Learning disability charity Mencap has warned that a court ruling on disability discrimination in NHS care will continue to allow discrimination against people with a learning disability to go unchecked and lead to further unnecessary deaths.
In a judicial review hearing between Mencap and the Parliamentary and Health Services Ombudsman, Judge Mr Justice Mitting dismissed Mencap’s case, ruling that the Ombudsman’s approach to complaints where health professionals have not met their legal obligations to disabled patients is lawful. Mencap claim the ruling means if medical professionals fail to make ‘reasonable adjustments’ in the way that they deal with disabled patients – as required by law under the Disability Discrimination Act 1995 (now under the Equality Act 2010) – it does not automatically equate to ‘service failure’.
The charity said it is “deeply concerned” by this ruling, saying that by failing to send a powerful message to health professionals that they need to comply with their legal obligations, there is danger that patients with a disability will continue to die needlessly while in NHS care. Mencap had sought this judicial review as part of its ongoing campaign to highlight how people with a learning disability were dying unnecessarily due to institutional discrimination in the NHS.
This was outlined in its ‘Death by indifference’ report in 2007. The Ombudsman carried out an inquiry into the deaths and the resulting report, ‘Six Lives’, was largely welcomed by Mencap. But Mencap was concerned by the Ombudsman’s approach to the statutory obligation on health professionals to make reasonable adjustments to accommodate the particular needs of disabled patients and decided to embark on a judicial review to address this.
David Congdon, Mencap head of campaigns and policy, said: “This is a bad day for people with a learning disability. If the NHS is not properly investigated and held to account when they discriminate against people with a learning disability, there is real danger that more patients will die needlessly. “The Ombudsman has been a relatively accessible route for people with a learning disability and their families to properly and effectively challenge medical treatment which does not meet the standards that they are entitled to expect. Unfortunately we believe that this ruling will deter individuals from making further complaints in cases where they have been seriously let down by medical professionals on the basis of their disability. “Everyday Mencap supports families of people who would still be alive today had health professional made the necessary ‘reasonable adjustments’ that they are duty bound to make by law. Mencap will continue to fight to make sure health professionals work within the law. We want to ensure that the lives of people with a learning disability are valued equally and that they receive the healthcare they deserve.”
A press statement from the Ombudsman, Ann Abraham, said: “We are pleased that the judgment was that the Ombudsman’s approach to complaints about disability issues, as set out in her reports, was sensible and lawful. “The Ombudsman will continue to consider complaints where people’s disability and equality rights are clearly engaged through her distinctive role in the provision of justice, both in righting individual wrongs and driving improvements in public services. She will do this in the way set out in her ‘Report by the Parliamentary and Health Service Ombudsman’ on complaints about disability issues.”