The importance of judicial review in protecting the rights of disabled people during the Covid-19 pandemic

The government is rapidly reforming its powers to respond to the COVID-19 pandemic and introducing, and subsequently updating, legislation and guidance aimed at limiting the spread of the virus. This is having serious implications for the rights of people with disabilities.

The disproportionate impact of COVID-19 on disabled people

COVID-19 is not, as suggested by some, a great leveller. Instead COVID-19 is disproportionately impacting people with disabilities both directly and indirectly.

According to the United Nations Policy Brief: A Disability-Inclusive Response to COVID-19 (May 2020), people with disabilities are at greater risk of:

• Contracting COVID-19
• Developing more severe health conditions and dying of COVID-19
• Experiencing discrimination in accessing healthcare and life-saving procedures during the COVID-19 outbreak.

UK emergency legislation and guidance related to COVID-19 has weakened safeguards in mental health legislation, suspended some elements of the Care Act 2014 and, in some respects, has discriminated against people with disabilities.

This is all happening against a backdrop of existing inequalities and systemic discrimination faced by disabled people in the UK.

The importance of judicial reviews in protecting the rights of disabled people

It is essential that the rule of law, in particular the fundamental principle that state action must be in accordance with law, is respected in these unprecedented and trying times.

Lawyers must scrutinise, and judges must be able to examine limitations on the rights of disabled people introduced by the emergency legislation and guidance.

Judicial review, and often simply proposed judicial review, is a vital tool in demanding accountability and protecting the rights of disabled people.

Challenging the National Institute for Health and Care Excellence (NICE)

A proposed judicial review brought by Hodge Jones and Allen’s Peter Todd challenged the National Institute for Health and Care Excellence (NICE) COVID-19 guideline for clinical care. It secured important changes to protect the rights of people with autism, learning difficulties and mental disorders from unjustified discrimination in accessing critical care during the COVID-19 pandemic.

This action helped uphold the NHS constitutional value that “everyone counts”, which means we are all equal in dignity and worth – and should be treated as such when accessing healthcare and life-saving procedures during this pandemic. Read our press release on the NICE action for more details.

In recent weeks, other proposed judicial reviews have secured changes to discriminatory lockdown measures.

One amended NHS England’s COVID-19 Hospital Guidance, which originally failed to make reasonable adjustments for disabled people with communication needs. Another changed the government’s Leaving Home Guidance to make it clear that people who needed to leave their house more than once a day or travel outside of their local area because of a health condition would be entitled to do so.

The increased need for lawyers and the judiciary to hold the government and public bodies to account during the COVID-19 crisis

There is a growing consensus that journalists are failing to adequately hold Ministers to account in daily coronavirus press briefings.

There has been widespread frustration at journalists repeating questions, obsessing over single issues and ultimately failing to draw out proper answers on key points. Also, it has proved difficult for journalists to follow up their questions on video links as opposed to in-person.

MPs have also struggled to hold the executive to account, at first due to parliamentary recess, and now due to changes to parliamentary process including virtual parliamentary sessions.

Ministers have refused to directly answer questions and have, on occasion, showed disdain at attempts to hold them to account.

When Dr Rosena Allin-Khan, Shadow Minister for Mental Health and a serving A&E doctor, asked Matt Hancock, the Health Secretary, about the government’s failure to test frontline workers, she received a warning about her tone rather than any robust answer.

In addition to this, Sir Stephen Laws, former first parliamentary counsel responsible for drafting all government laws, suggested that human rights laws should be suspended to prevent legal challenges to the easing of the current lockdown in the coming weeks.

Furthermore, NHS England have refused to publish the weekly data it receives from hospitals and learning disability units about the deaths of patients with learning disabilities. This has the cumulative effect of making it increasingly difficult to hold the government and public bodies to account.

In these circumstances, it is more important than ever for lawyers to scrutinise emergency legislation and guidance and, where appropriate, bring judicial review challenges to ensure accountability and protect the most vulnerable in society, including people with disabilities.

Hodge Jones & Allen have expert public law solicitors who are experienced in bringing judicial review challenges. Our offices remain open throughout this time so that we can be contacted on 0330 822 3451 or via our contact form and we can act immediately.