Catherine Casserley and Declan O'Dempsey consider how disabled people and those aged 65 or over should be prepared to challenge triaging decisions if it is thought necessary for triaging to be deployed in a second wave of the outbreak.
During the peak of the pandemic, it is possible that doctors will be required to assess a person’s eligibility for treatment based on a ‘capacity to benefit quickly’ basis. As such, some of the most unwell patients may be denied access to treatment such as intensive care or artificial ventilation. This will inevitably have a disproportionate impact on older people and those with long-term health conditions that have a direct bearing on their ability to recover quickly.
The slogan ‘we’re all in this together’, used at the outset of the COVID-19 pandemic and the government’s response to it, now rings somewhat hollow. The pandemic has hit people unequally. Black, Asian and minority ethnic (BAME) people are disproportionately affected (Disparities in the risk and outcomes of COVID-19
, Public Health England, 2 June 2020). Disabled and older people have borne the brunt of many of the changes to legislation implemented by the government (eg, the Care Act 2014). Medical care is one of those areas where disabled and older people are hit hardest by the criteria for treatment in ICU. Organisations of and for disabled people spoke up at an early stage, and there were reassurances that they would not be subject to blanket decisions.1As noted above, on 3 June 2020, the BMA revised its guidance and now states that its ‘provisional view is that any indirect discrimination [in relation to some disabled and elderly persons] would be lawful in the circumstances of a serious pandemic’ (page 7). On 22 April, we published ‘Resuscitation and the value of a disabled person’s life: triaging and Covid19’, a blog post on the Cloisters website.
COVID-19 rapid guideline: critical care in adults
(National Institute for Health and Care Excellence (NICE) guideline NG159, 20 March 2020; last updated 29 April 2020) encourages staff to use the Clinical Frailty Scale
(CFS) in relation to decisions on whether to admit patients to ICU only in the case of people over 65. The rapid guideline flowchart
(also known as the critical care referral algorithm) provides that for a patient aged over 65, without stable long-term disabilities (for example, cerebral palsy), learning disabilities or autism, the CFS score should be used
as part of a holistic assessment. CFS allocates a person to a series of frailty scores based on their report (or the report of others) of their needs. If the person scores above five, there is little chance of them receiving ICU treatment.
If you are aged under 65, or 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. This means a disabled person who is 66, for example, will not be subjected to the CFS score factor. However, while ensuring that disability is not subject to generic treatment in this way, the flowchart then goes on to confuse the assessment immediately: clinicians are told to consider comorbidities and underlying health conditions in all cases.
The BMA’s ethical guidance (COVID-19 – ethical issues. A guidance note
) appears to be endorsed and incorporated by NICE (albeit NICE reminds everyone to apply the public sector equality duties). The BMA guidance says that where the consequences of age or a pre-existing disability mean that the patient is significantly less likely to survive, these become relevant factors. It is not clear how the ‘consequences’ of age or disability are established. There is also a double system being employed. The guidance moves from criteria related to the chances of survival
, to using a criterion based on speed of recovery
(pages 5–7). Thus, a life-ending decision may be made because a person would take longer to recover from the illness than another person. The BMA’s COVID-19 – ethical issues. A guidance note
and COVID-19: FAQs about ethics
appear to accept that the use of such criteria may amount to indirect discrimination but say that it can be justified.
Public law and discrimination
In formulating guidance, a public body must have due regard to all the aspects of the public sector equality duty under Equality Act (EA) 2010 s149. It is not clear that this has been done. Under s149, there is an obligation to have due regard to equality of opportunity between those belonging to an age, race, or disability group and those that do not, and to eliminate discrimination (as well as to foster good relations). We will concentrate on age and disability in respect of triaging decisions, but it should be noted that the higher death rates for BAME individuals require scrutiny of the impact of these guidelines to see how race operates in this area. There is also some evidence that there are greater risks from COVID-19 for men than women in certain respects (see, for example, Graham Lawton, ‘Why are men more likely to get worse symptoms and die from COVID-19?
’, New Scientist
, 16 April 2020).
