Direct and indirect discrimination

Broadly speaking, discrimination falls into two categories: direct and indirect discrimination.

• Direct discrimination is where the protected characteristic is a reason for the decision.
• Indirect discrimination occurs where there is a provision, criterion or practice (eg criteria in order to be eligible for treatment) which impacts disproportionately on, and to the disadvantage of, people who have a protected characteristic, compared to a person who does not have the same characteristic. In relation to disability discrimination, it may also be that the difference in treatment is for a reason arising out of that person’s disability, rather than because they have a disability.

A key difference between the two forms of discrimination is that indirect discrimination is capable of being justified and, if so, may not be unlawful discrimination if it can be shown that it is a proportionate means of achieving a legitimate aim. Direct discrimination is, subject to a few exceptions, generally unlawful.

In either case, a mere difference in treatment does not amount to unlawful discrimination; the treatment must be less favourable, ie to the patient’s disadvantage. Where the result is that a patient is provided with fewer treatment options or cannot access their treatment in as convenient or timely way as a person without a protected characteristic, it seems likely that it will be straightforward to establish such disadvantage, although this may not necessarily be the case if the alternatives not offered are plainly no more effective than those which are.

A key to establishing less favourable treatment is often to identify an appropriate comparator (whether hypothetical or real), being a person who was in a similar position to the claimant, but not having the same protected characteristic. In R (on the application of AC) v Berkshire West PCT a claim was brought challenging a refusal to fund breast augmentation for a transgender female. The claimant had received hormone treatment for 15 years and lived as a woman. She applied to the PCT for funding for breast augmentation. Her psychiatrist and GP supported the application on the basis that this was the best treatment for her gender identity disorder. The PCT’s policy was that gender reassignment surgery was not supported by a good evidence base and was not routinely funded. Moreover, it relied upon a review of the available evidence that had concluded that there was an ‘absence of reliable evidence’ that breast augmentation was clinically effective for the long-term resolution of poor body self-image, and associated psychological difficulties, for either biological women or trans-females.

The Court of Appeal dismissed the appeal on the basis that the funding decision was not irrational. It went on to consider the argument that treating the claimant and a natal female in the same category for the purposes of funding breast augmentation surgery was unlawful discrimination, as such a policy incorrectly treated trans-females and natal females alike, when they were not. The claimant identified a number of features it was said constituted significant distinctions between a trans-female and a natal female, meaning that the claimant’s clinical need was different to a natal female. In response, the defendant argued that, for discrimination purposes, the appropriate comparator for a trans-female who had a clinical need for breast augmentation would be a natal female who also had a clinical need for breast augmentation. The Court of Appeal dismissed the discrimination claim on the basis that, while gender and clinical need were both relevant characteristics, on the evidence available to the defendant, the clinical effectiveness of breast augmentation had not been demonstrated for either category.

In the earliest days of the coronavirus pandemic in the UK, NICE issued a ‘COVID-19 guideline for clinical care’ which included a nine point ‘Clinical Frailty Scale for Frailty Assessment’ (‘CFS’). For those with a CFS score of 5 or more, the guideline suggested it may not be appropriate to provide them with hospital treatment in the event that they became unwell with Covid-19. The guideline went on to suggest that clinicians, ‘sensitively discuss possible “do not attempt cardiopulmonary resuscitation” (DNACPR) decision with all adults with capacity and a CFS score suggestive of increased frailty (for example 5 or more)’. Some disabled adults, and the groups representing them, were concerned that the CFS failed to distinguish between those who required care due to pre-existing disability and those who were frail: as a result disabled adults were more likely to score 5 or more on the CFS. It was suggested that the NICE guideline as published was in breach of the Public Sector Equality Duty, was irrational, constituted unlawful discrimination on grounds of disability and might lead to disabled adults with Covid-19 not being offered hospital treatment in circumstances where a non-disabled adult would have been.

Faced with this widespread criticism, including a threatened judicial review, NICE quickly revised the guidelines to make it clear that the CFS should not be used for people with stable, long-term disabilities, learning disabilities or autism. Although disabled people reported that DNACPR notices continued to be discussed with them, this incident does appear to be an example of recourse to discrimination legislation being able to secure improved treatment options for those with a disability.