Ensuring that prioritisation doesn't mean discrimination

As with the previous post, this one is adapted from our public domain NHS Equality and Diversity Blog.

Ensuring that prioritisation doesn't mean discrimination

In the present operational climate many PCTs across the country are instituting short or medium term policies to defer or reduce referrals for a variety of conditions.

In some cases these involve forms of temporary embargo on referrals from GPs lasting only until the end of the financial year in March. In other cases more permanent policy changes are being proposed.

Policies like these must be impact assessed

Any policy changes of this nature must be scrutinised for any disproportionate impacts they may have on particular equality groups, and for the possibility that the measures may not be proportionate in those circumstances.

For example, a policy deferring or restricting hip replacement surgeries would be likely to affect older patients (and older women in particular) whilst having very little impact on the rest of the population.

Whilst the legitimate aim of the organisation may be to address a short term financial crisis, a policy that did not take account of this disproportionate impact could be subject to legal challenge through judicial review.

Outright bans and exceptional cases

The general position is that it is unlawful to operate any policy that amounts to a blanket ban on particular treatments unless, of course, the evidence genuinely indicates that there is little or no benefit.

Prioritisation through exceptional case review processes is acceptable. However the decision process in such instances must be rational, evidence based and must take account of the way in such policies may directly or indirectly affect specific groups more than others.

Where an exceptional case review is required then the policy must have a transparently fair rationale indicating what would constitute an exception.

Hard decisions in hard times, fairness and proportionality

Like everything else, commissioners need to consider whether the way the conditions are set may affect some groups more than others.

If the conditions are set in a way that no patient in a particular equality group (or overall) would be likely to qualify then these could be challenged as being equivalent to a ban in all but name.

The indications from the way that some of these policies are emerging around the country (as at December 2010) is that the necessary EIA scrutiny is maybe not happening in some circumstances.

Anecdotal evidence suggests that in some cases little or no consideration is being given to the impacts on affected minorities.

Ad-hoc or ill-informed assumptions may be made about the clinical need for some interventions, rather than taking account of evidence and best practice. Also the amounts actually saved could be small in proportion to the impacts on the communities most affected.

A policy where low volume, socially unpopular, cases were targeted could be challenged as discriminatory and irrational if higher volume "mainstream" needs were proportionately unaffected.

Working smarter, not harder

As all PCTs will be likely to be looking at the same range of treatments then it would make considerable sense for organisations to work collaboratively on impact assessment so as to avoid reinventing the wheel.

Individual PCTs may have their own commissioning and referral policies; however the impact of limiting access for particular groups is likely to be similar across large areas, and evidence gathering and consultation can certainly be done once and be shared, rather than repeating this.