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  6. Case type 4 discrimination
Guidance introduction

Case type 4: discrimination

  1. Discrimination describes the unfair or prejudicial treatment of individuals and groups based on characteristics. Unlawful discrimination may occur when that less favourable treatment relates to specific characteristics, recognised legally as ‘protected characteristics’. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.40

  2. Unlawful discrimination under the Equality Act 2010 can be direct or indirect. Direct discrimination may occur when an individual is treated worse or less favourably because:
    1. of a protected characteristic they possess, or
    2. someone thinks they have a protected characteristic, regardless of whether that perception is correct or not (discrimination by perception), or
    3. the individual is connected to someone with a protected characteristic, such as a family member or colleague (discrimination by association).
  3. Indirect discrimination is usually less obvious than direct discrimination. It happens when something is put in place that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and an individual is disadvantaged as part of this group. The person or organisation applying the policy or process must show there is a good reason for it.

  4. Where harassment relates to certain protected characteristics it is a type of discrimination.41 Harassment may take the form of unwanted behaviour, which is intended to, or has the effect of, violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

  5. Victimisation is also a type of discrimination. It can occur where an individual is treated badly or suffers a detriment because they’ve complained, or supported a complaint, about discrimination, or it is suspected that they will. A detriment can include a loss, disadvantage, damage, or harm, such as being left out, ignored, or being denied training or promotion opportunities.

  6. When discrimination arises in a doctor’s working life, the doctor’s behaviour may be directed towards patients, former patients, relatives of patients or colleagues.42 Outside a doctor’s working life, discrimination may be directed at any person or group.

The professional standards doctors are expected to meet

  1. Doctors must treat patients fairly, not discriminate against them or let their personal views affect their relationship with them.43 They must treat colleagues and patients with kindness, courtesy and respect.44

  2. Doctors must be aware of how their behaviour may influence others.45 They must show respect for, and sensitivity towards, others’ life experience, cultures, and beliefs and not express their personal beliefs46 to patients in ways that exploit their vulnerability or could reasonably cause them distress.47

  3. If a doctor has a conscientious objection to a particular procedure, they must make sure the way they manage this doesn’t act as a barrier to a patient’s access to appropriate care to meet their needs.48 They must not refuse or delay treatment because they believe a patient’s actions or choices contributed to their condition.49

  4. Doctors must consider and respond to the needs of patients with impairments or disabilities. They should offer reasonable adjustments that are proportionate to the circumstances.50

  5. In circumstances where a patient requires clinical care, a doctor should end a professional relationship with a patient only when the breakdown of trust means they cannot continue to provide good clinical care to them.51

  6. When writing references, and when appraising or assessing the performance of colleagues and students, doctors must be accurate, fair, and objective.52 They should be aware of the risk of bias and consider how their own life experience, culture and beliefs influence their interactions with others.53

  7. Doctors must help to create a culture that is respectful, fair, supportive, and compassionate by role modelling behaviours consistent with these values.54 Doctors with additional leadership and management responsibilities must actively advance equality and diversity by creating or maintaining a positive working environment free from discrimination, bullying and harassment, and ensure their organisation’s policies on employment and equality and diversity are up to date and reflect the law.55

  8. Doctors should act, or support others to act, if they witness, or are made aware of, discrimination.56

Seriousness

  1. Concerns or allegations relating to unlawful discrimination under the Equality Act will be a serious departure from the professional standards and will usually fall at the higher end of the spectrum of seriousness.

  2. Where discrimination is not unlawful, the conduct may still be a serious departure from the professional standards falling at the lower, mid-range or higher end of the spectrum of seriousness depending on the circumstances of the case.

Impact on public protection

In cases of discrimination, the different parts of public protection might be engaged as follows:

Protecting, promoting and maintaining the health, safety and wellbeing of the public (patient safety)

Where discrimination has resulted in treatment not being provided, or a delay in treatment being provided, this may impact the physical, emotional and/or psychological wellbeing of a patient or member of the public or make them feel that they have not been treated with respect or in a way that maintains their integrity. This impact can be long lasting and may affect how a person accesses health services in the future.

Where discrimination is towards colleagues, in addition to any harm caused to them, it may impact on patient safety by causing breakdowns in communication and/or in the collaborative working needed to deliver safe patient care. Discrimination directed towards colleagues may pose a risk to patients who may be distressed by witnessing these acts.

The nature of the behaviour means it can give rise to a risk of repetition.

Promoting and maintaining public confidence in the profession (public confidence)

Patients must have confidence that doctors will treat them fairly. All types of discrimination may result in a breakdown of trust and undermine public confidence in the profession. 
Discrimination relating to a protected characteristic that breaches a fundamental tenet of the profession to uphold the law may impact on the reputation of the profession.

