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 people and access to legal advice

This article was written by Rob Wilks originally posted on the Limping Chicken website on 21 May 2012. You can see it here.

It is a truth universally acknowledged, particularly within the Deaf community and the interpreting profession, that Deaf people’s access to legal advice services in the UK in rather dire.

As early as 2009, this was a fact recognised even by the institution with a statutory remit to promote and monitor human rights; and to protect, enforce and promote equality across the nine “protected” grounds – age, disability, gender, race, religion and belief, pregnancy and maternity, marriage and civil partnership, sexual orientation and gender reassignment, the Equality and Human Rights Commission (EHRC). They produced a report entitled “Responding to discrimination: the geography and geometry of advice provision in England, Scotland and Wales” in July 2009, and the following is the relevant extract.

‘For the deaf person seeking advice there are additional barriers as when they come across a little oasis of advice, there is no guarantee that they can access the advice on hand. Unfortunately, the advice system of CABs, law societies, union sources and private firms of solicitors are often still inaccessible to profoundly deaf people in spite of the DDA having been on the statute books since 1995. Lack of knowledge of palantype transcription services, BSL interpreters, induction loops etc, all of which are inclusive methods of communication, coupled with low levels of understanding of DDA reasonable adjustment duties contribute to the exclusion of deaf people from the oasis in the desert.

‘I can tell you of a couple of local examples of times when the unions had not protected their deaf members from discrimination. This happened by failing to provide interpreters at branch meetings when BSL using deaf people were in attendance and for agreeing that an employee HGV driver’s deafness and a false assumption that he was a ‘safety risk’ could be used as criteria to select him for redundancy in spite of him having a clean driving licence when other hearing drivers not selected for redundancy had points. All these deaf people mentioned were paid up members of their unions. How could they ever have the confidence to ask their own unions for legal advice in the future?

‘The problems accessing CABs and private solicitors varies from place to place depending on the level of awareness of reasonable adjustments. I have encountered a deaf person who hired a family law solicitor to represent them during their divorce proceedings but ended up being charged for both the solicitor’s service and that of a BSL interpreter who was needed to facilitate communication. Some CABs are very inclusive such as Deeside CAB who employ a DDA caseworker, but others will question who will pay for an interpreter if a deaf person needs to access their service. There isn’t a consistent approach yet to funding interpreters that I’m aware of. A ballpark figure for the cost of hiring a BSL interpreter for a one-hour meeting is in the region of £150 to £200 plus travel expenses.

‘Behind all this is the sad fact that many profoundly deaf people are effectively nonreaders and can’t access advice from websites (unless BSL signing is an option), leaflets or books. Conrad’s 1979 study is very old now but still holds true; the average reading age of the profoundly deaf school leaver is approx 8-9 years (based on a study of 4,000 school leavers). As recently as 2005, only 31% of deaf school leavers gained Level 2 (5 GCSE’s or more in grades A-C). This makes it even more essential that the services of BSL interpreters are available for those wishing to access advice.

‘The underdeveloped literacy skills also results in the sad reality that few BSL using deaf people can use textphones/minicoms to access telephone helpline advice centres. These deaf people require face-to-face advice with an interpreter present. Telephone helpline services which install a textphone, such as EHRC, still do not get the proportional volume of deaf calls as the language of the textphone remains English. With call centre helplines often centralised, the option of a face-to-face meeting does not exist.

…It would be erroneous if an advice provider was to group together all the data from disabled people who have used the service. It is not a great difficulty for a wheelchair user with no sensory impairment or impairment of cognitive ability to access advice over the phone, or from the internet. When disabled people are treated as a homogenous group then the specific obstacles facing deaf people and those with learning difficulties often slip through the net – they are left in not so much an advice desert, but on a whole planet of sand.’

More recently, the Legal Services Consumer Panel commissioned a report by the Deaf Studies Trust entitled “Legal Choices – Silent Process: Engaging legal services when you do not hear” (March 2012). It concluded that Deaf people

“often felt like they were in a battle to be understood by their legal adviser”

and that communication is the “core issue” between the Deaf individual and their legal adviser:

“For deaf people, it centres on lack of ‘deaf-friendliness’ of the contact and the perception that an interpreter is only engaged to help a deaf person, and not to facilitate the work of the lawyer”

and

“Deaf […] people suffer no cognitive impairment as a result of their hearing loss but they are often made to feel dependent and ignorant by their own legal team because of insensitivity and lack of preparation”.

Perhaps more worryingly was the assertion that:

“there are certainly cases where the participants felt this, particularly where deaf people may be penalised or pressured by their lack of understanding of the legal process; and also where deaf people may be given incorrect treatment due to caricaturing of their supposed needs”.

It is clear that between 2009 and 2012 very little has changed, and Deaf people simply do not have the access to legal advice that they need and indeed is their right to do so.,

As most of you will know, I am the Head of RAD Deaf Law Centre, whose aim is to “make the law work for Deaf people”. My team and I are in the next few months preparing to take positive steps to address the inaccessibility of legal advice services for Deaf people. More about that in a later post.

Related Articles

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.