Some Are More Equal Than Others…

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.

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.

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.

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 forcing a patient to prove disability. More broadly, nothing prevents an organisation from adopting a patient-inclusive standard that goes beyond the statutory minimum, provided doing so does not conflict with another legal or safety obligation.

PatientsCann UK®'s preferred approach is therefore not to presume a legal status, but to presume that a lawful patient deserves respectful consideration. Confirm lawful possession where genuinely necessary. Assess actual function and risk. Make the safe accommodation available whether or not the patient could ultimately prove disability in court.

Otherwise, an economic inequality appears. A small or community organisation may decide that it cannot afford to litigate the uncertain boundary of disability and therefore adopts the fairer, lower-risk approach. A wealthy organisation may be able to defend a finely balanced exclusion through years of proceedings.

That does not literally create a legal right for wealthy organisations to discriminate. If a patient is disabled and the Act applies, financial resources do not convert unlawful discrimination into lawful discrimination. Resources may be relevant to what adjustments are reasonable, but they do not purchase immunity. The practical concern is different: uneven access to legal advice and enforcement can allow well-resourced organisations to test the limits of protection in ways that patients and smaller organisations cannot afford to challenge.

Guy Coxall, prominent cannabis advocate, coined the term "Prescription Discrimination" to describe the systemic stigma, unlawful harassment, and legal penalisation faced by individuals who hold legitimate medical cannabis prescriptions. Unfortunately, this is not legally recognised as a form of discrimination under the equality act, disability is. Should that change?

The position of genuine volunteers reveals another significant gap.

In X v Mid Sussex Citizens Advice Bureau and another [2012] UKSC 59, the Supreme Court considered an unpaid volunteer working under an agreement described as "binding in honour only" and not legally binding. The Court held that the relevant employment discrimination legislation did not extend to this volunteering relationship. It also rejected the argument that European equality law required ordinary volunteering to be treated as an "occupation".

The case concerned the Disability Discrimination Act 1995, the predecessor to the Equality Act, but it remains central to understanding why a genuine volunteer without the necessary contractual relationship will ordinarily fall outside Part 5 employment protection. It should therefore be expressed carefully: the Equality Act does not provide a general, free-standing prohibition on discrimination against volunteers merely because they volunteer. A particular arrangement could still fall within the Act if, on its true facts, it creates a relevant contract or engages another statutory capacity.

This is why PatientsCann UK® has an explicit policy against discriminating unfairly in relation to volunteers. We do not adopt that policy because the law compels us to do so. We adopt it precisely because the law may not.

Calling somebody a volunteer does not answer every Equality Act question. Coverage depends on the legal relationship and the capacity in which the organisation is acting:

• Paid work and applicants: Part 5 and section 39 prohibit discrimination in recruitment, employment terms, access to benefits and training, dismissal and other detriments. Employers are also subject to a reasonable-adjustment duty.
• Services and sporting opportunities: Part 3 can apply where an organisation provides a service to the public or a section of the public, whether for payment or not. That may include access to some sporting opportunities, although the precise character of the arrangement and any statutory exceptions must be examined.
• Membership and guest access: Part 7 applies to a statutory "association", meaning an association with at least 25 members where admission is regulated by rules and involves selection. It protects applicants, members and associates, while separate provisions address guests. Not every informal group or club satisfies that definition.
• Professional qualifications: Section 53 covers bodies conferring relevant qualifications and imposes a reasonable-adjustment duty. However, the application of a genuine competence standard is treated differently and is principally open to challenge through indirect discrimination.
• Public functions: Section 29 prohibits discrimination in the exercise of covered public functions. Public authorities and other bodies exercising public functions may additionally be subject to the public sector equality duty (section 149), including due regard to eliminating discrimination, advancing equality of opportunity and fostering good relations.

The same organisation can act in several capacities. A motorsport body might be an employer in relation to staff, a qualifications body when conferring an occupational credential, an association when regulating selected membership and a service provider when offering activities to the public. A person who lacks protection as a volunteer does not automatically lack protection in every other relationship with that organisation.

Where the Act applies and the patient's underlying condition is a disability, exclusion associated with prescribed cannabis may engage several legal routes.

Direct discrimination

Direct discrimination occurs where somebody is treated less favourably because of disability. It can be difficult to establish where an organisation insists that its reason was the medicine, a rule about controlled drugs or a claimed safety concern, rather than the disability itself. Much will depend on the real reason for the decision and the appropriate comparison.

