NHS could be sued for neglecting elderly under new law

Elderly patients who believe they have been treated badly because of their age could sue the National Health Service under new rights to be unveiled by ministers next month.

Age discrimination is to be outlawed in the provision of services, including health and social care, in another ground-breaking provision of the Equality Act.

It will mean that doctors will no longer be able to refuse many treatments or operations to patients on the grounds that they are too old.

Upper age limits on cancer screening programmes could also be scrapped, although the Department of Health is likely to try to justify some by citing medical evidence.

And pensioners who believe they have been neglected or treated poorly on hospital wards, while medics pay more attention to younger patients, could take legal action against health trusts.

It comes after a damning report by an independent watchdog accused the NHS of failing to meet “even the most basic standards of care” for the over-65s in England.

The Health Service Ombudsman, Ann Abraham, found on Tuesday that many older patients were being denied adequate food or drink in hospital while others were left unwashed, and in some cases died alone because staff had forgotten about their loved ones.

Following her strongly-worded comments about the culture that allows medics to “insulate themselves from the person they are treating”, a leading figure in the health service admitted it was a “sad day for the NHS”.

Sir Keith Pearson, chairman of the NHS Confederation, which represents trusts, wrote to the Ombudsman to say: “I read with regret your report into the failure of the NHS to treat older people with care, compassion, dignity and respect.”

Many commentators said the NHS needs to change its attitude towards elderly patients, who make up 60 per cent of hospital admissions, and that the problem of neglect was not a lack of staff or money.

However older people will be given more protection against poor treatment when age discrimination in the provision of goods and services is outlawed, including the ability to take legal action where they think they have received worse treatment solely because of their age.

Katherine Hill, a policy adviser for Age UK, said: “A case could be made that a younger person would have been treated better.

“It could be quite empowering – some people will not necessarily see their right to equal treatment.”

The ban was included in Labour’s flagship Equality Act, passed last year, but requires additional regulations and guidelines for employers before it comes into force.

The Government will set out a consultation on the rules in March in the hope that they will be effective from April 2012.

It is widely believed that the ban will have “major implications” for the health service because of the number of elderly patients, the fact that they often have several complex conditions and because of the cost of treating them.

A presentation delivered by the Centre for Policy on Ageing last year claimed that older people are more likely to be “talked over” by doctors, are less likely to be referred for surgery for cancer or heart disease, tend to wait longer in A&E and are not looked after as well at the end of their lives.

It comes as the NHS is under pressure to make £20billion of efficiency savings over the next three years, while radical proposals seek to transfer power to buy treatment from middle-managers to GPs.

Although the Department for Health says it is committed to ending age discrimination, it is likely to seek “exceptions” from the provisions of the Equality Act in order to keep some rationing of treatment of the elderly, such as cancer screening programmes which currently only provide for the under-70s.

It will have to produce medical evidence to show that the age limits are justified by research.

A spokesman said: “A patient’s age is never an excuse for poor care. The Government is determined to end age discrimination, including in health and social care.

“We have been examining the best way of achieving it while allowing a person’s age to be taken into account where it is right to do so. We will be launching a consultation shortly.”

Meanwhile hospitals in north Merseyside are reportedly considering using anti-trespass powers used to keep gangs of teenagers out of shopping centres in order to remove “bed-blocking” elderly patients.

According to the Health Service Journal, managers at NHS Sefton are developing a plan whereby patients who are deemed fit to go home but refuse to leave could be served with court orders.