On the third anniversary of COVID-19 being declared a pandemic, Rachel Horton – Associate Professor in the School of Law at the University of Reading – considers how the pandemic has brought equality of access to healthcare into sharp focus, and the ongoing challenges of reducing health inequalities in cases of intensive care, infertility treatment, and vaccination and screening programmes.

A nurse attends to a patient in the Intensive Care Unit

The NHS budget is currently unable to meet all the healthcare needs of the entire UK population. As a result, extremely difficult decisions are constantly having to be made which can involve the denial of care to individual patients.

This was acknowledged by the High Court in R(B) v Cambridge [1995], a case concerning funding of leukaemia treatment for a ten-year-old girl, when it observed that ‘difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients’.

When making such difficult judgments, those involved in priority setting and resource allocation need to engage with their obligations under the Equality Act 2010 to avoid discriminating on the basis of protected characteristics – including sex, race, age, gender reassignment, disability, religion and sexual orientation. It is not always clear what the law, requires, however.

These uncertainties were brought into sharp focus by the COVID pandemic where the unequal impact of the virus on different groups sharing protected characteristics – including disability, age and ethnicity – has been well documented.

Questions of discrimination in access to treatment became immediately real and urgent, requiring responses to questions such as how intensive care units should prioritise access to ventilators when there were not enough for everyone, whether age could lawfully be used to prioritise patients, and whether lower priority could be given to a patient whose capacity to benefit from ventilation was diminished because of a pre-existing disability.

In addition to the intensive care controversies described above, my research examines a number of areas where anti-discrimination law is relevant to health and social care provision in the United Kingdom.

For example, there are questions about whether infertility treatment may directly or indirectly discriminate against same sex couples by requiring them to have first self-funded an unsuccessful course of artificial insemination, while heterosexual couples need simply establish that no pregnancy has resulted from attempts to conceive naturally over a specified period of time.

Equally, questions of discrimination also arise in the context of public health vaccination and screening programmes where age and sex are often used explicitly to determine access. There are, for example, upper and lower age limits for invitation to cancer screening programmes. Women (including transgender women) but not men (other than transgender men) are invited to breast cancer screening even though men get breast cancer too.

Addressing these policy questions in a comprehensive manner requires a deep examination of associated issues related to the broader legal framework within which the NHS operates. This includes:

  • the potential contribution of Public Sector Equality duties (within the Equality Act 2010) to reduce health inequalities
  • the decision-making of the National Institute for Health and Care Excellence (NICE), which is committed to a prioritisation process that might be thought to discriminate against older people, and
  • the relevance of protected characteristics in deciding whether or not patients are ‘exceptional’ and should have funding to access to a medical intervention which is not normally available.

The anti-discrimination law framework poses challenges for an already very difficult decision-making process. When there is not enough to go around, and when choices must be made about who to treat, the challenge is: to what extent should the (largely) utilitarian principles on which healthcare priority setting tends to be based be modified as a result of the application of anti-discrimination norms?