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Four ways to stay clear of age discrimination

Michael Boyd, head of healthcare at national law firm DWF, discusses the challenges awaiting GPs from October.

Last month care minister Paul Burstow announced that from this October onwards, patients will have the right to sue if they have been denied care based on age alone.

The move comes after the Health Services Ombudsman found the NHS was failing to provide basic standards of care to the over 65s and the King's Fund reported that treatable conditions are sometimes ignored in elderly patients. Age discrimination is already outlawed in the workplace under the 2010 Equality Act, but the latest announcement comes after a year-long consultation on how the law should apply to public and private services.1

Most healthcare professionals are unclear as to what the extension of protection against age discrimination to the NHS means for them at a practical level at the moment, and GPs are no exception.

When the law comes into play, doctors will need to be very careful when making decisions about availability of care or treatment on the grounds of a patient's age or perceived age. As the Home Office announcement articulates:  ‘A person's chronological age should not be used as a basis for need on its own.'

The Home Office has already given the following examples as harmful discrimination the ban aims to end include:

  • making assumptions about whether an older or younger patient should be referred for treatment based solely on their age, rather than on the individual need and fitness level;
  • assuming older people cannot sign a contract without the help of a younger person to explain things;
  • not referring people for a particular treatment or intervention just because the treatment is usually considered mainly for younger or older people;
  • not considering the wellbeing or dignity of older people.2

This is a major change in the law that is likely to place additional emphasis on the decisions that GPs and other healthcare professionals make, and the reasons behind those decisions. On face value, the Government's decision to give elderly patients more legal protection is to be applauded; the challenge for GPs will be ensuring that they have measures in place to protect themselves and their patients.

Undoubtedly there will be more headlines and test cases in the autumn, and it is therefore important that GPs are prepared for the challenge so that they are in a strong position to defend any claim. This article sets out for ways to make sure your practice is ready to adapt to the new law.

1.      Know the exceptions to the rule

It is important to note that the Government has been clear that extending the legislation does not prevent all clinical decisions being made on the grounds of age.  As such, age-related decisions which have a beneficial effect can still be made. For example, it will still be lawful to target certain treatments at an age group that needs it most.  Practitioners will still therefore be able to make similar decisions as long as they can be justified objectively. In a healthcare context, the "objective justification" test means being able to explain any age-related decision by reference to evidence-based clinical practice and professional guidelines.

By way of example, there is evidence to suggest that the elderly are more likely to be susceptible to influenza and this could justify targeting age groups for the flu jab. Also where a particular condition or symptom can be linked to the ageing process again treatment can be targeted-for example arthritis or dementia (although this of course can cut across age groups).

However, the impact of the change in law means that decisions made by healthcare professionals on the grounds of age will be the exception rather than the norm and it is worth remembering that the change will not just affect decisions in relation to the elderly. Any decisions around offering treatment to patients, for which age is a determining factor, will fall within the legislation. This means that decisions taken about making IVF and joint replacements available, for example, will take on a new dimension, with a new layer of accountability falling to practitioners.

The key question is how the desire to avoid falling foul of the new law will play out in practical terms and how it will affect the process that leads to a decision about the provision of care.  This will mainly mean the practitioner should be able to demonstrate that the wider wellbeing of the patient (and not just their age) has been taken into account, and that treatment has been framed around the patient as a whole, as opposed to their age alone. 

Practitioners need to make sure that every decision can be justified on medical grounds and this may mean greater consideration and investigation of the patient as well as making sure that that patients are satisfied that decisions have been taken on the basis of all relevant information.

2.      Make sure staff know and understand the law

Because of the very real risk of legal action that will no doubt follow the change in the law, practice managers and GPs will be well advised to ensure that employees are fully briefed on the changes, and where necessary, introduce new policies or update existing ones, to reflect the requirements of the new legislation.

As a bare minimum, it will be sensible to train all staff with direct patient contact to consider carefully the reasoning behind treatment or care decisions that they make, and keep particularly detailed notes to evidence their reasoning. These notes should be written clearly and placed on the patient's file. When the staff has attended training courses this should be recorded on their personnel file and regular updates on developments should also be provided.

In order to further mitigate the risk of claims, GPs may also consider introducing increased supervision and performance management of all their front-line staff, and monitor decisions as to treatment where age may be relevant, to limit as far as possible, the risk of discrimination claims being brought.

3.      Update your complaints policy

Another point for practice managers to consider will be how to handle any complaints raised alleging age discrimination. As a bare minimum, it will be prudent to update complaint policies to cover accusations of discrimination.

One issue that is bound to be of particular interest to GPs is that of personal liability. Whilst any damages arising out a claim of age discrimination will necessarily be borne by the relevant insurer, doctors may find themselves answering to the GMC on grounds of misconduct or deficient personal performance, if there is evidence they have discriminated against a patient on the grounds of age.

In extreme cases, GPs could ultimately have to face the GMC's Fitness to Practice panel, although given that this law has not been in force yet there have been no instances of this taking place yet. Again, due to the potentially serious consequences for GPs of the new regulations, practitioners will be sensible to carefully document the reasoning behind medical decisions in which age is, or may be, a relevant factor.

4.      Get ready to answer patients' questions

There is no requirement to inform the patient of their rights under the extension of the law in the same way that there is no obligation to inform them of other similar rights but it is important to bear in mind that some patients are very well-informed regards their legal rights. As a result, there is no harm in actively confirming with them the ways in which their rights have extended, and the practical ways in which new laws will change general practice.  One method of doing this would be through discussing the issue with a practice's patient participation group with a view to establishing a session with patients and medical staff during which the change could be aired and its practical implications identified.

The issue of age has, of course, commonly been raised by practitioners with their patients before the law was extended and will continue to be.  In all dealings with patents, practitioners should assume that the patient is aware that they have the benefit of protection from age discrimination. This means that they should be careful to make sure that they are clear why the subject of age is being raised, and the relevance of age in clinical decision-making.

The change in law, however, means that it will also be important to set the age question in the appropriate evidential context.  Given the recent report in Pulse regarding the lack of access for GPs to treatment alternatives for dementia, for example, many doctors will be concerned that they could fall foul of age discrimination legislation. However providing the GP has attempted to pursue all available options and communicated this to the patient, then any action could be defended.

Michael Boyd is the head of healthcare at national law firm DWF. The article was written with assistance from David Gibson, an employment partner at DWF.

References

[1] Equality Act 2010. http://www.legislation.gov.uk/ukpga/2010/15/contents

[2] Home Office. New armour to stop age discrimination in the NHS. June 2012.

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