionalisation ofthe wider children’s workforce in England and Wales.

We have found no evidence that the use of generalisedhealth standards is an effective way of assessing ormanaging risk. These standards, while not solelyresponsible for the existence of an assumption of automaticrisk in relation to disabled people in the professions, providea statutory basis for it.

The regulatory bodies have different roles within theirprofessions. In teaching in England and Wales, responsibilityfor health standards and competence standards is spreadacross the GTCE, GTCW, TDA and the governmentdepartments.

It is important that, separately for each sector, the statutoryand regulatory organisations work together to use availableinformation (and gather further information from data,

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research, consultation and involvement of disabled people)to inform the policies that they operate and their practices.

Where regulatory bodies have an advisory function togovernments, they should provide advice about thediscriminatory effects of health standards, where thosestandards exist.

All the regulatory bodies, across England, Scotland andWales, should review their competence standards, to ensurethat any negative impact on disabled people can beeliminated. They should provide guidance on reasonableadjustments and consider what other guidance to provide toencourage others (such as higher education providers) toadopt an enabling approach to disabled people.

Changes should be made to the legislation establishing theregulatory bodies so that as part of their functions they arerequired to have regard to the requirements of disabledpeople. Confusion around the circumstances in whichprofessional regulation takes precedence over the DDAcould also be eliminated through legislative change. Someof the regulatory bodies are currently not listed as havingspecific duties under the Disability Equality Duty, namely theCare Council for Wales (CCW) and the General TeachingCouncil for Scotland (GTCS). This should be remedied.

The DRC has found evidence of discrimination in the highereducation sector against students wanting to train innursing, teaching and social work. This is despite thepositive and enabling practice that is often present in thesector, and the genuine desire to widen access to highereducation for disabled students. There are real difficulties inmarrying up the two approaches – on the one hand thepositive encouragement of disabled students into highereducation and on the other the regulatory frameworks thatrequire compulsory disclosure and often lead todiscriminatory policies and practices.

Universities follow the procedures laid down by statutoryand regulatory bodies, but outcomes depend on how the

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universities or their occupational health services judge astudent’s or applicant’s fitness. The DRC is opposed to thepractice of attempting to judge the likely future competenceor career success of disabled applicants or students at entry point.

The influence of the statutory and regulatory frameworksrequiring mental and physical fitness is less obvious at theemployment stage. This is unsurprising, as the regulationscovering nursing, teaching and social work are mostlyfocused on higher education and registration (except inteaching in England and Wales, where regulations are alsodirected at entry to employment). Nevertheless, there is awidespread practice of health screening, which is frequentlynot related to the specific job role. This has the potential tolead to discrimination and to deter disabled people fromapplying for jobs or from disclosing disabilities and long-termhealth conditions.

The DRC found that the use of pre-employment healthscreening questionnaires is widespread, although we did notfind evidence that disabled people are routinely turned downfor jobs solely on the basis of these questionnaires. However,occupational health organisations told us that questionnaireshave other drawbacks – they do not promote an enablingapproach to disability (as they lead to predictions andassumptions based on diagnosis) and they are a substantialwaste of resources. Occupational health practitioners work todifferent models. Employers should ensure that they only useoccupational health services that are compliant with the DDAand focus on reasonable adjustments.

It is clear from our evidence about the regulatory frameworks,and from DDA cases and personal testimonies, that the threatto a person’s career following disclosure is a real one and thatsafe conditions for disclosure within nursing, teaching andsocial work do not exist.

We have also seen that the health standards, with theirimplicit assumptions about the “risk” from disabled people

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within these professions, discourage positive organisationalcultures. There is evidence that disabled people, where theyrecognise that they are covered by the DDA, gain realconfidence from this legislation and feel empowered tonegotiate with their higher education institutions aboutadjustments as a result of it.

In contrast to this, the DRC’s Inquiry Panel heard repeatedlythat the regulations requiring good health or physical andmental fitness create a climate where disability is notperceived positively, so affecting people’s willingness todisclose and to ask for adjustments.

Historically, there is a paucity of robust and comparableinformation on disability, with no one satisfactory data source– even at the national level. Within the professional sectorswe have investigated, data gathering about disability is verynew. One regulatory body has not yet gathered any disabilitydata about its registrants.

Looking more widely at research, there is very little to informthe sector about the barriers that disabled people within theseprofessions face or to help these organisations in tacklingthese barriers. Where research of this nature has been carriedout, it is not clear how this has informed policy or practice inthe relevant sectors or within organisations that carried out orcommissioned the research.

Gathering disability information is not an end itself but shouldbe placed in the broader context of promoting disabilityequality by using the information to help decide where actionis most needed; taking such action; reviewing its effectivenessand deciding what further work needs to be done.

Finally, we conclude that a framework of professionalstandards of competence and conduct, couple with effectivemanagement and rigorous monitoring of practice, is the bestway to achieve equality for disabled people and the effectiveprotection of the public.

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334 The Allitt Inquiry: Independent Inquiry relating to Deathsand Injuries on the Children’s Ward at Grantham andKesteven General Hospital during the period February toApril 1991”, (1994) HMSO (“The Clothier Report”);

335 The Victoria Climbié Inquiry: Report of an inquiry by LordLaming” (2003) HMSO; “The Bichard Inquiry Report”(2004) HMSO; “The Shipman Inquiry Report” (the firstreport and the fifth report) (2002) and (2004) Cm 6394.

Appendix A – Earlier Inquiries

1. During the Inquiry Panel stage of the DRC’s formalinvestigation, witnesses frequently referred to the caseof Beverley Allitt and the recommendations of theClothier report334 in connection with concerns aboutpublic safety. The Chair of the Inquiry Panel, KaronMonaghan, reviewed this report and other relevantreports335 in order to understand the origins andpurpose of the health regulations. Below we presenther assessment of these reports.

