Healthcare providers owe duties to service users under the Equality Act 2010 where the service user has a 'protected characteristic'. Protected characteristics include: age, gender, race, sexual orientation, marital status, pregnancy and maternity, religion or belief, gender reassignment and disability.
Healthcare providers must not discriminate against any person who has a protected characteristic, is perceived to have a protected characteristic, or is associated with a person who has a protected characteristic.
The Equality Act 2010 outlaws direct discrimination, indirect discrimination, harassment and victimisation.
For those whose protected characteristic is disability, discrimination can also occur by way of:
- Discrimination arising out of a disability; and
- Failure to make reasonable adjustments.
Claims can be brought on the basis of perceived discriminatory treatment as a result of any of the above listed protected characteristics, however most commonly, claims against healthcare providers are brought by claimants suffering from disabilities, where the conduct of the healthcare provider has been perceived as being discriminatory, as a result of the claimants disability.
Examples of such complaints include:
- A service user believing that they have been treated unfavourably by being removed from a patient/care list due to having been perceived to have acted aggressively towards a service provider, such behaviour being attributed to their medical conditions.
- The inflexible application of a procedural policy requiring patients to attend surgery to order repeat prescriptions or for review. A refusal to provide for home visits/remote ordering in cases where patients suffering from social anxiety or similar are precluded from complying with the same, would place the service user at a detriment.
Claims of indirect discrimination are often brought by service users as a result of the stringent application of inflexible policies, criteria or practices, which cause detriment to service users with a particular protected characteristic, such as in the example outlined above. In this instance, a claim for failure to make reasonable adjustments may also arise.
Discrimination arising from a disability can occur where a person is subjected to a detriment as a result of something which can be said to be an effect of, or caused by, their disability, such as the above example where a service user is perceived to have acted aggressively, but where the behaviour is attributed to their disability.
Failure to make reasonable adjustments can also occur when a service user requires some other form of adjustments to be made by the healthcare provider, to enable them to access these services without being put at a disadvantage due to their disabilities, and a healthcare provider does not make the adjustments, even when it is considered ‘reasonable’. What is considered to be reasonable will vary on a case by case basis, because various factors must be taken into account, including the specific disability of the service user but also, the resources available to the healthcare provider. Further, healthcare providers are only under a duty to make reasonable adjustments where they are aware, or should be aware, that the service user has a disability.
Examples include healthcare providers failing to make reasonable adjustments in respect of the format in which correspondence is sent, which may mean that a service user is unable to consider the same and access their appointments.
Claims can be brought against healthcare providers, who will also be responsible for the acts of their employees. Claims can also be brought against the individual employees and this is most common where the claim involves comments made by an employee, which could constitute direct discrimination and/or harassment.
When a service user is intending to commence legal proceedings, a legal 'letter before action' must first be sent to the healthcare provider setting out the alleged acts of discrimination in full, the relevant law relied upon, and the remedies sought. The provider must be provided with a reasonable timescale in which to respond.
Claims must be issued in the County Court within six months less one day of the alleged discriminatory act (if it is a one off incident) or the last act of discrimination (if there has been an ongoing series of alleged discriminatory acts).
These time limits are strictly imposed and it is therefore imperative that service users act fast in taking action, and it is imperative that healthcare providers take urgent steps to resolve issues, when faced with a complaint and/or a letter before action.
If you are a service user and feel that you have been discriminated against, or a healthcare provider looking for advice on dealing with a potential claim being brought against you, please contact Stephensons' discrimination law team on 01616 966 229.
By Charlotte Brain, case manager in the employment and discrimination team