The definition of “disability” in human rights law:  another way that neuroscience may affect fundamental legal concepts?

Articles and Cases for Discussion

Anthony I. Barnett and Craig Fry, “The Clinical Impact of the Brain Disease Model of Alcohol and Drug Addiction: Exploring the Attitudes of the Community Based AOD Clinicians in Australia” (2015) 8 Neuroethics, 271.

R.E.Kendell, “The Distinction between Mental and Physical Illness” (2001) 178 British Journal of Psychiatry, 490.

John Mitchell v. Questrade Inc. and BBS Securities Inc. (Virtual Brokers) 2014 HRTO 1308.

International Health Authority (South Similkameen Health Centre) v. Hospital Employee’s Union (RP Grievance) [2013] BCCAAA No.44.

How do we decide what conditions are disabilities?

·       There are various theoretical models of disability.  The traditional one is a biomedical model that regards medicalized conditions as disabilities.  The social model, on the other hand, looks at a “difference” that a person may have when compared to others and regards the disability as a function of social norms and expectations.  In other words, the particular mental or physical difference need not be viewed as an illness or medical problem but instead as something that becomes a problem only in certain social environments.

·       However, there is evidence that biological or at least medical framing remains an important rhetorical strategy in arguing for protection from discrimination under human rights legislation.  One example is the Canadian case involving a claim to discrimination on the ground of disability (obesity) in airline seating.  The first line of the appeal judgment expressly attributed the obesity to a medical condition.

·       Another interesting area to examine the influence of biological explanations on whether a condition will be recognized as a disability is with respect to impulsive behaviour – such as drug and alcohol addiction, and a range of other conditions that echo the language of addiction:  sex addiction, gambling addiction.  Willingness to recognize these as disabilities entitling a person to protection from discrimination may be powerfully affected by biological explanations because the degree of self-control is at issue in how we react to these behaviours.

·       The question of capacity for self-control is likely important to definitions of disability.  This is because chosen conditions (those over which there is reasonable self-control) are unlikely to be regarded as disabilities.

·       The question of control is also relevant to disability in the context of treatment.  If there are effective treatments available, then the condition is more likely to be regarded as subject to a person’s control.  Although the untreated conditions may be viewed as disabilities, the entitlement to accommodation may be reduced if a person declines to take effective treatment because it might be perceived as an impairment that is in some way within the person’s control.

·       Does all of this mean that there is something inherently “disabling” about the way we define “disability”?  In other words, to access the protections afforded to disability, one has to emphasize one’s lack of control over a condition?

·       It is also important to note that control and choice are very complicated.  Degrees of control may fluctuate over time, and conditions may also be characterized by conflicted desires (e.g. in addiction, the desire to use and the desire to be free of the dependency).

·       The tail may wag the dog to some extent in the definition of disability.  Once a condition is recognized as a disability, the issue of reasonable accommodation comes up.  Where a condition is socially stigmatized, there may be a reluctance to consider any accommodation and so a reluctance to recognize it as a disability.  The example of so-called “sex addiction” may yet prove to be a case of this type.