Dignity and the legal justification of age discrimination in health care

Evidence shows that age discrimination in health care is still widespread. At the same time, there has been suggestion, both in the theoretical literature and in the jurisprudence, that age is ‘different’ to other protected characteristics such as sex and race and thus that age discrimination may sometimes be permissible in circumstances in which discrimination on other grounds, such as sex or race, may not. This is chiefly because, it is argued, if a ‘complete life view’ of equality is taken, age discrimination may not produce the same distributive inequalities as does discrimination on other grounds. This thesis responds to these arguments by asking what other – dignity-related - harms, age based distinctions in health care may cause. Dignity is widely agreed to be an important normative foundation for anti-discrimination law and features prominently in judicial and ethical debate on a range of issues in medical law. It is not an easy concept to define, however. There is no legal or theoretical consensus as to its meaning and legal uses of dignity involve appeal to a range of different and sometimes conflicting concepts. Rather than advocating one particular conception of dignity, the thesis identifies the variety of meanings of dignity evident in two contexts of close relevance to the problem at hand - equality law and medical law – and considers the answers to which these different meanings may give rise. The purpose of the discussion is to contribute to a debate as to the approach that courts should take in assessing whether particular instances of age discrimination in health care can be justified. It concludes that, on several conceptions of dignity, age-based distinctions may give rise to dignity harms which cannot be ignored or discounted by taking a complete life view of equality. As a result, courts should tread carefully before adopting a starting point which assumes age to be different and should develop their approach to justification accordingly