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Leigh Day represents Mencap over learning disability care

Mencap challenge on provision of care to people with learning disabilities

Lisa S and her family

17 November 2011

Leigh Day & Co are representing Mencap, in a High Court challenge to safeguard people with learning disabilities, ensuring that there is an "obligation" on healthcare workers to make "reasonable adjustments" when dealing with disabled patients.

Mencap said it had felt compelled to take legal action because of the "gravity" of the "continued failure of healthcare professionals" to provide "legally-required" levels of service to patients with learning disabilities.

Frances Swaine, a partner in the human rights team at Leigh Day & Co who is representing Mencap, said:

"This case whilst legally technical simply aims to challenge one key point in the reporting by the Parliamentary and Health Service Ombudsman on the provision of care to vulnerable people.

"That is, if she finds that a health service provider has effectively broken the law, by not making reasonable adjustments in the way that they provide this service to allow a disabled person to access it, she cannot then say that there was neither maladministration or service failure.

"The Disability Discrimination Act (1995), and more recently the Equalities Act (2010), protects the rights of the most vulnerable in society and enshrines in law that health professionals have a duty to make these reasonable adjustments to ensure equality of access and service for disabled persons.

"If this duty is found to have been breached the Parliamentary and Health Service Ombudsman cannot possibly then go on to seemingly excuse that behaviour, undermining the protection afforded by law to disabled persons."

The legal action comes in the wake of the charity's 2007 report "Death by indifference", which said the health system saw patients with learning disabilities as a "low priority".

David Wolfe, for Mencap, told the hearing in London how Parliamentary and Health Service Ombudsman Ann Abraham had subsequently investigated the treatment of six patients whose deaths were described in the report.

He said Mencap wanted the judge to make a declaration about the legality of the approach taken by Ms Abraham when considering complaints that medical professionals, including doctors, had not complied with their legal obligations to make "reasonable adjustments" when dealing with patients with learning disabilities.

Mr Wolfe said a declaration would give Mencap clarification on whether staff should advise people "seeking remedies for discriminatory treatment" to make complaints to the Ombudsman or take legal action through courts.

Mencap had welcomed much of what Ms Abraham concluded and recommended following her investigation, said Mr Wolfe, in written arguments given to the judge.

The charity did not want her report "quashed" but sought a declaration about the legality of the approach she had taken in relation to one issue, he added.

"One key, systematic issue in the report was of great concern to Mencap, namely the approach which the Ombudsman had taken to the statutory obligation on health professionals to make reasonable adjustments to accommodate the particular needs of disabled patients," said Mr Wolfe.

"Mencap regards that statutory obligation as a key part of the legal protections for disabled people."

He said the charity was "keen to ensure" that a complaint to the Ombudsman would mean that people with learning difficulties could "properly and effectively" challenge unsatisfactory treatment.

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