There is a tendency these days to label people as part of a ‘group’. As shorthand in a sociology student's essay, this may be innocuous. But in other contexts, such a tendency may be at best patronising and at worst misleading. It may even be discriminatory.
So, is there an ‘old community’ or whatever term one might choose? Of course there is not, for the simple reason that it would be impossible to define. That is the problem that faces any attempt to define ‘age’ as something not to discriminate against. Can the law do this? Should it?
Staffing levels in health services
It is not easy to form a wholly dependable picture of staffing levels in healthcare. Much depends on the purpose for which the statistics are gathered. One such purpose is to gain an impression of how much an enterprise costs to run. On a national scale, tax-gathering is one such. Another is pension age; with increasing longevity, the growing number of people of pensionable age comes at a cost. One way of reducing or even avoiding this cost is to increase the retirement age.
This is not a consideration in the private healthcare sector, because it is not in the interests of the sector to do so. Its emphasis is on the safety and reliability of healthcare delivery, from both the practitioner and patient standpoints.
There appears to be a direct correlation between staffing levels in community nursing in the UK and the observance of legal safety obligations. Statistics published recently by the Department for Health and Social Care (DHSC) show a 3.5% reduction in the number of community nurses in the UK during the period 2017– 2018 (House of Commons Health Committee, 2018). As a bare percentage, this might not seem great, but, in terms of actual numbers, it may give cause for alarm. This reduction is dwarfed by the falloff in mental disorder and learning disability community services. However, among the other services, the fallo? in the number of community nurses is much higher. In its report ‘The UK nursing labour market review’ published in 2018 the Royal College of Nursing records a fall in the number of community nurses of 3.4% over the period 2014–2018 (RCN, 2019).
The fall in numbers is even more alarming when one reflects that the drop is unlikely to be evenly spread. Some areas may be far worse affected by lack of staff—only health authorities and commissioning groups may know. They are, in the nature of things, that much more exposed to legal action for untoward incidents. This is directly harmful to practitioner morale as well as to patient welfare. The last thing of value to patients if an accident occurs due to shortage of staff is the availability of legal action.
Around 80% of accidents occur in people's homes, and older people are very often the victims (Royal Society for the Prevention of Accidents, 2019). To make provisions, in a worthwhile and proactive way, for such a circumstance requires an increase in the availability of community nurses. It is a deficiency that would be very difficult to remedy at the drop of a hat. It would require the recruitment of a large number of experienced community nurses, of which there appears to be a substantial pool in countries outside the European Union. However, the lamentable mismatch between the needs of the NHS and the decades-old myopia of the Home Office restricting the immigration of health professionals does not inspire hope.
Whether or not older people are cared for in the home setting, given the substantial body of people requiring the care and support of community nurses, this is an accident waiting to happen. It may already be happening.
Retiring from health practice: is it ageism?
The UK has recently raised the general retirement age for women to 65 years, the same as men. One politician said that this was an exercise towards ‘greater equality’. Equality can actually be neither greater nor less: it is, by definition, equal. Less pedantically, and much more important in human terms, is the major unspoken hypothesis that age as such is the only factor to be considered. Many men over 65 years and many women over 60 years (now 65 years) are as fit as fiddles, physically and mentally. However, it cannot be denied that age, of itself, very often brings with it certain limitations in both respects. It is normal for people to slow down, not to speed up.
One reads the occasional press release from some ‘think tank’ or other projects that the general retirement age will increase to 70 years in the foreseeable future. One can be reasonably confident that any such device when applied to community nursing will be a cover for the real reason.
Certain changes have taken place in recent years in the medical profession regarding retirement age. In the 1980s and early 1990s, it was a given that NHS surgeons retired at 60 years while NHS psychiatrists retired at 55 years.
Social legislation
The Equality Act 2010 pulled together more than 120 pieces of earlier legislation, all of which, in their own way, sought to prevent discrimination in one form or another. It is the epitome of post-Millennial niceness. In addition to various examples of human unpleasantness, the Act, for the first time, made age discrimination a target for action. As for the other forms, the Act tinkered round the edges of laws that had already existed for some years.
The Act seeks to prevent not only discrimination on the basis of how old people are, but also on the basis of how old they are believed to be. In this respect, the Act gets as near as possible to thought-policing. It sounds innocuous, but it could be used effectively to shift the burden of proof to employers, who would be called upon to prove an absence of any discriminatory intent.
