Case Study: ‘Invisible’ Disabilities

a positive solution to this issue. To promote clarity, increase social inclusion and improve the enforcement of these laws, changes must be made to make the definition of disability more universally applicable.

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III. Case Study: ‘Invisible’ Disabilities

As has been outlined above, a disability is any condition of the body or mind that impacts or reduces the ability of a person to carry out tasks or functions that a non-disabled person would be able to do. However, such a definition is not all-encompassing, and it will be demonstrated that the realm of disability rights in Ireland extends beyond the ‘traditional’ notion of disability often enshrined legislatively.

‘Invisible’ vs ‘Visible’ Disabilities

An ‘invisible’ disability, often described as a ‘hidden’ disability, is when a condition or illness is less apparent, internal or invisible, such that others cannot see the disability as it is happening inside one’s body with little outward symptoms.20 The term ‘invisible disability’ has come to be used as an umbrella term, with such hidden disabilities being capable of classification, as with ‘visible’ disabilities, on a spectrum from moderate to severe.

So-called invisible disabilities are exceedingly common, with awareness of their existence much lower than that of visible disabilities. One in seven Irish citizens has some form of

disability according to the 2016 Irish census.21 With 80% of disabilities having hidden impairments, there are approximately 400,000 Irish citizens with a form of invisible disability.22

for-equality/a-strategy-for-equality-report-of-the-commission-on-the-status-of-people-with-disabilities/legalstatus-of-people-with-disabilities/,> accessed 17 November 2021. 19 Legal Status of Individuals with Disabilities' (National Disability Authority) <https://nda.ie/disabilityoverview/key-policy-documents/report-of-the-commission-on-the-status-of-people-with-disabilities/a-strategyfor-equality/a-strategy-for-equality-report-of-the-commission-on-the-status-of-people-with-disabilities/legalstatus-of-people-with-disabilities/,> accessed 17 November 2021. 20 Invisible Disability Ireland, <https://www.invisibledisabilityireland.com/> accessed 16/11/2021. 21 A O’ Duffy, ‘A Guide to the Law in Ireland in Relation to Disability’ (2018) Independent Living Movement Ireland, 7. 22 Invisible Disability Ireland, <https://www.invisibledisabilityireland.com/> accessed 16/11/2021.

The concept of invisible disabilities can comprise, but is not limited to, learning disabilities, physical disabilities, chronic illnesses, and mental health conditions. These may all present in different inward symptoms, including chronic fatigue, cognitive challenges, or habitual pain.

Invisible Disabilities in Irish Legislation

Under the Disability Act 2005, a “disability” in relation to a person is described as meaning “a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment”.23 The 2005 Act goes on to define “substantial restriction” as meaning a restriction which;

(a) is permanent or likely to be permanent, results in a significant difficulty in communication, learning or mobility or in significantly disordered cognitive processes, and

(b) gives rise to the need for services to be provided continually to the person whether a child or, if the person is a child, to the need for services to be provided early in life to ameliorate the disability.24

This is a high bar to set on the definition of a disability focusing exclusively on the notion of ‘impairment’ and leaves ambiguity if invisible disabilities can fall under the 2005 Act’s remit. The concept of the ‘substantial restriction’ may often be difficult to quantify in the context of invisible disabilities.25 Further, many disability rights organisations have criticised the restriction of entitlements contained in the legislation as they can be denied because of lack of resources, and often are not open to judicial review.26

Despite the shortcomings of the Disability Act 2005 in relation to ‘invisible’ disabilities, there has been a legislative shift towards protecting people with disabilities in the context of preventing discrimination and promoting their equal human rights through the Employment Equality Acts (1988-2015) and Equal Status Acts (2000-2018).27 These Acts have established

23 Disability Act 2005, section 2(1). 24 Disability Act 2005, section 7(2). 25 E Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-Based Approach for Legal Reform’ (2009) 31 DULJ 357, 360. 26 E Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-Based Approach for Legal Reform’ (2009) 31 DULJ 357, 357. 27 E Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-Based Approach for Legal Reform’ (2009) 31 DULJ 357, 357.

that any barrier that prevents a disabled person accessing or using goods and services can amount to discrimination, as well as making discrimination in employment on the basis of disability illegal.28 However, similarly to the Disability Act 2005, there is no specific reference to those with ‘invisible’ disabilities, resulting in degrees of ambiguity for the impairments which fall under this umbrella and potentially the possibility of their exclusion under the Act.

Scope for Reform

While substantial amounts of research, academic commentary and legislative measures consider those with disabilities as a homogenous group, the law in Ireland needs modernisation and cohesion to better encompass the full range of impairments which exist, particularly those resulting in invisible disabilities which are not explicitly included under legislative protection.

As outlined above, the entitlements granted in the Disability Act 2005 are restricted by resources, meaning that the legislation is in fact not rights-based.29 As such, there exists scope for reform insofar as it is necessary to restructure the Irish legislative framework surrounding disability rights for those with both visible and invisible disability rights to bring their protection to rights-status.

Fundamentally, it is suggested that provision be made for ‘invisible’ disability protection in both the Disability Act 2005 and the Employment Equality and Equal Status Acts, through a broader principled definition rather than discrete and exclusive categories. Such reform may be necessary if the protection and support of individuals with invisible disabilities is to be considered equal to that of those with visible disabilities.

Concluding Remarks on ‘Invisible’ Disabilities

The concept of the ‘invisible’ disability is undoubtedly one that needs to be further centred in disability-related discourse in order to ensure the realisation of the rights of all persons with disabilities in Ireland.

28 A O’ Duffy, ‘A Guide to the Law in Ireland in Relation to Disability’ (2018) Independent Living Movement Ireland, 18. 29 E Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-Based Approach for Legal Reform’ (2009) 31 DULJ 357, 368.

Although the exercise of re-evaluation may involve challenging several fundamental truths about Ireland’s approach to disability rights, this should not deter policymakers in the path towards an inclusionary approach to ‘invisible’ disabilities.30

Chapter Conclusion

As has been demonstrated through the above discussion, definitions surrounding the term ‘disability’ and its adjacent issues of ‘invisible’ disabilities have proven difficult to determine concretely. Differing models of disability appear, with the so-called social model emerging as the preferable model to be adopted in Irish reform of the area of disability rights to vindicate the rights and intentions of individuals with disabilities.

The definitions of ‘disability’ in Irish law must be broadened to encompass the vast range of individuals that fall under the term’s scope. It is therefore clear that there exists much scope for reform in this area of Irish law, and Irish legislators and policymakers should be encouraged to bring about such reform in a timely manner.

30 A Cusack, ‘Victims of Crime with Intellectual Disabilities and Ireland’s Adversarial Trial: Some Ontological, Procedural and Attitudinal Concerns’ (2017) 68 N Ir Legal Q 433, 449.