Commentary
This is an important case for three reasons.
First, it found that a general practitioner, giving evidence about the depressive disorder diagnosed in primary care, was giving expert evidence.
Second, it illustrates the difficulties for courts and tribunals arising from the looseness with which some medical professionals, and most laypeople, use such terms as "depression" ("clinical" or otherwise), "anxiety" and "stress" and to which list can be added, also for the benefit of surgeons, “shock”. I am reminded of Professor Neil Kessel’s weekly ‘A&D Meetings’ at which all senior house officers and registrars in the Department of Psychiatry, Withington Hospital, Manchester, were questioned about their admission and discharge summaries. One of his oft-repeated aphorisms, usually in August with a new intake of trainees, was ‘Depression is not a diagnosis, it is a symptom’.
As to ‘clinical depression’ the position adopted in this case, that it is “unquestionably an impairment within the meaning of the Act” is to be contrasted with Wilson v Southern Counties Fuels Ltd [2004] UKEAT 0032 04 1207 where there was a diagnosis of ‘clinical depression’ but the Employment Appeal Tribunal said that what is required is ‘to bring someone who is, or has been, suffering from depression within one of the clinically well recognised illnesses’ and did not regard ‘clinical depression’ as such.
Third, it is a good illustration of the approach likely to be taken in an Employment Tribunal disability case.
Although the Disability Discrimination Act 1995 has been replaced by the Employment Act 2010 in England and Wales, but not Northern Ireland, the issues in this judgment would not be significantly differently resolved if the relevant legislation were the Employment Act 2010.
Learning points
General
-
Where clinical terms are also used by the lay public, it is important to explain sufficiently their clinical meaning.
-
Take care not to make statements that might appear snide, derogatory or mocking.
Employment tribunals
Case
Job offer to Claimant withdrawn allegedly as a result of her disclosing a history of depression – On a preliminary issue Tribunal holds that at the material time (June 2008) Claimant not suffering from "clinical depression" amounting to a disability within the meaning of the Disability Discrimination Act 1995 (DDA).
Issues
(1) approach to issue of "impairment" in cases involving a mental disability;
(2) distinction between "clinical depression" and reactions to stress or other adverse circumstances producing similar symptoms;
(3) whether claimant with a history of recurrent depressive episodes can be said to suffer an impairment in the intervals between episodes.
Expert evidence
Dr Morris, Claimant’s general practitioner; Dr MacLeod occupational health doctor and general practitioner; Dr Brener, consultant psychiatrist to whom referred by occupational health; Dr Gill, instructed by respondent.
Various letters and reports were plainly relevant to the question whether the Claimant was suffering from a disability at the relevant time, and that of Dr Brener was potentially particularly important both because he is a consultant psychiatrist and because it dealt with the Claimant's condition in the specific period with which the Tribunal was concerned. But they do not directly address the material issue. The only reports specifically doing so were those of Dr Morris and Dr Gill.
Dr Morris proceeded by reference to four questions which the Claimant had asked her to address. Under the first – "diagnosis" – she very briefly summarised the history of the Claimant's treatment from 2005 and referred to the fact that there had been an initial diagnosis of mild to moderate depression. She did not as such address the question of whether that remained the position in 2008, but she reverted to that in answer to the Claimant's fourth question (see below). As to the second question, "how this would affect your day to day activities", she said:
Depression is known to have an adverse effect on memory, cognitive ability and concentration. I would expect that depression requiring treatment with both an antidepressant and psychological therapy would have an adverse effect on anybody's day to day activities.
Thirdly, the Claimant had "asked me to deduce the effects of your condition if you were not receiving any treatment." As to that, she said:
It's clear to me that the symptoms [the Claimant] would suffer from without treatment would be much worse.
The fourth question "asked me to be specific with regard to your condition in May and June of 2008". She said:
I saw [the Claimant] specifically twice during that period. I discussed with her at that stage issues around taking time off for symptoms of depression. We discussed trying to encourage her employers to be flexible in terms of her working pattern. Please find enclosed a copy of both consultations from that period.
