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The impact of indirect discrimination on mental health and women during lockdown

  • CUHRLS
  • Oct 27, 2020
  • 6 min read

Updated: Nov 26, 2020

By James Brown

Summary

- Article 14 requires that all of the rights and freedoms must be protected and applied without discrimination.

- Lockdown has contributed to increased reporting of domestic abuse, mental health disorders, and limited access to relevant services.

- The state has not introduced sufficient safeguards to protect individuals with mental health disorders or women to escape an indirect discrimination infringement of Article 14.

Introduction


Earlier this year, the UK government enacted legislation and regulations to enforce a lockdown. The Coronavirus Act 2020 was rapidly passed through Parliament, and works hand-in-hand with the Health Protection (Coronavirus Restrictions, England) Regulations 2020 [1]. These laws were passed using emergency procedures that were justified under the circumstances of a global pandemic. However, the lockdown introduced in an effort to combat coronavirus has had multiple human rights implications.


Arguably the most important impact of the lockdown has been on Article 14, the right to protection from discrimination. Article 14 requires that all rights in the convention should be shared equally among every citizen without discrimination. This blog considers the role of indirect discrimination, a policy which applies to everyone but is detrimental to a certain characteristic. In the case of DH v Czech Republic, a policy indirectly discriminated against Roma children, making them more likely than other children to be placed in a specialised school for children with mental health needs [2]. The Strasbourg court held that indirect discrimination is covered by Article 14. Strasbourg adjudicated that where a policy disproportionally affects a certain characteristic, the state should bring in relevant safeguards [2]. The recent lockdown appears to have led to indirect discrimination against individuals with mental health disorders and against women without the introduction of relevant safeguards.


Increase in mental health problems

Article 14 does not provide an exhaustive list of protected characteristics and the wording “other status” is meant to be broadly interpreted [3]. Glor v Switzerland confirmed that this includes any disability, physical or mental, broadening the scope of Article 14 [4,5]. The question is therefore whether the lockdown regulations disproportionately impact people with mental health disorders versus those without. If so, then the UK has breached their obligations under Article 14.


Lockdown has been a period of uncertainty and stress for many people, however for individuals with mental health problems, lockdown may have exacerbated existing stress. With lockdown comes stressors such as a lack of social interaction, potential loss of income, illness of family members, or changes to accessing food, medicine and other essentials [6,7]. Individuals with mental health disorders may be particularly sensitive to stress due to changes in the way the body processes stress, resulting in a heightened stress response [8,9]. Stress may also contribute to the onset of mental health disorders [8,9]. The effect of lockdown on mental health does not appear to have been adequately considered in the coronavirus legislation.


A particularly worrying trend seen during lockdown is the observed increase in suicide attempts. Within the first few weeks of lockdown over half a million people accessed an online suicide-prevention course offered by Zero Suicide Alliance, a mental-health organisation [10]. This is equivalent to the number of people that accessed the course during the past three years [10]. Figure 1 illustrates how the pandemic-related stressors may contribute to the increase in suicide attempts [11]. It has also been noted that the number of suicide attempts during the pandemic has included a high proportion of elderly people, perhaps partly due to increased shielding measures, health problems, and a reduction in meaningful social interaction [12]. This is particularly worrying given that suicide is usually less common in elderly people compared with younger people [13]. However, the legislation behind the lockdown did not directly lead to discrimination against those with mental health needs. Instead, it led indirectly to discrimination, in the form of restrictions to mental health services (without suitable alternatives) and the lack of additional funding to mental health support. Mind, a mental health charity, reported that 24% of people accessing mental health support had difficulty, and 22% had appointments cancelled [14]. Despite individuals with mental health problems appearing to be more susceptible to lockdown-associated stress, they encounter many practical barriers to receiving the help they need.



Figure 1. Pandemic-related stressors and possible contribution to increase in suicide [11]


It is possible that during lockdown there has been indirect indiscrimination against individuals with mental health disorders under Article 14. The state should therefore introduce procedural safeguards to cover mental health. The International Association for Suicide Prevention has suggested that this could be done by allowing sensible reporting on the issue, i.e. reporting on suicides but never pinning the pandemic as the sole cause of suicide attempt/completion [15]. Arguably, exemptions in the legislation that allow people to leave home to seek medical assistance already act as a procedural safeguard. However, the lengthy waiting lists and lack of funding all hinder access to this ‘safeguard’, demonstrating that consideration needs to be given to practical implications that make facilitation of the law difficult.


Increase in domestic abuse against women


In addition to increasing mental health problems during lockdown, there has been an alarming rise in women (and men) reporting domestic abuse. Refuge, the UK-based charity that provides support for women and children experiencing domestic abuse, reported a 700% increase in domestic abuse helpline calls within a single day at the start of lockdown [16]. Evidence from the Counting Dead Women project indicates that there has also been a huge spike (+600%) in domestic homicides during lockdown compared with the same time period last year [17,18]. In part, this may be due to the lockdown forcing many women to be trapped at home with their abuser [19]. Lockdown has also altered the way in which relevant services can be accessed as ‘walk-in’ service is no longer possible, resulting in an additional barrier to adequate protection from abuse [19]. Moreover, during lockdown women appear to have been worse affected by unemployment than men (16% of women versus 11% of men lost their jobs [3]), resulting in some women becoming financially dependent on their abusers. This is problematic as it gives the abuser another avenue of control and may leave the victim totally reliant on the abuser with no means of escape from that environment.


