Triaging Coronavirus treatment – (3) the Guidance and discrimination

Catherine Casserley

Declan O’Dempsey

As part of our series considering the human rights and equality implications of Covid-19, Catherine Casserley and Declan O’Dempsey consider BMA Guidance on the use of characteristics of age and disability in medical triage in the light of discrimination law.  This article considers the impact of discrimination law on the guidance.

NHS guidance

COVID-19 rapid guideline: critical care in adults (NG159) encourages staff to use the Clinical Frailty Scale in relation to decisions on whether to admit patients to ICU only in the case of persons over 65.  The rapid guideline flowchart provides that for a patient aged over 65, without stable long-term disabilities (for example, cerebral palsy), learning disabilities or autism the Clinical Frailty Scale (CFS) score should be used as part of a holistic assessment. 

In the case of any patient aged under 65, or patient of any age with stable long-term disabilities (for example, cerebral palsy), learning disabilities or autism an individualised assessment of frailty is to be undertaken and the CFS score is not to be used. So a person with a disability of 66, for example, will not be subjected to the CFS score factor. 

However, whilst giving with one hand in respect of disability the flow chart confuses the assessment immediately:  clinicians are told to consider comorbidities and underlying health conditions in all cases.

The upshot of all this in terms of age discrimination is that, over the age of 65, a person is not given an “individualised” assessment of frailty (unless they are disabled).  Necessarily therefore there is an element of less favourable treatment because of age.  Over 65 a patient is treated on the basis of a decision made on a concept of frailty by which they are  scored, regardless of comorbidities or underlying health conditions. Someone under 65 will not be subjected to an assessment based on how they report (or are reported if they are unable to express themselves).  The CFS will not be used to assess them.  

The concept of a “holistic assessment” is left undefined but appears to be something less than an individualised assessment.  The trigger point (in respect of ICU) on the CFS appears to be a score of 5 or more.  This corresponds to being mildly frail with some impairment in activities of daily life, in relation to things like finance, shopping, meal preparation etc.  It corresponds to needing some help. Thus a person over 65 who exhibits these traits would receive a score of 5 and would therefore be considered as unsuitable for ICU treatment.  

Clinicians are being encouraged therefore to use the CFS as a reliable predictor of outcomes in the urgent care context.

The Equality Act 2010 and age

Age is a protected characteristic under section 4, of the Equality Act 2010 and further detail is given under section 5. Thus reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.   The law protects against less favourable treatment because of age (direct discrimination section 13) but allows such less favourable treatment to be justified (section 13(2)). A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.  Indirect discrimination is prohibited by section 19, but the use of a provision criterion or practice which has on the face of it a discriminatory effect on a group can be justified if it is a proportionate means of achieving a legitimate aim.

Section 28 protects against discrimination in relation to the provision of services (and public functions).  It does not apply to persons under 18 (s28(1)(a)).  Persons providing services to the public have duties under the Act not to discriminate under section 29.   Section 31 (2) provides that provision of a service includes provision of goods or facilities and section 31(3) provides that provision of a service includes a reference to the provision of a service in the exercise of a public function. By section 31(4) a public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998.

By section 31 (6) requiring a service includes  seeking to obtain or use the service and by section 31 (7) not providing a person with a service includes:

(a) not providing the person with a service of the quality …. usually provided, or

(b) not providing the service in the manner in which, or on the terms on which usually provided.

Thus the health service is subject to the requirement not to discriminate in its decisions concerning triage which use age as a criterion as they are performing a public function but in any event are providing a service for the purposes of the Equality Act 2010. 

We have seen how the use of the rapid guidance treats those over 65 less favourably by subjecting them to the CFS assessment in circumstances in which a person under that age could not be.

The question therefore becomes whether such less favourable treatment can be justified.  The Equality and Human Rights Commission sought to provide a Statutory Code relating to age and the provision of goods facilities and public services.  However the proposed Code had to be issued as Technical Guidance (“TG”).  What follows therefore comes from that TG.  Nevertheless it reflects the law.  One particular example may appear to give very little comfort to those who might want to argue that the Guidance, so far as it relates to age only, is not justifiable or that actions taken under it are unlawful.

