No place for discrimination - the impact on the NHS of the ban on age discrimination

This article examines the legislative framework as well as setting out the questions and issues NHS organisations should ask themselves in order to comply with the Equality Act legislation.</DIV>

25/02/2013

Simon Lindsay

Simon Lindsay

Partner

 

Introduction

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 public functions. 

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 homes
  • Those providing care in day centres and residential or nursing homes
  • Those caring for children who cannot live with their parents.

Protected characteristics

The Act protects people from discrimination on the basis of “protected characteristics” which are:-

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnerships
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • 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.

Differential Treatment 

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 particular needs.
  • 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 sufficient.  

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 older group.

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
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 inclusive culture.

Senior lead

  • 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 responsiblities.

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 uses them?

Identifying risk

  • 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?

Commissioners
Who is responsible?

  • 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?

Service requirements

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.

Delivery

  • 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 all?
  • 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.

Measuring performance

Commissioners should consider:

  • what the contract specifications need to include
  • how a provider will measure and report progress and compliance
  • 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 commitments
  • the weighting given to equality during the evaluation process.

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.

Providers
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.

 Framework

By asking the following questions, providers can develop a framework to demonstrate their focus on equality practices and outcomes.

  • 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 previous services?
  • What factors have been most effective in promoting equality for those groups of people? 

Evidence

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.

Monitoring

  • 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 objectives.

Clinicians
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.

Conclusion

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.

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