Not enough consideration for such issues was taken when designing the coronavirus legislation. The current regulations provide no procedural safeguards to prevent women from facing domestic abuse, with no express provision allowing any person facing domestic abuse to leave that house or to go and live elsewhere. If a case was mounted against the state, it could be decided that coronavirus legislation discriminates against women exposed to domestic abuse. In addition to violating Article 14 of the convention, the legislation also prevents these women from enjoying their rights under Article 3 (prohibiting torture and inhuman/degrading treatment) and, in extreme cases, Article 2 (the right to life).


Conclusion


While all human rights should be enjoyed without discrimination under Article 14, the legislation introduced in response to the coronavirus pandemic did not meet the requirements of this Article. The lockdown has led to notable discrimination against individuals with mental disorders and against women. This is clear through the sharp rise in domestic violence against women and in suicide attempts, as well as difficulty accessing relevant services at a time of increasing demand. The state has not introduced sufficient safeguards to protect these characteristics to escape an indirect discrimination infringement of Article 14.

Author


James Brown is a law graduate with a First Class law degree from the University of Huddersfield. He is the President of a UK Road Safety Youth Initiative called Vision Zero Youth Council Manchester. James is also involved in humanitarian work and has a profound interest in human rights law.



References


[1] UK Government (2020). Health Protection Coronavirus Restrictions (England) Regulations. Available from: https://www.legislation.gov.uk/uksi/2020/350/contents/made


[2] DH v Czech Republic App No. 57325/00. (2008). Available from: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-83256%22]}


[3] Council of Europe. (2019). Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention. Available from: https://www.echr.coe.int/Documents/Guide_Art_14_Art_1_Protocol_12_ENG.pdf


[4] Glor v Switzerland App No. 13444/04, (2009). Available from: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22003-2724329-2974120%22]}


[5] Tyrer, A. (2010). Glor v Switzerland: Article 14 ECHR, Disability and Non-Discrimination. Edin LR. 14: 141. Available from: https://heinonline.org/HOL/LandingPage?handle=hein.journals/edinlr14&div=20&id=&page=


[6] University of Sheffield. (2020). Depression and anxiety spiked after lockdown announcement, coronavirus mental health study shows. Available from: https://www.sheffield.ac.uk/news/nr/depression-anxiety-spiked-after-lockdown-announcement-coronavirus-mental-health-psychology-study-1.885549


[7] Fancourt, D., Bu, F., Mak, H, W., Steptoe, A. (2020). Covid-19 Social Study Results Release 1. UCL Dept Behavioural Science & Health. Available from: https://746a1e8d-7231-4b96-9bc2-88b2eb5c4964.filesusr.com/ugd/3d9db5_a82c3a15441f4687a0114efc78307e80.pdf


[8] Gloria, C., Steinhardt, M. (2016). Relationships Among Positive Emotions, Coping, Resilience and Mental Health. Stress & Health. 32(2): 145-156. Available from: https://onlinelibrary.wiley.com/doi/abs/10.1002/smi.2589


[9] Färber, F., Rosendahl, J. (2018). The Association Between Resilience and Mental Health in the Somatically Ill. Dtsch Arztebl Int. 115(38): 621-627. Available from: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6218704/


[10] Murphy, S. (2020). Half a million access UK suicide prevention training amid Covid-19 warnings. The Guardian. Available from: https://www.theguardian.com/society/2020/may/18/half-a-million-access-uk-suicide-prevention-training-amid-covid-19-warnings-nhs


[11] Sher, L. (2020). The impact of the COVID-19 pandemic on suicide rates. QJM International Journal of Medicine. 202: 1-6. Avaiable from: https://academic.oup.com/qjmed/article/doi/10.1093/qjmed/hcaa202/5857612


[12] O’Grady, S. (2020). Suicide attempts soar among lonely elderly during lockdown. Express. Available from: https://www.express.co.uk/news/uk/1287630/suicide-attempts-elderly-people-coronavirus-lockdown


[13] Office for National Statistics. (2019). Suicides in the UK: 2018 registrations. Available from: https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/suicidesintheunitedkingdom/2018registrations


[14] Mind. (2020). Mental health charity Mind finds that nearly a quarter of people have not been able to access mental health services in the last two weeks. Available from: https://www.mind.org.uk/news-campaigns/news/mental-health-charity-mind-finds-that-nearly-a-quarter-of-people-have-not-been-able-to-access-mental-health-services-in-the-last-two-weeks/


[15] International Association for Suicide Prevention. (2020). Reporting on suicide during the Covid-19 pandemic. Available from: https://www.iasp.info/pdf/2020_briefing_statement_ABversion_reporting_on_suicide_during_covid19.pdf


[16] Townsend, M. (2020). Revealed: surge in domestic violence during Covid-19 crisis. The Guardian. Available from: https://www.theguardian.com/society/2020/apr/12/domestic-violence-surges-seven-hundred-per-cent-uk-coronavirus


[17] Smith, K, I. (2020). Women killed by men 2009-2019 and alleged killings of women by men in 2020. Counting Dead Women. Available from: https://kareningalasmith.com/2020/04/15/coronavirus-doesnt-cause-mens-violence-against-women/


[18] Bradbury-Jones, C., Isham, L. (2020). The pandemic paradox: The consequences of COVID-19 on domestic violence. Journal of Clinical Nursing. 29(13-14): 2047-2049. Available from: https://onlinelibrary.wiley.com/doi/full/10.1111/jocn.15296







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