Coronavirus, guidance for the over-70s and age discrimination

The World Health Organisation says older people are at greater risk of severe disease following infection from Covid-19. Public Health England has concluded that older people diagnosed with Covid‑19 are more likely to die, with people aged over 80 seventy times more likely to die than people aged under 40. Researchers at London School of Hygiene and Tropical Medicine have also identified age as being a significant factor in the risk of death amongst hospital in-patients with Covid-19.

During the outbreak in the UK, the NHS has advised anyone aged 70 and over to stay at home as much as possible and to practise social distancing. The issue of social isolation arising from older people reducing contact with others has been raised by several members of the House of Lords. It has been argued that, by using age alone as one of the indicators for the level of risk from Covid-19, the over-70s may have been subject to age discrimination.

Levels of risk: NHS guidance

NHS guidance establishes two groups who are at higher risk of serious illness as a result of Covid-19: people who are ‘clinically extremely vulnerable’ face a high risk of serious illness and those who as ‘clinically vulnerable’ face a moderate risk. These two groups are classified as follows:

  • People are clinically extremely vulnerable if they have certain specific health conditions or have been subject to certain medical treatments. For example, people who have had an organ transplant, who are undergoing certain cancer treatments and/or who have a severe lung condition. People in this group are advised to take steps to protect themselves, referred to as ‘shielding’.
  • People with other health conditions, such as heart disease or a lung condition that is not severe, are classified as clinically vulnerable. Anyone who is pregnant or aged 70 and over is also automatically in this group, regardless of any underlying health conditions. People who are clinically vulnerable are advised to take precautions such as working from home if possible and to make sure that they follow guidance on social distancing.

The classification of vulnerable people is included in the regulations passed at the beginning of the Covid-19 outbreak. Section 1(3)(C)(i) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 states that a “vulnerable person” includes “any person aged 70 or older”.

The British Medical Association has argued the Government has not provided enough clarity about how these two groups should protect themselves. It has argued many people were unsure whether they had been advised to shield and some might be shielding unnecessarily.

June 2020 guidance: Continued precautions for over 70s

Since the outbreak in the UK, elements of the general guidance have changed over time. However, according to the latest guidance published in June 2020, the over 70s are still advised to take precautions to minimise contact with others. The guidance states:

The advice for those aged 70 and over continues to be that they should take particular care to minimise contact with others outside their household.

If they do go out more frequently, they should be careful to maintain distance from others. They and everyone should continue to comply with any general social distancing restrictions.

The guidance acknowledges that some people over 70 may be less at risk. However, it states that all people in this age group should continue to take extra precautions. It says:

We know that those aged 70 and over can be absolutely fit and healthy and it’s not the case that everybody over 70 has a chronic health condition or an underlying disease.

But unfortunately, we also know that as you get older, there is a higher risk of coronavirus having a more serious impact with infection. Complications and deaths are more common in the elderly, even those without pre-existing conditions.

Age discrimination concerns

Several members of the House of Lords have been critical of the decision to classify all people over 70 as clinically vulnerable. For example, Baroness Altmann (Conservative), a former pensions minister, has said any continued mandatory self-isolation for people over 70 would be a form of “house arrest”. She has said the regulations were “age discrimination”, arguing that a “healthy 70-year-old is probably less risk to society than an unhealthy 40-year-old, in terms of vulnerability to this illness”. During the debate on the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 on 12 May 2020, Baroness Altmann said the Government should “remove any age discrimination from our reaction to this virus” and that the regulations should distinguish between “elderly people who are at extreme risk, particularly if they have previous medical conditions, and the rest of the population”.

Lord Truscott (Independent Labour) had raised concerns on 22 April 2020 about the Government’s social distancing measures and whether they were unintentionally discriminating against elderly ​and vulnerable people. The Parliamentary Under Secretary of State at the Department of Health and Social Care, Lord Bethell, responded by arguing that it was the “virus that [made] this discrimination, not the Government”. During oral questions on 18 May on the Government’s plans to adjust the existing guidance, Lord Low of Dalston (Crossbench) asked whether the Government intended to ease the restrictions on healthy people over-70. Responding on behalf of the Government, Lord True, a minister of state at the Cabinet Office, argued the guidance to people over 70 was advisory and the restrictions applied to everyone, regardless of age.

The regulations have been certified as Human Rights Act compliant by the Secretary of State for Health and Social Care, Matt Hancock. In response to a question about the regulations’ compatibility, Baroness Williams of Trafford, a minister of state at the Home Office, confirmed the Government had certified the regulations in that way, adding that the penalties that could be issued to those who did not comply with the regulations applied to anyone aged 18 and over.

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