When the NHS was established in 1948, life expectancy was 66
years for men and 70 years for women. Today is it 78 years and 82
years respectively. The Office for National Statistics
estimates that the number of people in Britain over the age of 65
will increase by 65% over the next 25 years. By 2021 it is
estimated that 40% of the population will be over 50. This
significant demographic shift is a challenge to which healthcare
services will need to actively respond.
Age discrimination has been one of the most commons forms of
social injustice in the UK. Various reports in the last ten years
have identified that institutional ageism exists in the NHS and
following Sir Ian Carruthers and Jan Ormondroyd’s review in 2009
(Achieving age equality in health and social care) the Government
committed to implementing a ban on age discrimination.
The purpose of the Equality Act 2010 is to prevent people being
treated unfairly because of particular protected characteristics.
Essentially the Act :-
- simplifies discrimination law by replacing previous
anti-discrimination laws with a single act
- makes it more effective
- modernises the law
Most of the provisions of the Act came into force in October
2010 and further provisions came into force in April 2011. As from
1 October 2012, provisions came into force enabling a ban on age
discrimination against adults in the provision of services and
Who does the legislation relate to?
The legislation relates to all adults over 18. Health and social
care services covered by the Equality Act include all:-
- NHS providers
- NHS commissioners
- Those supporting elderly and disabled people in their
- Those providing care in day centres and residential or nursing
- Those caring for children who cannot live with their
The Act protects people from discrimination on the basis of
“protected characteristics” which are:-
- Gender reassignment
- Marriage and civil partnerships
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
In addition the law protects people who do not have a protected
characteristic themselves but who are at risk of discrimination by
their association with someone who has a protected characteristic
(for example a carer looking after a disabled person).
The law also protects people from discrimination because they may
be perceived (rightly or wrongly) to have protected characteristic
(for example, someone who is mistreated because they are thought to
be homosexual, even if they are heterosexual).
What is discrimination?
Direct discrimination is where someone is treated less
favourably because of their protected characteristic. Indirect
discrimination is where someone is treated less favourably because
of a practice or applying a rule or policy that puts them at a
disadvantage because of their protected characteristic.
Certain forms of differential treatment can continue if one of
the following can be identified:-
- General and specific exceptions
The Act allows for a general statutory exception where other
legislation allows people of different ages to be treated
differently for example free prescriptions or eye sight tests.
There are no specific exceptions to the ban on age discrimination
for health and social care services.
- Positive action
Proportionate steps can be taken by commissioners and planners of
services to counterbalance disadvantage or under-representation,
for example if you can justify extra help to an age group with
- Objective justification
If neither exceptions nor positive action apply, a policy or
practice may still be lawful if it can be “objectively justified”.
This means that it needs to be shown that the policy or practice is
a “proportionate means of achieving a legitimate aim”.
Determining what is proportionate is a balancing exercise
looking at the benefits and disadvantages. Organisations will
need to consider whether there is a less discriminatory way of
achieving the objective. A legitimate aim is one that represents an
objective need and is often socially positive or in the public
interest. Financial considerations alone will not be
For example, the Department of Health invites women aged 25-49
for a cervical screening test every three years, whereas women aged
50-64 are invited every five years. This is because statistics show
that the younger group is more susceptible to the disease than the
Relevant Questions and Issues
A range of useful documents have been produced which are
referred to in the links below. These documents set out the sort of
questions and issues NHS organisations should ask themselves in
order to comply with the legislation and are as follows:-
Senior leadership is
essential to ensuring that age is given equal consideration
alongside the other protected characteristics covered by the
Equality Act 2010. Such leadership should ensure raised staff
awareness and encourage appropriate behaviours, leading to an
- Do you have a senior lead for age equality? – This person
should take an active role in raising awareness of the legislation
and identifying ways of supporting staff to deliver on their
Audit and review of policies and services
- Has your organisation conducted a recent audit of its policies
and the way services are provided in relation to age?
- Have you reviewed your policies and service provision where age
is used as a criterion and satisfied yourselves that age is used in
an appropriate way that can be objectively justified?
- What arrangements are in place for regular review of policies
and practices to ensure that they do not unjustifiably disadvantage
a particular age group?
Training of staff
- Are adequate arrangements in place to ensure that staff have up
to date knowledge of the requirements of equality legislation in
particular the introduction of the provisions making it unlawful to
discriminate, harass or victimise a person on grounds of age? How
is this measured?
- What measures are in place to ensure that staff understand
their legal obligations and what this means to them in the context
of their work?
