What rights might vegans have, especially in eating disorder units?
Many will have read or heard about the recent Employment Tribunal ("ET") case which held that ethical veganism could amount to a belief attracting protection under the Equality Act 2010 ("EqA"). So, how might this case be of interest to mental health professionals or others with an interest in the area?
Mr Jordi Casamitjana brought a claim in the Norwich ET that his employer, the League Against Cruel Sports ("LACS"), had discriminated against him on grounds of his ethical veganism. Under the EqA it is unlawful to discriminate against someone because of their "religion or belief". Belief means "any religious of philosophical belief" and case law has established several factors which need to be considered for a belief to be protected. The belief must be: -
LACS did not contest that Mr Casamitjana's ethical veganism was a belief protected under the EqA, but the ET held a preliminary hearing simply to consider whether it was. The ET heard substantial evidence of Mr Casamitjana's beliefs and how they impacted on his lifestyle. In short, he is not simply a dietary vegan, but his veganism dictates his choice of all products and services he consumes (clothing, cosmetics, restaurants and hotels, financial products, transport etc.). It also influences his choice of career, his politics and his choice of housemates and even the people he dates.
The ET found it "easy to conclude that there is overwhelming evidence …that ethical veganism is capable of being a philosophical belief and thus a protected characteristic under the Equality Act 2010".
The press hailed this a "landmark case", but it has to be said that most journalists have more of an eye for the catchy story than legal accuracy. The Casamitjana case, being a "first instance" decision (i.e. not by a higher court) is not binding on any other court or tribunal. The ET also did not lay down the principle that veganism amounts to a protected characteristic under the EqA. It found that Mr Casamitjana's ethical veganism was protected and it did so by examining what his beliefs were and how they influenced his lifestyle.
Nonetheless, the case is of some importance. The judgment is a measured and well-reasoned one that would probably be put before any future court or tribunal considering the same issue, even though the judgment would not bind that court. Also, the press attention the case has gathered will no doubt encourage other vegans to explore asserting their rights. Indeed, Mind's legal line has had some calls from vegans in eating disorder units who felt their rights were not being respected.
This is an area where equalities and human rights arguments might be deployed by patients. Medical providers are "service providers" and thus subject to the EqA. Also Article 9 of the European Convention on Human Rights protects the right to freedom of thought, conscience and religion, though this right can be limited in certain circumstances including in the interests of health. Case law has established that veganism can fall within Article 9.
There is anecdotal evidence that a significant proportion of patients requiring in-patient treatment for their eating disorder had been following a vegan diet on admission. However, as the Consensus statement for treating vegan patients with eating disorders produced by The Royal College of Psychiatrists, The British Dietetic Association and BEAT points out, there are vegans whose "adoption of a vegan diet coinciding with the development of anorexia nervosa could be part of the disorder, rather than a reflection of the individual's vegan beliefs".
If a vegan patient feels that his or her rights are not being respected, the first point to consider is whether their veganism is of a type to attract protection. This might involve complex nuanced judgments, but, simplistically, if their veganism permeates their lifestyle then there is a good chance that it will be protected under the EqA and the Human Rights Act 1998. If the patient's veganism appears to be part of their eating disorder it is unlikely that it would be protected.
Where a vegan patient's beliefs do attract protection then what might amount to discrimination? In legal terms the offering of a feeding regime that is not vegan could amount to a "provision, criterion or practice" that would be "indirect discrimination" under the EqA unless it was justified. Something is justified if it is a "proportionate means of achieving a legitimate aim". No doubt the medical provider would argue that the therapeutic aim behind the feeding regime was legitimate, and this would be accepted by any court in the land. The real question is whether the action is proportionate. Had there been a proper balancing of the need to adopt a particular regime with the legitimate rights of the patient to express his or her belief? If, for example a feeding regime was proposed for life saving treatment, and there was good clinical evidence that this was the most effective, and that the alternatives were not viable then there is a strong justification argument. If there is no clear therapeutic reason for the particular product and other alternatives were as effective, then it is a weak one. Human rights arguments under Article 9 will involve a similar balancing exercise.
With more and more people adopting a vegan lifestyle, and with awareness of the Casamitjana case, it is likely that more and more people will be raising challenges to mental health treatment regimes which they see as conflicting with their beliefs. A likely "hotspot" will be in the treatment of eating disorders, but this may have an even wider impact.
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