Northern Ireland has "gap in protection” for elderly using NHS during COVID-19

NORTHERN IRELAND doesn’t have the same legal protections as the rest of the UK to prevent elderly people from facing discriminatory practices in the NHS during the COVID-19 crisis, The Detail can reveal.

The Equality Act 2010 ensures that age-based practices by the NHS and social care organisations need to be objectively justified, if challenged. This act is applicable in England, Scotland and Wales, but not Northern Ireland.

COVID-19 has impacted Northern Ireland’s elderly population more than any other age group. Of the 435 individuals who have died from COVID-19, who are currently represented in the figures on the Department of Health’s (DoH’s) website, 65% were aged 80 or over.

The Commissioner for Older People for Northern Ireland (COPNI), Eddie Lynch, told The Detail he was “conscious about this gap in protection”, as COVID-19 began spreading throughout the world.

He confirmed that the situation regarding age discrimination legislation in Northern Ireland also compares unfavourably with the Republic of Ireland.

Mr Lynch wants this legislative gap to be filled “at the earliest opportunity following the pandemic”, but he declined to address a follow up question asking why he believes Stormont should wait until after the COVID-19 crisis, rather than now, to implement the legislation.

Last week the Executive Office announced the reappointment of Mr Lynch for another four-year term as COPNI, effective from June 2020 onwards.

The British Government's website states that the Equality Act 2010 ‘includes provisions that ban age discrimination against adults in the provision of services and public functions’, meaning the legislative gap in Northern Ireland also applies to other areas, not just health and social care services.

However, it's the elderly's use of health and social care services that's of particular relevance during this pandemic.

Employment regulations, which protect the elderly from age discrimination in workplace environments, exist in Northern Ireland. These date back to 2006.

The Stormont Executive’s Programme for Government 2011-2015 made a commitment to also extending age discrimination legislation to the provision of goods, facilities and services.

In February 2015, Peter Robinson and Martin McGuinness, then First and deputy First Minister, respectively, said in a joint statement: “While we have an extensive body of anti-discrimination law in place here, there is one major gap – legal protection from unjustifiable age discrimination by those providing goods, facilities and services.”

Mr Robinson and Mr McGuinness, on paper, reaffirmed their commitment to putting “age discrimination outside work on a similar footing to discrimination in the workplace”.

This has still not transpired, meanwhile, Northern Ireland now finds itself in the middle of a pandemic which disproportionately impacts the elderly.

A spokeswoman for the Equality Commission for Northern Ireland (ECNI) told The Detail her organisation had been campaigning for legislative change in this area “for over a decade”, but added that the absence of the Assembly from early 2017 until recently meant “substantive further engagement on the issue had not been possible locally”.

Despite the claims from COPNI, ECNI and the previous First and deputy First Ministers, a DoH spokesperson told The Detail they do not believe that elderly people in Northern Ireland have been left to face this pandemic without the same legal protections, as the rest of the UK, when using health and social care services.

The spokesperson made reference to Section 75 of the Northern Ireland Act 1998 which, they said, requires health and social care service providers to have regard to the need to promote equality of opportunity across “nine specific categories”, including age.

However, a Stormont research paper which was published in 2011 states: ‘In Northern Ireland equality legislation remains unconsolidated, diverse and uneven in implementation.’

The paper adds that one of the areas where Northern Ireland's equality standards 'do not match' with Great Britain is in age discrimination outside of the workplace.

Nearly a decade has passed since this paper was published and this hasn't changed.

The Detail contacted the DUP, Sinn Féin, the SDLP, the UUP and Alliance about these matters, on multiple occasions, but Alliance was the only party to provide a comment.

Alliance’s North Down MP, Stephen Farry, told us his party is concerned at the legislative gap highlighted by The Detail and that the “COVID-19 crisis brings this deficiency into even sharper focus”.

He continued: “Northern Ireland had been ahead of the rest of the UK regarding equality protections at the time of the Good Friday Agreement (1998) and consideration had been given to a Single Equality Act in 2006 under direct rule, which ultimately wasn’t progressed.

“Northern Ireland fell behind the rest of the UK with the passage of the Equality Act 2010 for Great Britain. Sadly, virtually no equality legislation has been passed under devolution since the restoration in 2007.

“The need for stronger protection for age discrimination has been understood by us and many other campaign groups over this past decade."

Mr Farry added that unionist politicians, for a period, blocked the progression of age discrimination legislation "on what were spurious grounds of implications for children".

In October 2012, after asking a question of the then First and deputy First Ministers regarding prospective age discrimination legislation, the DUP’s North Belfast MLA, William Humphrey, sought assurances from Martin McGuinness that the legislation “will deal simply with adults”.

Meanwhile, Sinn Féin’s Fermanagh and South Tyrone MLA, Bronwyn McGahan, subsequently asked: “Does the deputy First Minister believe that young people, under the age of 18, should be included in the scope of the proposed legislation?”

Mr McGuinness responded: “There will be different opinions about this...that will have to be agreed and, as I said, we have not come to any final decision on that.”

The lack of a final decision on age discrimination legislation continues to affect Northern Ireland's elderly today, in the midst of a global health crisis.