John Williams, Emeritus Professor in the Department of Law and Criminology at Aberystwyth University
Age as a proxy for decision making is administratively attractive; it is objective, provable, and places disparate people into one group. Despite relying on generalisations and unproven assumptions, it has its uses. For example, at 17 you can drive a car.
But age-based decision making is not foolproof. In the 1985 Gillick case, the House of Lords decided that doctors could prescribe the contraceptive pill to girls under 16 without their parents’ knowledge provided she have ‘sufficient understanding’. Such decision-making is person-centred – unlike the Covid-19 emergency response which has made older age and not the individual person a basis for decision making.
Wales should be a nation particularly attuned to the needs of people over 65 – approximately 20% of Wales’ population falls into that age bracket. Wales appointed the world’s first Older People’s Commissioner, has a Strategy for Older People, and imposes a duty on local authorities to have due regard to the UN Principles for Older People.
These are welcome and we can be proud of them. However, Covid-19 must not undermine this. A crisis requiring difficult decisions is precisely the time to avoid ageism, whether benevolent, accidental – or intended.
So, ‘older people’. Who are they? Legal definitions of ‘older age’ are rare. In Wales, the Commissioner’s legislation defines older people as 60 or over. The UN tentatively suggests 65 or over despite life expectancy in 28 countries being below 65.
But adopting 65 embraces forty or more years. In 2019 the oldest man in Wales died at 107. Within this cohort is a diversity of individuals whose abilities, talents, and health statuses differ, yet they are often treated as homogenous.
Sub-dividing into young old, middle old, and oldest-old also reinforces assumptions. Older people, like everybody else, are individuals. As they say, age is just a number.
Yes, older people are exposed to greater risks from Covid-19, although the sparsity of figures on care home deaths in Wales hides the extent. But we cannot make this an unrefined basis for a Coronavirus strategy.
The much-discussed need to quarantine people aged 70 and over is the clearest example of the unethical use of age. Many people over seventy are robust, fit, and healthy. Any restriction must recognise this.
Younger people with chronic conditions are advised to stay in quarantine. This is person-centred. Why does this not apply to over 70s?
Older people occupy most places in care homes in Wales, and there is little doubt that residents and staff in care homes have been treated badly. The guidance states that PPE must be worn when caring for Covid-19 residents, yet PPE is inadequate in the care home sector as in the NHS. Welsh Government recently announced that it would not follow England and test all residents and staff in care homes. However, their guidance on the admission of residents to care homes also states that negative tests are not required prior to admission or transfer to residential care.
The expectation is that control measures such as isolation should be in place. But how can this be achieved in a care home, particularly if residents have high levels of need? Care homes are closed communities. Social distancing is difficult, particularly for people living with dementia.
In Wales, many duties to provide social care have also been disapplied by emergency legislation. Older people are affected disproportionally by these decisions.
The National Institute for Health and Care Excellence’s (NICE) guidance refers Covid-19 clinicians to the Clinical Frailty Scale (CFS). The CFS ranges from ‘very fit’ to ‘terminally ill’ in nine stages. NICE clinical guidelines are not binding in Wales, but NHS Cymru takes full account of ‘recommendations’ when delivering services. This is a significant push towards compliance.
But for some older people, age risks becoming in effect a proxy for determining frailty and thus affecting treatment decisions. For example, mildly frail (number 5 on the CFS) includes impairing shopping, walking alone, meal preparation and housework. Older people in this category may receive support from a local authority, or friends and family. This may mitigate ‘frailty’, yet they still are at a point where ICU may not be an option. It also risks putting older people living with dementia at a greater risk of non-treatment.
The GP surgery in Maesteg sending letters asking some patients to sign Do Not Resuscitate forms is an example of how perceived ‘frailty’ is a convenient proxy. The surgery issued an apology.
Covid-19 has allowed us to drift into a mindset that does not fully recognise the individuality of older people. Assumptions about frailty, thoughtless use of age, and general attitudes threaten to make older people the forgotten victims of the virus.
Age tells us little about an individual, therefore it must not become critical in decision making now or post Covid-19.
As Carol Matthau puts it, ‘There is no old age. There is, as there always was, just you.’