Age discrimination in employment
So, what is the practical effect of making a law aimed at preventing ageism? The real effect is much more likely to be felt in the specific context of employment where the question of a person's age is most likely to matter. Employment tribunals have had the power to order an employer to reverse a discriminatory decision for decades and, in occasional cases, even to award monetary compensation to the victim of discrimination. The award of money has always been the exception rather than the rule, for the simple reason that it is a last resort. The first resort is, of course, an appeal to the employer to rectify the situation, possibly with trade union assistance if that becomes necessary.
For all types of discrimination, including discrimination on the basis of age (or perceived age), the Equality Act is clear that monetary compensation is never to be preferred to another remedy.
Ageism and the patient
While no practitioner worth their salt would dream of discriminating against anyone because of their age, older people who seek help from the NHS are, in fact, being indirectly discriminated against every day. The older people get, the wider is the range of medications, appliances and drugs that are required to be purchased for them from pharmaceutical and related producers. Given the higher overall cost, it would be discriminatory to ration any of these necessities.
In a non-age-related sphere, the scandal of the more than patchy availability of medicinal cannabis oil for the treatment of epilepsy and other neurological conditions will no doubt soon be exposed for what it is, as well as the dark reasons behind it. The Department of Health and Social Care claims that the varying practice among GPs is the culprit.
In its very nature, indirect discrimination, on whatever ground, is exceedingly difficult to pinpoint, and doing something practical to remedy or avoid it is more difficult still.
Moving with the times
There was a period during which there were pieces of legislation that truly advanced human and social decency. This was during the 1960s in Britain. In 1960, capital punishment was abolished largely thanks to the sterling efforts of a Liverpool solicitor named Sidney Silverman. 1967 was the summit of social reform, a year during which Parliament removed the smear of criminality from both abortion (in the great majority of cases) and consensual sex between adult males.
On a less dramatic, though no less important human and social note, section 2 of the Family Law Reform Act set the age of independent consent to medical treatment at 16 years.
It is unlikely that we shall see anything to match the reforming ‘60s—with the possible exception of a wholesale review of mental disorder and mental disability legislation as hinted at by Baroness Brenda Hale, President of the Supreme Court, in an address to the Royal College of Psychiatrists in 2018 (Hale, 2018).
Is age discrimination ever lawful?
The utmost care must be taken in any walk of life or sphere of employment if the aims of the Equality Act are not to be frustrated. Whether they are or are not tends to come down to the particularities of any given case.
For instance, a job advert for a community nurse aged at least 25 years could, but not by any means necessarily would, pass muster under the Equality Act. There would have to be very particular social, demographic, clinical reasons for the advert and possibly many other factors to be taken into account.
It might be lawful discrimination for a care home for older adults to advertise for a resident nurse or care assistant over the age of 50 years if the residents did not feel comfortable being cared for by a young person. In this case, of course, it would be the residents who would be doing the discriminating.
Some women might not want to be attended by a male midwife. Some of the elements of discrimination are there, not least that men in the profession are in a tiny minority. But the woman in question would not be unlawfully discriminating against the man in question, as patients have the right to refuse treatment from an individual.
Conclusion
As this article tries to show, the concept of ageism is difficult. We could start from a definition on which the majority could agree. But that raises a different problem— whether the majority are automatically to be considered right in deciding questions that bear on social morality.
The thing to be avoided, and with the greatest care, is to define a concept (it could be ageism) and then proceed to (or purport to) draw conclusions from that definition. As Professor Herbert Hart wrote in Definition and Theory in Jurisprudence (Hart, 1954): ‘While theory is to be welcomed, the growth of theory on the back of definition is not’.
Ageism cannot be defined, and it probably never will be, except to serve some narrow socio-political end. Fake law will never advance social or moral justice. Discrimination as envisioned in other quarters (such as equal rights in employment and equality of treatment regardless of race) by the Equality Act is to be carefully avoided, and most of the Act stands as a valuable contribution to such civilisation as the Britain can today boast, even though nothing much of it was new.
However, its contribution on ageism is unlikely to do anybody much good, old or not. It certainly does nothing to ‘empower’ the aged.