When explaining justification of direct age discrimination in the context of provision of goods and services the Commission TG states (at 3.16-3.17) that the questions to be asked are:

is the aim legal and non-discriminatory, and one that represents a real, objective consideration (‘legitimate aim’)?

if legitimate, are the means of achieving it proportionate (that is, appropriate and reasonably necessary) in all the circumstances?

Legitimate aims should be outcomes that are socially positive or in the public interest. There is a clearly an arguable issue here either way:  the triaging guidance ensures that more people can be treated and hence that more people can survive the disease.  On the other hand, that survival rate is purchased by the lives of those over 65 who are not treated;  they do not have the chance to survive as a result of treatment.

The TG states that the range of aims that can justify direct age discrimination is narrower than the range of aims that can justify indirect discrimination (para 3.18).  The Equality Act 2010 provides a unified approach to discrimination across all sectors.  The justification test for direct discrimination in age was settled in (Seldon v Clarkson Jakes Wright [2012] UKSC 16) in which the UKSC stated that the type of aim which can justify direct age discrimination in employment cases was one which was a social policy type aim.  It must be one which is in the public interest. The EHRC guidance, in accordance with the principle that the very same words, in the same place in an Act have the very same meaning, have interpreted section 13(2) in the context of the provision of public functions in the same way as in the employment context.

The TG (para 3.19) provides examples of the types of aim which are thought to be public interest aims in this context.  At paragraph 3.21 the TG states that the aim of less favourable treatment should not be based on a stereotype about age. Sometimes a service provider may have some aims that are legitimate mixed with aims that are illegitimate, such as those linked to stereotypes. It gives as an example a service provider believing that people over 70 have memory problems (and hence believing they will not remember safety instructions). The belief about this age group is based on a stereotype rather than on supporting evidence. Therefore the aim of reducing safety risks for this age group cannot be a legitimate one.

The TG also points out that an aim will not be a legitimate one if it disregards fundamental principles of human dignity and self-determination (para 3.22).   It gives as an example a case in which anyone aged 65 and over, needing home care, is allocated fewer and shorter home care visits than people under 65. This age-differentiated policy is based on an assumption that older people only need basic personal care, and do not require support in maintaining relations with family and friends, or getting out of their house. The assumption does not respect the dignity and independence of older service users and would not provide a legitimate aim for the rule.

Can the selective use of CFS be consistent with the dignity and self determination of those over the age of 65?  Arguably not, as it is designed expressly to take some of that age group (only) out of the individualised assessment programme.

However the TG provides an example which illustrates the difficulties with arguing that there has been any unlawful discrimination based on age in these problematic triage decisions (see para 3.23).

It gives the example of Public Health England conducting an immunisation programme for an infectious disease. Its aim is to maximise health protection in the population as a whole. This aim would be a legitimate one, as it is clearly in the public interest to control the prevalence of disease. 

In explaining the concept of proportionality the TG states (para 3.24ff) that the means must be appropriate and reasonably necessary for achieving that aim, and that this involves asking what the reasons are for having any age threshold at all (in other words was the use of the age criteria appropriate?).  Second the court should ask why a particular age has been chosen (was it necessary?, see para 3.25).  Third, in asking questions about proportionality the court will ask what the discriminatory effect in the case may be.

To illustrate proportionality the TG reverts to the Public Health England example:

Public Health England has access to research findings that indicate a slower and lower response to the vaccination against the disease in people over 50. Offering the vaccine only to those aged 50 and under is an approach supported by the evidence that the vaccine is likely to be more effective for that age group. This is likely to be a proportionate means of achieving the legitimate aim of maximising health protection for the population as a whole. A summary of this evidence is published, giving it greater weight if the age focus of the programme is challenged.

