Reasonable adjustments

This post was originally featured on North of the Stupid Line.

I thought it would be useful to set out the position in relation to the Equality Act 2010’s duty to make reasonable adjustments imposed on service providers.

Let’s make one thing clear: hospitals (and any other medical services such as GP surgeries, physiotherapists etc., regardless of whether it’s free or private) do and have an obligation to make reasonable adjustments for Deaf patients. Don’t let them tell you otherwise.

The duty to make reasonable adjustments is not always clear cut, but as a general rule, adjustments have to be made by a service provider as long as it is reasonable.

What is reasonable depends on the particular circumstances of each and every case, but it will take into consideration:

  • The financial resources of the service provider AS A WHOLE (ie not individual departments for instance);
  • How practical it is to make the adjustments;
  • The costs of the adjustment; and
  • The availability of external funding or grants.

We all know that NHS Trusts, Primary Care Trusts (or GP Consortia as they are now known) and other medical services have budgets that run into millions of pounds, so the last thing you should expect to hear is: “Oh, we can’t afford it!”.

The key message is this: informed consent. It is paramount that medical professionals obtain patients’ (or their next of kin) consent before embarking on any medical procedure unless the threat to their life or well being requires immediate intervention. A failure to do so opens up the NHS Trust or equivalent to legal action on the grounds of negligence.

It therefore baffles me why I see this issue cropping up time and time again; medical professionals or their staff routinely failing to provide interpreters. It’s for their benefit as well as Deaf patients. Also they can communicate effectively with the patient to find out their history, ails, pains, difficulties in order to provide the best treatment for them. You’d think medical professionals would WANT interpreters present all the time.

What is the cause of this innate inability or unwillingness to provide interpreters and make life that much easier for Deaf patients? Does the Hippocratic oath not matter to them? Don’t they CARE about their patients? Are NHS staff really so disillusioned working within the NHS that they no longer give a shit about patient care and obtaining consent? What makes them think they know what’s best for Deaf people?

I would strongly urge you to sign the Give Deaf patients access to appropriately qualified sign language interpreters petition. I have.

Deaf Student Lodges Disability Discrimination Claim Against the London Metropolitan University

Since 1st September 2003, colleges of Further & Higher Education have been obliged by the Disability Discrimination Act 1995 (DDA) to supply auxiliary aids and services to disabled students.

John Savva is profoundly deaf. He started his undergraduate degree course in Sept 2005 with the help of a Disabled Students Allowance. He was assessed as needing British Sign Language interpreters at lectures and for group work, and a note-taker at all course related sessions. It was estimated that the standard Allowance would not be adequate by some £10,000, to pay for all his learning support needs.

The Disability Rights Commission’s Code of Practice for providers of post 16 Education envisages “instances when disabled students might need reasonable adjustments to be provided by the institution in addition to those resourced through their disabled students’ allowances”.

The University’s approach was to offer him a maximum, and insufficient, amount of £3,500 per year which they obtained through the Access to Learning Fund. This figure did not take into account his individual needs.

Mr Savva struggled to keep up with his studies, only half of his lectures were interpreted and he was provided with no notetakers. He may have to give up his course if he cannot get sufficient support to meet his needs.

Jocelyn Murphy of the Disability Law Service who is representing John Savva says –

“To my knowledge this is the first case to make use of the auxiliary services provision in the DDA and highlights the barriers deaf students have to undertaking and completing higher education courses”.

Human rights and disabled people

I was reading Disability Rights in Europe: from theory to practice, and came across a reference to the cases of Skjoldager v Sweden (( (1995) 22504/93 )) and Malone v UK (( (1996) 25290/94) )) at the European Court of Human Rights (“the ECtHR”).

Skjoldager v Sweden

The applicant, a psychologist, visited a care home for people with learning difficulties where he found a number of residents unlawfully locked in their rooms. Following his report, action was taken which eventually resulted in the removal of the locks. He was, however, denied further access to the residents. Where unlawful detention of this nature has occurred, Article 5(5) requires that compensation be paid. Because none was offered to the residents, the applicant complained to the European Commission. He did so in a represenative capacity, but in his own name because the muncipality had refused to provide him with the names of the residents (who were incapable of lodging the complaints themselves). The case was rejected on the ground that the applicant had no specific authority to make the complaint. The residents were, therefore, effectively outside the protection of the Convention.

Malone v UK

Mandy Malone, a wheelchair user, was the defendant in possession proceedings relating to her council house. Her request that these be heard in a court near to her home was refused. Consequently, in order to reach the court, she had to leave home at 4.30am and undertake a 950 kilometre round trip. As a result, she was confined to her bed for four days and requried medical assistance. Her complaint related to the unfairness of the process and the inaccessibility of the court building (she had to be carried up the steps of the court and experienced ‘excruciating discomfort’ due to the lack of suitable toilet facilities). The Strasbourg complaint was rejected on the grounds that she had ‘failed to appropriately bring to the attention of the court her difficulties’ (( Lawson, A and Gooding, C, Disability Rights in Europe: from theory to practice, 2005 at 28 )).

These two cases serve as a reminder of how difficult it can be to enforce disability rights at the ECtHR, and that the ECtHR”continues to have profound difficulty in identifying and addressing state responsibility for discrimination against disabled people” (( Ibid )). Indeed, there is a paradox here, as the Convention is also silent on the rights of children and gay and lesbian people, but this has not prevented the ECtHR developing caselaw to remdy the injustices they face.

If the ECtHR had some imagination, they would ensure that Article 14 specifically includes disability as an example of unlawful discrimination.