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The Right to Treatment Regardless of Age

The NHS continues to have increasing demands on the services it provides to patients and this appears likely only to increase with the increasing age of the population. These circumstances have on occasions given rise to debates about resource allocation and whether it is ethically acceptable to prioritise the treatment of younger patients who might be said to benefit from a specific treatment to a greater extent than elderly patients with similar healthcare needs.

New legislative changes to the Equality Act 2010 recently announced by the Home Secretary now mean that doctors will be in breach of the law from October this year if they withhold medical help to patients simply on grounds of their age. Nurses and carers will also face a legal duty to consider the “wellbeing and dignity” of the elderly.

The legislation has been introduced following a series of reports that paint a picture of the elderly being given sub-standard care and uneven treatment in the NHS. However, the ban on discrimination will not mean that older patients will be automatically entitled to demand any treatment that they wish to undergo given that clinicians will still have the right to make final judgments on clinical grounds.

For several years, NHS Trusts have been under instruction not to allocate treatment solely on the basis of a patient’s age. Nevertheless the available statistics suggest that older patients are still less likely to be treated than younger patients in similar circumstances. Women over 65 are more likely to die from breast cancer because they are “under treated” and less likely to be given radiotherapy or chemotherapy.

These changes may well result in a body of litigation triggered by older patients suing the NHS if they consider

they are being denied treatment on grounds of age, or if they believe that doctors are devoting more attention and available resources to patients of a younger age. So keep good, well reasoned records.

These changes in legislation reflect the legal “rights based” culture that has developed within healthcare. It will be interesting to see how the courts approach challenges to decisions by the NHS not to provide treatment to the elderly in specific situations, in the light of this new legislation.

Alexandra Johnstone
t: 020 7227 7283
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This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.