As doctors have respected positions in society, members of the public will expect them to uphold professional standards and where they do not, this will impact on public confidence.

The public having confidence in the profession is more important than the interests of an individual doctor.

Promoting and maintaining professional standards and conduct (upholding professional standards)

Good medical practice states that you must treat individuals fairly whatever their life choices and beliefs.

Personal beliefs and medical practice explains how doctors can put these principles into practice. Both Good medical practice and Leadership and management detail how these principles also relate to how doctors treat colleagues.

Any unlawful discrimination or discrimination which results in unfair or prejudicial treatment amounts to a breach of the professional standards expected of doctors. It is likely to be a significant breach in cases of discrimination relating to a protected characteristic.

Decision on interim order

  1. Where the concern or allegation involves discrimination towards patients or colleagues, the interim orders tribunal (IOT) should carefully consider the public interest, which will include the impact on the safe delivery of healthcare services, as well as the impact on public confidence if the doctor were to continue working unrestricted pending resolution of the fitness to practise process.

  2. More detail about when an interim order is likely to be appropriate in a discrimination case can be found in the specific case types section in Section 2: IOT hearings.

Decision on impairment

  1. Allegations of unlawful discrimination usually fall at the higher end of the spectrum of seriousness. This means the starting point for assessing current and ongoing risk to public protection will usually be high.

  2. Where this is the case, evidence of relevant context known about the doctor and/or their working environment and evidence of insight and remediation that decrease risk may have less impact because allegations falling at the higher end of the spectrum of seriousness can be more difficult to remediate. In such cases the medical practitioners tribunals (MPT’s) decision on risk should reflect this and a conclusion the doctor poses a current and ongoing risk to public protection may be needed even in cases where the doctor has shown insight and taken steps to try and remediate. Where the MPT concludes that the doctor poses a current and ongoing risk, this will result in them finding that the doctor’s fitness to practise is impaired.

  3. The level of risk associated with an allegation of unlawful discrimination will often be medium or high.

  4. Where discrimination is not unlawful, whilst there will still be cases of higher seriousness, more commonly the doctor’s behaviour may fall towards the lower to mid-range of the spectrum of seriousness, meaning the starting point for assessing current and ongoing risk to public protection will be low to medium. In these cases, evidence of relevant context known about the doctor and/or their working environment and evidence of insight and remediation, may have more impact.

  5. Where an allegation of unlawful discrimination leads to a finding of impairment, it may engage one or more of the three parts of public protection. Whilst the medical practitioners tribunal (MPT) must consider the individual circumstances of the case, it will be unusual for a proven allegation of unlawful discrimination not to undermine public confidence in the profession.

Decision on whether a warning is required

  1. As unlawful discrimination will often fall at the higher end of the spectrum of seriousness, a conclusion that the doctor poses a current and ongoing risk to public protection will often have been made.

  2. For all types of discrimination that are found to have just fallen short of a finding that the doctor’s fitness to practise is impaired, and there are no other proven allegations that require restrictive action to be taken, a warning will usually be appropriate to maintain public confidence in the profession and uphold professional standards.

Decision on sanction

  1. The proportionate sanction in response to an allegation of discrimination will depend on the extent of the doctor’s behaviour and the impact it’s assessed to have on each of the three parts of public protection.  

  2. Where the level of current and ongoing risk to public protection is medium or high, this will require consideration of suspension or erasure. Where the level of risk is low, conditions or suspension may be appropriate. 

  3. When deciding on sanction, the medical practitioners tribunal (MPT) should consider the sanctions banding for discrimination cases in Part C of Section 3: MPT hearings. 

Lower level of risk to public protection Medium level of risk to public protection Higher level of risk to public protection
Conditions up to 12 months - Suspension 3 months Suspension 3 to 9 months Suspension 9 months to Erasure

  1. In unlawful discrimination cases, evidence about the impact of a specific type of restrictive action and references and testimonials will have limited, if any, relevance to the MPT’s decision about what sanction is appropriate.  

40 Equality Act 2010, Part 2, Chapter 1, Section 4.

41 A criminal offence of harassment can also be pursued under the Protection from Harassment Act 1997.

42 Colleagues include anyone a doctor works with, whether or not they are doctors.

43 Good medical practice, paragraph 19.

44 Good medical practice, paragraphs 23 and 48.

45 Good medical practice, paragraph 53.

46 Good medical practice, paragraph 55.

47 Good medical practice, paragraph 87.

48 Good medical practice, paragraph 21.

49 Good medical practice, paragraph 19.

50 Good medical practice, paragraph 33.

51 Good medical practice, paragraph 47.

52 Good medical practice, paragraph 62.

53 Good medical practice, paragraph 54.

54 Good medical practice, paragraph 52.

55 Leadership and management, paragraph 9.

56 Good medical practice, paragraph 58.