Is your practice compliant with disability laws?
DENTAL BULLETIN, ISSUE 32
Anyone who provides a service to the public has a duty to make reasonable adjustments. This encompasses dentists and dental practices. If you fail to comply with this duty the patient with the disability can issue a claim against you in the County Court for discrimination and seek to recover damages, which can include an award for injured feelings. As if this was not bad enough, a failure to make your practice accessible is likely to be a breach of Principle 1 of the Standards for the Dental Team and Regulation 9 of the CQC requirements.
Ensuring your practice is up to scratch can be a daunting process. However, remember the duty is only to make such adjustments that are reasonable; therefore understanding the legal principles behind the duty will give you the confidence to assess the needs of your practice and then make the necessary adjustments.
Disability laws compliance in 3 steps
Here we break down the duty into three simple steps you can follow when assessing the needs of your practice to see if you are compliant with disability laws.
Step 1
The first step is to identify the disability and the substantial disadvantage that it places on the person.
How to identify a disability:
The statutory test is;
- A mental or physical impairment;
- That is likely to last or has lasted 12 months; and
- That has a substantial effect on a person’s day-to-day activities such as walking, household chores, concentration and hobbies.
The biggest difficulty for business owners can arise when the disability is not obvious. If a concern is raised by a patient, or their carer, a dentist should make proper enquiries as to what the disability is and what effect it has on the patient. When taking a medical history, new patients should be asked to disclose any disability.
What is a substantial disadvantage?
A substantial disadvantage is one that is more than minor or trivial. For example, it would be a substantial disadvantage to a patient in a wheelchair who is unable to access a dental practice. However, only being able to access the surgeries on the ground floor, but not the one on the first floor that has a television on the ceiling is not. The Office for Disability Issues has produced this helpful guidance on matters to be taken into account when considering disability, which is also useful in an employment context.
Whilst, the duty to make reasonable adjustments is very wide for service providers, namely you must anticipate the needs of disabled people, that is not to say you must do anything and everything. Speaking to your patients about their needs will be the easiest way to find out what you can do to accommodate them.
Step 2
What adjustments need to be made to remove the disadvantage?
There are three types of adjustments that can be made and these are;
- Changing how things are done;
- Changing a physical feature;
- Providing an auxiliary aid.
Example
An adjustment for a patient in a wheelchair is likely to be a ramp or a lift. For a deaf person an adjustment is likely to be providing information in writing, installing hearing loops or having an employee who can sign language.
Step 3
The final question is whether the adjustment is reasonable and this is looking at all the circumstances of the case.
The Equality and Human Rights Commission give the following examples of factors to be taken into account when determining this point:
- How effective the change will be in assisting disabled people in general or a particular patient;
- Whether the change can actually be made;
- The cost;
- The size of the organisation making the change and its resources.
You can find out more in their helpful guidance for services provider. Section 4 specifically relates to the duty to make reasonable adjustments.
You are not required to make adjustments that fundamentally change the service that you provide. In relation to physical features you can choose a reasonable alternative adjustment rather than changing the physical feature in question.
Please note you cannot charge for the adjustments you make; you must bear the cost of this. However, if there are two adjustments and one is more cost effective, as long as it alleviates the disadvantage complained of you are free to choose the cheapest option. If a patient comes to you requesting adjustments that may be reasonable but expensive, do not be afraid to consider their request and offer alternatives.
Example
Again using the previous examples, if you have two or three steps up to a building it is likely to be reasonable to install a ramp for a wheelchair user. However, if you are in an old building and are on the top floors, it may be impossible to install a lift and therefore unreasonable to make the adjustment. A possible reasonable alternative adjustment would be to provide home visits or recommend a practice that has wheelchair access.
Hearing loops are relatively cheap and so it may be a reasonable adjustment to install these in your practice depending on how many deaf patients you have and how often you see them. If you only have one deaf patient it is extremely unlikely to be reasonable to employ a nurse who can sign language. Asking the patient if they are happy to receive information in writing would be a cost effective solution.
Obtaining consent from a landlord
The duty to make reasonable adjustments will be yours, not the landlords. This may put you in a difficult position if your lease does not allow for alterations or says any alterations must be by consent with no reasonableness element to that consent.
Luckily, the legislation implies a reasonable consent regime into leases in relation to the duty to make reasonable adjustments to help you comply with your legal obligations. We have not set out the regime here as it is a topic in itself; if you face problems with your landlord we can assist you with this.
If you need advice on the duty to make reasonable adjustments within your practice or have a patient that has raised a complete, please contact Laura Pearce on 0207 388 1658 or email her at lpearce@jfhlaw.co.uk.
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Laura Pearce, Senior Solicitor
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.
