28 August 2008
Leigh Day & Co has acted in a variety of cases concerning substandard care being provided to individuals with learning difficulties. We have assisted families of individuals with learning difficulties obtain their lawful entitlement to healthcare and social care and worked with advocate organisations to protect the rights of these vulnerable people.
Sadly, some failures in care have led to the tragic and potentially avoidable deaths of people with learning difficulties, and Leigh Day & Co has assisted families through inquests and with posthumous claims where possible.
In March 2007, Mencap
published a report, “Death by Indifference
”, in which Mencap concluded that the NHS was discriminating against people with a learning disability. The report called for an independent enquiry, which has recently concluded that existing guidelines and laws aimed at ensuring people with learning disabilities got equal treatment were not being followed.
No specific laws set out what health services must be provided by the NHS. There is no absolute right to any treatment; rather the NHS has a legal duty to promote the healthcare needs of every section of the population including people with learning difficulties.
When any individual is provided with healthcare, the health professionals owe the individual a duty of care and are required by anti-discrimination legislation to provide the same level of care to all individuals, regardless of any disability.
The Disability Discrimination Act 1995 (as amended) and other anti-discrimination legislation place duties on service providers to make “reasonable adjustments” to services and policies to ensure equality of treatment for disabled persons and make it unlawful for service providers to discriminate. Mencap’s report and the recent inquiry conclude these laws are not being followed and a common failure by NHS hospital trusts is failing to make “reasonable adjustments” to their services, which take into account the needs of people with learning difficulties.
Substandard social care
In a recent case brought by partner.... Frances Swaine, the Court agreed that local authorities have a duty of care to adults who have a proven learning disability. Details of the case, which is now subject to an appeal by the local authority involved, can be found here
Leigh Day & Co has acted for many individuals who have been abused while in the care of local authorities, however this was the first time a Court has recognised that local authorities have a duty where injuries suffered by the individuals were reasonably foreseeable, where the local authority had a sufficiently close relationship with the individuals and it was fair and reasonable to impose such a duty. This is an important decision in the move towards ensuring the rights of people with learning difficulties are properly protected.
Failures to provide adequate care may be challenged in a variety of ways, including:
- Making formal complaints to the local authority or NHS body (this should always be done as soon as possible);
- Bringing a judicial review challenge against an unreasonable, unlawful or irrational decision (for example, against a failure to provide a service); and
- Bringing a claim for damages (for example, as a result of negligence or breach of human rights).
If you believe that you, your family member or anyone else is receiving substandard treatment as a result of a learning difficulty, please do contact Frances Swaine
or Merry Varney
of the Human Rights Department for assistance.
Information was correct at time of publishing. See terms and conditions for further details.