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Age, Rationing and the National Health Service: a legal and ethical minefield? – Professor Keith Syrett

5 August 2014

A recent report in the Daily Telegraph sought to expose ‘illegal’ age discrimination in the National Health Service (NHS). It cited a study jointly carried out by the Royal College of Surgeons (RCS) and Age UK, which analysed rates of surgery across various age groups and found, first, that there were significant geographic variations in the number of procedures carried out and, secondly, that rates overall were low; in some instances, being calculated as zero, meaning that fewer than five patients per year were treated. While the President of the RCS was careful to note that there was no direct evidence of unofficial ‘blanket bans’ on treatment of patients over a certain age, he expressed concern as to the possibility of age discrimination. Health Secretary Jeremy Hunt was, however, much more blunt, describing such a situation as ‘unacceptable and illegal’.

This scenario brings into sharp focus a number of difficult legal and ethical questions relating to the allocation of scarce healthcare resources. Any reduction in access to treatments and services of the type reported here can be seen as an example of rationing, most usefully defined by the health economist Alan Maynard as taking place ‘when an individual is deprived of care which is of benefit (in terms of improving health status or the length and quality of life) and which is desired by the patient’. Rationing has always existed in the NHS – the chief architect of the Service, Aneurin Bevan, famously resigned from Cabinet in 1951 in protest at the decision to dampen demand by charging for dentures and spectacles on the NHS, the £2 million set aside to provide the latter over the first nine months of the existence of the Service having been exhausted within six weeks. However, until the 1990s it was predominantly ‘implict’ in form, meaning that the financial drivers of the ‘hard choices’ which must be made in a health system where demand for treatments and services outstrips supply, were concealed from patients under a ‘veil’ of clinical judgment. Since the creation of the ‘internal market’ in the NHS, such decisions have become more visible to public and patients alike, most notably in the form of the high-profile recommendations issued by the National Institute for Health and Care Excellence (NICE), on which new technologies should be available for use on the NHS. Such visibility has generated significant controversy, frequently played out in the media and, on occasion, in the courtroom – for example in the well-known cases involving ‘Child B’ and Anne Marie Rogers.

This RCS/Age UK study serves as a valuable reminder that, notwithstanding such developments (which are common to health systems across the globe), certain decisions on access to healthcare may continue to lack transparency. It would seem likely that the unfortunate patients in this instance would not have been informed that decisions not to treat were, in essence, prioritisation choices made by Clinical Commissioning Groups which must allocate limited resources across the population – choices which have become still more pressing in view of the ‘Nicholson Challenge’ to the NHS to make savings of £15-20 billion by 2015. Still more, the health authorities in question will not have published explicit policies specifying that these treatments were unavailable to, or restricted for, those in particular age groups. To have acted in such a way would have visibly exposed potential illegality on various counts.

First, the courts have held that, while prioritisation is lawful, ‘blanket bans’ which fail to give proper effect to individual circumstances are not: see R v North West Lancashire Health Authority, ex parte A, D and G. Second, statutory Directions to NHS bodies in England require local NHS bodies to explain decisions not to fund treatments and services to which patients and their doctors wish to have access; it is not clear that this obligation of transparency was discharged in the cases surveyed in the study. Third – and perhaps most obviously, the Equality Act 2010 prohibits discrimination in the provision of services to those with certain ‘protected characteristics’, including age. It should be noted, however, that while there are no specific exceptions made under the legislation for health or social care services providing surgery or other forms of treatment of the kind surveyed in the study, section 13(2) states that discrimination on grounds of age is not unlawful if it can be shown to be a ‘proportionate means of achieving a legitimate aim’. It would therefore be open to a Clinical Commissioning Group which was challenged under the Act to demonstrate that it had engaged in a rational process of prioritisation in order to pursue a ‘legitimate aim’ of distributing resources in such a manner that aggregate population health is maximised, at least by comparison to the level of health which might be achieved if resources were directed towards these patients. This, however, might be no easy task especially if the treatments are being provided elsewhere (although opponents of the so-called ‘postcode lottery’ in the NHS should note that local health providers are statutorily obliged to allocate resources to meet the needs of the population in the area for which they are responsible; and such health needs will inevitably differ across the country).

Faced with such possible legal challenges, it is unsurprising that age discrimination in the NHS – assuming that it does exist – remains covert. Yet if we move from law to ethics, the position is still more complex. It has been argued that priority should be accorded to younger patients over those who are older, in part because the latter may be said already to have enjoyed a ‘fair innings’. Moreover, NICE bases its recommendations on the cost per Quality Adjusted Life Years (QALY) of a health technology: stated briefly, the greater the additional years of life which are generated by a technology, the more it is likely to represent ‘value for money’ for the NHS. Others, however, notably the leading medical ethicist John Harris, have claimed that such preferences fail to treat all human beings as equal and are therefore morally unacceptable.

It might therefore be concluded that the visceral distaste which we are likely to experience on hearing of the type of treatment described in the Royal College of Surgeons/Age UK report belies a somewhat more complex legal and ethical state of affairs. One thing which does seem certain is that this type of scenario is likely to become more and more common in view of the fact that an ageing population has been identified as one of the primary threats to sustainability of health systems in the twenty-first century. In the United States, ‘elder law’ has emerged as a distinct area of study and practice in response to ongoing demographic change; it cannot be too long before this field becomes mainstream in the UK as well.