Download Lecture 5: Presentation Ronald Craig

Equality: With a Focus on Racial Discrimination
Ronald Craig
Discrimination in Health Service Delivery
(Letter from Hospital to Primary Care Physician)
• “Dear Colleague,
• You have sought admission to the hospital for Mr.
“X”.
• Experience has shown that the offer of treatment at
Coastal Hospital is of little value for persons from
foreign cultures with chronic pain problems. As a rule,
this is frustrating for both the patient, and
unfortunately for our personnel. And therefore we
have chosen to reject this type of referral.
• Sincerely yours,
• Chief Medical Officer”
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Morally despicable
A rotten apple
Strong prejudice that must be
eradicated
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Let us change the facts
(Case would have been totally different)
• Neutral reason for rejection:
• ”The patient did not meet the criteria for
selection from the priority queue”
• Criteria:
• Expected gain from the treatment
• Expected use of resources
• Probably no complaint (direct or indirect)
would succeed
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A far greater problem
• Why do I use this example?
• I want to show how difficult it is for us all – to see
the far greater problem right beneath our feet.
• The underlying problem is a more structural
problem
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Lack of Equality in Service Delivery
• The chief doctor’s experience that
ethnic minorities did not receive a health
service of the same quality or value
• No one focussed on this!
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Why doesn’t the hospital adjust its service
to fit the needs of its patients?
• Why does a hospital choose to continue
an organizational practice (a service)
that creates relative disadvantage for a
group of its patients?
What is Discrimination?
UN Convention on Racial Discrimination (1965)
CERD [ICERD]
• States shall prohibit and eliminate racial
discrimination (Article 2)
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The Right not to be Discriminated against
because of your Race or Ethnicity
• States are obligated:
– to respect the right,
– to protect the right from interference by private
individuals, and
– to fulfill the right through its full realization
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CERDs definition of ”racial discrimination”
• “[A]ny distinction, exclusion, restriction or
preference based on race, colour, descent,
or national or ethnic origin which has the
purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on
an equal footing, of human rights and
fundamental freedoms in the political,
economic, social, cultural or any other field
of public life.” (Article 1)
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What is Discrimination?
Oversimplified Answer:
• Unjustifiable differential treatment or effect
linked to a prohibited ground
– unjustifiable differential treatment or
– like treatment producing an unjustifiable
differential effect
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Discrimination
Direct discrimination: Like cases are treated
differently without justification
[treatment is on the basis of a prohibited ground]
Indirect discrimination: Different cases are
treated the same without justification
[treatment is on the basis of a «neutral» ground]
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Indirect Discrimination
• when persons are treated on the basis of
factors other than prohibited characteristics
(i.e., treated in a facially neutral way), yet
this results in unjustifiable,
disadvantageous and differential
consequences (for a specific group)
distinguished by a prohibited ground.
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European Court of Human Rights, 2002:
Anguelova dissent
“Leafing through the annals of the Court, an uninformed
observer would be justified to conclude that, for over fifty years
democratic Europe has been exempted from any suspicion of
racism, intolerance or xenophobia. …. Frequently and regularly
the Court acknowledges that members of vulnerable minorities
are deprived of life or subjected to appalling treatment in
violation of Article 3; but not once has the Court found that this
happens to be linked to their ethnicity. Kurds, coloureds,
Muslims, Roma and others are again and again killed, tortured
or maimed, but the Court is not persuaded that their race,
colour, nationality or place of origin has anything to do with it.”
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The concept of Indirect Discrimination has
had a difficult birth and development in
the practice of international human rights
treaty bodies
D.H. and others v. The Czech Republic (2007)
•
Complainants were 18 Czech citizens of Romaorigin, who were placed in special schools for
children with learning difficulties
•
The decision was taken on the basis of tests and
the consent of parents
•
Complainants argued: The tests were unreliable
and the parents had not been sufficiently
informed. Argued indirect discrimination
•
Complainants showed that 56% of students in
special schools were Roma, even though they
only represented 2.2% of population of Ostrava.
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D.H. and others v. The Czech Republic #2
(Important aspects of the case)
Only the 2nd time the ECtHR has found a violation of art. 14
on the basis of ethnic discrimination
First time the ECtHR found a violation of the prohibition
against indirect discrimination (referred to EU directives)
First time ECtHr acknowledged in such a clear manner use of
a shared burden of proof
Confirmed ”race” as a suspect category leading to a greater
strictness of review
Important statement on drawing of inferences and use of
statistics in the weighing of evidence
Important statement on developing international consensus
on special needs of minorities (art 27, ICCPR)
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D.H. and others v. The Czech Republic #3
(The Court found indirect discrimination)
”The Court has…accepted…that a difference in
treatment may take the form of disporportionately
prejudicial effects of a general policy or measure
which, though couched in neutral terms,
discriminates against a group….”
”Accordingly, the issue in the instant case is whether
the manner in which the legislation was applied
in practice resulted in a disproportionate number
of Roma children…being placed in special
schools without justification, and whether such
children were thereby placed at a significant
disadvantage.”
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D.H. and others v. The Czech Republic #4
• “As regards the question of what constitutes prima facie
evidence capable of shifting the burden of proof on to the
respondent State…. The Court adopts the conclusions that
are, in its view, supported by the free evaluation of all
evidence, including such inferences as may flow from the
facts and the parties’ submissions. According to its
established case-law, proof may follow from the coexistence
of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact. Moreover, the
level of persuasion necessary for reaching a particular
conclusion and, in this connection, the distribution of the
burden of proof are intrinsically linked to the specificity of the
facts, the nature of the allegation made and the Convention
right at stake.”
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Promoting Equality
≠
Prohibiting Discrimination
• Prohibiting discrimination is a minimum
requirement to promoting equality, but ….
• Equality involves an additional dimension
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Equality’s Additional Dimension
(Focus on the distribution of advantages and
disadvantages)
A normative obligation to minimize or reduce
distortions in the distribution of advantages
and disadvantages [if not an undue burden]
(not because the distortions are
discriminatory)
(But because of other values and principles)
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Equality’s additional dimensions are
based on other values and principles
• Human rights obligations beyond nondiscrimination
• Desire for a fairer society,
• Desire for a more democratic society.
[This is codified in Norwegian legislation on
equality and non-discrimination in this way…]
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Ways to Promote Equality through Legislation
Prohibition
against
direct &
indirect
(Complaint
mechanism)
Temporary
Special
Measures
Positive duty
to promote
Equality
(Regulatory
mechanism)
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