The Clothier Inquiry into the crimes of Beverley Allitt

2. The Clothier Inquiry followed the conviction ofBeverley Allitt on charges of four murders, threeattempted murders and six charges of causinggrievous bodily harm. As is well known, Beverley Allittwas a nurse at the time the crimes for which she wasconvicted were committed. Beverley Allitt’s victimswere all children and, at material times, patients in achildren’s ward, Ward 4 at Grantham and KestevenGeneral Hospital (“GKGH”). Unsurprisingly theBeverley Allitt case attracted a huge amount of mediaattention and public interest.

3. The Inquiry was carried out on the instructions of theSecretary of State for Health and was chaired by SirCecil Clothier. The Report that followed has become

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known as the “Clothier Report”. The terms ofreference for the Inquiry included the following:

“1.1 To enquire into the circumstances leading to thedeaths of four children and injuries to nineothers on Ward 4 at GKGH during the months ofFebruary to April 1991 (inclusive);

To consider the speed and appropriateness ofthe clinical and managerial response within thehospital to the incidents and to makerecommendations;

To examine the appointment procedures andsystems of assessment and supervision withinthe hospital and Mid-Trent College of Nursingand Midwifery respectively, including anexamination of the occupational health servicesavailable to both the college and the hospitaland to make recommendations”.336

4. The Clothier Inquiry decided that they should “firstaddress [themselves] to [Beverley Allitt] as anindividual, considering her personality, health,training and finally her entry to the nursingprofession”337. In this regard the first sections of theClothier Report focus on Beverley Allitt herself. TheInquiry looked in particular “for two possible warningsigns”338. Firstly, whether Beverley Allitt’s behaviourand attitudes “revealed anything unusual about herpersonality” and secondly whether there wasevidence in her medical history that “her attitude toher own health was such that she should not beentrusted with responsibility for the health ofothers”.339 The Clothier Report made it clear that:

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336 Paragraph 1.7, 1.2 and 1.3.337 Paragraph 1.8.338 Paragraph 2.1.2.339 Paragraph 2.1.

340 Paragraph 2.1.4.341 Paragraph 2.2.6.342 Paragraph 2.2.6.

“If by excluding people with certain clearly definablecharacteristics we could be sure of excluding thosewho might harm vulnerable patients, then it would beworth taking the risk which such a policy would entailof incidentally excluding some people who wouldhave made good nurses. The problem lies indetermining which, if any, of Allitt’s characteristics areclear indicators of possible danger”.340

5. The DRC would not disagree that if excluding peoplewith certain clearly definable characteristics wouldguarantee the exclusion of persons who might harmvulnerable patients, then such might be justified. Thiswould require very careful consideration – there isalways the danger of great over inclusiveness in anybarring rule – and any such rule would have to beproportionate but the public interest would weigh veryheavily in support of such a rule. However, as theClothier Report makes clear, what the Beverley Allittcase showed was that there were no clearly definablecharacteristics apparent in her which would havealerted any person to the risk which she thereafterpresented.

6. As to Beverley Allitt’s school career, as the ClothierReport finds, there were no grounds on which herschool ought to have discouraged her from her chosencareer as a nurse: “She was hard-working anddependable, and had shown no signs of dishonesty orcruelty”.341 As the Clothier Report observes, “[t]heonly point of interest was her tendency to incur minorinjuries. But it is very common to seek attention inthis way and a similar tendency can be seen, and wasseen at the time, in other teenagers. It is not anindication of secret murderous intent”.342 The

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relevance, of course, of this observation is thatBeverley Allitt was in due course suggested to havethe (controversial) condition “Munchausensyndrome” (or the related, and even morecontroversial, “Munchausen syndrome by proxy”). Ithas been suggested from time to time that thisexplained her crimes.

7. At college, Beverley Allitt’s injuries and illnessesbecame more frequent but there was still nothing inher general behaviour indicating that she posed therisk that she went on to pose.343 Beverley Allitt thenjoined South Lincolnshire School of Nursing. Sheprovided references, including from her school, butnot from her pre-nursing course and so the recentsickness record she had built up was not brought tothe attention of her interviewers at the school ofnursing.344 The Clothier Report observed that “wecannot know what the affect on this process wouldhave been if Allitt’s recent sickness record had cometo light”345 but goes on to state that “there was noreason at that time to link Allitt’s own health recordwith the danger she later presented to the children onWard 4”.346 It appears that any fair observer wouldconclude that her journey into nursing school waslikely to have been unaffected by the knowledge ofher sickness record, therefore.

8. Notwithstanding this, the Clothier Reportrecommends in consequence of their finding thatBeverley Allitt “found it so easy to conceal” herrecent sickness record347 that “for all those seeking

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343 Paragraphs 2.3.4 and 2.3.6.344 Paragraphs 2.4.1 to 2.4.3.345 Paragraph 2.4.4.346 Paragraph 2.4.5. 347 Paragraph 2.4.4.

348 Paragraph 2.4.4. 349 Paragraph 2.5.9.350 Paragraph 2.5.10. 351 Paragraph 2.6.2.

entry to the nursing profession, in addition to routinereferences, the most recent employer or place of studyshould be asked to provide at least a record of timetaken off on grounds of sickness”.348 There is norational explanation arising from the Report’s findingsto justify this recommendation. However, it points tothe fact that those undertaking the Inquiry saw arelationship between health and risk and thatperception did indeed become the central theme oftheir report and the focus of many of itsrecommendations thereafter.

