Discrimination in health and social care: the types, the law and the risks people actually face

Most discrimination in care services is not deliberate and almost none of it is announced. It looks like a man with a learning disability whose chest pain is recorded as anxiety. A woman who is offered a shower by a male worker because the rota worked out that way. A resident whose Friday prayers stopped happening when the activities coordinator left. A deaf man who has not had a proper conversation in three months because nobody booked an interpreter.

None of those involve anybody using a slur. All of them are discrimination in the legal sense, and two of them could kill someone. This guide sets out what discrimination in health and social care means, the types defined by the Equality Act 2010, where they show up in real services, and the particular risks for people with a learning disability or a mental health condition, including diagnostic overshadowing.

The short answer

Discrimination in health and social care is treating someone worse, or applying a rule or practice that puts them at a disadvantage, because of who they are. The Equality Act 2010 protects nine characteristics and defines several forms of discrimination: direct, indirect, discrimination arising from disability, failure to make reasonable adjustments, harassment and victimisation. In care services the most dangerous forms are rarely hostile. They are assumptions, omissions and one-size-fits-all routines. Discriminatory abuse is also a category of abuse under the Care Act 2014, which means serious cases go through safeguarding, not just through the complaints process.

What is discrimination in health and social care?

The everyday meaning is unfair treatment. The legal meaning is narrower and more useful: unfavourable treatment or disadvantage connected to a protected characteristic. That distinction matters because staff sometimes dismiss a concern by saying it was not personal or nobody meant anything by it. Intention is largely irrelevant in equality law. What counts is the effect on the person.

It also matters because discrimination in care is usually structural rather than interpersonal. A home that serves the same menu to everyone, runs activities that suit one group, and has never sourced products for Afro-textured hair is discriminating without a single unkind word being spoken.

The nine protected characteristics

Direct discrimination

Direct discrimination is treating someone less favourably than others because of a protected characteristic. It is the type people recognise, and in care it usually shows up as a decision rather than an insult.

Examples: refusing an admission because a person is autistic and might be difficult. Excluding a resident from a trip because of their ethnicity, dressed up as a concern about how the coach company might react. Telling a gay couple they cannot share a room while unmarried heterosexual couples do. Not offering a nursing home place to a man with a learning disability who meets the criteria, because the home decides its client group would not mix.

Direct discrimination generally cannot be justified. There is a narrow exception for age, and there are limited occupational requirements in employment, but in service provision the answer is almost always that it is unlawful.

Indirect discrimination

Indirect discrimination happens when a provision, criterion or practice applies to everybody but puts people with a protected characteristic at a particular disadvantage, and cannot be objectively justified as a proportionate means of achieving a legitimate aim.

This is the type that fills care services, because neutral rules are everywhere. A single menu with no halal, kosher or vegetarian option. All activities in the afternoon, when the person who needs a morning routine cannot join. Written information only, in a service supporting people with a learning disability. Visiting hours that exclude family working shifts. A rule that all residents attend the Christmas service, with no alternative. A blanket no pets rule where a guide dog is involved.

The test to teach managers is two-part: does this rule disadvantage a group, and can we genuinely justify it. Cost and habit are not justifications on their own.

Discrimination arising from disability

This is the form most missed in care, and the one that explains many of the worst outcomes. It happens when someone is treated unfavourably because of something connected to their disability, rather than because of the disability itself, and the treatment cannot be justified.

Jordan has a learning disability and autism. He arrives at A and E distressed, paces, and shouts when the waiting room is loud. He is labelled as aggressive, security is called, and he is discharged without the chest examination he came for. Nobody discriminated against him for having a learning disability. They treated him unfavourably because of behaviour arising from it, without making the adjustments that would have prevented it. That is discrimination arising from disability, and it is unlawful unless the service can justify it, which it rarely can.

The same pattern appears in care homes: a person excluded from the dining room because of noises they make, a person whose continence needs mean they are put last every morning, a person refused an activity because staff would need to manage their epilepsy.

Failure to make reasonable adjustments

Service providers have an anticipatory duty to make reasonable adjustments for disabled people. Anticipatory means you must think about it in advance rather than waiting for someone to ask.

In practice: easy read versions of care plans, menus and complaints forms. Longer appointment slots. A quiet room. A hearing loop that works. Booking a BSL interpreter rather than relying on a relative. Sending appointment reminders by text for a person who cannot use the phone. Allowing a support worker into a consultation. Changing the time of a medicine round for a person whose routine matters. Adjusting how a shower is offered for someone with a trauma history.

