Why a neuro diverse diagnosis indicates disability 2022-05-12
Neuro-diverse diagnoses in International Classification of Diseases (ICD 11)[1], according to my understanding, require deviation from the normal to an extent that would significantly affect ‘normal life’ so it would be substantial. In the ICD-11 descriptions cited below, there is repeated reference to difficulties or reduced function, relative to what would be expected for chronological age and general level of intellectual ability, thereby affecting an individual’s academic, occupational and/or social functioning. Thus in making the diagnosis, you must also confirm that the person must be disabled as defined by the Equality Act 2010 (The Act) definition
The Act states
(1)A person (P) has a disability if—
(a)P has a physical or mental impairment, and
(b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
Terms used
Substantial is defined as more than minor or trivial thus:-
1. significant indicates Substantial as it is an antonym of minor and trivial
2. Impairment is more difficult as
The World Health Organisation (WHO) defines (World Health Organization Disability Assessment Schedule (WHODAS 2.0))[2] Glossary defines :-
a. Disability
An umbrella term for impairments, activity limitations and participation restrictions. Denotes the negative aspects of the interaction between an individual (with a health condition) and that individual’s environmental and personal context.
b. Impairment
Loss or abnormality in body structure or physiological function (including mental functions). “Abnormality” here strictly refers to a significant variation from established statistical norms (i.e. as a deviation from a population mean within measured standard norms) and should be used only in this sense. Examples of impairments include loss of an arm or leg or loss of vision. In the case of an injury to the spine, an impairment would be the resulting paralysis.
Thus in WHO documents such as ICD 11 impairment indicates disability so the substantial as in the Act has to be present to make the diagnosis. However in practice the requirement for people to experience significant resultant disability in order to meet the diagnostic criteria for a specific condition is often not appreciated and/or acknowledged. This leads to considerable potential for the neuro diverse to be disadvantaged in legal proceedings where disability is questioned whilst implicitly, but not explicitly, questioning the clinical diagnosis.
Explanation
It is important however to note that for areas of function such as cognitive skills, a person can display a significant deviation from the expected relationship between skills, as well as in terms of absolute level compared with population norms. For example a person generally functioning at a superior intellectual level can display significant deviation by virtue of an unexpectedly low level in a specific skill or skills (e.g. reading, working memory, speed of information processing), relative to their other higher areas of intellectual function. Whilst their absolute level of function may not deviate significantly from population norms, there may be an abnormal discrepancy between their strengths and weaknesses. This will often result in the person not being able to fulfil the expected level of function for them as an individual without (and sometimes in spite of) coping strategies / adjustments put in place for their areas of relative weakness.
The Neuro divers condition concerned
The differences concerned are under section 06 Mental, behavioural or neurodevelopmental disorders of ICD 11 which are now defined as follows:-
1. 6A01 Developmental speech or language disorders (Parent Neurodevelopmental disorders )
Description
Developmental speech or language disorders arise during the developmental period and are characterised by difficulties in understanding or producing speech and language or in using language in context for the purposes of communication that are outside the limits of normal variation expected for age and level of intellectual functioning. The observed speech and language problems are not attributable to regional, social, or cultural/ethnic language variations and are not fully explained by anatomical or neurological abnormalities. The presumptive aetiology for Developmental speech or language disorders is complex, and in many individual cases, is unknown.
Explanation
(a.) mental disorder (therefore Act (a) met)
(b.) during developmental period (therefore long term b duration met)
(c.) speech & language difficulties outside limits of normal variation (therefore substantial, not minor or trivial), limiting communication (therefore affecting normal day to day activity impact met).
2. 6A02 Autism spectrum disorder (Parent Neurodevelopmental disorders )
Description
Autism spectrum disorder is characterised by persistent deficits in the ability to initiate and to sustain reciprocal social interaction and social communication, and by a range of restricted, repetitive, and inflexible patterns of behaviour, interests or activities that are clearly atypical or excessive for the individual’s age and sociocultural context. The onset of the disorder occurs during the developmental period, typically in early childhood, but symptoms may not become fully manifest until later, when social demands exceed limited capacities. Deficits are sufficiently severe to cause impairment in personal, family, social, educational, occupational or other important areas of functioning and are usually a pervasive feature of the individual’s functioning observable in all settings, although they may vary according to social, educational, or other context. Individuals along the spectrum exhibit a full range of intellectual functioning and language abilities.