9. Beverley Allitt continued to have absences attributableto sickness during her nurse training. Indeed such wasthe extent of her absence that although she hadpassed her exams to become an enrolled nurse in1990, due to the amount of sickness absence she hadexperienced she had not completed the requirednumber of days experience on the wards.349 Hertraining was therefore extended and at her request, itappears, she was permitted to continue her training onWard 4 (as the report notes this seemed to have littleto do with the gaps in Beverley Allitt’s experiencesarising from her absence and more to do withpreference and availability).350 Beverley Allitt in factapplied in a general recruitment round for GKGH, inDecember 1990 but failed to meet the requiredstandard. She was not offered a job but this decisionwas irrespective of her health record.351

However, thereafter, essentially because of acoincidence of circumstances, Beverley Allitt came tobe employed on Ward 4. This arose in particular

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because she had “seemed to fit in well with the teamon Ward 4 and worked hard”352 and there werevacancies for nursing staff and a shortage of staff andso as a short term measure funds were madeavailable to create an enrolled nurse post for whichBeverley Allitt was interviewed. There were someirregularities in the interview process, in particularapparently no application form was completed and noreference obtained but, as the Inquiry found:

“It is unlikely that there would have been anything ineither the application form or the other reference towarn of Allitt’s criminal tendency, but this points to alack of rigour in the procedures for herappointment”.353

10. Beverley Allitt then started work on Ward 4 but two“important checks” had not been carried out.354

First, although the offer of appointment was subjectto a satisfactory health screening, Beverley Allitt wasnot screened before commencing work.355 As theReport observes, Beverley Allitt was neverthelesspassed fit for employment, though there was someconsiderable delay in notifying Ward 4 of the same(indeed the confirmation did not come until after herarrest) and “it is doubtful whether it would havemade any difference to the course of events”.356

Secondly, a criminal records check was notundertaken and indeed the form requesting the samewas not completed until after the incidents on Ward4. However, again as the Report notes, she “had noprevious convictions” and accordingly it could have

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352 Paragraph 2.6.8.353 Paragraph 2.6.9.354 Paragraph 2.6.11.355 Paragraph 2.6.11. 356 Paragraph 2.6.12

357 Paragraph 2.6.12.358 Paragraph 2.6.17.359 Especially the blood test results in the case of Paul

Crampton, provided on 12 April 1991 (before the death ofthe last child killed and before the injury caused to 3others) which showed that Paul Crampton had beeninjected with exogenous insulin (paragraph 4.19.2).

360 Paragraph 4.19.3.361 Paragraph 4.19.5.

made no difference to the outcome.357 There weretherefore failures in the appointment process butnone of them were material insofar as theirrelationship with the events that followed isconcerned. As the Clothier Report says “even hadeverything been done correctly, it is unlikely that Allittwould have been eliminated from the nursingprofession”.358

11. In its review of the events leading immediately to thedeath and injury of the victims of Beverley Allitt, theClothier Report identifies the clues to Allitt’s activitythat emerged and the delay in acting upon them.359

These obviously required explanation. The ClothierReport identify the failures as cumulative and derivefrom the absence of action “upon information whichwas there to be seen” and attributable to a generallack of “the qualities of leadership, energy and drivein all those most closely connected with themanagement of Ward 4”.360 These failures includedfailures in effective communication and the absenceof clear definitions of responsibility andaccountability.361 As the Clothier Report emphasises:

“it is not possible to predict every kind of criminalbehaviour and guard against it, particularly when thatbehaviour was unprecedented as it was in this case,at least in the United Kingdom. However, the

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Grantham experience demonstrates the danger ofassuming that there must be a natural explanationeven where one cannot be found. We now know thatchild abuse and murder can be and have beenperpetrated in hospital. However unlikely it may seemat the time, we conclude that when faced with aclinical history in a child that defies rationalexplanation, constant awareness of the possibility ofunnatural events is essential.”

12. In summary, therefore the Clothier Report found thatthere was nothing in the history of Beverley Allitt thatwould have permitted anybody to predict that shewould commit the crimes she did. Neither had therebeen a previous diagnosis of a mental health condition,or mental ill health. To the extent that the events thatdid occur could have been prevented (in particular thelater death and injury), the report identifies, essentially,inadequate management (in various manifestations) asthe reason that they were not prevented. The reportitself acknowledges that not every kind of criminalbehaviour can be predicted and prevented. On theReport’s findings, then, one can only conclude that thelikelihood is that even with proper and efficientmanagement structures in place, the earlier deaths andinjuries perpetrated by Beverley Allitt could not havebeen prevented. This is an important observationbecause it reminds us that predicting the most extremeexamples of human behaviour is not possible and thatwhat will reduce the likelihood of the most seriouscriminal activity occurring or continuing is propermanagement, supervision and prompt action uponclues indicating the same.

13. Notwithstanding the findings made, the ClothierReport considers in some detail Beverley Allitt’s mentalhealth in a chapter headed “General Themes”.362

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362 Chapter 5.

A number of matters “which are peripheral to thedisaster, but which may have some bearing on thecourse of events”363 are addressed. The ClothierReport starts with the assumption that attacks inhospital on patients by nurses or mothers – “unnaturalcrimes”, as the Clothier Report describes them364 –“must be rooted in some form of mental instability”.Whether this assumption is right depends on themeaning to be given to the expression “mentalinstability”. However, the “mental instability”365

identified by the Clothier Report as relevant in theBeverley Allitt case was the illness “Munchausen’ssyndrome”.366 As the report notes, notwithstandingall the absences and illnesses apparently experiencedby Beverley Allitt at the time she was recruited intonursing work, “there were insufficient grounds … formaking a formal diagnosis of Munchausen’ssyndrome”. In particular, the evidence showed that it isnot uncommon for young people to “enjoy theattention which injury attracts”367. The reportconcludes unequivocally that “there were insufficientgrounds for suspecting the serious disorder orbehaviour that characterises Munchausen’s syndromeat the time that Allitt was recruited as an enrollednurse to Ward 4”.368 This unequivocal finding makesthe recommendations that follow in relation to health,as addressed below, baffling. 369

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363 Paragraph 5.1.1.364 Paragraph 5.2.1.365 Paragraph 5.2.1.366 Paragraph 5.3.3.367 Paragraph 5.3.3.368 Paragraph 5.3.4.369 It should be noted that 7 of the 12 recommendations

made address the identification and monitoring of healthin nurses, pages 128 to 130.

