NHS Equality: Discrimination, Health Inequalities, PSED & Equality Impact Assessments

Start here: what kind of equality problem do you think this is?

Equality problems can look very different.

Open the description closest to your concern.

I believe I was treated worse specifically because of my sex, race, disability or another protected characteristic

This may potentially raise direct discrimination.

The legal question is broadly whether you were treated less favourably because of a protected characteristic, subject to the detailed provisions and exceptions in the Equality Act.

Read about direct discrimination →

The same NHS rule applies to everyone, but it disadvantages my group much more

This may potentially raise indirect discrimination.

Indirect discrimination can arise where an apparently neutral rule, criterion or practice particularly disadvantages people sharing a protected characteristic.

There are legal tests, including whether the measure can be objectively justified as a proportionate means of achieving a legitimate aim.

Read about indirect discrimination →

I am disabled and the NHS has not adjusted the service so I can access it properly

Equality law contains additional protections for disabled people, including the duty to make reasonable adjustments and protection against discrimination arising from disability.

Read about disability protections →

I do not think the NHS considered equality at all when making its policy

This may raise the Public Sector Equality Duty.

Ask what equality evidence was considered, when it was considered, what impacts were identified and what mitigation was considered.

Read about the PSED →

People in one area can access NHS treatment but people elsewhere cannot

This may raise questions about health inequalities, commissioning and geographical access.

Geography itself is not one of the Equality Act protected characteristics, so a postcode difference is not automatically unlawful discrimination.

But ICBs have separate statutory duties concerning inequalities in healthcare access and outcomes, and geographical inequalities can overlap with protected characteristics or socioeconomic disadvantage.

Read about postcode inequality →

Men and women appear to face different NHS pathways for comparable healthcare objectives

This should prompt careful consideration of:

• sex as a protected characteristic;
• the justification for different pathways;
• access and eligibility;
• burden and gatekeeping;
• cost and commissioning;
• clinical differences;
• and the Public Sector Equality Duty.

A difference is not automatically discrimination. There may be clinically relevant differences.

But the NHS should be able to demonstrate that differences were consciously examined and evidence-based rather than simply inherited or assumed.

Read this section →

Which equality duties apply to the NHS?

There is more than one equality framework.

For NHS accountability, three are particularly important:

1. Equality Act 2010

Prohibits unlawful discrimination, harassment and victimisation and includes additional disability protections.

2. Public Sector Equality Duty

Requires public authorities to consciously consider equality when exercising their functions.

3. NHS health inequalities duties

NHS England and ICBs have additional statutory duties concerning inequalities in healthcare access and outcomes.

What are the Equality Act protected characteristics?

The Equality Act identifies nine protected characteristics:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation.

Not every provision operates identically for every characteristic and every context.

For example, marriage and civil partnership has a narrower position in relation to services and the Public Sector Equality Duty.

So it is useful to identify the precise provision that applies rather than simply saying a characteristic is “protected”.

What is direct discrimination?

In general terms, direct discrimination occurs where someone is treated less favourably because of a protected characteristic.

For example, if two patients are in materially comparable circumstances and one is denied a service specifically because of sex or race, direct discrimination may potentially arise.

But the comparison and legal test can be fact-specific.

Different treatment is also not automatically unlawful simply because protected characteristics differ.

The Act contains specific exceptions and special provisions, and healthcare may sometimes legitimately take clinically relevant differences into account.

What is indirect discrimination?

Indirect discrimination is particularly important in healthcare policy because apparently neutral rules can have unequal effects.

Imagine an NHS rule that applies in exactly the same words to everyone.

That does not necessarily mean it is equal.

An apparently neutral policy, criterion or practice may place people sharing a protected characteristic at a particular disadvantage.

Where the legal requirements for indirect discrimination are met, the NHS body may need to show that the measure is a proportionate means of achieving a legitimate aim.

That makes evidence important.

Questions may include:

• What is the actual legitimate aim?
• What evidence shows the rule advances that aim?
• How serious is the disadvantage?
• Were less discriminatory alternatives considered?
• Can the same objective be achieved another way?
• And has the benefit been properly balanced against the discriminatory impact?

What additional protections apply to disability?

The Equality Act gives disabled people additional protections.

These include:

• protection from direct discrimination;
• protection from indirect discrimination;
• protection from discrimination arising from disability;
• and the duty to make reasonable adjustments.

The reasonable-adjustment duty can require services and public bodies to anticipate barriers rather than simply wait for a disabled person to experience them.

This can affect matters such as:

• communication;
• physical access;
• appointment systems;
• information formats;
• procedures;
• and auxiliary aids or services.

What is victimisation?

The Equality Act also protects people from victimisation.

In broad terms, victimisation concerns subjecting someone to a detriment because they have done — or are believed likely to do — a protected act connected with equality law.

This can include matters such as:

• making an allegation of discrimination;
• bringing Equality Act proceedings;
• giving evidence relating to Equality Act proceedings;
• or supporting someone else's equality complaint.

Victimisation is therefore different from simply being treated badly.