At first sight this might suggest that differential treatment based on age in health matters would be proportionate if it could be shown that the age group which benefits from a treatment benefits from it more than the disfavoured age group.  However it is important to note that the example deals with a vaccine in relation to an aim of maximising health protection for the population as a whole. Vaccination, of course, requires a certain level to be reached for the population as a whole to be protected.  It is therefore important that the means adopted should be able to achieve that aim most effectively. 

By contrast deciding not to provide ICU treatment for a person because they have achieved a particular score on a CFS test which is not administered to those under 65 does not have the same impact on the rate of spread of a disease.  Instead it chooses between two people who already have the disease, and prioritises those under a certain age and all those who get a score lower than 5 on the CFS.  The aim of the choice is to ensure that more people with the disease get treated.

The justification of direct age discrimination therefore throws up difficult issues of public policy in relation to the aims the health service is seeking to pursue and given the ultimate discriminatory effect that a triage decision may have on a person in the disadvantaged age group.

The triage guidance gives rise principally to direct age discrimination issues.  In relation to disability, issues of both direct and indirect discrimination arise.

Disability Discrimination

Disability is one of the protected characteristics listed in s.4 of the EqA and defined in s.6 (supplemented by Schedule 1 and regulations). As with age the law protects direct discrimination (section 13)  and indirect discrimination (section 19) where the use of a provision criterion or practice which has on the face of it a discriminatory effect on those with a particular disability can be justified if it is a proportionate means of achieving a legitimate aim. However there are two additional forms of discrimination applicable only in relation to disabled persons:

• discrimination arising from disability under s.15; A discriminates against a disabled person, B, if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. S 15 does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 

• the duty to make reasonable adjustments under section 21.

As with age, persons providing services to the public have duties under the Act not to discriminate (section 29).   The provisions of section 31 also apply to disability (see above).  

In making decisions about treatment, physicians will either be providing facilities or services or exercising a public function, and if there is any doubt claimants will assert these as an alternative.

Proving disability is no longer as problematic as it used to be.  There have been several successful interpretations both domestically and by the Court of Justice of the European Union clarifying the definition.  Domestically the courts will disregard medical or other treatment when considering the effect of an impairment and will interpret “substantial” as meaning more than minor or trivial when interpreting the concept of disability under the Equality Act 2010. So it is likely that all those with underlying health conditions which put them at more significant risk in respect of the virus, such as asthma or diabetes, as well as those with co-morbidities which are likely to impact upon treatment decisions will fall within the scope of disability for the purposes of s.6 of the Act.

As for whether there is potential for discrimination in relation to triage, given that the clinical criteria for triage decisions appear to be based in large measure on a risk assessment relating to the outcome of ICU treatment in the individual case, an argument based on the fact that many of the risk factors appear to be indissociable from the impairment causing them might appear attractive.

However in Robert Owen v Amec Foster Wheeler Energy Limited, James Shaughnessy [2019] EWCA Civ 822 the Court of Appeal considered this type of argument in an employment context. An employment opportunity was denied to a disabled person “because his disabilities were considered to give rise to a high risk of medical complications if he were to be deployed at a remote location”. He was considered to have this high risk due to his underlying disabilities. However the medical assessment of risk was said to provide a complete non-discriminatory explanation for the denial of the opportunity. The comparator was said to be   a person, without a disability, who had similarly been assessed by a medical practitioner as being of high risk if sent on an assignment because of medical concerns. The Court of Appeal accepted that the ET was entitled to ascribe the characteristic of having a "high risk" upon being assigned abroad even if one took out of the equation the Claimant's disability. It also accepted the respondent’s submission that disability can properly form part of the comparison; what must be excluded from the comparator's characteristics is the Claimant's individual disability (para 55).  The decision not to assign the Claimant abroad was made not because of his disability but (arguably) for a reason arising from his disability . However, that would have been a claim under section 15 of the 2010 Act.  Of course such a distinction would permit the respondent to justify the unfavourable treatment by reference to a legitimate aim if it is an appropriate and reasonably necessary (i.e. proportionate) means of achieving that aim.

The Court of Appeal, rather surprisingly, drew a distinction between disability cases and other protected characteristic cases in which indissociability had been used (for example the race discrimination case of Amnesty International v Ahmed [2009] ICR 1450). 