14. The Allitt Inquiry also considered the even morecontroversial diagnosis of Munchausen’s syndrome byproxy.370 The Clothier Report states again in thiscontext that there were no grounds for believing thatanyone was in a position to predict “the danger inwhich Allitt’s employment as a nurse would place herpatients”371 and nor do they find the expression“Munchausen’s syndrome by proxy” helpful, in anyevent in the context of their inquiry. They point inparticular to the “remarkable degree of confusion in themedical literature as to its precise meaning”.372

15. Having made these series of unequivocal findings theClothier Report then conversely concludes that:

“Whilst in this section we have stated that Allitt’sprogression from her erratic early medical history tothat bizarre disorder that we classify as Munchausen’ssyndrome could not have been predicted, werecommend that no candidate for nursing in whomthere is evidence of major personality disorder shouldbe employed in the profession”.373

16. There is no description of the expression “majorpersonality disorder” and no exploration of the

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370 Identified at this stage by the now discredited ProfessorRoy Meadow who has since been struck off by the GeneralMedical Council in consequence of the misleadingevidence he gave during the course of the Sally Clark trialwhich led to her imprisonment for the murder of herchildren, convictions for which she has since beenacquitted on appeal. Professor Roy Meadows, of course,gave evidence too in the cases of Angela Cannings andDonna Anthony, both of whom were freed on appeal afterhaving been convicted of murdering their children.

371 Paragraph 5.4.10.372 Paragraph 5.4.10.373 Paragraph 5.4.11.

374 Evidence to DRC’s Inquiry Panel from Dr. John Meehan375 Paragraph 5.5.3.376 Paragraph 5.5.7.

condition Munchausen’s syndrome and itsrelationship, if any, to personality disorder. Theexpression personality disorder is itself controversialin psychiatry374. To the extent that a person exhibitsbehaviours or attitudes that are symptomatic of themanifestations or characteristics sometimesdescribed in psychiatry as “personality disorder”,the likelihood is that they would not be functioningsufficiently to complete the training required fornursing in any event. The Clothier Report does notexplore any of the issues around personality disorderor define what it means by the term. It makes no linkbetween the events that occurred on Ward 4 inconsequence of the criminal activities of BeverleyAllitt and a pre-existing diagnosis or a description of“personality disorder” (as there was no such pre-existing diagnosis or description).

17. The Clothier Report also identifies that “Allitt’ssickness record is relevant … only insofar as it mighthave provided a clue to her personality disorder andits disastrous consequences”375. It observes thatthere was a failure to communicate this informationbetween certain interested parties, in particular theschool of nursing and the occupational health (OH)department during Allitt’s training.376 Given itsearlier findings that there was nothing in Allitt’smedical history which would have disclosed anydiagnosis of Munchausen’s syndrome or providedany basis for predicting risk, it is difficult to see quitehow relevant this is to its findings. Nevertheless theClothier Report observes that “pooling theirinformation might have stimulated further explorationof the underlying cause of her repeated

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complaints”.377 However, it seems extremely unlikelythat pooling information or further exploration wouldhave produced any helpful indicators and, moreparticularly, changed the course of events.Nevertheless, the Report goes on to make a numberof findings and recommendations relevant to health,and in particular mental health, which have had avery lasting and negative impact on access to thenursing profession.

18. Firstly, the report recommends that “as a general rule… nurses should undergo formal health screeningwhen they obtain their first post after qualifying. Thisrepresents the first opportunity to review the effectwhich the stress of nursing may be having on anurse’s mental and physical health”.378 Secondly,they recommend that consideration be given towhether any records of absence through sicknessfrom any institution which the applicant has attended,should be made available to OH departments and thatprocedures for management referrals to OH shouldmake clear “the criteria which should trigger suchreferrals”.379

19. The Clothier Inquiry also, importantly, adopted thesuggestion of the Chairman of the Association of NHSOccupational Physicians that applicants who showone or more of the following, namely excessive

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377 Paragraph 5.5.7.378 Paragraph 5.5.13. It can be noted that Allitt’s own GP

informed the Inquiry that had Ward 4 had access toBeverley Allitt’s full medical records before deciding toappoint, from him, he doubted whether “he would haveexpressed any reservations about her suitability foremployment as a nurse”. She had no history ofpsychiatric illness according to him (paragraph 5.5.20).

379 Paragraph 5.5.14.

380 Paragraph 5.5.16.381 Paragraph 5.5.16.

absence through sickness, excessive use ofcounselling or medical facilities, or self harmingbehaviour such as attempted suicide, self lacerationor eating disorder, should not be accepted for traininguntil they have shown the ability to live anindependent life without professional support andhave been in stable employment for at least twoyears380. This recommendation is particularlystartling. The Chair of the Association of NHSOccupational Physicians apparently advised theClothier Inquiry that it is “very difficult to assesspsychological health, and in particular to detect thosewith personality disorder”.381 However, theindicators just described “are better guides thanpsychological testing”. The suggestion that a personshould demonstrate the ability to live an independentlife “without professional support” as a requirementfor access on to nursing, encourages those who mayhave mental ill health at a particular time but a desireto access nursing to dispense with the support thatmight be available.