Dr Morris's report was distinctly summary and not quite explicit on the key points. Nevertheless, taking her answers together, it seemed reasonably clear that she intended to express the opinion that the Claimant was in June 2008 suffering from a depression which had a substantial adverse effect on her ability to carry out normal day-to-day activities – and which (though if that reading was correct this point was unnecessary) would have had a much more substantial effect but for the treatment which she was receiving.
So far as Dr Gill's report was concerned, the "Comment" section read:
As I understand it, whether someone is disabled under the Disability Discrimination Act is finally a legal not a medical decision. However, I can say that the medical evidence I have seen thus far does not point clearly one way or the other.
Overall, it seems possible that this is a case where what are in fact employment problems have been as it were medicalised and the diagnosis of some form of mild depression has been reached.
Certainly, I am not aware of any mental illness which produces lateness as a specific symptom. (n.b The Tribunal noted: ‘We are bound to say that this comment has a snide tone which we hope was unintended. It appears from the Rood Lane material that depression can cause disturbance of sleep patterns, which may make it difficult for a patient to get up in the morning’ - KR).
Nevertheless, this may still constitute a mental impairment because of the weak test in the Act, where, as I understand it, the condition does not have to be "clinically well recognised".
It sounds as though the problems, whatever they were, have been "long-term".
In respect of day to day activities, the general practitioner says that memory or ability to learn, concentrate or understand is affected adversely, although the very letter in which she does so seems to be in reply to a letter from the Claimant which would imply good intellectual functioning.
In summary therefore it would be likely that the debate about disability in this case would be about the strength of the medical evidence she has provided of adverse effect on normal everyday activities. My view would be that this evidence is weak from the psychiatric point of view.
The Tribunal’s reasons
An introductory summary concluded with the observation that "there is no conclusive expert evidence on the Claimant's condition, either from Dr Gill or from Dr Brener". It appeared, therefore, that the Tribunal did not treat the evidence of Dr Morris as "expert".
The Tribunal’s findings of fact simply reflected the undisputed medical evidence and the Claimant's own evidence. However, it was noted that the Tribunal said this about the question of "deduced effect":
The only evidence that we have of deduced effect … is the evidence of one line of Dr Morris's report in November 2008 and expanded slightly in December 2008, where she says that the symptoms that the Claimant would suffer from without treatment would be much worse. We remind ourselves that Dr Morris is a GP and not a specialist in any sense in psychiatric matters, and also she is in fact giving a view in November/December 2008 when the Claimant had not been taking Sertraline for about 4 or 5 months.
The Tribunal’s conclusions:
The first matter we have to decide is whether the Claimant has established that she is suffering from a mental impairment at the material time, which is June 2008. We have Dr MacLeod's contemporaneous or near contemporaneous evidence for February and April 2008 which we have found particularly helpful. As at February 2008, most of the Claimant's symptoms had resolved and she was functioning at or close to her normal level, and she was discharged by Dr MacLeod. However, although there were continuing problems when Dr MacLeod saw her again in April 2008, it would appear that it was the appraisal that had caused the problems, and Dr MacLeod could not differentiate reliably or found it very difficult to do so between some sort of impairment, such as a depressive illness, and just generally a sense of despondency, demotivation and anxiety, which was a natural response to that negative appraisal. That it is a difficulty we find generally with this case. The Claimant's symptoms of extreme tiredness, anxiety because of work difficulty, getting up in the morning, not wanting to socialise with larger groups – are these reliable and consistent symptoms of clinical depression or, as Dr Brener puts it, Sunday night syndrome, or, as Dr Gill puts it, possible medicalisation of employment problems? We have to decide whether the Claimant has established, and the onus is on her, that she had at the relevant time, if not clinical depression some form of mental impairment, not just stress or anxiety which is not likely to be enough. We note that the Claimant was fit to work at the material time, according to Dr Brener, and could indulge in a wide range of other activities, travelling, studying, living on her own etc. We accept, of course, that the focus is what she could not do rather than what she could do. There is very little evidence really about what she could not do, save difficulty in getting up in the morning, socialising with large groups (except apparently large groups of lawyers), some tearfulness, reading books or watching whole films. We have had to ask ourselves whether this is sufficient to establish that she suffered an impairment within the meaning of the Act. We have come to the conclusion that the Claimant has not established that she had, at the material time, a sufficiently well-defined impairment to qualify for protection under the statute. That could be the end of the matter. However, if we are wrong about this we are going to reach conclusions about other matters as well.
