US Court ruling “Bipolar Disorder is physical disorder and not a mental illness” :

Implications for discrimination by insurers against mental health problem

(Article from Equilibrium website) http://www.bipolar-foundation.org/index.aspx?o=1354

This case revolves around the increasing and incontrovertible evidence from various areas of research that bipolar disorder is not ‘merely’ a ‘psychological disorder
It has reluctantly been accepted by individuals suffering from bipolar disorder (manic-depressive illness) and other mental health disorders that they face problems with regard to insurance of all types. Life insurance, personal income insurance and motor insurance are all affected by history of pre-existing ill health of any type but some policies specifically exclude cover for the de-novo development of ‘mental illness’ during the term of the policy, treating it differently from ‘physical disorders”, as well as imposing larger premiums or imposing other limitations on people with known mental health problems.

A court ruling on this issue in the US which is of considerable significance in this area has not been picked up at all by the popular media or the professional literature either within or outside of the US. Although not of direct legal impact outside of the US, we believe this case raises important issues about the way both employers and insurers deal with claims arising from the development of mental health problems. It also raises more general issues regarding differential stigma of ‘mental’ versus ‘physical’ ill health. This case revolves around the increasing and incontrovertible evidence from various areas of research that bipolar disorder is not ‘merely’ a ‘psychological disorder’.

The Case: Fitts v. Fannie Mae[1]
The ruling by the United States District Court for the District of Columbia involves an employee of a major mortgage company who developed bipolar disorder and whose employee disability insurance provider stopped paying disability benefits after 24 months on the grounds of bipolar disorder being a ‘mental illness’. The policy provided cover until the age of 65 for physical disability. Ms. Fitts had worked for the company for 13 years before she was first diagnosed with bipolar disorder in 1995. The employee- Ms. Jane Fitts, successfully brought a case against both the employer and the insurer arguing that bipolar disorder did not clearly fall in the category “mental, emotional or nervous diseases or disorders of any type”. The court awarded “prejudgment interest on all sums due her and the costs of this action “.

Three pieces of evidence were presented to back this argument, and two expert witnesses, including Miss. Fitts’ own psychiatrist, provided evidence:
1. Ms. Fitts’ father and brother showed symptoms of the disorder and so a hereditary predisposition coupled with having the disorder showed the genetic nature of the disorder, which must therefore have a physical basis.
2. Brain scans of Ms. Fitts showed excessive age-controlled atrophy of the left parietal lobe and abnormal wave activity on the left side of the brain.
3. Ms. Fitts suffered from physical symptoms such as headaches, chest pains, and insomnia that were ascribed to bipolar disorder.

Prof. Frederick T. Goodwin from the George Washington School of Medicine stated: “bipolar disorder is a physical illness because it is a neurobiological disorder that affects the physical and chemical structure of the brain”. He supported the claims listed above, also making the point that susceptibility to pharmacological therapy suggest a physical cause. Ms.Fitts’ psychiatrist maintained that while the clinical features of the disorder are mainly behavioural and emotional, they are due to physical changes in the brain.

Ms.Fitts’ psychiatrist maintained that while the clinical features of the disorder are mainly behavioural and emotional, they are due to physical changes in the brain.
The defence team argued that bipolar disorder clearly falls within the “mental illness” category because previous judgments had ruled it to be such on the manifestation of the symptoms and because it appears in DSM-IV.
This case was an appeal on a previous judgement against Ms. Fitts’s claim. The first filing of the suit focussed on violation of the Americans with Disabilities Act (ADA) and the District of Columbia Human Rights Act (DCHRA), and breached certain contractual and common law duties. This court dismissed all of Ms. Fitts’ claims except her Employment Retirement Income Security Act (ERISA) claim. ERISA requires all policies to be written in unambiguous language and given that bipolar disorder did not clearly fall within the definition of mental illness in the insurance policy, the court was bound by the doctrine of contra preferentem, which has been applied as federal common law to ERISA. The doctrine states that in ambiguous definitions the ruling should be against the drafter of the contract.

Other cases
Another case ongoing in North America illustrates the unfortunate consequences of stigmatisation of bipolar disorder leading to an understandable reluctance by those affected to openly disclose to employers a history of pre-existing mental illness. The Canadian insurers of the television series The Dead Zone filed a suit against star Anthony Michael Hall to recoup more than $612,000 for failure to disclose he suffered from bipolar disorder, AP reports. The suit claimed production of the series, shot in Vancouver, was halted from May to August 2001 when Hall was treated for “bipolar affective disorder depression with psychotic features” for which the production company submitted a claim and received money. The case is waiting to be heard at The Supreme Court of British Columbia. (Source: Vancouver Sun)

In a case in New York, which does not have parity legislation, a court ruled that a disability insurance policy is not discriminatory because it provided only 24 months of cover for disability due to unipolar depression, rather than cover to the age of 65 years as it would have done for disability due to physical injury. The appellant, a Charlene Polon, continued to suffer with unipolar depression and has not been able to claim disability allowance under her policy from 1996. The case was made under the Insurance Law, and the court ruled that the law only protected from discrimination “with regard to her eligibility for and access to insurance” and not within the terms of the policy[2]. This case demonstrates that many instances of discrimination continue to occur and that even the covering statutes are unclear

For the rest of the article, follow this link:http://www.bipolar-foundation.org/index.aspx?o=1354

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.