This is completely antithetical to that which onewould properly understand to be an appropriateresponse by a professional individual with mentalhealth difficulties (namely, demonstrating insight,accessing appropriate therapeutic support etc). Nor isthere any indication why “excessive absence throughsickness” should lead to a suspicion of personalitydisorder (as opposed to a suspicion of illness) such asto justify a person’s exclusion from nursing. Thissuggestion, was, nevertheless endorsed by theClothier Report which concluded that such anapproach:

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“would allow those young people who are goingthrough a temporary phase of attention-seeking behaviour during the maturing process to develop and stabilise”.382

20. The Clothier report acknowledges that this might be“unfair punishment” to those who are ready for acareer in nursing, for an “unhappy period in theirlives”383, but concluded that “we consider that thisrisk would be outweighed by the benefits. Not onlymight patients be protected from the minority amongthis group who might harm them, but the candidatesthemselves might be spared the stress of nursinguntil they were better able to cope”384. Given thatthere was nothing in the history of Beverley Allitt, asthe Clothier Report unequivocally observes more thanonce, which would have indicated that she sufferedfrom a personality disorder, Munchausen’s syndromeor any other condition which might have causedconcern or operated as a predictor of risk, theserecommendations bear no relationship to thenarrative in Beverley Allit’s case. This is especiallyimportant given their negative impact on disabledpeople and the nursing profession more generallyand are inexcusable. The reference to the benignobjective of protecting “candidates themselves” againdoes not bear any relationship to the findings of factmade by the Inquiry. It is not suggested, for example,that Beverley Allitt committed the crimes that she didbecause of some personality vulnerability aggravatedby stress or anything of that sort. As with itsconclusions on personality disorder, this observationis unsupported by the factual findings and is illthought out. Requiring an applicant nurse to have

236

382 Paragraph 5.5.17.383 Ibid.384 Ibid.

385 Paragraph 5.5.21. Note again, however, Allitt’s own GPinformed the Inquiry that had Ward 4 had access toBeverley Allitt’s full medical records from him beforedeciding to appoint, he doubted whether “he would haveexpressed any reservations about her suitability foremployment as a nurse”. She had no history ofpsychiatric illness according to him (paragraph 5.5.20).

386 Paragraph 1.12.

been without professional support for at least 2 yearsas a condition of admission is barely one which islikely to help in mitigating the effects of stress uponany particular individual.

21. The Clothier Report makes further recommendationsin relation to access to full medical histories onemployment, again noting though that this “wouldnot necessarily reveal the presence of seriouspersonality disorder, let alone a capacity formurder”.385

22. The Clothier Report emphasised that all their “expertevidence from independent persons points to theconclusion that a determined and secret criminal maydefeat the best regulated organisation in the pursuitof his or her purpose”386. Further, all the evidencebefore the Inquiry apparently indicated that there waslittle realistic opportunity for identifying in advancethose people who are “statistical outliers”. Thoughthis conclusion is unequivocal and repeated morethan once, the report nevertheless appears to strugglewith the starkness of such a conclusion and perhapsthe recognition of their own limited utility in suchcircumstances, and so struggles to find something inBeverley Allitt or in the minds of individual criminalsthat might be identified and which might indicate apropensity to commit serious crime. The ClothierReport then makes a number of recommendations in

237

relation to health. These bear no relation to thefindings of fact and nor do they appear to have anyreal foundation in psychiatry or indeed any otherdiscipline.

23. The Clothier Report has had lasting impact. Its effecthas been more broadly felt than in the context ofnursing. The Clothier report itself recommended thatits “recommendations might usefully be applied toother professions which give access to patients”387.Further, the Bullock report into the events leading tothe trial of Amanda Jenkinson388 endorsed therecommendations in the Clothier Report andrecommended that they be extended to cover allhealth care professionals. We therefore wish to makeit clear that in our view the Clothier Report is of nousefulness in identifying the issues that might arise inassessing the requirements for access to any of theprofessions.

Other Inquiry Reports

24. In addition to the Clothier Report, there have beenother relevant inquiries, concerning the protection of

238

387 Paragraph 5.5.3.388 Amanda Jenkinson was a nurse who was convicted and

then acquitted on appeal of causing grievous bodilyharm with intent to a patient, having allegedly sabotagedthe patient’s intensive care ventilator): “Report of theIndependent Inquiry into the Major Employment andEthical Issues Arising from the Events Leading to the Trialof Amanda Jenkinson”, Nottingham: NorthNottinghamshire Health Authority (1997) Bullock, R. Itcan be noted that the Bullock Report is not available onthe internet and is not available in the usual libraries. Itwas, of course, a Report predicated on the guilt of aperson subsequently acquitted.

389 “The Soham Murders.”

the public and professional regulation and practice,arising out of tragic and high profile cases. Below, weconsider the following:

• “The Victoria Climbié Inquiry: Report of an inquiryby Lord Laming” (2003) HMSO (into the death ofVictoria Climbié);

• “The Bichard Inquiry Report” (2004) HMSO (intothe death of Holly Wells and Jessica Chapman389);

• The Shipman Inquiry Reports (the first and fifthreports of Dame Janet Smith) (2002) and (2004)Cm 6394 (into the murders by Harold Shipman).

25. Apart from the Shipman Inquiry, the other Inquiriesdid not involve criminal activity by health or socialcare professionals. However, both the Climbié inquiryand the Bichard inquiry heard evidence of significantfailings, in the first place in the context of social workand in the second place in the context of social workand education. They seemed to us, therefore, to be relevant.