Singh LJ stated:

60. In my view, neither the ET nor the EAT fell into error as suggested under grounds 1 and 2 in this appeal. In my view, they were correct to hold that there was no direct discrimination in breach of section 13 of the 2010 Act because a hypothetical comparator with the requisite medical risk would have been treated in exactly the same way even if they did not have the Claimant's particular disability.

(and see 61-68)

At paragraph 77 Singh LJ stated “In the present case there was no "proxy" for the protected characteristic which was used by the Respondents as the ground on which they treated the Claimant less favourably than the hypothetical comparator.”

Thus a challenge to the use of factors which bring in indissociable characteristics of particular disabilities might seem likely to fail as a claim for direct disability discrimination under section 13 Eq A 2010.  However the position is not clear.  Certain risks may be indissociable from having a particular disability, and may not depend on being placed in a particular situation.  Whereas the health risks arising from being posted overseas (access to medical treatment being more remote, for example) may be dissociable from the disability, it is much more difficult to argue that the health risks arising from having Covid 19 (respiratory issues and risk of complications) are in any way dissociable from the person’s disability. 

Assuming that risks can be properly separated from the disabilities in this context, can a claim succeed under section 15?  If the clinician treats a disabled person unfavourably (by refusing ICU treatment) because of the disabled person’s treatment risks (which arise out of the disabled person’s disability) the clinician will have to justify the unfavourable treatment by reference to a legitimate aim and as an appropriate and reasonably necessary means of achieving that aim.

In a triage context, a clinician will be able to point to the relative benefits based on an analysis of the clinical risks as a means of allocating effective treatment to the greatest number. However as against that is the ultimate level of discrimination experienced by the person with the disability.   A court would have to subject the justification put forward to the most anxious scrutiny, given that the decision could result in the death of the person with the disability.

Of course there are other rights under the Equality Act 2010, such as the right to have reasonable adjustments made, and the right not to experience indirect discrimination.   The latter are likely to arise, for example, with criteria which require a person to recover quickly in order to benefit from treatment.  But, in all these cases, the reasonableness of the adjustment or the justification of the provision criterion or practice will in essence turn on this same utilitarian argument.

Finally under the Equality Act 2010, the NHS will have to ensure that its policies, including criteria for treatment, comply with the s.149 equality duty. This requires it to consider not only non discrimination but also equality of opportunity – a potentially more far reaching obligation.  This has already led to successful challenges in relation to, for example, NHS visiting policy.

Conclusion: Discrimination in a time of crisis?

As can be seen from this article and the previous one, discrimination law – as with other forms of legal challenge – can only take matters so far.  The value of the public sector equality duty – s.149 – should not be underestimated in ensuring that age and disability are factored into the critical decisions made about treatment.

The triage process may need to be used if there is a second surge of the epidemic, or if the government decides to scale back resources given to hospitals to cope with the ongoing pandemic.   

Once the dust has settled on this outbreak any public inquiry into the handling of the pandemic by government should re-evaluate the way in which these guidelines are used.  It seems that since the SARS outbreak at least there has been a strictly utilitarian underpinning for crisis management via triage.   That approach however was largely developed without full input from persons with disabilities.

As a society we need to reflect upon the route we very nearly have travelled.  Without detailed and anxious scrutiny of the legality of the BMA and state’s guidance, older persons, and persons with disabilities run the risk of being treated as the acceptable losses for a society facing pandemic.  Is this the ethical standard that the law should permit? The current guidance touches the edge of legality in respect of older people and persons with disabilities and may well have strayed beyond proper limits.  In the event that there is no second wave of the current virus only a public inquiry can allow proper examination of the ethics and legality of any future triage decisions. If there is a second wave these legal decisions may need to be decided in the heat of an application for an injunction.

As must be apparent, now is the time to be thinking of the ethics and law of managing the next pandemic, and not in the aftermath of potentially life-taking decisions.  In our final article we will look at the human rights law relating to triage decisions.