When the BMA guidance was first formulated (also that of NICE), it did not appear to have benefited from any, or any significant, analysis of its impact on disabled people or those aged 65 or over. However, given the consequences for the life of the individual of a decision not to give ICU treatment, the discretion of those formulating the policy must be subject to ‘the most anxious scrutiny’. It was put this way in Bugdaycay v Secretary of State for the Home Department and other appeals  AC 514
Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny.
One would expect at least a searching proportionality review of the balance struck by those who drew up the guidance, even if they are afforded some area of discretion by a reviewing court. In cases involving treatment decisions where allocation of resources was not an issue, such heightened scrutiny has been applied.2For example, R (Rogers) v Swindon NHS Primary Care Trust  EWCA Civ 392 at para 56; June 2006 Legal Action 24, applying R v Ministry of Defence ex p Smith  QB 517 at 554. See also R (Murphy) v Salford Primary Care Trust  EWHC 1908 (Admin) at para 36.
In such cases, therefore, not only must the decision-maker have had due regard, but the level of scrutiny given to the rationality of the weight attributed to factors will be more rigorous than in cases where the consequences of the policy's application are not the likely loss of the life of the subjects of the decision.3Cf R (Domb and others) v Hammersmith and Fulham LBC and others  EWCA Civ 941 at para 52; December 2009 Legal Action 26 and R (Baker and others) v Secretary of State for Communities and Local Government and others  EWCA Civ 141 at para 31; March 2009 Legal Action 42.
This appears to have been remedied to a certain extent, at least in relation to disability – see below.
Both the BMA and NICE guidance appear to associate age with the average mortality statistics for an age group. These are then said to indicate consequences of being in that age group. However, an individual’s age says nothing about their health, any more than their having a stable disability does. The triage process, in relation to age, appears to be based on associating the average features of a group with the individual’s health features. No justification has been given for this rule, which directly discriminates against those of 65 or over. It is not clear why individualised assessments cannot be carried out for those in this age group just as they must be for those who are younger. In failing to give that individualised assessment, the guidelines (both BMA and NICE) appear not to have had due regard to equality of opportunity to live between those inside and those outside the age group. Are there alternatives? Clearly, it would have been possible to have a more precise set of life expectancy rates (for example, relating to lifestyle choices, such as smoking) for subgroups of the age group. It is not clear why these were not adopted.
The public sector equality duty in respect of disability recognises the specificity of disability and in particular the duty to make reasonable adjustments. EA 2010 s149(4) provides:
The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.
Speed of recovery is a criterion that is likely to disadvantage disabled people. Its use gives rise to a duty to make adjustments under s20(3) and/or to potential indirect discrimination, which the decision-maker must justify. While the length of recovery may be longer for some disabled people, it is not clear that consideration has been given to subsequent recovery and thus equality of opportunity in the longer term.
The BMA guidance now refers to the duty to make reasonable adjustments, but states that that duty should not substantially affect clinical decision-making governing access to such treatment under a ‘capacity to benefit quickly’ test. Reasons for reaching this view are: (a) that the disability suffered by many disabled people will have no relevance to their ability to benefit quickly from life-saving or life-sustaining treatment and thus no adjustment appears to be needed to deliver equality of access; and (b) where a person’s disability does or may have some relevance to their ability to benefit quickly from life-saving or life-sustaining treatment, as far as the BMA is aware, there is no clear body of clinical evidence that could set out the nature or extent of the adjustments to make it fairer in representing a proper balance between the interests of disabled and non-disabled persons (page 7).
It is not clear on what basis the BMA has reached its decision and this may well be open to challenge (for example, on the basis that it does not require an individualised assessment of reasonable adjustments). It also goes on to state that any potential indirect discrimination arising from this criterion in respect of age or disability will be justified as a proportionate means of achieving a legitimate aim.
It is also unclear how individualised assessments for those with ‘unstable’ disabilities will be conducted. Should the clinician take into account comorbidities that cannot, in reality, be dissociated from the impairment? This leads to difficult questions in relation to private law claims.