26. The Climbié Inquiry Report made numerousrecommendations addressing social workers and theirresponsibilities and training needs. It made norecommendations directed at assessing the health ofsocial workers. This reflects the findings in the reportthat the key flaws in the care of Victoria Climbié wereattributable to institutional and management failings:

“the suffering and death of Victoria was a grossfailure of the system and was inexcusable. It is clearto me that the agencies with responsibility forVictoria gave a low priority to the task of protectingchildren. They were under funded, inadequatelystaffed and poorly led.”

239

“It is not to the handful of hapless, if sometimesinexperienced, front-line staff that I direct most criticismfor the events leading up to Victoria’s death. While thestandard of work done by those with direct contact withher was generally of very poor quality, the greatestfailure rests with the managers and senior members ofthe authorities whose task it was to ensure that servicesfor children, like Victoria, were properly financed,staffed and able to deliver good quality support tochildren and families.”

27. Issues relating to the availability of services outside ofoffice hours; the use of agency and locum staff; trainingand supervision and practical guidance, were allhighlighted by the report.390

28. Similarly the Bichard Inquiry Report which examinedthe events, in particular as to the application of childprotection procedures, leading up to the killings ofJessica Chapman and Holly Wells by Ian Huntley foundsystemic and corporate failures in the way intelligencewas managed by the Humberside Police Force391 andby Social Services, and serious errors by theCambridgeshire Police Force in checking information,as well as errors in the recruitment process adopted bythe school on the appointment of Ian Huntley.392

Accordingly no recommendations were made inrelation to the health of practitioners.

29. The Shipman Inquiry Report is rather different, ofcourse, because it concerns criminal acts done by amedical practitioner and so its subject is more

240

390 Paragraphs 1.55 to 1.67.391 Paragraph 8.392 Paragraphs 24, 30

393 Paragraph 1.11, First Report. 394 Paragraph 1.15, First Report. 395 See, paragraph 1.18, for example.

analogous to that of the Allitt inquiry. ImportantlyShipman was known to have developed a pethidineaddition early on in his career and it became knownthat he had been obtaining the drug illicitly to feedhis habit.393 After successfully withdrawing frompethidine, Shipman was diagnosed as suffering froma “moderately severe depressive or melancholicstate”. He was treated with anti-depressantmedication, still at a very early stage in his career.During the course of subsequent criminalproceedings in relation to the elicit obtaining ofpethidine, Shipman indicated that he had no futureintention to return to general practice or work in asituation where he could obtain supplies ofpethidine.394 As is well known, he did sonevertheless. Thereafter there were continuingindications of drug abuse (blackouts and seizures),395

the GMC having decided not to take disciplinaryproceedings against Shipman.

30. The Shipman Inquiry had some difficulty inunderstanding why Shipman murdered at all and whyso many patients, not least because Shipman refusedto take part in the Inquiry and therefore psychologicaland psychiatric assessments were not available to it.Psychiatric evidence was nevertheless called by theShipman Inquiry but in the end this did not permitDame Janet Smith (the Report’s author) to attemptany detailed explanation of the psychological factorsunderlying Shipman’s conduct.396 She concludes,

“in short, if one defines motive as a rational orconscious explanation for the decision to commit acrime, I think Shipman’s crimes were without motive.

241

The psychiatrist warned me that it is possible that, inShipman’s own mind, there was a consciousmotivation. All I can say is that there is no evidenceof any of the features that I have observed, in myexperience as a Judge, that commonly motivatemurderers”.397

31. Amongst the personality traits identified by DameJanet Smith, however, were Shipman’s profounddishonesty398 and his early addiction topethidine.399 On the basis of the evidence before the Inquiry, and in particular having regard to theevidence of the psychiatrists called to give an opinion to the extent that they could, it appearedthat Shipman may have had “a rigid and obsessivepersonality; may have been ‘isolated’ and may have had ‘difficulty in expressing emotions’; ‘poorself-esteem’ and that ‘for most of his adult life, hewas probably angry, deeply unhappy and chronicallydepressed’”.400 Importantly, however, as theInquiry Report makes clear, these traits are not inthemselves enough to explain why Shipman becamea serial killer and on the evidence available thepsychiatrists could not explain how thesecharacteristics could lead to such extremeconduct401. Dame Janet Smith concluded thereforethat with regret she could

“shed very little light on why Shipman killed hispatients”402. Interestingly, and revealingly, towards

242

396 Paragraph 13.9, First Report.397 Paragraph 13.18, First Report.398 Paragraph 13.41, First Report.399 Paragraph 13.47, First Report. 400 Paragraph 13.50, First Report.401 Paragraph 13.51, First Report.402 Paragraph 13.57, First Report.

403 Paragraph 14.20, First Report.

the end of the First report, Dame Janet Smith statesthat:

“By the end of the inquiry, I hope to be able to makerecommendations which will seek not only to ensurethat a doctor like Shipman would never again be ableto evade detection for so long, but also to providesystems which the public will understand and inwhich they will have well-founded confidence”.403

32. The recognition that the best that might be achievedby rigorous enquiry and effective recommendationswould be that another Shipman would not be able to“evade detection for so long” highlights the realityacknowledged in the Clothier Report, that howeverrigorous the systems in place might be, a committedmurderer might nevertheless get through. What theShipman inquiry found was that the measures inplace which might have been expected to reveal thatShipman was killing his patients at an earlier stagewere not properly effective (and the second to fifthreports are concerned with the various institutionsand mechanisms that might have uncovered Shipmanand discovered the killings earlier but which failed todo so).