The detriment must have the relevant connection with exercising Equality Act rights.

What is the Public Sector Equality Duty?

Section 149 of the Equality Act creates the Public Sector Equality Duty.

Public authorities must have due regard to the need to:

1. eliminate discrimination, harassment, victimisation and other prohibited conduct;
2. advance equality of opportunity between people who share a relevant protected characteristic and people who do not;
3. foster good relations between those groups.

This duty applies to public decision-making including the design and provision of public services.

That makes it highly relevant to NHS:

• policies;
• commissioning;
• service redesign;
• eligibility rules;
• access pathways;
• procurement;
• and allocation decisions.

What does “due regard” actually mean?

The PSED is not simply a requirement to write:

“Equality has been considered.”

Decision-makers need to consciously consider the relevant equality aims as part of the decision-making process.

Government and EHRC guidance emphasise that this should be:

• real rather than formulaic;
• proportionate to the seriousness of the potential impacts;
• based on adequate information;
• undertaken with an open mind;
• and integrated into decision-making rather than treated as an afterthought.

When must equality be considered?

Equality should be considered while the policy is being developed and while the decision is still capable of being influenced.

That matters enormously.

An equality assessment written after a decision has effectively already been made may raise obvious questions about whether equality genuinely informed the decision.

Equality analysis should normally help shape the policy — not merely justify it retrospectively.

Does the NHS legally have to complete an Equality Impact Assessment?

This is an important nuance.

The Equality Act does not create a universal legal rule saying every public decision must have a document bearing the title:

“Equality Impact Assessment”.

An EqIA is a mechanism for demonstrating and structuring compliance.

The underlying legal duty is to have due regard to the PSED.

So:

No EqIA does not automatically prove that the PSED was breached.

But equally:

having an EqIA does not automatically prove that the duty was properly discharged.

The real questions are:

• What information did the decision-makers have?
• Were affected protected groups identified?
• Were likely impacts understood?
• Was relevant evidence gathered?
• Were adverse impacts examined?
• Was mitigation considered?
• Did this happen before the decision?
• And can the organisation demonstrate that process?

How are NHS health inequalities duties different?

Equality law and health-inequalities law overlap, but health inequalities are broader.

The Equality Act focuses heavily on protected characteristics.

Healthcare inequalities can arise from many other factors, including:

• poverty;
• geographical isolation;
• homelessness;
• digital exclusion;
• health literacy;
• deprivation;
• availability of local services;
• transport;
• and barriers affecting inclusion-health groups.

NHS England's current legal guidance describes health inequalities as systemic, unfair and avoidable differences affecting people's health and access to healthcare.

That means somebody can experience a serious healthcare inequality even where the Equality Act is not the most obvious legal route.

What specific health-inequalities duties apply to ICBs?

Integrated Care Boards have several statutory duties under the NHS Act 2006.

Among the most important are:

Section 14Z35 — inequalities in access and outcomes

ICBs must have regard to the need to reduce inequalities between people in:

• their ability to access health services;
• and the outcomes achieved for patients through health services.

NHS England says outcomes include matters such as patient experience, effectiveness and quality.

Section 14Z34 — improving quality

ICBs must exercise their functions with a view to securing continuous improvement in the quality of services.

This includes outcomes relating to:

• effectiveness;
• safety;
• patient experience;
• and health inequalities.

Section 14Z43 — wider effects of decisions

ICBs must have regard to the wider effects of their decisions concerning matters including:

• health and wellbeing;
• quality of services;
• and inequalities.

This forms part of what is commonly described as the NHS triple aim.

Planning and reporting

ICBs must also address inequalities through mechanisms including:

• their joint forward plans;
• and annual reporting on how effectively they have discharged their health-inequalities duty.

NHS England itself assesses ICB performance, including how well ICBs discharge the duty to have regard to reducing inequalities.

Can postcode differences become an equality issue?

Different NHS areas have historically commissioned some services differently.

A geographical difference is not automatically unlawful.

Local healthcare needs, population characteristics, available services and legitimate commissioning choices can differ.

Nor is postcode itself a protected characteristic under the Equality Act.

But that does not mean geographical inequality is irrelevant.

ICBs are specifically required to have regard to reducing inequalities in healthcare access and outcomes.

And geography can intersect with protected characteristics.

For example, a policy operating in one locality could disproportionately affect:

• women;
• disabled people;
• older people;
• particular ethnic communities;
• or people experiencing socioeconomic deprivation.

So where neighbouring areas provide materially different access, reasonable questions include:

• Why does the difference exist?
• What evidence supports it?
• What population data was considered?
• What health-inequalities analysis was undertaken?
• What equality analysis was undertaken?
• And what is being done to reduce unjustified variation?

How should the NHS examine differences between male and female healthcare pathways?

Different healthcare procedures are not automatically comparable simply because they pursue a similar outcome.

There may be legitimate differences in:

• clinical risk;
• procedure complexity;
• anaesthesia;
• cost;
• reversibility;
• failure rates;
• recovery;
• and clinical evidence.

But where healthcare pathways differ significantly by sex, a serious equality assessment should actually compare those differences.