Private law claims
An individual triaging decision, applying the above BMA and NICE guidelines, will discriminate directly against someone of 65 or over, contrary to EA 2010 ss13 and 29. In the case of a disabled person, it may also give rise to unlawful discrimination. The health service is either providing a service or executing a public function in provision of health services. Either way, it is covered by the EA 2010. In the case of a refusal of treatment, based on the fact that the NICE flowchart has resulted in the CFS being applied because of age, the decision will need to be justified by reference to a social policy aim and as proportionate (direct age discrimination being justifiable).
Where it is possible to make a decision based on an individualised assessment of the person’s health, there appears to be little justification for adopting a broad rule. The social policy aim involved appears to be the need to use resources most effectively in combatting the virus. It is, however, little more than a utilitarian calculation in which those aged 65 or over have been ascribed a lower value because they have been taken out of the individualised assessment process that is applicable to everyone else. Should there be a second wave, it may be necessary to take injunctive proceedings to prevent the application of these directly discriminatory criteria.
In relation to complaints arising from triage decisions based on matters closely associated with disability, the BMA and NICE guidance appear to allow health risks that are normally viewed as either disabilities in themselves or intimately connected with an impairment to be decision-making factors. Such decisions could be challenged under EA 2010 s13 as direct disability discrimination (not subject to justification).
However, in Owen v AMEC Foster Wheeler Energy Ltd and another  EWCA Civ 822
; November 2019 Legal Action
35, an employment decision concerning certain health risks connected with being posted abroad in a location remote from healthcare, the Court of Appeal held that such health risks could not be regarded as indissociable from the characteristic of disability. The consequence of that was that the correct comparator was someone who had the same health risks in that situation but did not have the disability.
The case can be criticised on a number of bases. However, it can be argued that where a disability has, as one of its defining features, the very comorbidities that both the BMA and NICE guidance take into account, it cannot be argued that the comorbidity is dissociable from the disability itself. If that argument is accepted, the court would have to accept that the correct comparator would be a person who does not have the disability or the comorbidity in question – thus direct discrimination could be made out.
In any event, if a claim cannot be brought on the basis of direct discrimination, it may be possible to argue that a decision based on the comorbidities is unfavourable treatment because of something arising from the person’s disability (EA 2010 s15). However, it is possible to justify such treatment if the unfavourable treatment is a proportionate means of achieving a legitimate aim. Where a public body has not observed the public sector equality duty, its attempts to justify (under EA 2010 s15 or s19) will be harder.4See R (Elias) v Secretary of State for Defence  EWCA Civ 1293; July 2007 Legal Action 23 and R (E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and others  UKSC 15; October 2010 Legal Action 23.
Moreover, given that the consequence of the decision is likely to be terminal, the court will subject the justification to the above heightened scrutiny. There may also be claims for failure to make reasonable adjustments and/or indirect discrimination in relation to the ability to benefit quickly
(speed of recovery) criterion.
The BMA guidance itself accepts that the first part of s19 has been satisfied (page 7): it accepts that the application of these criteria will result in indirect discrimination that requires justification. It asserts that the legal principles on resource allocation are settled.5Referring to R (BA) v Secretary of State for Health and Social Care  EWCA Civ 2696.
Crucially, however, it states that ‘it is both lawful and ethical for a doctor, following appropriate prioritisation policies
, to refuse someone potentially life-saving treatment where someone else is expected to benefit more from the available treatment’ (page 3; emphasis added). However, BA
did not settle: (a) the human rights of those affected by resource allocation; or (b) discrimination challenges. It concerned only whether guidelines were given within the powers of the secretary of state to make directions.
Factually, BA concerned a person who would not otherwise have been entitled to treatment. That is very different from the situation of someone refused ICU treatment where their age/disability has been a factor in excluding them from treatment to which, otherwise, they would be fully entitled. The NHS’s justification for having having a policy (articulated in the form of guidance documents), with the effect of refusing life-saving treatment to a group of individuals defined by disability in particular, will require anxious scrutiny and examination of the extent to which, if any, the public sector equality duty was observed. The question at issue is whether the prioritisation policies are appropriate or not. There is a clear case to argue that they are not lawfully derived, and the state should be required to justify their use on the basis of clear evidence. Disabled people and those over 65 should not be made expendable. Their lives are worth as much as any others, and that should be the starting point for a fair triage system.