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How to avoid allegations of age discrimination when treating patients

The MDU's Dr Wendy Pugh has advice for GPs on how equality legislation applies to patient care.

GPs should not assume that elderly and frail patients who have difficulty communicating lack capacity (Photograph: SPL)
GPs should not assume that elderly and frail patients who have difficulty communicating lack capacity (Photograph: SPL)

GPs have always had an ethical duty to avoid discriminating against a patient on the grounds of age, but there has not previously been an obligation in law.

However, this is all set to change following the introduction of the Equality Act 2010.

Although most of the Act was implemented in October 2010, the age discrimination section was delayed. However, the government has said it expects the new legislation will be in force by April 2012, and it is important to appreciate the implications for the clinical care of patients.

The DoH has given the following examples of discrimination it hopes to ban:

  • Making assumptions about whether an older patient should be referred for treatment based solely on their age, rather than on their individual need and fitness.
  • Not referring certain age groups, such as those not of working age, for a particular treatment or intervention that is considered mainly, but not exclusively, for working age adults.
  • Not considering the dignity or wellbeing of older people.

Exercise clinical judgment
It is unlikely GPs will need to make huge changes to ensure they comply with the law as the GMC already expects them to act in an ethical, non-discriminatory manner, considering patients as individuals and providing them with care in their best interests.

Nor does the Act prevent GPs from exercising their clinical judgment when evaluating the effectiveness of treatment options. A particularly frail patient or someone with a poor prognosis may have a lesser chance of making a full recovery following certain treatments.

This burden may be considered to outweigh the potential benefits of undergoing a procedure. Although age may be a factor in this decision, it cannot be a reason in itself.

Obtaining consent
As with any consultation, GPs need to obtain elderly patients' consent for their proposed treatment or care plan. The GMC's supplementary guidance Consent: patients and doctors making decisions together states that doctors should not assume that elderly and frail patients, who have difficulty communicating, lack capacity.

Such patients should be offered support to make decisions and communicate their wishes, for example, by encouraging them to bring a relative with them to the consultation.

While doctors are not obliged to provide treatment that they do not consider to be in the patient's best interest, they should explain to the patient that they have a right to seek a second opinion.

Record keeping
It is possible GPs may face allegations that they have discriminated against elderly patients if they do not provide a particular treatment even though this is because they consider the treatment is not in the patient's best interest.

In such cases, it will help if they are able to refer to detailed notes recording the decision-making process, including any discussions with a patient or their representatives about the various treatment options, the patient's wishes and any disagreements over the treatment plan, along with any steps taken to resolve these.

See the fictional case study (below) for an illustration of how problems can develop and how GPs can avoid them.


A GP diagnoses that a patient in her 70s has developed AF. The patient has been receiving treatment for several years for osteoarthritis and has mobility problems that are exacerbated by obesity. She has also developed diabetes that is reasonably well controlled on oral medication.

Over the past couple of years, it has become apparent that she has struggled to manage her medication. However, she is keen to remain in her home where her daughter has been providing her with as much support as possible.

After discussing the case with a local cardiologist and giving it careful consideration, the GP concludes, with the patient's agreement, that the best way to manage the patient's condition is with digoxin and aspirin, while continuing to monitor her progress.

The GP had considered introducing warfarin. After talking to the cardiologist, he concludes that this is not likely to be in the patient's interests as she would struggle to cope with the dosage changes and may be erratic in her compliance with prescribed medication. The GP records this fully in the notes.

The patient makes good progress, but when her son visits a few months later he complains that his mother is not being offered appropriate treatment for her condition that he has researched on the internet.

He accuses the GP of refusing his mother the best treatment in order to cut costs. With the consent of the patient, the GP is in a position to explain the reasons behind the treatment plan in his response to the complaint and confirm that it has been discussed with the patient.

  • Dr Pugh is a medico-legal adviser with the Medical Defence Union www.the-mdu.com

These further action points may allow you to earn more credits by increasing the time spent and the impact achieved.

  • Reflect on cases where you have refused treatment to an elderly patient. Do your notes record the reasons why and the discussion you had with the patient or their representatives? Might you be vulnerable to accusations of age discrimination?
  • Ensure your practice has the means to help elderly patients communicate their wishes if they struggle to understand or express themselves clearly.
  • Consider whether your practice should have a protocol for resolving disagreements with patients or their representatives, covering arrangements for obtaining a second opinion.

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