Equivalence, equality and equity for prisoners with a borderline intellectual disability: reflections from the UK

Abstract

Purpose The purpose of this paper is to discuss the legislative and policy architecture governing the protection of individuals with an intellectual disability (ID) in the UK, and whether these protections extend to protect those with a borderline ID (BLID) in prison. Design/methodology/approach The paper presents policy and legislative analysis. Findings This paper argues that the legislative definitions of disability are broad and draw on a needs-based understanding of disability, meaning that those with a BLID – if they experience disability – should be included in these protections. But the clinical definitions of ID that guide access to support services tend to exclude those with a BLID. Notions of horizontal and vertical equity are invoked to examine the spirit of “equivalence” captured in legislative instruments, and how these filter into policy that may ultimately be discriminatory to those with a BLID. Research limitations/implications If the founding principle of equality legislation is equivalence, and an argument can be made that those with a BLID are protected from disability discrimination, public authorities will need to reconcile their use of clinical diagnostic cut-offs to justify service provision inside and outside of the prison estate. In essence they are faced with a choice: consider how best to provide equitable support for those with a BLID (which may not necessarily mean identical support), or risk breaching these fundamental rights. Practical implications The paper calls into question the extent to which the current suite of ID-related services (both in the community and in prison) fulfil a public authority’s obligations for vertical and horizontal equity that are captured in the disability discrimination legislation. Specifically authorities must consider whether: replicating services in prisons serves the particular needs of the prison population, or is horizontal equity only partial fulfilment? The higher than expected numbers of BLID in prison justify consideration of different services for these different needs? There is an opportunity to rethink the conceptualisation of disability service provision in the National Health Service from one defined by diagnostic bands rather than a socio-ecological understanding of need, and in doing so whether the needs of the BLID group in prison are being suitably met. Originality/value The paper provides a line of legal argument and analytical thought useful to those seeking to challenge the non-provision of support for those with a BLID; particularly those who are especially disadvantaged in prison. This paper draws attention to the disconnect between legislative intent and policy operationalisation for those with BLID. Further research and possible legal challenge is needed to clarify whether this amounts to direct or indirect discrimination.