Dear Berry,
Thanks for your coments, needless to inform you that for someone who grew up
under apartheid, this would have been one of the very mild ones that I could
have witnessed growing up.
Regarding the NHS issue that you raised, it does pose some challenges under
the requirements of the RRAA General Duty requirements. Firstly, it would
have to be established as to why this patient was making this request.
Unless there were some genuine requirements which would have to be qualified
under the Act (and I cannot think what they could possibly be, as this is
not mentioned in your email)this would have to be considered to be racist
and would have to be dealt with according to the institution's Race Equality
Policy requirements, under the RRAA.
I would actually say that, agreeing with the patient's blatantly racist
request would mean that whoever was agreeing with it and the institution
itself, could/should be challenged for individual and institutional racism,
under all the three elements of the General Duty.
The issue is not that whatever the patient wants, even it means breaking the
law, should be pandered to, but whether the treatment accorded the patient
is commensurate with good, professional, reasonable and practicable, legally
based institutional practice for all.
What responsibility then, under the RRAA, does that institution have towards
its black and minority ethnic employees and patients, notwithstanding the
majority of employees within the NHS? Indeed what use is the law if we can
gratuitously flout it with impunity, whenever it suits individuals?. What
if a black patient, for no genuine requirement reason, asked for a black
doctor, would the institution use the due care explanation in order to be
institutionally racist?
The Asian woman's request, as I pointed out above, would have to be dealt
with under the legalities of genuine requirements, under the Act. Sometimes
people unwittingly racially discriminate because they do not understand this
legal exemption under the Act. Incidentally, this part of the Act has been
strengthened by the EU Directive which came into force in July 2002.
I wonder what the trainer said was the appropriate (legal, professional,
reasonable and practical) response to make because the institutional duty of
care to the patient is to provide a suitably qualified professional doctor,
nurse or whatever worker is needed, their background has no bearing
whatsoever to them being employed. They are either fit to do the job, which
is why they are employed, or they are not, in which case they would/should
not be employed.
I also appreciate that you can have genuine requirements situations under
the law where institutions can racially discriminate but this is not one of
them.
The best way forward on this would be for the institution to make sure that
it has clear, transparent processes and procedures that will enable staff to
deal with these issues effectively. These procedures need to be communicated
to all staff and users of services and also need to link with the
institution's Race Equality Policy and the General Duty requirements.
We also have to bear in mind that under the RRAA, the institution has a
vicarious liability for all its staff and also the burden of proof requires
that evidence of the pro-active promotion of race equality within
institutional practice, will need to be made available if there was a legal
challenge. I wonder how well the institution would fare in this situation.
As usual, comments are most welcome.
Regards
Mannie Kusemamuriwo
Policy Adviser: Ethnicity & Cultural Diversity
Equality Challenge Unit
3rd Floor, 4 Tavistock Place
London WC1H 9RA
Tel 020 7520 7063
Fax 020 7520 7069
[log in to unmask]
-----Original Message-----
From: Berry Dicker [mailto:[log in to unmask]]
Sent: 11 December 2003 12:19
To: [log in to unmask]
Subject: The Wainwright Trust
This email should really be sent to your many friends and allies who
recognise the hard work you do and your achievements in spite of many
hassles, but since I don't know them here it is for you. You might like to
leave it carelessly around. See attachment. Berry
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