Does the Equality Act 2010 ensure equality for individuals with Asperger syndrome in the legal arena?: A survey of recent UK case law
Abstract
The recent history of AS has been perhaps the most controversial since the first publication relating to the syndrome in 1944, especially regarding its nosology. For example, the latest (5th) version of the Diagnostic and Statistical Manual (DSM-V) published in May, 2013 does not include Asperger syndrome (AS) and instead refers to AS as an ‘autistic spectrum disorder’. This change is controversial, and indeed, supports the suggestion that the research presented in this article is timely, given the potential for AS (as defined prior to DSM-V) to disappear from current clinical practice and cease to be recognised in law. In this article I investigate whether the Equality Act 2010 ensures equality for individuals with AS in the legal arena. My investigation involved identifying individual cases using two commonly used legal search engines, Westlaw and LexisNexis. Following the identification of specific cases, these were then analysed for relevance using any available case analyses and official transcripts. The findings presented in this article suggest that the Law may well still be potentially discriminating and not ensuring equality for individuals with AS, despite the introduction of the Equality Act 2010.
Keywords
References
Adamou M, ‘Hidden impairments, the Equality Act and occupational physicians’ 61(7) Occupational Medicine 453
Allen D and others, ‘Offending behaviour in adults with Asperger Syndrome’ (2008) 38 Journal of Autism and Developmental Disorders 748
Anderlini L and others, ‘Statute Law or Case Law’ (2008) accessed 18 January 2014
Anderson D and others, ‘Mental health service discrimination against older people’ (2013) 37(3) The Psychiatrist 98
Archer N and Hurley EA, ‘A Justice System Failing the Autistic Community’ (2013) 4(12) Journal of Intellectual Disabilities and Offending Behaviour 53
Arnell P and Reid A, ‘Hackers beware: the cautionary story of Gary McKinnon’ (2009) 18(1) Information and Communications Technology Law 1
Arnold G, ‘UK-US extradition: the case of Gary McKinnon’ (2012) 67 Student Law Review 14
Asperger H, ‘Die Autistischen Pychopathen im Kindesalder’ (1944) 177 Archiv für Psychkiatrie und Nervenkrankheiten 76
Beardon L, ‘Asperger Syndrome and Perceived Offending Conduct: A Qualitative Study’ (PhD Thesis, Sheffield Hallam University 2008)
Bernard C, ‘Achieving age equality in health and social care’ (2013) 17 (1) Working with Older People 19
Brewin BJ and others, ‘Parental perspectives of the quality of life in school environments for children with Asperger Syndrome’ (2008) 23 ‘Focus on Autism and Other Developmental Disabilities’ 242
Browning A and Caulfield L, ‘The prevalence and treatment of people with Asperger’s Syndrome in the criminal justice system’ (2011) 11(2) Criminology and Criminal Justice 165
Butler RC and Gillis JM, ‘The impact of labels and behaviors on the stigmatization of adults with Asperger’s disorder’ (2011) 41(6) Journal of Autism and Developmental Disorders 741
Chaplin E and others, ‘Autism Spectrum Conditions and Offending: An Introduction to the special edition’ (2013) 4(1/2) Journal of Intellectual Disabilities and Offending Behaviour 1
Chown N, ‘Do you have any difficulties that I may not be aware of?' A study of autism awareness and understanding in the UK police service’ (2010) 12(2) International Journal of Police Science & Management 256
Cookson G, ‘Unintended Consequences: the cost of the Government’s Legal Aid Reforms’ (King’s College London 2011)
accessed 18 January 2014
