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Signs of equality

19 January 15

Case study of a successful intervention by the Equality & Human Rights Commission against a service failure by a health board

by Claudia Bennett

When the Equality & Human Rights Commission was set up, it was given the mandate by Parliament to challenge discrimination, and to protect and promote human rights. It does this in a variety of ways. In terms of its use of legal powers provided to it under the Equality Act 2006, the Commission is probably most widely known for the strategic cases that it supports and which will effect wider change on equality and human rights issues.

However, the Commission has a broad suite of enforcement powers. One of those, the power to enter into a formal agreement with any organisation that it believes has committed an unlawful act (s 23 of the Act), was recently used in Scotland to effect change for over 900 deaf NHS users in Tayside.

The Commission became involved in the issue when, at the beginning of 2014, it received a complaint from a profoundly deaf woman who had spent seven days in a hospital in the Tayside area without any BSL (British sign language) interpretation services being made available to her. This greatly limited her ability to understand what treatment was provided to her, to participate in her care or even to ask questions.

Evidence provided to us suggested that the non-provision of BSL interpreters for hospital admissions and medical appointments by NHS Tayside was a recurring issue. The complainer herself had received an apology from NHS Tayside in 2012 for a similar failure to provide a BSL interpreter to her. There was also a Scottish Public Service Ombudsman investigation into a similar issue in the NHS Tayside area in 2013, but none of these complaints had led to an improvement in the provision of interpretation services for deaf patients.

Health boards, like all service providers, are obliged by law to put reasonable adjustments in place to ensure that deaf people are not at a substantial disadvantage, compared with others, when accessing their services. This reasonable adjustment duty means that if an organisation offering services to the public, such as a health board, finds that there are barriers to disabled people in the way it does things, it must consider making changes or adjustments, as long as they are reasonable for it to make. The duty is “anticipatory”. Therefore, the organisation cannot wait until a disabled person wants to use its services, but must think in advance, and review on an ongoing basis, what disabled people might reasonably need.

The health board’s suspected failure to comply with its legal duties under equalities legislation fell squarely within the Commission’s remit. The Commission therefore supported the case and raised legal proceedings against NHS Tayside on behalf of the individual in March 2014. NHS Tayside admitted liability and settled the case, making a payment to our client and entering into a formal s 23 agreement with the Commission.

Positive outcome

Section 23 empowers the Commission to enter into an agreement with an organisation on the basis that it will not use its other enforcement powers, provided the organisation undertakes not to commit an unlawful act and to take (or stop taking) specific actions. The s 23 agreement entered into with NHS Tayside comes with a detailed improvement plan which will run for two years. Under this plan, NHS Tayside committed to take a series of steps to ensure that every patient with additional communication requirements receives the same level of health care services as those without such requirements.

These steps are designed to achieve a range of objectives, from ensuring that all NHS medical, managerial and frontline staff are aware of their legal obligations to patients under the Equality Act 2010, to embedding this into working practice and staff appraisal systems. NHS Tayside is also committed to including members of the deaf community and other patient groups when reviewing its interpretation and translation systems and processes. The Commission will closely monitor progress throughout the two year duration of the agreement.

With this piece of work, the Commission reached an outcome that will have a positive impact for a large number of people. The agreement between the Commission and NHS Tayside embeds a principle which is at the core of what the NHS stands for – equal access to health services. This is one of the three principles that the NHS was based on when it was founded over 60 years ago, and is also part of the NHS’s constitutional principles. Equal access to the services provided means that it is essential that patients are fully involved in discussions and decisions about their care and treatment; and that they fully understand their treatment options and can take fully informed decisions about their care. Deaf people in the Tayside area should now be able to rely on this as a matter of course.

Claudia Bennett is a senior solicitor with the Equality & Human Rights Commission

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