Should age based rationing of health care be illegal?BMJ 1999; 319 doi: https://doi.org/10.1136/bmj.319.7221.1379 (Published 20 November 1999) Cite this as: BMJ 1999;319:1379
Age based rationing of health care is part of daily life in the NHS. As Graham Sutton writes, “Ageism seems to be embedded in the NHS culture” (BMJ 1997;315:1032-3). I have argued elsewhere that the concept is morally indefensible (BMJ 1995;310:1179-82). My suggestion is that it should now be made illegal. It might be thought impractical to involve the law. However, the 1976 Race Relations Act and the 1975 Disability Discrimination Act have made discrimination illegal in other areas, and it should be possible to take a similar statutory approach to protect the healthcare requirements of elderly people.
The legislation … would not result in elderly patients being given treatment that was of no benefit
Under the terms of the 1976 Race Relations Act, “A person discriminates directly against another in any circumstances relevant for the provision of the Race Relations Act 1976 if on racial grounds he treats that other less favourably than he treats or would treat any other persons.” Could “on grounds of age” be substituted for “racial grounds?” I believe it could. Surely no one would dispute that in age based rationing the elderly patient is being treated “less favourably” than “other persons.” The Race Relations Act has afforded protection to those who might previously have been the subject of racial discrimination. Is it not reasonable to assume that if age based rationing were made illegal elderly patients who might previously have been unfairly discriminated against in terms of healthcare allocation would be protected from such discrimination?
In 1988 the Court of Appeal stated, “The suitability of candidates [for employment] can rarely be measured objectively; and subjective judgements will be made. If there is a high percentage rate of failure to achieve promotion at particular levels by members of a particular racial group, this may indicate that the real reason for refusal is a conscious or unconscious racial attitude which involves stereotyped assumptions about that group.” “Age groups” could easily be substituted for “racial groups” here. The great worry is that elderly people may be refused treatment because they are subject to unfounded “conscious or unconscious … stereotyped assumptions” in the same way as racial minorities sometimes are.
Of course, there will be grey areas. There may well be some cases where deciding what is age based rationing of health care and what constitutes good medical practice is difficult to decide. For instance, some clinical decisions which might seem to be based on a need for rationing are actually based on other criteria. Often a treatment will be withheld because it has a low chance of success, or because distressing side effects outweigh any possible advantages. A doctor, for example, might choose not to use cardiopulmonary resuscitation in a severely ill elderly patient and may have no thought at all of another patient's need for a bed. But to refer once again to the 1976 Race Relations Act, no doubt there are grey areas here as well. But this has not stopped the act being useful in curtailing racial discrimination in employment.
The legislation I propose would not result in elderly patients being given treatment that was of no benefit, or in the treatment of them against their will. The role of the legislation would be to ensure that genuine cases of age based rationing were prevented. In the same way that an employer has to think carefully before refusing employment to a member of a racial minority, or to someone with a disability, doctors would have to think a lot harder than they do now before refusing treatment for an elderly patient.
In drafting legislation I accept that there would be a problem in deciding who is old. However, as age based rationing of health care happens to younger patients as well as those who are old—I was told of a health authority which refused to treat a 37 year old with anorexia because it preferred to use its limited resources to treat younger patients—the law would ban age based rationing at any age. In any case, the fact that it may be difficult to define “disability” has not prevented the implementation of the Disability Discrimination Act.
There is no doubt that age based rationing is being practised. By using the law to prohibit it, we can indeed go a long way to ensure that the concept does not become accepted medical practice, or even an option to be considered when choosing who to treat. Although involvement by the courts may not be welcomed by doctors, it is possible for the law to be used effectively to prevent age based discrimination in health care.
This paper is adapted from my PhD thesis, Is age-based rationing of health care morally defensible?, submitted in August 1999.