33. Dame Janet Smith makes no recommendations inrelation to the assessment of health of doctors, inparticular for registration or re-registration. Indeed asto any personal assessment, she notes in her FifthReport that “it is clear beyond argument thatShipman would have done well in an appraisal, as itcurrently operates. He would have produced evidencethat many aspects of his clinical care were of a highstandard. He could have produced the results ofaudits; the topics would have been chosen by himself

243

and he would not have conducted an audit into themortality rate amongst his patients” and so on.404

She observes instead that “another Shipman” mightbe detected by clinical governance activities, namely“a framework through which National Health Serviceorganisations are accountable for continuouslyimproving the quality of their services andsafeguarding high standards of care by creating anenvironment in which excellence in clinical care willflourish”.405

34. The Clothier Report therefore,406 is the onlysignificant report in recent years that we haveidentified that has made recommendations focusedsolely on the health of potential practitioners as ameans of measuring their suitability for entry into theprofession, in particular for the purposes of protectingthe public. For the reasons we have given above theClothier Report is extremely flawed.

244

404 Paragraph 26.200. 405 Paragraph 26.203 and paragraph 12.2. 406 With the Bullock report that endorsed its

recommendations, in relation to a case, as it turned out,centred on a miscarriage of justice.

Appendix B – Full titles of research and

evidence reports carried out as part of the

formal investigation

Background to the Disability Rights Commission’s formalinvestigation into fitness standards in the nursing, teachingand social work professions. Paper by Chih Hoong Sin,Monica Kreel, Caroline Johnston, Alun Thomas and JaniceFong. DRC, 2006.

Analysis of the statutory and regulatory frameworks andcases relating to fitness standards in nursing, teaching andsocial work. Prepared on behalf of the Disability RightsCommission by David Ruebain and Jo Honigmann,Levenes Solicitors; Helen Mountfield, Matrix Chambers;Camilla Parker, Mental Health and Human RightsConsultant. DRC, 2006.

Research into assessments and decisions relating to‘fitness’ in training, qualifying and working within teaching,nursing and social work. Jane Wray, Helen Gibson and JoAspland, University of Hull. DRC, 2007

Disclosing disability: Disabled students and practitioners in social work, nursing and teaching. Nicky Stanley, JulieRidley, Jill Manthorpe, Jessica Harris and Alan Hurst,University of Central Lancashire and the Social CareWorkforce Research Unit, King’s College London. DRC, 2007.

245

Assessments and decisions relating to ‘fitness’ foremployment within teaching, nursing and social work: Asurvey of employers. Janice Fong, Chih Hoong Sin, withJane Wray, Helen Gibson, Jo Aspland and Data CaptainLtd. DRC, 2007.

The Disability Rights Commission’s formal investigationinto fitness standards in social work, nursing and teachingprofessions: Report on the call for evidence. Chih HoongSin, Janice Fong, Abul Momin and Victoria Forbes. DRC,2007

All papers can be found at www.maintainingstandards.org

246

Appendix C – Members of DRC’s Inquiry Panel

Karon Monaghan (Panel Chair)

Barrister at Matrix Chambers, specialising in the fields ofdiscrimination and equality, human rights and EU law, andpredominantly known for her work in discrimination law.

Richard Exell, OBE

Commissioner, Disability Rights Commission

Agnes Fletcher

Director of Policy and Communication, Disability RightsCommission

Janet Fox

Disability Lead, NHS Employers

Murray Glickman

Employment Support Officer, Association of Blind andPartially Sighted Teachers and Students (ABAPSTAS)

Anne Jarvie

Chief Nursing Officer for Scotland (retired)

Younus Khan

Diversity Services Coordinator, Royal National Institute ofthe Blind (RNIB)

Stuart Nixon

Clinical Services Coordinator, St Woolos Hospital

Dr James Palfreman-Kay

Manager, Disability Services at Bournemouth Universityand Chair of National Association of Disability Practitioners

247

Professor Jonathan Richards

General Practitioner, and Professor of Primary Care,University of Glamorgan

Professor Sheila Riddell

Director of the Centre for Research on Education, Inclusionand Diversity (CREID), University of Edinburgh

Dr John Sorrell

Chair, Association of Local Authority Medical Advisors(ALAMA)

248

Appendix D – Formal Investigation Inquiry

Panel Meetings

30 January 2007

• Association of Disabled Professionals

• Royal College of Nursing

• Amanda Bates, Nursing applicant

13 February

• Adult Dyslexia Organisation

• British Dyslexia Association

• LLU Plus at London Southbank University

14 February

• Mind

• Skill

• Arthritis Care

• Thompsons Solicitors and client

16 February

• University and College Union (UCU)

• University of Greenwich

• UNISON

• RADAR

22 February

• Institute of Education

• University of Lincoln

23 February

• National Union of Teachers (NUT)

• University of Nottingham

1 March

• Health Professions Council (HPC)

• Brighton University

• Action on Access (HEFCE funded project)

• University of Manchester

• University of Salford

249

2 March

• Occupational Health at Work/the At Work Partnership

• Disclosure research project from University of SouthLancashire & Kings College London

6 March

• NHS Education Scotland (NES)

• Council of Deans

• University of Huddersfield

• Trinity and All Saints College, Leeds

• Scottish Social Services Council (SSSC)

7 March

• Business Medical Limited

• Careers Scotland

• General Teaching Council for Scotland (GTCS)

• Scottish Executive Education Department

9 March

• British Association of Social Workers (BASW)

• Newcastle Occupational Health

• University of Manchester, Sensory Services

• Social Work Team Manager, Trafford

• Guys and St Thomas’ NHS Trust

20 March

• Social Services Department, Torfaen Council

• Welsh Assembly

29 March

• Royal College of Physicians

• Special Needs and Psychology Service for Essex CountyCouncil

• NHS Employers

• Stephen Wyatt, Retired Head teacher

250

2 April

• Training and Development Agency for Schools (TDA)