Comment:
(a.) mental disorder (therefore a met)
(b.) persistent (therefore long term b part met)
(c.) deficits impair the activities of social interaction and communication (therefore substantial impact on normal day to day activity)_
DSM5(US equivalent) uses Symptoms cause clinically significant impairment in social, occupational, or other important areas of current functioning. clinically significant impairment
3. 6A03 Developmental learning disorder (Parent Neurodevelopmental disorders)
Description
Developmental learning disorder is characterised by significant and persistent difficulties in learning academic skills, which may include reading, writing, or arithmetic. The individual’s performance in the affected academic skill(s) is markedly below what would be expected for chronological age and general level of intellectual functioning, and results in significant impairment in the individual’s academic or occupational functioning. Developmental learning disorder first manifests when academic skills are taught during the early school years. Developmental learning disorder is not due to a disorder of intellectual development, sensory impairment (vision or hearing), neurological or motor disorder, lack of availability of education, lack of proficiency in the language of academic instruction, or psychosocial adversity.
Comment:
(a.) mental disorder (therefore a met)
(b.) persist (therefore long term b duration criteria met)
(c.) markedly below and significant (therefore substantial) effect on academic or occupational functioning (therefore limiting normal day-to-day activity b impact met)_
4. 6A04 Developmental motor coordination disorder (Parent Neurodevelopmental disorders )
Description
Developmental motor coordination disorder is characterised by a significant delay in the acquisition of gross and fine motor skills and impairment in the execution of coordinated motor skills that manifest in clumsiness, slowness, or inaccuracy of motor performance. Coordinated motor skills are markedly below that expected given the individual's chronological age and level of intellectual functioning. Onset of coordinated motor skills difficulties occurs during the developmental period and is typically apparent from early childhood. Coordinated motor skills difficulties cause significant and persistent limitations in functioning (e.g. in activities of daily living, school work, and vocational and leisure activities). Difficulties with coordinated motor skills are not solely attributable to a Disease of the Nervous System, Disease of the Musculoskeletal System or Connective Tissue, sensory impairment, and not better explained by a Disorder of Intellectual Development.
Comment:
(a.) mental (processing) disorder (with physical manifestation) (therefore a met)
(b.) significant delay and persistent (therefore long term b duration met)
(c.) Significant (therefore substantial) difficulties in motor performance causing specifies activities of daily living (therefore limiting normal day to day activity b impact met)_
5. 6A05 Attention deficit hyperactivity disorder (Parent Neurodevelopmental disorders )
Description
Attention deficit hyperactivity disorder is characterised by a persistent pattern (at least 6 months) of inattention and/or hyperactivity-impulsivity that has a direct negative impact on academic, occupational, or social functioning. There .is evidence of significant inattention and/or hyperactivity-impulsivity symptoms prior to age 12, typically by typically early to mid-childhood, though some individuals may first come to clinical attention later. The degree of inattention and hyperactivity-impulsivity is outside the limits of normal variation expected for age and level of intellectual functioning. Inattention refers to significant difficulty in sustaining attention to tasks that do not provide a high level of stimulation or frequent rewards, distractability and problems with organisation. Hyperactivity refers to excessive motor activity and difficulties with remaining still, most evident in structured situations that require behavioural self-control. Impulsivity is a tendency to act in response to immediate stimuli, without deliberation or consideration of the risks and consequences. The relative balance and the specific manifestations of inattentive and hyperactive-impulsive characteristics varies across individuals, and may change over the course of development. In order for a diagnosis to be made, manifestations of inattention and/or hyperactivity-impulsivity must be evident across multiple situations or settings (e.g. home, school, work, with friends or relatives), but are likely to vary according to the structure and demands of the setting. Symptoms are not better accounted for by another mental, behavioural, or neurodevelopmental disorder and are not due to thee effect of a substance or medication.
Comment:
(a.) mental disorder (therefore a met)
(b.) evidence over childhood (therefore long term). [Reference to persistence over at least 6 months for diagnosis - in practice typically persists long-term duration criteria met ]
(c.) difficulty in sustaining attention - outside normal variation and significant (therefore substantial) with direct negative impact on academic, occupational, or social functioning. (therefore normal day to day activity met).
Conclusion
It is clear that all these conditions if diagnosed by appropriately qualified clinician then they must also indicate the recipient of the diagnosis is disabled under the Act
I have seen evidence that the legal profession, the NHS, education and at all levels are routinely denying disability even when they have a diagnosis by the appropriate professional.
I have seen this in the defences to discrimination cases of three universities and three NHS organisations/trusts. Legal representatives have suggested that denying disability even if diagnosed is so common as to be the normal in disability discrimination tribunal’s.
It is time that courts and all the relevant bodies take action to prevent the discrimination and harassment the occurs when disability is unjustifiably questioned when provided by an appropriately qualified Clinician. On the rare times when there may be clinical doubt the diagnosis the clinician should be challenged not the disabled person and then not in any circumstances at any cost to the disabled person .The potential mental damage to the disabled person should be considered and compensation for made for it if the disability is confirmed as discrimination will have occurred.
[1] ICD-11 for Mortality and Morbidity Statistics(Version : 05/2021)
[2] https://www.who.int/standards/classifications/international-classification-of-functioning-disability-and-health/who-disability-assessment-schedule
