To call the forthcoming prohibition of age discrimination in goods and services particularly with regard to healthcare “a blanket ban” is rather disingenuous.
There will be clinical instances where taking someone’s age into account is lawful – but good reason will need to be shown such different treatment. In other words, age can be taken into account where it meets the objective justification test.
The 2011 consultation paper Banning age discrimination in services, public functions and associations states at para 5.43 that “A thorough assessment based on the individual’s needs will be necessary” for health professionals to show that they were justified in withholding treatment, for example, on grounds of age. Presumably a needs assessment would weigh up likelihood of success as against age and use a costs-benefit analysis.
Of course a key issue (especially in the current economic climate) in future challenges to non-compliance with the new legislation will be the extent to which costs can be taken into account.
The Court of Appeal recently confirmed in Woodcock v Cumbria PCT that potentially discriminatory decisions cannot be justified on the grounds of cost alone. There the Chief Executive of an NHS Trust was made redundant at a particular time to avoid enhanced pension costs on redundancy. His treatment was found to be a proportionate means of achieving a legitimate aim as it was not only aimed at saving cost as there was a genuine decision to terminate the employment by reason of redundancy.
So whilst cost alone cannot justify discrimination, a “cost plus another factor” approach must be followed to robustly defend discrimination claims, including those on grounds of age. But it should not be thought that the assessment of clinical need will be straightforward – it is imbued with questions of age and cost!
For example, where guidelines suggest that if age is indicative of benefit or risk, age discrimination would be appropriate, the implication is that the vulnerable or elderly would get due priority. But if benefit is deemed to be proportionate to life expectancy – surely it would follow that those with greater life expectancy would be prioritised? On the other hand the very young and the elderly make more use of health services than the rest of the population (see Consultation paper para 5.36) Is this a relevant factor to be considered along with “costs plus”?
The only point to be sure of is that the new prohibition on age discrimination in health care will not serve to make such decisions easier- grappling with concepts of legitimate aim as against clinical need is going to keep both medical and legal professionals busy.
Rachel Crasnow ©
14 June 2012