- Do you have evidence that age awareness and wider equalities
issues are embedded in the competencies training of all staff to
ensure that services are responsive to the needs of everyone who
- How do you use existing sources of information to identify
risks that require investigation to ensure compliance with
anti-discrimination legislation (in particular the ban on age
discrimination) and ensure that any bad practice is swiftly
identified and remedied?
Involving different groups
- How does your organisation involve all age groups, especially
older and younger people and their organisations in issues about
age discrimination and promoting age equality?
- From the perspective of your role, are there any specific
issues or service areas that your organisation needs to be
particularly aware of in relation to age?
- How does your organisation promote images of age that are
positive and diverse?
- Equality is the responsibility of the commissioner and they
must be able to demonstrate that suitable checks and monitoring of
third party suppliers are in place. If you are commissioning or
planning services using age as a factor in decision making, can you
objectively justify your approach?
A list of service requirements will be needed to guide the
commissioning process. It should cover:
- What service will be delivered?
- Is it relevant and in demand?
- Who will access it?
- In relation to groups consider think geographically,
demographically, and by characteristic.
- How will it be delivered? Including factors that promote
equality eg would women from certain ethnic or religious groups
feel more comfortable accessing a service delivered by a female
health care professional?
- Where will it be delivered? eg is it physically accessible to
- When will it be accessed? Consider your target audiences’
lifestyles and whether tailoring service delivery would benefit
them, for example, providing it at different times of day.
Commissioners should consider:
- what the contract specifications need to include
- how a provider will measure and report progress and
- service providers’ level of commitment to equality – ask for
examples where they’ve improved their existing services to ensure
their actions are a match to your organisation’s equality
- the weighting given to equality during the evaluation
What to look for
- strong customer care standards, including access to services,
quality of services, and attitudes and behaviour of staff engaging
with service users
- fair and non-discriminatory recruitment and employment of the
people delivering the services
- experience in delivering solutions related to the act
- practices of sub contractors
- reporting and monitoring systems.
NHS Southwest Toolkit
- The NHS Southwest toolkit provides information and advice on
what age equal services would look like, as well as an audit tool
for achieving age equality in existing services.
By asking the following questions, providers can develop a
framework to demonstrate their focus on equality practices and
- Does the proposed service meet the needs of everyone in the
community that will use it?
- If so, what is the evidence for this?
- If not, which groups are affected negatively?
- What is the evidence to demonstrate this?
- When were problems identified and what measures have been put
in place to minimise current and future impact?
- Has the service made a difference to the promotion of equality
for all groups using it or related services?
- Is there a group that has benefited more from current and/or
- What factors have been most effective in promoting equality for
those groups of people?
Evidence can be produced by:
- reviewing quantitative data collected, including analysis of
complaints, and monitoring of the protected characteristics of
patients, clients and staff
- consulting with a range of people who have been involved as
both service providers and users, including potential users.
- NHS organisations participating in the equality delivery system
(2011) are ideally placed to deliver positive equality outcomes to
patients, communities and staff, by helping them to drive up
equality performance and embed equality into all NHS business, thus
meeting the requirements of the general and specific duties within
the Equality Act 2010.
- Furthermore, communication and partnership between
commissioners and service providers will enable organisations to
share evidence and good equality practices.
- How success is measured should include equality outcomes
through research, consultation, monitoring and actively seeking
feedback from staff and people using services, being regularly
reported on and evaluated against project aims and
Chronological age should not be
used as a substitute for the thorough assessment of an individual’s
needs and circumstances. However, this does not prevent clinicians
and health care professionals in general taking a person’s age into
account where appropriate to do so (perhaps where age is a risk
factor) when discussing potential interventions.
Maintaining an appropriate record in the notes showing why a
particular intervention or care package was chosen (and, if the
person’s age was a factor, why it was necessary) will provide
assurance in case of legal challenge. It is good practice to refer
to the General Equality Duty.
NHS organisations should not consider this legislation to be
simply a box ticking. On 6 November 2012, Professor David Oliver,
the Department of Health’s clinical director for older people’s
services told the House of Lords Select Committee on Public
Service and Demographic Change that there is “endemic
evidence of discriminatory attitudes” among NHS staff towards older
people. The legislation aims to ensure that everyone regardless of
their age receives fair and dignified healthcare. Age alone should
not be a barrier to treatment and treatment should be only denied
if it can be objectively justified or the patient has made a choice
not to receive any further treatment.