We turn to substantial adverse effect on normal day to day activities, assuming for this purpose that the Claimant has established a mental impairment. We feel we have to look at all the activities, including work-related activities, in the round. The fact is that the Claimant could do her work so far as the quality of it was concerned, even if she had some difficulty with her attendance. In other words she could in fact concentrate on difficult work because she could do it; and she could concentrate on language studies, she could travel, she could arrange and attend conferences, all requiring those aspects of normal day to day activities that we particularly have to look at; namely, memory, concentration, and the ability to learn and understand. There is minimal evidence that there was any substantial adverse effect on any of this, or of what the Claimant could not do. If the Claimant struggled with technical documents, and really there is not much evidence that she did, then this was not a normal day to day activity, according to the guidance that we have read. We note further that the Claimant was able to and did make job applications to [the other City firm], and indeed to the Respondent, so she was able to go through with this; and she was successful with the Respondent, up to withdrawal of the offer, so she must have performed well both in her application form and presumably at interview. So far as mobility is concerned, if that is in fact something that we have to look at, the Claimant is not saying that she could not leave the house. She sometimes had difficulty getting moving in the morning, but that is another matter. Usually she was able to function normally; she was able to go shopping, look after herself, go to work, travel etc. We do not find there was any substantial adverse impact with respect to mobility. So far as deduced effect is concerned, and of course we note that the case was pleaded as a deduced effect case, we conclude the Claimant did not adduce any clear and cogent evidence of this, as is required following the case of Woodrup, as we have already referred to in our findings of fact. We are therefore quite satisfied that the Claimant has not established that there was a substantial, in other words more than minor or trivial, adverse effect on her ability to carry out normal day to day activities.
So far as long term effect is concerned, it is not really necessary for us to deal with this. However, we would say that we are not persuaded that, even in 2005, the Claimant has established that she had an impairment that had a substantial adverse effect on her ability to carry out normal day to day activities. If we had been, we would have concluded that depression is long term because it is likely to recur.
The appeal
The correct approach to the impairment issue
The correct approach includes it being good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it). In cases where there may be a dispute about the existence of an impairment it will make sense, to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.
"Clinical Depression"
The facts of the present case made it necessary to make two general points about depression as an impairment. It did so with some caution since the medical evidence before the Appeal Tribunal did not contain any general discussion of depression. The Tribunal had to rely primarily on the inferences that could be drawn from such medical evidence as there was, together with the Guidance and the case-law and the general knowledge acquired from the Appeal Tribunal’s own experience of depressive illness in the field of employment law and practice. However, it considered it legitimate to consider also the Report of the Joint Committee on the Disability Discrimination Bill (i.e. what became the 2005 Act) and some of the materials referred to in it (in particular the introductory section of the draft NICE guideline on depression), which were available online, seemed to be useful. However, it referred to these materials as background only and did not rely on them in deciding any disputed matter on this appeal.
The first point concerned the legitimacy in principle of the kind of distinction made by the Tribunal, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness – or, if it is preferred, a mental condition – which is conveniently referred to as "clinical depression" and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or "adverse life events". (But at this point the Appeal Tribunal noted: ‘But NB that “clinical” depression may also be triggered by adverse circumstances or events, so that the distinction can not be neatly characterised as being between cases where the symptoms can be shown to be caused/triggered by adverse circumstances or events and cases where they cannot’ - KR). The Appeal Tribunal said that the value or validity of that distinction could be questioned at the level of deep theory; and even if accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But the Appeal Tribunal was equally clear that it reflected a distinction which is routinely made by clinicians – it was implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case – and which should in principle be recognised for the purposes of the Act. It accepted that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as "depression" ("clinical" or otherwise), "anxiety" and "stress". Fortunately, however, the Appeal Tribunal said, it would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This was because of the long-term effect requirement. If, as recommended above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for twelve months or more, it would in most cases be likely to conclude that he or she was indeed suffering "clinical depression" rather than simply a reaction to adverse circumstances: it is a common-sense observation that such reactions are not normally long-lived.
