Historic 1977 submission to the South Australian Bright Committee investigating the Rights of Persons with Handicaps for the Attorney General of SA

28 May 1977

Historic public acknowledgement of areas of disability discrimination and what is needed

Richard Llewellyn – first formal submission on disability discrimination in Australia

My submission to the Bright Commission looking into the legal rights of handicapped persons will be both objective and sub­jective. In 1957, I contracted poliomyelitis and since then have been in a wheelchair.  

Since February 1975, I have been engaged in an administrative capacity as Administrative Officer with Eastern Regional Geriatric and Medical Rehabilitation Service (E.R.G. & M.R.S). Hope­fully these twin roles will present a point of view which may be useful.

I wish to comment on the position I feel the law should or should not have regarding handicapped people, and also to consider language use and the representational rights of these people.

Legal discrimination and derogatory labels for impaired people

Very often, it is the law itself that causes many problems for impaired people.  For instance, in legislation, where words are not chosen carefully to cover all situations and then used consistently, interpretation and exploitation will follow, spearheaded by the legal profession itself.  This Bright Commission will become very quickly aware that neither individuals nor organisations really know what to call people who have medical or mental Impairments. Labels such as “disabled”, “crippled”, “invalid”, “handicapped”, “patients”, “afflicted” and “clients” will be interchanged to mean the same thing.   Throughout this paper I will use the word “handicapped” as you have in your terms of reference, although I will be making comments about this later.

1968 New York City anti-discrimination laws covering physical handicaps

In 1968, the New York City Human Rights Law was amended to include anti-discrimination clauses which covered the phys­ically handicapped. The legislation was and probably still is unique in that a city tried to prevent discrimination in housing, public accommodation, access and employment against an estimated 12% of its city’s residents. (For a more detailed exposition of this, see Edith Lynton’s paper, “The Physically Handicapped Citizen: A Human Rights Issue”).  This postulated 12% figure is interesting and corresponds fairly closely with figures quoted by the Australian Bureau of Statistics, in its survey of chronic illness.   However, in our organisation in the eastern area of Adelaide, we estimate that 2% of the population have severe physical limitations in their activities of daily living.

Edith Lynton pointed to major problems which emerged from the New York experience. Handicapped people need to be aware of and to demand their legal rights. She found that the potential of the New York law Itself was limited by:

  1. ambiguous language,
  2. a restricted definition of what constituted a handicap, and
  3. weak enforcement structures and penalties.
  4. discrimination against the handicapped is largely attitudinal.

It must be remembered that this legislation covered only the physically handicapped as defined by an unsuitable definition, “that the handicapped are those who depend on a device or appli­ance”, and ignored the mentally and socially handicapped entirely. If one is concerned with numbers, then these two ignored groups double the size of the ‘handicapped* population.  

1977 data on South Australian employees with handicaps

My experience of a survey done by the 1977 Ministerial Working Party on Employment of Disabled in South Australia, was that the one hundred indus­tries surveyed reported almost three percent of their employees had either mental, physical, or social handicaps.   The proportional breakdown showed 1.9% of employees to have mental or physical problems, 0.8% to have educational disabilities, and 0.2% social disabilities.

The challenge of disability definitions

To return to the three problems of the New York experience, it is the second issue which I feel your Commission should concern itself with, as you are dealing with the potential of law for change.

Any new law should minimize all ambiguities of language. Definitions, in particular, should be chosen and worded carefully to ensure that the action which follows is appropriate, for if the words are not precise the action will be unfocussed.

I would suggest the Commission examine closely the definitions set out by the American Medical Association, together with its Instructions for measuring impairment.  The word “handicapped” is a lay term commonly used for medical Impairment.  Impairment can either be short term, as with a broken leg which has little or no resulting disability, or permanent. From the medical point of view, disability following a permanent impairment is an evaluated quantity which can be scale measured at the end of the rehabilitative process against the whole or unimpaired person. Other considerations, however, have to be taken into account in assessing disability.

Consider two people who lose an index finger; both have an impairment which the A.M.A. would set at   l4% impaired. The degree of disability however may be vastly different if one person were a taxi driver, and the other a concert pianist. Although the impairment is the same, the disability for the former would be minimal, but for the latter, a tragic upheaval of employment and life-style.

Assessment of disability and the law

Although the law must clearly and accurately define the terms, it has no place in any evaluative process.   The measurement of disability should be made by a panel of medical and allied professions, together with vocational assessors, the family and the impaired person himself. This process is more fully described by the Woodhouse Report and more recently by the afore-mentioned Report of the 1977 Ministerial Working Party on Employment of Disabled in South Australia. 

At the moment, the law intrudes in this area through various channels:  Workman’s Compensation, Third Party legislation, and civil prosecutions in order to apportion blame.  Legal decisions regarding these areas are renowned for their technicalities and long, drawn-out procedures.  

Richard proposes a no-fault 24-hour coverage for all Australians with a serious medical impairment in 1977

At the same time the bulk of the population is not covered by any act at all in the case of impairment.  If the community will accept that serious medical Impairment is a social rather than a legal problem, and I believe it is ready to do so, then the law should introduce no fault, 24-hour coverage for everyone.