Cooper JE, Pocket Guide to the ICD-10 Classification of Mental and Behavioural Disorders with Glossary and Diagnostic Criteria for Research (Churchill Livingstone 1999)
Corker E and others, ‘Experiences of discrimination among people using mental health services in England 2008-2011’ (2013) 202(s55) The British Journal of Psychiatry s58
Crawford NW and Buttery JP, ‘Adverse events following immunizations: fact and fiction’ (2013) 23(3) Paediatrics and Child Health 121
Debbaudt D, Autism, advocates, and law enforcement professionals. Recognising and reducing risk situations for people with Autism Spectrum Disorders (Jessica Kingsley 2002)
Department of Health, ‘Health Service Circular 2001/016. Valuing People: A New Strategy for Learning Difficulty for the 21st Century: Implementation Guidance’ (Department of Health, 31 August 2001)
Department of Health, ‘Implementing “Fulfilling and rewarding lives”. Statutory guidance for local authorities and NHS organisations to support implementation of the autism strategy’ (Department of Health 17 December 2010)
Department of Health, ‘Valuing People Now: a new three-year strategy for people with learning difficulties. Making it happen for everyone’ (Department of Health, 19 January 2009)
Dillenburger K, and others, ‘Awareness and knowledge of autism and autism interventions: A general population survey’ (2013) 7(12) Research in Autism Spectrum Disorders 1558
Ehlers S and Gillberg C, ‘The epidemiology of Asperger syndrome’ (1993) 34(8) Journal of Child Psychology and Psychiatry 1327
Fitzgerald M, ‘Loss of autism in DSM-V’ (2012) 201 British Journal of Psychiatry 74
Fitzgerald M and Corvin A, ‘Diagnosis and differential diagnosis of Asperger syndrome’ (2001) 7 Advances in Psychiatric Treatment 310
Foster R, ‘What Theories of Asperger Syndrome Support or Undermine the Suggestion that Individuals with Asperger Syndrome are Likely to Break the Law?’ Unpublished Coursework, PostGraduate Certificate in Autism and Asperger Syndrome, Sheffield Hallam University (31 August 2013)
Freckleton I, ‘Asperger’s disorder and the criminal law’ (2011) 18 Journal of Law and Medicine 677
Freckleton I, ‘Autism Spectrum Disorder: Forensic Issues and Challenges for Mental Health Professionals and Courts’ (2013) 26(5) Journal of Applied Research in Intellectual Disabilities 420
Godlee F and others, ‘Wakefield’s article linking MMR vaccine and autism was fraudulent’ (2011) British Medical Journal 342 1678
Hare DJ and others, A Preliminary Study of Individuals with Autistic Spectrum Disorders in Three Special Hospitals in England (National Autistic Society 1999)
Haskins BG and Arturo Silva J, ‘Asperger's Disorder and Criminal Behavior: Forensic-Psychiatric Considerations’ (2006) 34(3) Journal of the American Academy of Psychiatry and Law 374
Heiderken AD and others, ‘A survey of autism knowledge in a health care setting’ (2005) 35(3) Journal of Autism and Developmental Disorders 323
Hepple B, ‘The New Single Equality Act in Britain’ (2010) 5 The Equal Rights Review 11
Hippler K and others, ‘Brief report: No increase in Criminal Convictions in Hans Asperger’s Original Cohort’ (2010) 40 Journal of Autism and Developmental Disorders 774
HM Government, ‘Autism Act 2009 Explanatory Notes’
Huws JC and Jones RSP, ‘Missing voices: representations of autism in British newspapers, 1999–2008’ (2011) 39(2) British Journal of Learning Disabilities 98
Jones SC and Harwood V, ‘Representations of autism in Australian print media’ (2009) 24(1) Disability And Society 5
Katz N and Zemishlany Z, ‘Criminal Responsibility in Asperger Syndrome’ (2006) 43(3) Israeli Journal of Psychiatry Related Science 166
