Veganism and eating disorders: what the law says

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» Veganism and eating disorders: what the law says

If you are being told that you cannot maintain a vegan lifestyle and overcome your eating disorder this may be a breach of your rights. Lawyers cannot give medical advice and your doctor is far better placed than we are to make any recommendations about your treatment plan. However, your doctor is required by law to have due regard for your beliefs so there may be legal options available to you where this has not happened.

The law around the rights of those who require in-patient care as a result of an eating disorder is complex, and the rights of an individual to manifest their vegan beliefs will depend to some extent on whether they are deemed to have capacity and how central and deep-seated those beliefs are. Individuals may face specific challenges in any attempt to assert their veganism in these circumstances where their beliefs have come about at a similar time to an eating disorder. However, there are robust legal protections available to vegans who are able to demonstrate that their beliefs are genuinely held and unrelated to their eating disorder.

The letters LAW spelled out on wooden blocks with a wooden gavel and sound

The source of vegan rights in the UK

Human Rights Law

Article 9 of the European Convention on Human Rights (“ECHR”) provides for the right of “Freedom of thought, conscience and religion”. This includes the freedom to “manifest [one’s] religion or belief in worship, teaching, practice and observance”. Further, “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

The European Convention on Human Rights was given effect in the UK by section 6(1) of the Human Rights Act 1998 (“HRA 1998”), which states that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

Veganism is a conviction which is protected under Article 9 of the ECHR. Mental health care facilities are relevant public authorities such that the provisions of the HRA 1998 apply.

Equality Law

In addition to human rights, vegans in England, Scotland and Wales are also protected under equality law. These protections apply:

  • In the workplace
  • When you use a public service such as healthcare or education
  • When you use businesses that provide goods or services such as a shop or restaurant
  • When you use transport
  • When you join a club
  • When you deal with public bodies like your local council

In essence, the Equality Act 2010 (“EA 2010”) prohibits discrimination against and unfair treatment of persons with protected beliefs and characteristics, provided that the belief: (1) is genuinely held; (2) is not an opinion based on presently available information; (3) relates to a weighty and substantial aspect of human life and behaviour; (4) has a certain cogency, seriousness and importance; (5) is worthy of respect in a democratic society and (6) is not incompatible with human dignity and the fundamental rights of others. Veganism is recognised by the UK Equality and Human Rights Commission, the UK Government  and the UK Employment Tribunal as such a protected belief. Individual vegans would need to demonstrate (1) in particular on a case by case basis.

Furthermore, public authorities (including the NHS) have a duty (the Public Sector Equality Duty) to have due regard when making decisions to the need to eliminate unlawful discrimination, harassment and victimisation.

In particular, the EA 2010 protects vegans from:

(1)    Direct discrimination 

This occurs when a person treats another less favourably because of their veganism, for example by refusing to consider job applications from vegans. There are exceptions where direct discrimination may be permitted by law, but this is only where the circumstances mean that being non-vegan is a central occupational requirement.

(2)    Indirect discrimination 

This occurs where, when a particular “provision, criterion or practice” would put a person at a disadvantage because of their veganism, for example, by offering a “buy one get one free” Sunday roast option which vegans cannot take advantage of because the vegan option is not included in the deal. Indirect discrimination can be justified by law if there is good reason, and that the policy is an appropriate and proportional way of achieving that particular aim. It is for the person making the rule to demonstrate that there is “good reason” for it.

(3)    Harassment 

This occurs when a person engages in unwanted conduct relating to another person’s belief, and that conduct has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The harassment does not have to be intentional and includes things like making offensive jokes about veganism or forcing a vegan to look at images which are shocking and/or anti-vegan.

(4)    Victimisation 

This occurs if you have made a complaint under the EA 2010 and are consequently made to suffer a detriment.

The law around eating disorders in the UK

In addition to the general rights available to vegans under human rights and equality law, the following specific protections are available to those undergoing treatment for eating disorders.

Talking about the service user’s veganism

If the service user is vegan, their dietary choices will of course be discussed with their doctors, as might those vegan beliefs which provide the rationale for their dietary choices. While it would be reasonable to have such conversations with the service user, it is legally unacceptable to pry into a patient’s beliefs in order to “correct” them when there is no clear and imminent risk that such beliefs will manifest in actions dangerous to the patient or others. “Correction” includes criticising the service user’s beliefs and encouraging them to adopt a critical attitude towards them. Of relevance to whether there is imminent risk that the service user’s veganism will manifest in dangerous actions would be any evidence that they had been manifesting their vegan beliefs prior to the development of any eating disorder. If the service user had been following a vegan diet prior to the development of any high-risk behaviours this would be evidence that the two may not be connected.

Providing for the service user’s veganism

Regulation 14(1) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 requires that the nutritional and hydration needs of those detained under the Mental Health Act 1982 (“MHA 1983”) or who are otherwise receiving voluntary in-patient treatment are met. Meeting the service user’s nutritional and hydration needs means meeting any reasonable requirements of the service user for food and hydration arising from the service user’s preferences or their religious or cultural background. Case law is not available on the interpretation of “preferences or… religious or cultural background” within the Regulations, however arguably would include an individual’s veganism as this would accord with judicial interpretation of comparable wording in the HRA 1998 and the UK Equality and Human Rights Commission’s recognition of veganism as a protected philosophical conviction.

Care Quality Commission (“CQC”) guidance on Regulation 14 provides that if there are any clinical contraindications or risks posed by a service user’s individual requirements, these should be discussed with the service user, to allow them to make informed choices about those requirements. The guidance goes on to state explicitly that, “When a person has specific dietary requirements relating to moral or ethical beliefs, such as vegetarianism, these requirements must be fully considered and met. Every effort should be made to meet people's preferences”. In other words, unilateral decisions about the service user’s treatment which are not in accordance with or otherwise fail to take account of their individual preferences or beliefs (such as veganism) would breach CQC guidance.

Consideration of the service user’s veganism where they are deemed to lack capacity

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 recognise that in some circumstances it may not be in the service user’s best interests  to account for their beliefs or preferences (such as veganism). However case law is clear that, when determining best interests where a person is deemed to lack the capacity to make decisions for themselves, consideration must be given to all relevant circumstances, including the person’s past and present wishes and feelings, to the beliefs and values that would be likely to influence their decision if they had capacity, and to the other factors they would be likely to consider if they were able to do so. Furthermore, a person retains their protections under human rights law, including their right to freedom of thought, conscience and religion, even when they have been deemed to lack capacity.

The foregoing puts a person’s veganism at the centre of any “best interests” decisions that are made where the service user is deemed to lack capacity. In the words of The Honourable Mr Justice Peter Jackson, “A conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view”.

Conclusion

While much of the foregoing in the specific context of veganism has not been tested before the courts, there are many relevant cases and statutory interpretations which are relevant to the present matters and could be applied in future court proceedings as necessary. More importantly, there is a clear legislative preference for treating individuals’ beliefs with respect and incorporating them into any treatment plan as far as possible. The best interests of the service user are central to any decisions that are made about them, particularly where they are deemed to have capacity, and case law and CQC guidance provide very clear indications that consideration of a person’s veganism would form part of those “best interests” decisions.

Every situation is different so if you are struggling to have your voice heard and your vegan beliefs respected while in a treatment clinic or otherwise, please do contact our advocacy service at knowyourrights[at]vegansociety[dot]com for more information or to be put in touch with a solicitor.

By Jess Swallow

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