Presently the law discriminates against the person being rehabilitated in actively encouraging delay in recovery, and emphasizing the greater the ‘disability’, the greater the com­pensation.  Statistics show, for instance, that only 2% of all Worker’s Compensation claims are over three month’s duration. On the other hand, it is almost inevitable that that 2% will be involved in long legal battles for compensation. Woodhouse quoted some years ago, many cases unsolved after five years of legal processes, and that for every dollar awarded in compensation to the individual, 40% was taken up in legal and administrative expenses. Long, involved and costly court cases are well known to the community and further discriminate against an impaired person by making him vulnerable to quick offers of settlement.

Weak enforcement of anti-discrimination measures

Returning to the New York experience, weak enforcement structures undermined the potential of the law in action. Incen­tives and penalties have to be used to maximise the potential of any new legislation.   An interesting twist on the use of penalty-Imposed fines comes from the West German model regarding employ­ment of handicapped people. Those firms which did not meet their quotas were fined (most paid the fine rather than employ handicapped workers) and these revenues were put into projects to benefit the handicapped.

Access problems at the new Adelaide Festival Centre from voluntary building codes

An example of ‘no teeth-no action’ is the set of voluntary guidelines of the South Australian Building Code.  The Adelaide Festival Centre, for instance, provides no special access parking close to entrances, no access to The Space for wheelchairs, no ramps at entrance ways, and only two seats in the major theatre.  Both positions are in the first row of the most expensive seats, and one is forced by lack of space to sit at 45 degrees to the stage, as well as having to move continuously to allow late-comers access to the row.  Special toilets are provided, but all are located inside either the male or female toilets. This of course bars all those who are unable to propel themselves and are being pushed by their spouse or member of the opposite sex.  I have used this as an example because it is the most recent public building which also takes some pride in telling people on its public tours of the marvellous facilities for the handicapped.

Richard proposes a board for complaints about disability discrimination

I also believe the law must protect a handicapped person’s individual rights, especially whilst under medical treatment. Professional people have very often ignored people’s rights to privacy and any form of self-determination while in a medical Institution.  In many teaching situations, especially in the larger institutions, people’s human feelings are often ignored with unbelievable degrees of insensitivity.  A more complicated problem is the protection of the individual from professionals and their services. Very often professional people use handicapped people for their own ends, such as collection of data for advanced degrees and other status-increasing activities.  I would suggest that a board modelled on the women’s discrimination board be set up to investigate and act upon complaints of Infringement of rights and discrimination.

Isolating language and attitudes for people with impairments

Having considered the areas where I feel the law should and should not enter into, I move to the crucial areas of language and attitude, through first examining the social situation of the handicapped.  The handicapped are a minority group, and as many studies have shown, minority groups commonly exhibit timidity, fear of authority, and the acceptance of less than equitable treatment by society, which eventually leads to iso­lation.

The danger of this is that when people have isolated themselves, the rest of society may think there is no longer a problem. Most handicapped people look different and, therefore attract curiosity and stares from other people, which leads to a feeling of separateness and inferiority.

Medical language that discriminates

Handicapped people either live in or have passed through a medical context, and perhaps one of the catalysts for this feeling of separateness is the whole language of the medical profession.  On entering a doctor’s room or a hospital, a person immediately becomes a “patient”.  Websters Dictionary describes “patient” as being one who is “undergoing pain, hardship, affliction, insult, etc. with calmness and equanimity…Per­severing in spite of difficulties, delays or uncertainty”.

The word “patient” does describe perfectly the situation of an impaired person, but if one is at all interested in goal-oriented words, it is a matter of conjecture as to the extent this word will influence future attitudes.  Probably that person will eventually be given an “In-valid Pension” by the Department of Social Security, further convincing him of his worthlessness and lot in life.

Having spent two years in a hospital myself, I have perhaps an unhealthy dislike for the word “patient”, because of the attitudes it engenders. I very much resented the fact that I was no longer a person with a name, but rather an object with a condition.  Anyone who has seen a ward round in a large hospital will know where the “patient” lies on the superiority totem pole.

The universal application of the word “patient” is a good Illustration of the damaging attitudinal effects of inappropriate words. Unfortunately, most of the medical and legal language dealing with handicapped people happens to be negative. It is important that your Commission tries to correct past mistakes of negative word usage in legis­lation, as “in-valid” and the word “handicapped” itself.

Handicapped people lack a voice in their own decision-making bodies

A major loophole in protecting the interests of handicapped people in past legislation is that provision is not made mandatory for handicapped people to represent themselves on decision­-making bodies concerned with their welfare.  Not only should this apply to the medical sector where there is already some conscious­ness of this need, but in the economic, educational, and political sectors of our society.   

There is an urgent need for models of acceptance to be visible by modelling handicapped people working in senior positions in both government and business. The immediate response to this idea is that there is nobody capable, but that was what was said a few years ago when another minority group, the Blacks in the USA, asserted their rights.

I am hopeful that under the leadership of Sir Charles Bright, this Commission will institute much needed reform in this vital area.

Richard D. Llewellyn, 84 Jerningham Street, NORTH ADELAIDE. 5006.