Reasonable is judged on the size and resources of the organisation and how effective the adjustment would be. A small home is not expected to install a lift on request; it is expected to have thought about how a wheelchair user reaches the first floor lounge. Our article on autism-friendly services covers adjustments in more detail.

Harassment and victimisation

Harassment is unwanted conduct related to a protected characteristic that violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. In care this covers racist or homophobic comments, mocking a person's speech or disability, sexual comments during personal care, and the persistent use of a trans person's former name.

Victimisation is treating someone badly because they complained about discrimination or supported someone else's complaint. In a care home it looks like a family whose visits become awkward after raising a race complaint, or a worker who is suddenly rostered on every unpopular shift after supporting a colleague's grievance. Victimisation is a common cause of tribunal claims and it is almost always visible in the rota.

Two forms people forget

Discrimination by association means treating someone worse because of someone else's protected characteristic: refusing a job to a woman because she cares for a disabled son, or treating a resident's same-sex partner coldly.

Discrimination by perception means treating someone worse because you think they have a characteristic, whether or not they do: assuming a worker is Muslim because of their name and excluding them from a social event, or treating a resident as though they have dementia when they have a hearing impairment.

The types side by side

Discriminatory abuse is a safeguarding matter

The Care Act 2014 statutory guidance lists discriminatory abuse as one of the categories of abuse and neglect, alongside physical, financial, psychological, sexual, neglect, organisational, domestic abuse, self-neglect and modern slavery. It includes harassment, slurs and unequal treatment based on a protected characteristic.

That has a practical consequence many managers miss. If a worker makes racist comments to a resident, or a resident is denied culturally appropriate food repeatedly, the route is a safeguarding referral to the local authority, not only an internal complaint or a disciplinary process. Our safeguarding guide sets out the referral route and the thresholds.

Organisational discrimination

Organisational or institutional discrimination is the pattern rather than the incident: the practices, culture and assumptions that produce worse outcomes for a group even where individuals mean well.

Signs to look for in your own service: activity programmes that reflect one culture, a resident population whose ethnic profile does not match the local area, complaints from one group being resolved more slowly, restrictive practices applied more often to particular residents, staff from minority backgrounds concentrated in night shifts or lower bands, and care plans for people with a learning disability that are consistently thinner than those for other residents.

Diagnostic overshadowing

Diagnostic overshadowing is the most lethal form of discrimination in health and social care. It happens when a physical health symptom is attributed to a person's learning disability, autism or mental illness rather than investigated as a symptom.

A man with a learning disability who becomes withdrawn is said to be having a bad patch, when he has a urinary infection. A woman with schizophrenia who complains of stomach pain is recorded as somatising, and has bowel cancer. An autistic young man who refuses to eat is said to be being difficult about food, and has a dental abscess. In each case the diagnosis is delayed, sometimes fatally.

The Learning from Lives and Deaths reviews of deaths of people with a learning disability and autistic people have repeatedly found delayed diagnosis, failure to make adjustments and assumptions about quality of life among contributing factors. People with a learning disability in England die substantially younger than the general population, and a large share of those deaths are avoidable through better care.

How to stop diagnostic overshadowing in your service

1. Treat behaviour change as a health question first. New or increased distress means check pain, constipation, infection, dental problems, medication side effects and sensory needs before concluding anything about behaviour.
2. Use a pain tool designed for people who do not report pain verbally, and record what pain looks like for each individual in their care plan.
3. Insist on annual health checks from age 14 for people on the learning disability register, and physical health monitoring for people on antipsychotics.
4. Send a current hospital passport every time, and send a worker who knows the person. Our guide to hospital passports covers what it must contain.
5. Escalate with specifics. His temperature is 37.9, he is not drinking and he is holding his jaw carries weight. He is not himself does not.
6. Challenge in the room. Teach staff the sentence: I understand, but this is not normal for him, and I need someone to examine him.

Do not resuscitate decisions and assumptions about worth

During the pandemic, blanket do not attempt resuscitation decisions were applied to groups of people including those with a learning disability, and regulators and courts were clear that this was unlawful. The principle holds permanently: a DNACPR decision must be individual, clinically based, discussed with the person or with those close to them, and never based on a learning disability, autism, age or a judgment about someone's quality of life.

