By Simone Aspis
Increasingly, the government is enacting legislation and policies that have the potential to treat disabled people less favourably than their non-disabled peers. Whilst law and policy is meant in theory not to discriminate against disabled people, too often discrimination takes place in practice. By incorporating the European Convention on Human Rights (ECHR) into domestic law, the Human Rights Act (HRA) 1998 ensures that UK legislation and policy must be read by the courts to uphold and protect disabled people’s human rights. As the ECHR and, by extension, the HRA are vital to protecting the rights of minorities and the vulnerable in the UK, René Cassin is campaigning to defend the HRA against efforts to repeal it.
An example of the Human Rights Act in action is A and others v East Sussex County Council and another, which upheld the council’s policy prohibiting care workers from lifting disabled people as part of their work on health and safety grounds., The judge found that lifting policies should ensure that a proper balance is struck between meeting the needs and rights (Articles 3 and 8 ECHR) of disabled people on the one hand, and ensuring a safe environment for staff working with disabled people on the other.
The Human Rights Act has been helpful in preventing public bodies from simply having policies that considers the needs and rights of others over those who are disabled. For some disabled people, the Human Rights Act has been a life-saver. Janet Tracey, who was being treated for incurable lung cancer found out that a Do not Resuscitate notice was placed in her records without her consent. It was upheld in Tracey v Cambridge University that doctors breached the patient’s ECHR Article 2 right to life.
ECHR Article 14 has been used to good effect in clarifying the law, such as how the Equality Act 2010 should be interpreted. Until very recently, disabled children demonstrating a tendency towards physical violence and abuse alongside other “criminal” behaviour would have no protection against disability-related discrimination. Schools have therefore tended to use this provision to exclude disabled pupils without considering any disability-related reasonable adjustments. However, thanks to ECHR Article (14) the Upper Tribunal judges ruled in C&C v The Governing Body of a School that disabled children with a tendency towards physical abuse and violence are protected under the Equality Act. As a result, schools are now required to make reasonable adjustments for disabled pupils with behavioural issues. Whilst there is no court case dealing with disabled adults with similar behaviour,it could be argued that the ruling should cover all disabled people regardless of age.
Occasionally, the judges have made a declaration that UK legislation is incompatible with the Human Rights Act. The “Nearest Relative” is not necessarily the same as next of kin, but a close relative under the Mental Health Act 1983 with legal powers to take decisions on a patient’s medical treatment. This concept and the burden of proof being placed upon the patient when challenging their hospital order have been amended as a result of various challenges brought under the MHA 1983.
Whilst the European Convention on Human Rights (ECHR) has provided some protection, there have been some issues that have led to unhelpful interpretations of our rights. For example, in X v UK, it was upheld that providing a disabled person with continence pads instead of night care support workers was perfectly lawful, even with the engagement of ECHR articles 8 and 3, as the individual had been treated with dignity by the council right to be treated when taking into account other factors such as budgets.
The United Convention on the Rights of Persons with Disabilities (UNCRPD) is the only convention drafted by its beneficiaries and has been developed to deal with the gaps in the contents of ECHR Articles. For instance, people can be detained under the Mental Health Act on the grounds of disability, i.e. a mental disorder or disability of mind in a psychiatric hospital. The ECHR Article 5 permits such detention, whereas UNCRPD Article 14 sets out clearly that detention on the grounds of disability would be considered a breach of a disabled person’s human rights. Furthermore, the UNCRPD provides clearer understanding from a disabled people’s perspective on how our rights should be interpreted. States can continue to force disabled pupils and students into segregated education against their own, and their families’, philosophical beliefs. However, UNCRPD Article 24 makes it clear that the UK has an obligation to develop an inclusive education system over a period of time. The Article does not make any reference to segregated education.
With the UK leaving the European Union, disabled people’s human rights are under attack. Whilst we will still remain part of the judistriction of the European Convention on Human Rights, disabled people will no longer enjoy the protections afforded under the EU Charter of Fundamental Rights. However, as remaining in the ECHR jurisdiction is no longer a sufficient safeguard, it is essential that the UNCRPD guarantees disabled people much stronger rights, that must be incorporated into domestic legislation.
Simone Aspis is a Jewish Disabled Activist. She has over 20 years’ experience of campaigning for disabled people’s human and civil rights for UK Disabled Peoples Council, the Alliance for Inclusive Education, People First and Changing Perspectives. Changing Perspectives was a member of a coalition of disabled peoples lead organisations campaigning for the Government to sign and ratify the UN Convention Rights of Persons with Disabilities back in 2006. Now, she uses the UNCRPD and ECHR in her work with the Alliance for Inclusive Education and Changing Perspectives. Simone is also investigating whether key provisions in the Mental Health Act are incompatible with various ECHR Articles.