Ageing UK needs more legal input

By 2030 the number of over-80s in the UK will have doubled – raising issues over funding and age discrimination

Life expectancy is on the rise and co-morbidities are increasingly dealt with by improved drugs and technology. 

Increasing life expectancy is a cause for celebration, but it does mean more people with more complex needs, making things more likely to go wrong. 

Law firms are seeing ever more complaints, compensation claims and inquests involving elderly patients and service users. With the regulated delivery of care the level of regulation is greater than ever and the consequences of failure, not to mention the strain on resources in the health and social care system – whether that be NHS/local authority, private or voluntary – has intensified since the Mid-Staffs experience and the subsequent Francis Report.

All this, coupled with the trend towards a compensation culture, means more negligence claims are being brought on behalf of elderly patients and, with damages typically lower for older claimants (who may have no loss of earnings or a shorter period of claim for care), there is the challenge of dealing with these without disproportionate legal costs. Similarly, health and social care providers increasingly need representation at inquests where elderly patients have died, say, after falling. 

The impact on liability and other legal issues goes far beyond compensation claims. The ageing population will inevitably raise legal issues around funding – which is already squeezed – and age discrimination. There is often – and particularly of late during the election campaign – much in the press about the tension between free healthcare and means-tested social care. Such a significant line feels difficult to draw and arbitrary, especially for patients with dementia. 

Equally, elderly patients with dementia or other cognitive impairments often require the involvement of lawyers, who are instructed to advise Trusts treating patients who do not have the capacity to make decisions for themselves, and therefore how to act in the patient’s best interests. 

And if there are disagreements with a patient’s family, they too might need representation. 

Firms are seeing many more mental capacity cases going to the Court of Protection, as well as huge inconsistency in the use of the Deprivation of Liberty Safeguards. These were intended to protect the fundamental right to liberty, but their implementation has been thrown into disarray by a Supreme Court judgment of March 2014. 

As people live longer the health and social care system will require increasing input from the legal profession to deal with the varied challenges an ageing population inevitably throws up.

Rachel Seddon and Claire Burton are solicitors at Browne Jacobson

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