You can’t be disabled when you’re dead – a footnote to R (Antoniou)
31 October 2013
A somewhat curious additional point arises out of the case of R (Antoniou) – see my earlier post for the main issue – in which the court decided that Article 2 ECHR does not require an independent investigation into deaths in state detention prior to a coroner’s inquest. There was therefore no obligation to ensure that there was an independent investigation into the suicide, or death resulting from self-harm, of a mentally ill person detained under Section 3 of the Mental Health Act 1983. There is such an investigation when a prisoner commits suicide. The Claimant thought this smacked of discrimination against the mentally disabled. The Court disagreed – on the somewhat surprising ground that you can’t be disabled once you’re dead.
Where a prisoner commits suicide, or dies as a result of self-harm, there will be an independent investigation from the outset. Any death in prison or in probation custody is automatically referred immediately to the Prisons and Probation Ombudsman for independent investigation. The Independent Police Complaints Commission performs a similar role for deaths in police, immigration or Customs & Excise detention. There is no equivalent independent investigator of deaths in mental health detention, which are investigated by the hospital where they occurred. The Claimant said this distinction discriminates between people who are mentally disabled and those of sound mind.
There are various ways to make such a discrimination claim. The Claimant started with Article 14 of the Convention, which says that:
“the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, colour… or other status”.
The case of Glor v Switzerland (at ) established that disability is an “other status”.
Was the distinction in treatment between prisoners and those in mental health detention really based on mental illness? The court thought not, saying the difference between the two cases really arises not from their different status (one mentally disabled, the other not) but rather from their different circumstances of detention. So, for instance, a prisoner with a psychiatric disability who committed suicide on the hospital wing of a prison would be treated in the same way as a prisoner of sound mind who committed suicide while held in an ordinary cell.
There are alternative ways to make discrimination claims, though, which rely on the Equality Act 2010 rather than the Convention. The Claimant tried indirect discrimination. Section 19 provides as follows:
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are—
The provision, criterion or practice (PCP) in this case would presumably be something like holding independent investigations into prison deaths but not mental health detention deaths. There could be real difficulties in detailing the relevant PCP here – but the court did not deal with any of them, because unless the Claimant (or the Claimant on behalf of the deceased Mrs Antoniou, in this case) could show that she had a disability, the Equality Act claim could not even get off the ground.
The criteria for having a disability are also set out in the Act, at Section 6:
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
(2) A reference to a disabled person is a reference to a person who has a disability.
(3) In relation to the protected characteristic of disability—
(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability
The claim was, of course, that Mrs Antoniou had a disability because she had a mental impairment which had an extremely substantial and long-term adverse effect on her ability to carry out normal day-to-day activities to the extent that she was detained in a mental hospital. Somewhat surprisingly, though, the court found that no claim for disability by, or on behalf of, a dead person could succeed, because:
“It is plain, as a matter of language, that a disability as defined by Section 6 can only be suffered by a living person… It cannot sensibly be said that a deceased person “has a disability”. Once a person has died, his “ability to carry out normal day to day activities” is wholly extinguished… The 2010 Act sensibly recognises that death eliminates all differences based on disability” 
The issue here is certainly rather unusual. In general, though, does disability discrimination really cease to matter once its victim has died? The court in Antoniou may well not have had the last word on the matter.
Sign up to free human rights updates by email, Facebook, Twitter or RSS