For permanent contraception, for example, relevant questions might include:

• Can men self-refer while women require GP or specialist referral?
• Are different age thresholds used?
• Are different assumptions about regret applied?
• Are women expected to trial other contraception first?
• Are men expected to trial another method before permanent contraception?
• Who can approve or refuse each procedure?
• Are private providers commissioned for one pathway but not the other?
• How long are the waiting times?
• What is the total healthcare cost?
• What clinical differences justify any additional restrictions?
• And was the difference itself examined through an equality lens?

What equality evidence should you ask the NHS for?

Useful evidence can include:

• Equality Impact Assessments;
• Equality and Health Inequalities Impact Assessments;
• PSED assessments;
• equality analysis;
• patient-demographic data;
• health-inequalities data;
• access data;
• outcome data;
• sex-disaggregated data;
• consultation responses;
• patient involvement;
• decision papers;
• committee minutes;
• records identifying adverse impacts;
• mitigation plans;
• approval or sign-off;
• review or monitoring arrangements;
• and equality advice supplied to decision-makers.

You can ask:

Related guide: How to Use Freedom of Information to Investigate NHS Decisions.

What does good equality analysis look like?

A strong equality process should usually ask:

1. Who will be affected?

Not only the average patient.

Which groups use the service?

Which groups struggle to access it?

2. What does the data show?

Equality analysis should be based on evidence where reasonably available.

3. Could impacts differ between groups?

Look at protected characteristics and broader health-inequality factors.

4. Are there negative impacts?

Do not assume equality because the rule uses the same words for everyone.

5. Can those impacts be reduced?

Consider alternative designs, exemptions, additional access routes or mitigation.

6. What are the reasons for proceeding?

If unequal impact remains, the decision-making record should show how it was considered.

7. Who made the decision?

The relevant decision-maker should understand the equality implications rather than simply relying on an unseen form completed by somebody else.

8. What happens afterwards?

Equality analysis should not end on approval day.

Policies may need monitoring because actual effects can differ from predicted effects.

How can you challenge an NHS equality failure?

The appropriate route depends on the type of concern.

Ask the NHS organisation itself

Request the equality analysis, identify the apparent impact and ask how the duty was discharged.

Use Freedom of Information

Obtain the recorded evidence underpinning the decision.

Use the NHS complaints process

Useful where an individual has experienced unequal access or treatment.

Health scrutiny

Can be particularly valuable where a commissioning policy creates wider local inequalities affecting a population.

Equality Advisory and Support Service

Can provide advice and support to individuals dealing with equality and human-rights problems.

Equality and Human Rights Commission

The EHRC has statutory powers concerning equality law and the Public Sector Equality Duty.

It can use powers including formal investigations, PSED assessments and enforcement mechanisms.

It is not an Ombudsman handling every individual discrimination complaint.

Parliamentary and Health Service Ombudsman

May examine maladministration where equality considerations were inadequately addressed during NHS decision-making or complaint handling, depending on the circumstances.

Legal proceedings

An enforceable discrimination or public-law remedy may require court action.

Depending on the issue, legal routes may include:

• Equality Act proceedings;
• judicial review;
• and potentially Human Rights Act proceedings.

Related guide: How to Escalate an NHS Concern.

How do equality and human rights overlap?

Equality and human rights frequently overlap in healthcare.

For example, a reproductive-health policy could potentially raise questions about:

• sex equality under the Equality Act;
• the Public Sector Equality Duty;
• inequalities in access under NHS legislation;
• Article 8 private life and bodily autonomy;
• Article 14 where discrimination occurs within the scope of a Convention right;
• informed consent;
• and public-law requirements for rational and lawful decision-making.

You do not necessarily have to choose only one framework.

But they should not be blurred together.

Each has different legal tests.

Read alongside: Human Rights & the NHS: Consent, Bodily Autonomy, Choice and the NHS Constitution.

Other Fighting Back guides

• Who Oversees the NHS? — regulators, Ombudsmen and accountability bodies
• How to Escalate an NHS Concern — identify the issue and find the appropriate route
• FOI & Transparency — obtain the evidence behind NHS decisions
• Human Rights & the NHS — consent, bodily autonomy and the NHS Constitution
• Legal Routes — judicial review, negligence, discrimination and human-rights claims
• Advocacy & NGOs — reproductive-rights and patient-support organisations

Official sources used for this guide

• Equality Act 2010;
• Equality Act 2010, Section 149 — Public Sector Equality Duty;
• Equality Act 2010 — services and public functions provisions;
• Equality and Human Rights Commission — Technical Guidance on the Public Sector Equality Duty;
• Equality and Human Rights Commission — Code of Practice for Services, Public Functions and Associations;
• Government Equalities Office — Public Sector Equality Duty guidance for public authorities;
• NHS England — Health Inequalities and Equality Legal Duties: A Reference Document for NHS Commissioners and Providers;
• NHS Act 2006, including sections 14Z34, 14Z35 and 14Z43;
• NHS Constitution for England;
• and the Handbook to the NHS Constitution for England.