The impacts of socio-economic inequalities upon health have long been documented by those working in the area of public health. From the Black Report in 1980[1] to the work of Sir Michael Marmot and his colleagues in more recent times[2] the correlation between socio-economic deprivation and health has been highlighted. Such disparities were sharply illustrated in the early years of the Covid-19 pandemic where those who were in a more advantageous socio-economic position were much better able to shield where needed and- much more likely to be able to work from home.[3] Covid also had a disproportionately adverse impact on certain ethnic minority and migrant communities.[4] The issue of health inequalities both in relation to wider health determinants and also protected characteristics under the Equality Act 2010 remains a source of concern.[5] How then can and should the NHS and English law respond to these challenges going forward? These are questions which underpinned the discussion at a workshop held on 13th June 2024 at Birmingham Law School organised by the Centre for Health Law Science and Policy and Birmingham Law School’s Care, Health and Human Flourishing Theme on “Health and Care Law: Addressing Health and Care Inequalities.”
As the title suggests the Workshop aimed to explore how Health and Care Law may provide responses to existing inequalities within health and social care. The presenters at the Workshop responded to an open call for papers on these issues. Presenters were drawn from academics across all career stages from those at the start of their academic journey of their PhD studies through to longer established academics in this area and came from a range of Universities in England. Below are some of the underpinning themes which emerged through the papers in this Workshop.
The first session of the day “Inequalities and Health and Care delivery: Access, Structures and Safeguards” began with the paper “Health inequalities and healthcare access in a two-tier system: Mapping NHS and private healthcare interaction in England” presented by Mary Guy and co-authored with her and Lee Newcombe, both who are from the School of Law, Liverpool John Moores University. The growth in private sector provision and the prospect of a “two tier” access to care has been raised as a concern over the last decade. Drawing upon patient referral data this paper sharply demonstrated the complexities of the day to day interface between NHS and private healthcare in England. In the second paper “Health and Care Inequalities: A Resource-Based Perspective.” David Horton of Liverpool Law School explained how legal and regulatory strategies with the intention of reducing reliance on the welfare state through fiscal control and behavioural modification can ultimately have the consequence that they embed health and care inequalities in already marginalised populations. Finally Jean McHale in her paper “Fundamental rights and health and care inequalities: the case of the older person” set current debates concerning inequalities in provision of health and care in England for older persons in their historical and policy context. The paper evaluated the potential impacts on this issue of a new international human rights declaration for older persons and an older persons rights commissioner.
The theme of the second session of the day was that of “Justice and rights in health and care law and policy”. The first paper in the session “Developing an equitable public health law approach to gambling harms: why we need it, and what it should involve” was given by Kate Bedford of Birmingham Law School and Joht Singh Chandan of the Institute of Applied Health Research at the University of Birmingham. Their paper drew upon their ongoing NIHR funded project and explored a public health approach to gambling reform and the way in which this can in the future may interface with legal measures to address health inequalities. The second presentation given by Laura O’Donovan from Lancaster Law School of her paper co-authored with Sarah Devaney and Alex Mulloch of Manchester Law School, “Invisible Women: Identifying and Responding to Epistemic Injustice in Female Healthcare” examined the findings of recent major Inquiries concerning failings in maternity care in a number of English hospitals. She applied an epistemic injustice framework to these cases highlighting the existence of a gendered prejudice in healthcare. Finally in this session Laura Pritchard-Jones from Keele Law School asked whether “Is it Time to Revisit the Human Rights Act 1998 in Private Care Provision?” Her paper explored the inequalities in current protections between those in privately arranged and privately funded care, or privately provided care funded through other state bodies and the impacts of introducing changes to the scope of the 1998 Act.
The first session of the afternoon examined “Health Care Inequalities: a matter of reproductive choice”. In her paper “Notions of sexual and reproductive justice (RJ) and sexual and reproductive health (SRH) as constructed by Indigenous women in northeast of Brazil,” Atina Krajewska of Birmingham Law School discussed her ongoing AHRC funded research undertaken with academic colleagues in Brazil which is rooted in the conceptual analysis of reproductive justice and how beliefs and practices of Indigenous Communities in Brazil inform the concepts of sexual and reproductive health, illness, rights, and justice. This was followed by Kate Sandford from the School of Law and Social Justice at the University of Liverpool who gave the paper “Addressing the inequality young, childfree women face under NHS care through surgical sterilisation refusals.” Kate’s paper examined the differences in approach in relation to NHS policy concerning male and female sterilisation in general and in relation to young childfree women in particular and situated this in relation to the wider debates in relation to pronatalism and broader concerns regarding discrimination concerning people of colour and non-binary patients. The final paper in that session was given by Zeenat Beebeejaun of Birmingham Law School Dubai was ‘Equity in Reproductive Healthcare” This presentation drew upon her work regarding access to IVF services for single persons. Zeenat highlighted the different approaches taken access to IVF provision for this group in England across Integrated Care Boards and their predecessor bodies Clinical Commissioning Groups and the extent to which access to IVF by single persons can and should be seen as a fundamental healthcare right.
The final session explored “Autonomy, well-being and justice: inequalities and legal frameworks.” The first presentation was given by Rosie Harding of Birmingham Law School, University of Birmingham and Magda Furgalska of York Law School on “A spatiotemporal argument against advance consent to deprivation of liberty.” The paper explored recent proposals to introduce advance consent to enable deprivation of liberty of persons lacking mental capacity through the prism of spatial and temporal elements and the differential treatment of persons lacking mental capacity. It highlighted potential challenges of these proposals in relation to respect for fundamental rights under the United Nations Convention on the Rights of Persons with Disabilities and the appropriateness of “opting out” of legal protections. The final paper “Homicides and homicide-suicides perpetrated by unpaid carers “was given by Siobhan O’Dwyer of the Health Service Management Centre, University of Birmingham. This paper interrogated the different typologies of these offences undertaken by unpaid carers. It raised the implications of factors including the inequalities in support provided by the health and care sector to this group which may ultimately impact on the likelihood of these offences taking place.
As we move into a new political era in the UK it is particularly important that both the challenges and potential of law as a means of addressing inequalities in health and care provision both at domestic and in a broader global context are recognised. As this Workshop demonstrated this is an area where there is vibrant incisive research being undertaken already and where there is immense scope for further work to inform law and policy in the future.
[1] Sir Douglas Black Inequalities in health: report of a research working group August 2020
[2] Fair Society Healthy Lives, (the Marmot Review,) (2010) fair-society-healthy-lives-full-report-pdf.pdf (instituteofhealthequity.org) and see also Health Foundation ‘ Health Equity in England: The Marmot Review 10 Years On’ (2020). Health Equity in England: The Marmot Review 10 Years On – The Health Foundation
[3] Health Foundation “Unequal pandemic- fairer recovery (2021) Unequal pandemic, fairer recovery – The Health Foundation
[4] Race Equality Foundation Not by choice – the unequal impact of the COVID-19 pandemic (2023) Not by choice – the unequal impact of the COVID-19 pandemic – Race Equality Foundation
[5] E. Williams, D. Buck, G.Babalola and D. Maguire What are Health Inequalities? Kings Fund (2022)What Are Health Inequalities? | The King’s Fund (kingsfund.org.uk) and for further examination see Office for Health Improvement and Disparities (2022)“Health Disparities and health inequalities” Health disparities and health inequalities: applying All Our Health – GOV.UK (www.gov.uk)