The second general point made about depression as a disability concerned the question of recurrence. The Tribunal said that "depression is long term because it is likely to recur". The Appeal Tribunal was not clear on what evidence that statement was based and it needed to be examined with some care. The Appeal Tribunal proceeded by considering two extreme examples. Take first the case of a woman who suffers a depressive illness in her early 20s. The illness lasts for over a year and has a serious impact on her ability to carry out normal day-to-day activities. But she makes a complete recovery and is thereafter symptom-free for thirty years, at which point she suffers a second depressive illness. It appears to be the case that statistically the fact of the earlier illness means that she was more likely than a person without such a history to suffer a further episode of depression. Nevertheless it did not seem to the Appeal Tribunal that for that reason alone she could be said during the intervening thirty years to be suffering from a mental impairment (presumably to be characterised as "vulnerability to depression" or something of that kind): rather the model is of someone who has suffered two distinct illnesses, or impairments, at different points in her life. Its second example was of a woman who over, say, a five-year period suffers several short episodes of depression which have a substantial adverse impact on her ability to carry out normal day-to-day activities but who between those episodes is symptom-free and does not require treatment. In such a case it may be appropriate, though the question is one on which medical evidence would be required, to regard her as suffering from a mental impairment throughout the period in question, i.e. even between episodes: the model would be not of a number of discrete illnesses but of a single condition producing recurrent symptomatic episodes. It appeared from the Report of the Committee and the evidence referred to in it that psychiatrists recognise in principle the existence of a condition producing recurrent episodes of this kind but that there may be controversy as to questions of aetiology and classification; and inevitably diagnosis in particular cases may be difficult. In the former case, the issue of whether the second illness amounted to a disability would fall to be answered simply by reference to the degree and duration of the adverse effects of that illness. But in the latter, the woman could, if the medical evidence supported the diagnosis of a condition producing recurrent symptomatic episodes, properly claim to be disabled throughout the period: even if each individual episode were too short for its adverse effects (including "deduced effects") to be regarded as "long-term" she could invoke para. 2 (2) of Schedule 1 (provided she could show that the effects were "likely" to recur).
The Sustainability of the Tribunal's Findings and Reasoning
Amongst various matters the Appeal Tribunal considered whether in reaching the conclusion that it did the Tribunal took into account all relevant factors. It did not believe that it did. It was struck by the fact that nowhere in para. 4.1 of the Reasons did the Tribunal make any reference to the evidence of Dr Morris. Although her report was not as explicit as would have been liked, it was clear that Dr Morris intended to convey that the Claimant was indeed suffering from clinical depression in May and June 2008 and that that was a continuation or recurrence of the condition which had produced her symptoms in 2005/6 and 2007. It seemed clear that the failure to mention Dr Morris's report was not accidental. As noted above, the Tribunal did not apparently regard her evidence as "expert". In the Appeal Tribunal’s view it was wrong not to do so. A GP is fully qualified to express an opinion on whether a patient is suffering from depression, and on any associated questions arising under the 1995 Act: depression is a condition very often encountered in general practice. No doubt his or her evidence would, other things being equal, have less weight than that of a specialist, and in difficult cases the opinion of a specialist might be valuable; but that does not mean that a GP's evidence can be ignored if the evidence of a specialist is not available or is inconclusive. The Appeal Tribunal could not be confident that if the Tribunal had taken into account the evidence of Dr Morris it would necessarily have reached the same view. She was the Claimant's own doctor, who saw her monthly over the key period, recording the diagnosis on each occasion as "depressive disorder". None of the evidence of the other doctors unequivocally contradicted her opinion: indeed Dr Brener's might be thought to support it. Although Dr Gill's report struck a cautiously sceptical note, he had not seen the Claimant.
Conclusion
Accordingly the appeal was allowed and the disability issue remitted to a differently constituted Employment Tribunal.