PatientsCann UK | Some Are More Equal Than Others Skip to content Equality law Prescription discrimination Opinion and analysis Some Are More Equal Than Others… Medical cannabis patients are often told that they are protected by the Equality Act 2010. For many patients, that may be true. But it is not true simply because somebody has been prescribed cannabis. PatientsCann UK® Equality Act 2010 and medical cannabis By Sal Aziz, Director On this page A prescription is not a disability certificate Who decides Presumed disabled? Volunteers Capacity matters Routes to discrimination Exceptions Finding common ground References Please note This article is general information about equality law and how PatientsCann UK® approaches it. It is not legal or medical advice. The legal test A prescription is not a disability certificate The Equality Act protects disability as a legal status. It does not create a separate protected characteristic of being a patient, taking prescribed medication or holding a medical cannabis prescription. It also does not apply universally to every relationship between an individual and an organisation. Protection depends both on whether the person meets the statutory definition of disability and on the capacity in which the organisation is dealing with them. That distinction creates an uncomfortable question: if the same practical accommodation can safely be offered to every lawful patient, why should compassion depend on whether the patient can prove that their condition crosses a legal threshold? Section 6 of the Equality Act defines disability as a physical or mental impairment having a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. “Substantial” means more than minor or trivial, while “long-term” generally means that the effect has lasted, or is likely to last, at least 12 months or for the rest of the person’s life. Recurring conditions can also qualify. Some conditions receive special treatment. Cancer, HIV infection and multiple sclerosis are disabilities from diagnosis. Progressive conditions may qualify before their effects become substantial where the statutory test is satisfied. The Act also protects people who previously had a qualifying disability, subject to limited exceptions. Crucially for medical cannabis patients, the assessment normally considers what the impairment would be like without the measures being used to treat or correct it. Schedule 1 expressly includes medical treatment within those measures. A patient whose condition is well controlled by cannabis is therefore not necessarily excluded from protection simply because the treatment works. The relevant question may be what the condition would probably do without that treatment. Many medical cannabis patients are prescribed for serious, persistent or recurring conditions and are therefore likely to satisfy the definition. It would, however, be unsafe to claim that every patient is legally disabled. A prescription may provide important evidence of an underlying impairment and treatment, but it does not by itself establish the substantial, long-term effect required by section 6. The Equality Act’s exclusion of addiction to alcohol, nicotine or another substance should not be confused with lawful treatment using a controlled drug. The 2010 Disability Regulations exclude addiction itself as an impairment, subject to an exception where it originally resulted from medically prescribed drugs or other medical treatment. In most medical cannabis cases, the asserted disability will in any event be the underlying physical or mental impairment, not an assumed addiction to the prescribed medicine. Japan has arguably the most formalised and structured official framework in the world. The government issues physical booklets called Shōgaishatechō (障害者手帳) or Disability Handbook. Applications are generally made through the relevant local authority and supported by medical or specialist evidence. The precise assessment process depends on the type of certificate and the municipality involved. Pictured above is a Seishin Shōgaisha Hoken Fukushi Techō (精神障害者保健福祉手帳) or Mental Disability Health and Welfare Handbook. Similar schemes exist in other countries, such as Germany’s Schwerbehindertenausweis for severe disabilities. Whilst The Sunflower Scheme is available for anyone who self-identifies as having a hidden disability, and PIP is available for those with qualifying disability or long-term condition, no directly comparable scheme exists in the UK. 精神 手帳 京都市.jpg by Bitland is licensed under CC BY 4.0 Evidence and burden Who decides whether somebody is disabled? There is no universal Equality Act disability card and no general process through which every patient obtains a binding declaration before requesting fair treatment. Outside litigation, organisations and individuals must make practical decisions using the information reasonably available to them. Evidence might include a patient’s account of functional effects, prescription records and, where proportionate, relevant clinical or occupational-health evidence. If a dispute reaches legal proceedings, the court or tribunal ultimately determines whether the statutory definition was satisfied at the relevant time. Section 136 provides a shifting burden of proof in discrimination proceedings once there are facts from which a court could conclude, in the absence of another explanation, that a contravention occurred. That procedural rule does not make a prescription conclusive proof of disability, but neither does it entitle organisations to dismiss credible evidence until a patient has obtained a judgment. This leaves patients in a difficult position. They may have to disclose intimate medical information to establish rights that an organisation could have respected voluntarily from the outset. The more evidence demanded, the greater the intrusion. Yet if too little information is provided, an organisation may argue that it did not know, and could not reasonably have been expected to know, of the disability, particularly in a claim for discrimination arising from disability. Policy, not finding Should patients be presumed disabled in practice? As a strict statement of law, organisations should not declare every medical cannabis patient disabled. Not every patient will meet the definition, and disability is a status belonging to the person, not a label produced by the medicine. But there is an important difference between making a legal finding and adopting an inclusive policy. An organisation can usually choose to extend a proportionate adjustment, such as secure medicine storage, a private administration area, flexible breaks or an individual risk assessment, without first
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