Tory disdain for disabled people isn’t new but it has shaped their emergency COVID-19 legislation. Disability rights expert Ivanka Antova details how vulnerable people are punished by the measures and asks if the Stormont Executive record is any better.
My most vivid memory of the COVID-19 lockdown so far is a conversation I had with my mother, a cardiologist in the Bulgarian NHS, working in one of the biggest public hospitals in Sofia. At the time, Bulgaria had begun implementing a series of stringent measures to combat the spread of the virus. Boris Johnson’s Tory government had done practically nothing.
Yet as I sat stunned at the UK government’s inertia amid horror stories from Italy and Spain, my mother was stunned by measures the Bulgarian government had taken, stressing in particular the danger of limiting personal freedoms.
When Johnson was forced to finally act, some measures were introduced to address the challenges facing businesses, and individuals to a lesser extent. Very quickly it became apparent that among these measures, disguised as urgent and effective means of dealing with a public health crisis, lurked pretty appalling repercussions for disabled people.
The Coronavirus Act 2020 (CA 2020) was hastily pushed through Westminster, giving extraordinary powers to public health officials, police officers and immigration officers to detain, order, and remove any person for whom they have a ‘reasonable suspicion’ is infected with the virus.
Clearly, a detailed analysis of the Act as a legal instrument is needed, especially since it was devised by a government with a regrettable record on established human rights, but a specific focus on how the Act could impact disabled people is much needed too.
The detail of the Act betrays the fact that there has been no effort to overturn the disdainful approach towards disabled people before the crisis. Coronavirus or no coronavirus, the treatment disabled people receive daily is neglectful and disrespectful. But during a pandemic – when disabled people will need health and social care services the most – this Act was rammed through to essentially allow local authorities to fail to provide exactly those services.
Roll-back on rights
Under normal circumstances, local authorities have a basic legal duty to provide health and social care services to disabled people, promoting their well-being under the provisions of the Care Act 2014.
The new legislation has essentially eradicated this duty. Clear as day, Schedule 12 states:
‘…a local authority does not have to comply with any duties imposed by the [Care Act 2014]’.
In real terms this means local authorities no longer have the legal duty to assess an adult’s need for care and support. They no longer have a duty to assess a carer’s need for support, or a duty to support children with disabilities and young carers, even though these people would have been eligible for support after an assessment.
The new Act eradicates the need to make such assessments and effortlessly rolls back decades of disability activism victories, to ensure some semblance of personal independence and well-being.
And while the previous Care Act 2014 is by no means a perfect piece of legislation, it refers to the Human Rights Act 1998, giving legal effect to the European Convention on Human Rights (ECHR). Now, instead of concrete rights corresponding to concrete legal duties, disabled people have been left with a wishy-washy mention that local authorities still have ‘powers’ to provide health and social care.
This ‘power’ is a far cry from guaranteed legal rights. The words ‘power’ and ‘duty’ may appear to be synonymous, but the semantic here is crucial. A legal duty means that a disabled person has a right and that if the right is breached, they can ask for a legal remedy, take the authority to court, ask for compensation, etc. A power here means that a local authority is able to do something, if they wished to do so, but there is absolutely no requirement, there is no duty.
The only exception to the almost complete roll-back on rights is the requirement of local authorities to take measures to prevent a human rights violation, but barristers working with disability activists have already argued that even the ECHR has a very high threshold for what constitutes a violation, since there is no explicit right to social care in the ECHR.
Many disabled people will be left in an extremely precarious situation long before they can avail of a legal hearing or a court decision. This is why the disdainful pre-virus attitude toward disabled people is important to bear in mind – why would we expect authorities to use a power when they have displayed such disdain in the past?
Indeed the law itself is a reflection of the deep, long-held disdain of various governments towards disabled people. Disabled people are vulnerable to speedy, ideologically driven legislation because that same ideology views them as useless burdens, scroungers, skivers and, frankly, dispensable people who are unable to generate profit.
This could not be more clearly evidenced than by the (now amended) guidelines for who should be prioritised for critical care, following a COVID-19 infection. They advised that anyone with a stable chronic disability or learning disabilities would score very high on the frailty scale, and would not have been prioritised to receive critical care in hospital.
