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Thursday, August 13, 2020
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Home COVID-19 Human rights threat to Hancock over caging the aged

Human rights threat to Hancock over caging the aged

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THE nation continues in self-isolating lockdown mode, desperate for this to end and increasingly filled with paralysing fear by government ‘messaging’ policy. Health Secretary Matthew Hancock evidently does not have a plan for extracting the country from its lockdown-or-die rabbit hole. Ministers writhe around trying to counter objections to lockdown, for example Mr Hancock’s statement that families after all had a ‘right’ to say goodbye in care homes.

This turnaround took place in the midst of a total failure to consider people living in care homes who were, according to Ros Altmann, being treated not as human beings with rights but ‘lambs to the slaughter’.

Mr Hancock also conceded that people with learning disabilities and autism were allowed more walks on health grounds. The latter concession was gained by the efforts of Bindmans solicitors who challenged the government’s lockdown on the grounds of human rights. The government conceded very fast and it did not hit the headlines, but was noted by the Guardian. 

Bindmans proposed to pursue judicial review action over the government’s limit on outdoor exercise, saying it disproportionately affects families with disabilities. Jamie Potter, joint head of the public law and human rights team at Bindmans, acknowledged the importance of the social distancing measures, ‘but they cannot be used to disproportionately interfere in the rights of those with protected characteristics, particularly those with mental illness, autism or similar conditions that necessitate leaving the house more than once per day’. 

The government is now being engaged on the human rights front, in particular as expressed through the 2010 Equality Act and its special protection for those with protected characteristics. The House of Commons Women and Equalities Committee has begun an inquiry into the ‘different and disproportionate’ impact that the measures to tackle the coronavirus are having on people with protected characteristics under the Equality Act. Caroline Nokes, who chairs this committee, said: ‘In these extraordinary times, it is as important as ever that the government considers how its actions to tackle the coronavirus impact differently on different communities. Passing emergency legislation at great speed has been essential. Now we need to understand the present and future effect on those who may already be marginalised.’

If we look at the Equality Act, legislation that has had a deep and wide impact on national life and culture, we see ‘age’ topping the list of protected characteristics, and kinds of possible discrimination described.

The government guidance on the Act lists various forms of discrimination, including:

Direct discrimination 

This means treating one person worse than another person because of a protected characteristic. For example, a promotion comes up at work. The employer believes that people’s memories get worse as they get older so doesn’t tell one of his older employees about it, because he thinks the employee wouldn’t be able to do the job. 

Indirect discrimination 

This can happen when an organisation puts a rule or a policy or a way of doing things in place which has a worse impact on someone with a protected characteristic than someone without one. For example a local authority is planning to redevelop some of its housing. It decides to hold consultation events in the evening. Many of the female residents complain that they cannot attend these meetings because of childcare responsibilities

Harassment 

This means people cannot treat you in a way that violates your dignity, or creates a hostile, degrading, humiliating or offensive environment.

 With this in mind we can possibly see why the government settled with Bindmans so quickly. Age is almost certainly key to the government’s pathway out of the lockdown labyrinth they have created. Camilla Tominey in the Telegraph quotes a government spokesman saying: ‘It looks like elderly and vulnerable people are going to be kept in self-isolation for six months rather than three.’

This struck despair into the hearts of those classifiable as elderly. One Telegraph correspondent wrote: ‘My husband and I  . . . own and run substantial businesses involving many jobs, and I have a separate profession in the arts.

‘We belong to a vast group of people who appear to be about to be tidied away by scientists and politicians who can only see statistics. The prospect of this is, to us, far more frightening than catching or even succumbing to a disease or accident.’ 

The government’s exit plan could well end the lockdown under cover of, or at the expense of, the fit, well and productive people aged, what, say over 65 or over 70, or over 75? Pick an age. Statistics cited for Covid-related deaths are greatest in the over-80s. 

In fact there is now a ‘tool’ put out by the NHS to help medics decide who not to send to intensive care with Covid-19; the higher one’s score the less likely one is to be treated in intensive care. Age, frailty and underlying conditions of morbidity are the three categories used.  Patients aged 70 to 75 are given four points, while those aged 76 to 80 get five, and over-80s receive six. Under-50s do not get any points, but those aged 50 to 60 get one point, the 61 to 65 age bracket receive two and those aged 66 to 70 rack up three points. Frailty and underlying conditions add points to prevent admission to intensive care.

How does that square with the noble protections afforded by the all-conquering Equality Act cited above for age discrimination and exclusion from a public service, indeed for being demarcated as less than valuable by society? Doctors have always been faced with such dilemmas, ‘who gets the kidney machine?’ judgments. But this points-for-non-treatment system does seem, well, utilitarian and functional.

Caroline Abrahams, charity director at Age UK, says: ‘There should be no place for arbitrary age criteria when it comes to making treatment decisions concerning Covid-19, any more than there should be with any other illness or disease. Chronological age is a very poor proxy for a person’s resilience and state of health. All treatment decisions should be made on the basis of a person’s individual capacity to benefit, informed by the best clinical evidence. Blanket age criteria are ageism, pure and simple.’ 

In short, if Mr Hancock is going to lock down those classified by chronological age and to ensure by chronology that they are unlikely to receive intensive care treatment if they do get ill, he is very likely to face a battle in the courts for judicial review on the grounds of Human Rights and the Equality Act.

What would be the reason for locking down older people while releasing others? To protect the health of these prisoners? To ensure that they do not carry the infection to others? To ensure that the NHS is not troubled by them overmuch, thus puncturing the loud claims of the NHS as for everyone?

Should Mr Hancock, author of Project Covid Fear, and the government implement this plan, it will cast a deep chill factor on those frosted by the policy, demean and diminish their lives, and damage their precious relationships with younger family members. At the time of writing the Sunday Times is reporting the likelihood of a whole year’s lockdown for all over-70s. Are yellow stars to be worn?

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Timothy Bradshaw
Timothy Bradshaw
Timothy Bradshaw is a Theological lecturer and Anglican clergyman

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