Kearns A, ‘Forensic services and people with learning disability: in the shadow of the Reed Report’ (2001) 12(1) Journal of Forensic Psychiatry 8
Kendler K, ‘An historic framework for psychiatric nosology’ (2009) 39(12) Psychological Medicine 1935
Knapp M and others, ‘Economic cost of autism in the UK’ (2009) 13(3) Autism 317
Knopf A, ‘Asperger’s diagnosis disappears, will treatment disappear too?’ [2013] Behavioral Healthcare
Langan M, ‘Parental voices and controversies in autism’ (2011) 26(2) Disability and Society 193
Lian WB and others, ‘General practitioners' knowledge on childhood developmental and behavioural disorders’ (2003) 44(8) Singapore Medical Journal 397
Lockwood G and others, ‘The Equality Act 2010 and mental health’ (2012) 200 British Journal of Psychiatry 182
Mattila ML and others, ‘An epidemiological and diagnostic study of Asperger syndrome according to four sets of diagnostic criteria’ (2007) 46(5) Journal of the American Academy of Child and Adolescent Psychiatry 636
Micale MS, ‘On the “Disappearance” of Hysteria: A Study in the Clinical Deconstruction of a Diagnosis’ (1993) 84(3) Isis 496
Mouridson SE and others, ‘Pervasive developmental disorders and criminal behaviour: A case control study’ (2008) 52(2) International Journal of Offender Therapy and Comparative Criminology 196
National Autistic Society, ‘I Exist Campaign in England’ (National Autistic Society 9 May 2013)
Onyett S and Lester H, ‘Managing in Mental Health’ in Kieran Walshe and Judith Smith (eds), Healthcare Management (Open University Press 2006)
Paris J, Fads and Fallacies in Psychiatry (RCPsych Publications 2013)
Peay J, ‘Fitness to Plead and Core Competencies: Problems and Possibilities’ (London School of Economics Law, Society and Economy Working Papers 2012)
Phillips C, ‘The Equality Act 2010: Impact on mental health-related disability claims’ (2012) 109 Employment Law Bulletin 2
Poland GA,’MMR vaccine and autism: vaccine nihilism and postmodern science’ (2011) 86(9) Mayo Clinic Proceedings 869
Poland GA and Jacobson RM, ‘The age-old struggle against the antivaccinationists’ (2011) 364(2) New England Journal of Medicine 97
Porter J and others, ‘Recognising the needs of every disabled child: the development of tools for a disability census’ (2011) 38(3) British Journal of Special Education 120
Posner RA, ‘Statutory Interpretation—in the Classroom and in the Courtroom’ (1983) 50 Chicago Law Review 800
Przybylski BK. ‘The Legal Framework as a Factor Generating Social Inequality: The Case of the Criminal Justice System’ in Dieter Eissel, Ewa
Read J and others, ‘Disabled children and their families: a decade of policy change’ (2012) 26(3) Children & Society 223
Rokicka and Jeremy Leaman (eds), Welfare State at Risk (Springer International Publishing 2014)
Roy M and Balaratnasingam S, ‘Missed diagnosis of autism in an Australian Indigenous psychiatric population’ (2010) 18(6) Australasian Psychiatry 534
Royal College of Psychiatrists, ‘On Planning a Portfolio Career’ (Royal College of Psychiatrists 2008)
Schell BH and Melnychuk J, ‘Female and Male Hacker Conferences Attendees: Their Autism-Spectrum Quotient (AQ) Scores and Self-Reported Adulthood Experiences’ Corporate hacking and technology driven crime: Social dynamics and implications (Information Science Reference 2010) 144
Schwarz E and others, ‘Sex-specific serum biomarker patterns in adults with Asperger's syndrome’ (2010) 16(12) Molecular Psychiatry 1213
Scragg P and Shah A, ‘Prevalence of Asperger’s Syndrome in a secure hospital’ (1994) 165 British Journal of Psychiatry 679
Shah K, ‘What do medical students know about autism?’ (2001) 5(2) Autism 127
Sharma S and others, ‘Confusion and inconsistency in diagnosis of Asperger syndrome: a review of studies from 1981 to 2010’ (2011) 16(5) Autism 465
