Findings on how the legal system addresses multiple discrimination in healthcare Erica Howard, Senior Lecturer in Law, Middlesex University

Convention on the Rights of Persons with Disabilities 1.Signed and ratified by EU 2.Art. 1: social definition of disability 3.Protection against discrimination on all grounds 4.first Convention that explicitly recognises multiple discrimination 5.persons with a disability have right to same level of health services as other people

(Multiple) discrimination provisions EU equality directives: no provision for multiple discrimination, but not prohibited either National law: ▫ Constitutional equality guarantee: Austria, Czech Republic, Italy, Sweden ▫ Single Acts covering all grounds: Czech Republic, Sweden, UK ▫ Protection in health care access against race and ethnicity, disability and sex discrimination in all five countries ▫ Age discrimination in access to health care NOT (yet) covered for Sweden and UK ▫ Czech Republic, Sweden, UK have single equality bodies dealing with all grounds of discrimination covered by national law

Multiple discrimination provisions Explicit in law in Austria and Italy; no definition given; multiple grounds taken into account when assessing remedies Also explicit in Bulgaria, Germany, Poland, Romania, Spain Czech Republic, Sweden, UK: no explicit provision for claims on multiple grounds, but law does not preclude such claims either Same situation in : Belgium, Cyprus, Denmark, Finland, France, Greece, Hungary, Iceland, Ireland, Malta, the Netherlands, Norway, Portugal, Slovakia None of five countries explicitly provides for discrimination claims to be brought on more than one ground

Challenges when making multiple claims lack of explicit legal provisions for multiple or intersectional discrimination lack of case law on multiple or intersectional discrimination generally and more especially in area of health care low effectiveness of available remedies: in area of health care alternatives are often more beneficial for claimant difficulties in proving cases of multiple or intersectional discrimination Burden of proof: defences in health care cases Comparator Gathering evidence especially difficult in area of health care fragmentation of competent (equality and health) bodies and lack of cooperation Low awareness of multiple discrimination

Other challenges Complexity of discrimination complaints mechanism and lack of transparency Length of court cases and personal and financial resources needed too demanding especially for people with poor health Reluctance among people to complain about discrimination in health sector Great reluctance of health professionals and health bodies to admit discrimination

Strategies to cope with situation in health care Informal: ▫ Finding a new doctor or health care facility ▫ Causing a fuss ▫ Practical, direct approach of person discriminating ▫ Seeking intervention from NGOs ▫ Avoidance of particular services ▫ Treatment abroad ▫ Consulting the internet Formal: ▫ Direct complaint to supervisors, directors or heads of departments ▫ Complaints to provider of health care facility ▫ Complaint to ombudsman

Promising initiatives Explicit legal provisions in some countries Remedies: Austria and Italy: extra ground of discrimination can lead to extra compensation DeBique case: allowing the effect of two grounds to be taken into account Allowing diagonal comparisons Single Equality bodies covering all grounds of discrimination especially useful if supported by single law (Czech Republic, Sweden, UK) Awareness raising campaigns and training on multiple discrimination Positive duties to promote equality: PSED in UK

Recommendations: general Legal provision against multiple discrimination, preferably at EU level EU awareness-raising campaigns Adoption of COM (2008) 426 and similar cover for sex discrimination Sanctions and levels of compensation for discrimination need to be researched Provide for either comparisons or other ways to prove discrimination, preferably at EU level Consider whether single act and single body is more beneficial for multiple discrimination cases, where these do not exist at present

Recommendations for (multiple) discrimination in health care – 1/2 Exploring possibility of making discrimination claims in health care Awareness-raising of discrimination in health care within health complaints bodies and to the wider public, including: ▫ Easily accessible information, advice and assistance for complainants ▫ Awareness-raising, providing guidelines, training and exchange of information opportunities for health care staff Procedures at equality and health bodies: ▫ more powers for equality and health bodies ▫ more stress on the impartiality of the person handling the complaint; ▫ faster procedures at health and equality bodies

Recommendations for (multiple) discrimination in health care – 2/2 Cooperation between health complaint bodies and equality bodies and more interaction between equality and health bodies and between these bodies and key actors such as public authorities and researchers Community consultation on health needs and service provision