Court ruling leaves disabled patients at risk

Friday 18 November 2011

Mencap warns that discrimination will lead to further unnecessary deaths of people with a learning disability while in NHS care

Mencap took the Parliamentary and Health Service Ombudsman to judicial review, on 16 November, to challenge the legality of her approach to complaints of disability discrimination in the NHS.

However, the judge ruled that the Ombudsman’s approach is lawful. Mencap has warned that this ruling will continue to allow discrimination against people with a learning disability to go unchecked and lead to further unnecessary deaths.

Medical professionals are obliged under the Disability Discrimination Act 1995 (now under the Equality Act 2010), to make ‘reasonable adjustments’ to accommodate the needs of disabled people, to ensure they receive equal treatment. But the ruling means that failure by medical professionals to make these adjustments does not automatically equate to ‘service failure’.

Mencap is deeply concerned that by failing to send a powerful message to health professionals that they need to comply with their legal obligations, there is a real danger that patients with a disability will continue to die while in NHS care. High profile cases were brought to the attention of the Ombudsman by Mencap’s ‘Death by indifference’ campaign, and resulted in the publication of the ‘Six Lives’ report in 2009.

David Congdon, Mencap’s 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.

“Mencap will continue to fight to make sure health professionals work within the law.”

Read more about Mencap’s ‘Death by indifference’ campaign