• General Teaching Council for England (GTCE)

3 April

• National Association of Schoolmasters Union of WomenTeachers (NASUWT)

• Department for Education and Skills (DfES)

• Nursing and Midwifery Council (NMC)

11 April

• General Medical Council (GMC)

• Higher Education Occupational Physicians (HEOPS)

12 April

• General Teaching Council for Wales (GTCW)

• General Social Care Council (GSCC)

24 April

• Department of Health

• Council for Healthcare Regulatory Excellence (CHRE)

• Nursing and Midwifery Council (NMC)

1 May

• Institute of Psychiatry

251

Appendix E – Abbreviations used in this report

ADO Adult Dyslexia OrganisationBASW British Association of Social WorkersBBV Blood borne virusesBDA British Dyslexia AssociationBSL British Sign LanguageCCW Care Council for WalesCEHR Commission for Equality and Human RightsCHRE Council for Healthcare Regulatory ExcellenceDCSF Department for Children, Schools and FamiliesDDA Disability Discrimination ActDfES Department for Education and SkillsDH or DoH Department of HealthDRC Disability Rights CommissionGMC General Medical CouncilGSCC General Social Care CouncilGTCE General Teaching Council for EnglandGTCS General Teaching Council for ScotlandGTCW General Teaching Council for WalesHEFCE Higher Education Funding Council for EnglandHEI Higher Education InstituteHEOPs Higher Education Occupational PractitionersHPC Health Professions CouncilHR Human ResourcesOH Occupational HealthNASUWT National Association of Schoolmasters Union of

Women TeachersNES NHS Education ScotlandNMC Nursing and Midwifery CouncilNUT National Union of TeachersRCN Royal College of NursingSSSC Scottish Social Services CouncilTDA Training and Development Agency for SchoolsUCU University and College Union

252

253

Org

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(years

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No

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can

not

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242

15.2

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mp

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815

0.15

2006

2006

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ly

No

No

qu

alif

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cher

s

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itu

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Yes

177

Un

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ated

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g

Yes

No

stu

den

ts

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itu

tio

n 3

Yes

4512

2003

/4 –

2006

-07

New

ly

Yes

No

2006

/7q

ual

ifie

d t

each

ers

Inst

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n 4

Yes

(030

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4.84

Un

stat

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ated

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rsin

g s

tud

ents

Yes

No

Inst

itu

tio

n 5

Yes

240

3.5

2003

/4 –

2005

/6S

tud

ents

No

No

(to

tal U

niv

ersi

ty)

2005

/6

Appendix F – Statistics provided

Table 1 – statistics provided as part of Call for Evidence for Formal Investigation

254

Inst

itu

tio

n 6

Yes

244

Un

stat

ed20

03/4

–20

05-0

6S

tud

ents

Yes

Yes

(to

tal U

niv

ersi

ty)

2005

/6

SS

SC

Yes

160

2.4

2005

2005

So

cial

wo

rk

No

No

reg

istr

ants

CC

WYe

s94

2.15

2001

/2 –

2006

So

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wo

rk

Yes

No

2005

/6re

gis

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ts

GT

CS

Ye

s31

1.1

2006

2006

Ap

p. T

IS

No

No

(Tea

c In

d S

ch)

Inst

itu

tio

n 7

Yes

247

4.85

2005

–06

2005

-06

Em

plo

yees

No

No

(tota

l org

anis

atio

n)

Inst

itu

tio

n 8

Yes

3315

.86

2003

–20

03 –

So

cial

wo

rk

Yes

Yes

2007

2007

stu

den

ts

GS

CC

Ye

s14

891.

95U

nst

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2006

Qu

alif

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770.

220

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06R

egis

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610

619

96/7

–20

05-0

6S

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Yes

No

(to

tal U

niv

ersi

ty)

2005

/6

HE

SA

Yes

Post

gra

d –

9,41

05.

1120

05-0

620

06S

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ents

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Yes

Und

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45,2

45

6.38

All

leve

ls –

54,8

306.

12

UC

AS

Yes

Ap

plic

ants

–24

,517

5.51

2001

–20

0520

05S

tud

ents

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Yes

Acc

epte

d –

19,7

135.

47

NM

AS

Yes

Ap

plic

ants

–2,

426

7.43

–20

06S

tud

ents

Yes

Yes

Acc

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d –

1,27

88.

47

AG

CA

S*

Yes

Dis

able

d g

rad

uat

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2001

–20

0520

05Fu

ll-ti

me

Yes

No

13,9

60G

rad

uat

e S

tud

ents

GT

TR

Yes

Ap

plic

ants

–23

,086

5.6

2002

–20

0620

06S

tud

ents

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Yes

Acc

epte

d –

18,8

145.

4

EC

UFi

gu

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pro

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inst

itu

tio

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ES

A

255

Table 2 – Percentage Disabled in Great Britain across

teaching, social work, nursing and health professions

Source: Labour Force Survey, 2007, using LFS definition ofdisability. Age range is 16-59 (female) and 16-64 (male).

* Nurses are at associate professional level according to LFS.

Career/profession Total Numbers in GB Percentage

(disabled and stating that they

non-disabled) are disabled

professionals

Health professionals 310 711 5.6

Nurses* 488 291 13.2

Secondary education teachers 374 926 12.3

Primary and nursery teachers 342 512 9.0

Social workers 79 693 12.4

Telephone 08457 622 633Textphone 08457 622 644Fax 08457 778 878

Website www.drc.org.uk

Post Disability Rights

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FREEPOST MID 02164Stratford upon AvonCV37 9BR

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