On 1 October 2012 the Government fully implemented the ban on age discrimination enshrined in the Equality Act 2010. It is now unlawful for service providers and commissioners to discriminate, victimise or harass a person because of age. The ban applies in relation to the provision of goods, facilities and services.
Age discrimination is described as “unfairly treating people differently because of their age”. This can be direct discrimination (where it is clear that someone has been less favourably treated because of their age) or can be indirect (in cases where an apparently neutral rule, which applies to all, has a particularly disadvantageous effect on a certain age group). The ban which has been introduced covers ‘harmful’ usages of age with positive uses able to continue. There are, however, exceptions and differential treatment is not caught by the ban where that treatment can be objectively justified.
As to when age can be used as a basis for making decisions, the guidance is that this would be appropriate when it is right and beneficial to do so, e.g. targeting services and benefits at certain age groups and making provision for the benefit of the individual.
Positive action is also permitted to prevent or compensate for disadvantages experienced by a particular age group or to encourage people from particular age groups to take advantage of opportunities. In this situation the positive action must be objectively justified so that the age-based approach is seen to be a proportionate means of achieving a legitimate aim. An example of a legitimate aim would be ensuring the services are provided to those who are most at need, e.g. more frequent availability of cervical cancer screening for women in the 25-49 year category (in comparison to the 50-64 year category) where statistics have shown that cervical cancer is more prevalent in the younger age group. The proportionality test would be satisfied by establishing that there was not a less discriminatory way of achieving the desired outcome.
The Social Care Institute for Excellence has produced an interim practice guide1 which sets out the specific effects of the legislation in the social care setting. Concerns have been raised in relation to attitudes and that provision on the grounds of age is deeply inbuilt in, for example, the mental health setting where there is a clear divide below and above retirement age. SCIE identify three broad principles underpinning the age quality strategy, namely Citizenship (each individual is a full and equal citizen), Equity (that there should be an expectation of fairness) and Sustainability (that quality of service provision should be maintained for people of all ages).
NHS Bodies must be aware that where anyone believes they have been unfairly treated on the basis of age they will be able to bring legal proceedings against either the organisation or an individual (including clinicians and managers).
So what does this mean for the NHS/healthcare providers?
1. All such bodies should have in place, or seek to appoint, a senior lead for age equality. One of their first tasks must be an audit of current policies/provision of services relating to age. This should then be an ongoing process with a system for regular review
2. In cases where policies/service provisions specify age as a criterion, consideration must be given to whether the use of age as a criterion can be objectively justified. Purely financial reasons are not enough. It would be helpful to document this reasoning clearly when carrying out the review in the event of a challenge being raised in the future. Commissioners and planners must be particularly aware of the potential for indirect discrimination and so the actual effect of policies/ provisions must be considered and be kept under review
3. Staff training may be needed to raise awareness of the ban and to assist clinicians, commissioners, planners and others to be able to apply the legal provisions in the context of their work. Certainly, where healthcare professionals find themselves making decisions which take into account the patient’s needs, they should keep a clear note of their reasoning, showing that a thorough assessment of the individual’s needs and circumstances has been taken into consideration when deciding on treatment/provision
4. Specific to each body will be the need to identify whether there are certain areas of work in which age is more of an issue. NHS/healthcare bodies must also consider how they will deal with behaviours which could potentially flout the ban. The Department of Health advises that there should be a “zero-tolerance” approach towards age discrimination and suggests the way this can be brought about is through clear commitment, engagement, education and role-modelling
5. Bearing the above in mind, however, bodies should not be fearful of making different provision where this can be justified i.e. where age is genuinely a relevant factor in decision making
Overall the aim of the legislation is to promote the provision of fair and dignified healthcare for all people regardless of age. The Carruthers’ Report of 20092 found that age discrimination is still very much an issue within the NHS and that those who suffer at the hands of it are likely to lose confidence in the system. With that in mind, the focus is on challenging currently held narrow assumptions of age, involving all age groups in issues about age discrimination and promoting social inclusion and images of age that are positive and diverse.
Footnotes
1 Age equality and age discrimination in social care: An interim practice guide (SCIE)
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