Written evidence from the Oxford University Disability Law and Policy Project and the Bonavero Institute of Human Rights. (COV0209)
About this Submission
This submission is based on the recommendations of our recent policy report, which found the Government failed to properly implement fully its legal duties with respect to the rights of people with disabilities under the European Convention on Human Rights (the ECHR), the European Convention on the Rights of Persons with Disabilities (the ECRPD), the Equality Act 2010 and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). We set out the steps required to ensure that the Government’s measures to address the Covid-19 pandemic are human rights compliant.
Disabled people in the United Kingdom, like those from BAME groups, have died from Covid-19 on a tragic scale. The magnitude of deaths amounts to a violation of the State’s obligation to protect the right to life, under Article 2 (ECHR). In June, the Office for National Statistics Data (ONS) revealed that 22,487 disabled people died from coronavirus between 2nd March and 15th May 2020, representing ~60% of all Covid-19 deaths. The ONS suggests these estimates are "conservative". Disabled women are 2.4 times more likely to die from Covid-19, compared to 1.9 times for disabled men. These risk levels rise to 11.3 times for disabled women aged under 65 and 6.5 times for men.
Mortality among people with learning disabilities and autism is also alarming; with the CQC reporting a 134% increase in April–May 2020, compared to the same 2019 period. Nevertheless, concerns have been raised that such deaths have not been accurately included in the overall numbers reported or recorded by statutory agencies under the Learning Disability Mortality Review Programme (LeDeR). Further, it seems that ‘Do Not Resuscitate’ instructions have been written unlawfully into the care plans of some Learning Disabled residents in care homes. If proven, these incidents are likely contrary to Article 2 protections for persons in the context of healthcare. Firstly, by knowingly putting patients’ lives in danger by a denying access to life-saving emergency treatment and secondly for failing to consult those with capacity or failing to follow Mental Capacity Act 2005 procedures for those lacking capacity and, thus, excluding the patient’s active consent in the decision-making process.
Yet the Government Guidance on shielding and protecting people who are clinically extremely vulnerable from Covid-19 resurrected the idea of ‘vulnerable’ groups and excluded nine million disabled people not categorised in this way. There is emerging evidence of cases where this regulatory framework operated to the patient’s detriment. It has also contributed to significant systemic barriers faced by disabled people in accessing and acquiring food and food poverty during the pandemic, contrary to Article 28 UNCRPD on adequate standards of living and social protection.
It is important to remember that a core positive obligation under Article 2 of the ECHR requires states to take appropriate steps to safeguard the lives of those within their jurisdiction. This obligation exists in several contexts, including healthcare and medical care and assistance given to vulnerable persons institutionalised in State facilities. Deaths in care homes alone were 220% higher at the April peak than in February. Insufficient action was taken by Government to prevent Covid-19 spreading in care homes and other institutional settings, along with those receiving home care, as the government stopped regular testing and tracing and care workers did not have access to adequate Personal Protective Equipment. This potentially amounts to ‘a systemic or structural dysfunction in hospital services…’ (see Aydoğdu v. Turkey), evidence of a further failure by the State in its duties under the substantive limb of Article 2 and violation of Article 14 (Prohibition on discrimination).
The Academy of Medical Sciences predicts ‘a peak in…deaths in January/February 2021’ similar to that of the first wave. The European Court of Human Rights has held that Article 2 imposes positive investigatory obligations (see here) on signatory states where there have been apparent breaches of the article. Urgent action is needed, therefore, by Government to prevent a second wave of deaths and fulfil its duties under Article 2 of the ECHR by:
Changes to legislation affecting the rights of disabled people, through the Coronavirus Act 2020, has disproportionately impacted upon every aspect of our daily lives (see sections E, F&G below and our report).
The Government’s policymaking in response to the pandemic has failed to fulfil its own Public Sector Equality Duty under the Equality Act 2010 with respect to disabled people and its obligations under the UNCRPD.
We, therefore, urge the government to:
The ONS reported widespread anxiety amongst disabled people about the effects of the coronavirus pandemic. The lack of timely and accessible public health information is one of the reasons disabled people face increased risk of contracting the disease. However, contrary to Articles 8 and 21 of the UNCRPD, disabled people have been largely excluded from Government’s communications. Therefore, Government must take steps to:
Disabled people face three distinct but related dimensions of increased risk of Covid-19: contracting the disease; developing a severe case once contracted, and; negative secondary consequences from the Covid-19 response.
In order to fulfil its obligations under Article 2 of the ECHR and Article 25 of the UNCRPD, and to mitigate the disproportionate impacts of coronavirus on disabled people’s health and access to healthcare services, the Government must:
The so-called ‘easements’ by Schedule 12 of the Coronavirus Act 2020, of already modest duties owed by local authorities to service users under the Care Act 2014, pose grave risks to the dignity of disabled and older people.
In order to fulfil its obligations under the UNCRPD to enable disabled people to live independently and be included in the community, and ensure they are accorded respect for home and the family (Article 19 and 23) we urge the government to:
The temporary modification of mental health and mental capacity legislation, through Section 10 and Schedule 8 of the Coronavirus Act 2020, has caused those with mental ill health to feel unsafe by allowing a single registered medical practitioner to determine hospitalisation and potentially extending the period of detention under section considerably. Under ECtHR jurisprudence persons with ‘mental disabilities’ are considered to constitute a ‘particularly vulnerable group’ who require protection from self-harm.
Therefore, the Government must:
Children and young people with special educational needs and disabilities (SEND) are being disproportionately affected by Covid-19 and their right to education ‘relaxed’ by Section 38 and Schedule 17 of the Coronavirus Act 2020.