Public outcry followed their publication on March 20, because they were so clearly discriminatory against disabled people, and the pressure was enough to force an amendment.
Now, a personalised assessment is carried out to assess priorities for emergency care, but of course a personalised assessment does not happen in a vacuum. Any individual approach is still underpinned by public and private presumptions that disabled people are less important, and less viable.
In a society which decides your value based on what you can produce, if you cannot ‘do’ much, you are not worth much.
Disability rights beyond the crisis
The list of dangers within CA 2020 for vulnerable people goes on. The Act suspends many of the Mental Health Act 1983 provisions, allowing for people with mental health issues to be detained for longer or released earlier without their needs having been effectively assessed.
Provisions recognising the needs of disabled people to attend community services and to exercise during lockdown are lacking, both of which are vital for their independence and well-being. The lack of provisions for people in care homes and supported living accommodations to effectively self-isolate is also disturbing, and has ultimately given rise to the crisis in care homes in Britain today.
Undoubtedly, the establishment will try to persuade us that the CA 2020 provisions reflect the harsh reality of limited NHS funds and a necessity to spread available resources in the most effective way.
A decade of austerity – the reason we have a scarcity of health resources to begin with – has drilled into society the notion that there is no ‘magic money tree’ for healthcare. Whenever resources are deemed to be scarce, we have to decide who should avail of them.
Disturbingly quietly, the government has allowed local authorities to neglect their responsibility to provide social care to disabled people, thus deeming that they are not worthy to receive the scarce public health resources.
Whist COVID-19 is a novel coronavirus, what is not novel is the totally predictable disdain the Tory government has for disabled people. As a global health pandemic threatens the lives and livelihoods of many, any humane government would look to strengthen disability rights, to protect the dignity and worth of disabled people, and of the elderly, and of minorities.
Instead, those Tories responsible for systematically running the NHS into a crisis of its own have used this pandemic to ideologically drive legislation which leaves disabled people more vulnerable than before.
It is worth noting that while the Stormont Executive adopted almost an exact replica of those measures which imbue police and immigration officers with draconian detention powers, with little criticism around the chamber except from Gerry Carroll MLA, as a devolved region, the north of Ireland bears responsibility for local health and social care.
This means the North had an opportunity to take a different approach from the Tories. A letter from Health Minister Robin Swann, dated March 19, assured that health and social care provisions are essential and would be maintained. He gave no detail as to how they would be maintained.
Criminal Treatment in Care Homes
Indeed, that is a trend. On every issue – testing, number of deaths, contact tracing, PPE – a lack of transparency has shrouded the true scale of the crisis. Lockdown guidelines and even the new five step ‘roadmap to recovery’ released by Stormont this week have been frustratingly vague.
So vague are the guidelines, in fact, that construction and manufacturing workers can be told to go back to work whenever their bosses claim it is safe and the evidence they have to provide is far from prescriptive.
Those members of the workforce with particular vulnerabilities have been afforded no protection. Reports of workers with shielding letters being told to return to work are a disturbing outworking of this.
But perhaps the starkest example we have, that the Stormont Executive have not strayed far at all from the Tory approach to social care, is the shameful crisis in our care homes. Vulnerable and elderly people died because action was not taken to protect them – that we know for certain now. Workers were forced to care for residents without a lick of PPE, at times. To this day, months on from the first serious warnings of what lay in store for us, mass testing of workers and residents is not being carried out.
As the COVID specific Nightingale hospital is being stepped down, in what the BBC are framing as a good news story, questions should be asked: why were vulnerable care home residents not moved to this hospital to be treated? Were they refused that option when others were afforded it? Could their deaths have been prevented if so?
Les Allamby of the NI Human Rights Commission says a ‘wall of steel should have been built around care homes’ at the beginning of the crisis to protect our loved ones. Instead, they were treated with the same disdain we can expect from the Tories. The same disdain, it could be argued, which allowed almost wholesale privatisation of the care home sector which put shareholder profits before care and was the source of numerous neglect scandals even before this crisis.
Disdain before the crisis, deepened during the crisis, and certain to worsen if austerity is thrust on us after the crisis. Unless we act.