Shorter E and Marshall JC, A History of Psychiatry (Wiley 1997)
Siponmaa L and others, ‘Juvenile and young adult mentally disordered offenders: The role of child neuropsychiatric disorders’ (2001) 29 Journal of the American Academy of Psychiatry and the Law 420
Sisk G, ‘The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making (Book Review)’ (2008) 93 Cornell Law Review 8
Smith SA, ‘Comparative legal scholarship as ordinary legal scholarship’ (2102) 5(3) Journal of Comparative Law 331
Taylor RE, ‘Death of neurasthenia and its psychological reincarnation A study of neurasthenia at the National Hospital for the Relief and Cure of the Paralysed and Epileptic, Queen Square, London, 1870-1932’ (2001) 179(6) The British Journal of Psychiatry 550
Teagardin J and others, ‘Randomized trial of law enforcement training on autism spectrum disorders’ (2012) 6(3) Research in Autism Spectrum Disorders 1113
Thornicroft G, Shunned: Discrimination against people with mental illness (Oxford University Press 2006)
Tremper C and others, ‘Measuring Law for Evaluation Research’ (2010) 34(3) Evaluation Research 242
Underwood L and others, ‘Prisoners with neurodevelopmental disorders’ (2013) 4 Journal of Intellectual Disabilities and Offending Behaviour 17
United Nations Rule of Law, ‘Measuring Effectiveness’ (2013) (United Nations 2013)
Vanbergeijk EO and Shtayermman O, ‘Asperger's syndrome: An enigma for social work’ (2005) 12(1) Journal of Human Behavior in the Social Environment 23
Veale D, ‘The Department of Health and the Equality Act 2010’ (2012) 201 British Journal of Psychiatry 75
Walsh N and Hall I, ‘The Autism Strategy: implications for people with autism and for service development’ (2012) 6(3) Advances in Mental Health and Intellectual Disabilities 113
Weiss KJ, ‘Autism Spectrum Disorder and Criminal Justice: Square Peg in a Round Hole’ (2011) 32(3) American Journal of Forensic Psychiatry 3
Wilkinson LA, ‘The Gender Gap in Asperger Syndrome: Where are the Girls?’ (2008) 4(4) Teaching Exceptional Children Plus 3
Woodbury-Smith M and others, ‘High functioning autistic spectrum disorders, offending and other law-breaking from a community sample’ (2006) 17(1) Journal of Forensic Psychiatry and Psychology 108
Young S and others, ‘The effectiveness of police custody assessments in identifying suspects with intellectual disabilities and attention deficit hyperactivity disorder’ (2013) 11(1) BMC Medicine 248
Statutes and Statutory Instruments
Autism Act 2009
Criminal Justice Act 2003
Disability Discrimination Act 1995
Employment Equality (Age) Regulations 2006
Employment Equality (Religion or Belief) Regulations 2003
Employment Equality (Sexual Orientation) Regulations 2003
Equality Act 2006
Equality Act 2010
Equality Act (Sexual Orientation) Regulations 2007
Equal Pay Act 1970
Mental Capacity Act 2005
Mental Health Act 2007
Race Relations Act 1976
Sex Discrimination Act 1975
Cases
Goodwin v Patent Office [1999] I.C.R. 302
Hewett v Motorola Ltd [2004] I.R.L.R. 545
Parents of C v Stanbridge Earls School [2013] Eq. L.R. 304
P v Governing Body of A Primary School [2013] UKUT 154 (AAT)
Telchadder v Wickland (Holdings) Ltd [2012] EWCA Civ 635
R (on the application of Islam) v General Medical Council [2013] EWHC 3763
R. (on the application of T) v Secretary of State for Justice [2013] EWHC 1119 Admin
R. (on the application of W) v Aylesbury Crown Court [2013] EWHC 3228 (Admin)
R v Pritchard (1836) 7 C & P 303
Swan Housing Association Ltd v Gill [2013] EWCA Civ 1566
ZH v Commissioner of Police of the Metropolis [2013] EWCA Civ 69
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