Discrimination arising from disability

Section 15 may be more suitable where the treatment is a consequence of the disability. It applies when a disabled person is treated unfavourably because of something arising in consequence of disability, unless the treatment is a proportionate means of achieving a legitimate aim. The defence is unavailable where the organisation did not know, and could not reasonably have been expected to know, that the person had the disability.

Indirect discrimination

A blanket rule such as "no cannabis users", "no controlled medicines" or "no THC" may be facially neutral but place people sharing a disability at a particular disadvantage. Section 19 permits such a rule only where it can be shown to be a proportionate means of achieving a legitimate aim. The test requires more than citing "safety" as a slogan. It requires examination of whether the rule is appropriate, necessary and reasonably balanced against its discriminatory effect.

Reasonable adjustments

Where the duty applies, section 20 can require reasonable steps to prevent a provision, criterion or practice from placing a disabled person at a substantial disadvantage. Adjustments could include changing a blanket policy, considering dose timing, arranging private administration, permitting secure storage or carrying out an individual functional and safety assessment instead of relying on assumptions about the medicine. Which steps are reasonable depends on matters including effectiveness, practicability, cost, available resources, disruption and safety.

The Equality Act contains numerous exceptions and qualifications. Among the most relevant examples are:

• Disability protections in Part 5 do not apply to service in the armed forces, and particular armed-forces functions receive additional treatment under the Act.
• Professional qualifications may involve competence standards. A qualifications body is not required to redefine the standard itself as a reasonable adjustment, although the standard may still be challenged as indirectly discriminatory and the way it is assessed may require adjustment.
• Schedule 3 contains specific exceptions for services and public functions, including certain parliamentary, legislative, judicial, security, armed-forces, education, transport and insurance contexts. These are detailed, capacity-specific provisions rather than blanket permission to exclude disabled people.
• Some conditions are not treated as impairments, including certain behavioural tendencies and, subject to an exception, seasonal allergic rhinitis. Addiction is separately regulated, as previously described above.
• Objective justification may defeat claims under section 15 or section 19 where the organisation proves that its action was a proportionate means of achieving a legitimate aim. This is a defence requiring scrutiny, not an automatic "health and safety exemption".

Legality, impairment and risk should therefore be kept separate. A medicine may be lawfully prescribed. A patient may or may not be impaired at a particular time. A role may or may not be safety-critical. None of those questions can responsibly be answered merely from the word "cannabis".

The legal status still matters. It determines whether a patient can compel an adjustment, challenge discrimination and seek a remedy under the Act. Non-disabled patients do not acquire disability rights simply because making the same accommodation would be easy.

But disability status does not have to determine an organisation's entire ethical response.

If a private administration space is safe and workable for a disabled patient, it will usually be equally workable for a patient whose condition falls just short of the legal threshold. If individual risk assessment is better than a blanket ban for one patient, it is difficult to understand why prejudice should replace evidence for another. The law may draw a necessary jurisdictional line. Compassion does not have to stop there.

PatientsCann UK® therefore advocates a patient-inclusive presumption:

1. Recognise prescribed cannabis as legitimate medical treatment.
2. Consider the person's actual function, not stereotypes about cannabis.
3. Identify the legal capacity involved, rather than relying on a label such as "volunteer".
4. Ask only for medical information that is relevant and proportionate.
5. Explore practical adjustments before exclusion.
6. Apply safety standards consistently across cannabis and other potentially impairing medicines.
7. Extend workable accommodations to lawful patients even where statutory disability is uncertain.

These questions have far reaching consequences for medical cannabis patients. They may affect sport, volunteering, professional licensing, public functions, event access and the development of institutional policy.

The Equality Act is indispensable, but it cannot decide every moral question. It protects qualifying disabled people in specified relationships. It does not declare every patient disabled, cover every volunteer or turn every unkind decision into unlawful discrimination.

That should not be an invitation to search for loopholes. It should be an invitation to build better standards.

Organisations have legitimate responsibilities for safety, competence and the protection of others. Patients have an equally legitimate expectation that lawful treatment will not be confused with misconduct, intoxication or illicit drug use. Those positions are not irreconcilable.

Common ground begins with evidence, individual assessment and compassion. The question should not be, "How little does the law require us to do?"