Fitness to work: how is this determined by the Courts?

For any of you going to Court over the finances of your divorce, consideration of your fitness to work as a Bipolar sufferer will be a top priority.

80% of people with mental health disabilities are unemployed. This doesn’t mean that 80% are unemployable; it means that:

• there are many employers (4 out of 10) who won’t employ someone with a mental health illness
• there are insufficient flexible working opportunities for those who suffer to enable them to work in a way that they can manage their condition effectively
• there are those who are so discouraged by their condition that they “self stigmatise” ie they believe so strongly that nobody will want them, that they don’t even apply for work
• there are those who are worried that, if they apply for work, they will lose their incapacity benefit
• there are many who worry that they will be subjected to hostile/negative/unpleasantness in the workplace if colleagues find out that they have a mental health illness.

If you are fighting with your exspouse/partner over finances, they are bound to argue that you (the Bipolar sufferer) could go out and get a job and support yourself and therefore you shouldn’t require ongoing support from your ex spouse/partner.

This is what my ex husband argued: because I am a qualified lawyer and used to work in a top 10 City law firm, I should be perfectly able to go back to such a highly paid environment and support myself and our three children and therefore he should not have to pay me any maintenance.

I argued that my “ability” to work and obtain highly paid employment, is an entirely separate issue to whether I will, in reality, be offered a job given my mental health background.

I argued that, given the 80% of unemployment amongst the mentally ill, it is unlikely that I will fall within the 20% who will get work at a high level. I might get low paid and low status work, but if I do, that is likely to be insufficient to enable me to support myself and my three children adequately in the lifestyle that they are used to (eg private schooling etc).

How can you determine these issues? Well, you need expert evidence ie an expert to write a report to the Court and then come to Court, if required, to give evidence and who is willing to be cross-examined on the evidence he/she gives.

Ideally, you have 2 experts: the first should be your treating psychiatrist/doctor who can give the Court his/her assessment of your ability to work. This will include:

• a description of your diagnosis eg Bipolar 1, Bipolar 2, rapid cycling Bipolar, cyclothymia, schizo - affective disorder etc
• an explanation of the effect that your diagnosis has on your ability to work eg levels of concentration, focus etc
• an explanation of which medication you are on and how this affects your ability to work eg does your medication make it difficult for you to wake up in the mornings? Does your medication make it harder for you to concentrate?
• an assessment of which types of work you might be able to undertake eg if stress is one of your triggers, would you be able to hold down a highly stressful job?
• What are your particular triggers? eg if noise is a trigger, how would commuting to and from work on a busy/noisy train/tube/motorway affect your ability to commute?
• your longer term ability to hold down a job
• your own ability to manage your illness eg do you recognise your triggers? Do you comply with your medication regime? Have you developed good coping strategies?

This expert report will be given to the Judge so that he/she can form a view of how your own particular illness affects you and how it will affect your ability to work.

This will help the Judge decide how likely it is that you will find work, maintain work and what level of work in terms of pay and status that you are likely to achieve.

The Judge can then base any capital distribution or maintenance levels with that knowledge in mind.

If the Judge is unaware of the discrimination issues that surround the employment of the mentally ill, then it is a good idea to submit to the Court some well researched papers on the subject. For these, Google “Professor Graham Thornicroft” and you will find some very good resources on how discrimination in the workplace affects the mentally ill.

A particularly good piece of information can be found in his book “Shunned”. You can obtain this from Amazon.

The Social exclusion part of the government’s website is also helpful. Here are some useful links:

www.library.nhs.uk/SpecialistLibrarySearch/Download.aspx?resID=213004

This above link is a paper called “Actions speak Louder” and you can download this using Acrobate.

Resources for investigating the issue of Social Exclusion of the mentally ill include:

news.bbc.co.uk/1/hi/health/503876.stm

BBC news article on Social Exclusion of the mentally ill.

www.literacytrust.org.uk/Database/Exclusion.html

www.ukcap.org/getheard/index.htm

www.lga.gov.uk/lga/aio/33473

If you Google “Social Exclusion government taskforce for mentally ill” you will find a whole load of material which will inform you about the stigma of mental illness in the workplace.

Any questions about any of this stuff, please send in your comments.