If you see a DNACPR form where the clinical reason given is learning disability or Down syndrome, challenge it in writing that day, escalate to the GP and the ICB, and consider a safeguarding referral. This is one of the clearest examples of discrimination with a fatal outcome.

Mental health: parity of esteem and the physical health gap

People with a serious mental illness die on average fifteen to twenty years earlier than the general population, mostly from preventable physical illness rather than from suicide. The causes are a mixture of medication side effects, smoking, poverty, and health services that treat the psychiatric presentation and miss the body.

Marcus is 41 and takes clozapine. The service's job is to make sure his annual physical health check happens, that his bloods are monitored to schedule, that weight, blood pressure, glucose and lipids are tracked, that constipation is taken seriously because it is a recognised and occasionally fatal side effect of his medicine, and that a complaint of chest pain is treated as chest pain. Recording all of that in one place is what lets a manager see when something has been missed.

Restrictive practice as a discrimination issue

Restraint, seclusion, locked doors, blanket rules and over-medication fall disproportionately on people with a learning disability, autistic people and people with mental health conditions. A blanket rule is almost always indirect discrimination as well as a restrictive practice: everyone's bedroom locked during the day because two people wander, everyone's cigarettes held by staff because one person cannot manage theirs, no kitchen access for anyone after six.

The questions to ask of any restriction: who is it for, is it the least restrictive option, is it in the care plan, was it agreed through a capacity and best interests process where needed, when is it reviewed, and is it applied to one person or to everybody. Our Mental Capacity Act and DoLS checklist covers the legal framework.

Race and ethnicity in practice

The practical failures are usually about the body and the plate. Hair and skin products for Afro-textured hair and darker skin, stocked as standard rather than expected from families. Food that is genuinely from the person's cuisine rather than a mild curry on Thursdays. Recognising that pressure damage and cyanosis look different on darker skin, and training staff to assess for it properly. Interpreters for anything important rather than a bilingual colleague pulled off the floor.

There is also the question of racist abuse directed at staff, which is dealt with below, and the pattern question: if your service is in a city that is 30 per cent Asian and you have supported two Asian residents in five years, something in your referral or assessment practice needs examining.

Religion, belief and end of life

Faith needs are easy to promise at admission and easy to lose in practice. Record the specifics: whether the person prays and when, whether they need help with ablutions, the direction of prayer, dietary rules and how strictly they are observed, festivals that matter, whether they want a visit from their faith community, and what must happen at and after death.

End of life rites are where failures are irreversible. Knowing that a Muslim family will want burial quickly, that a Jewish family may want the body not left alone, or that a Hindu family may wish to be present for particular rituals is not optional detail. Write it in the plan and make sure the night staff know where to find it.

Sexual orientation and gender identity

Older lesbian, gay and bisexual people frequently go back into the closet when they enter a care service, because they grew up when their relationships were criminalised and they do not know how staff will react. The signals a service gives matter: whether a partner is treated as family without a raised eyebrow, whether the paperwork asks about a husband or a partner, whether anybody has ever mentioned Pride or an LGBT history event.

For trans residents: use the person's name and pronouns consistently, including by agency staff, do not disclose gender history to anyone who does not need it, and discuss personal care preferences with the person rather than deciding for them. A worker who refuses to use someone's pronouns is committing harassment, and it is a conduct matter.

Discrimination against staff

Everything above applies to employment as well. The recurring issues in social care are recruitment decisions influenced by name or accent, unequal access to training and promotion, rotas that ignore religious observance without a proper justification, failure to make adjustments for a disabled worker, and treatment of pregnant workers.

International recruitment has added a sharper edge, with sponsored workers sometimes accepting poor treatment because their visa depends on the employer. That imbalance is where exploitation begins, and it can meet the threshold for modern slavery. Managers should be alert to workers being charged fees, having documents held, or being pressured into extra unpaid shifts.

When a resident abuses a worker

This one is common and badly handled. A resident refuses care from a Black worker, or uses racist language every shift. Managers sometimes accommodate it quietly by rota, which leaves the worker carrying the discrimination and tells the whole team what the service really thinks.

The better approach: take it seriously and say so to the worker that day. Assess whether the person has capacity and whether the behaviour relates to a condition such as dementia, because that changes the response but not the duty of care to the employee. Record it as an incident. Put a plan in the care record covering how staff respond and what is said. Do not simply rearrange the rota permanently without discussing it with the worker, and never treat it as something they should expect. Employers have a legal duty to protect staff from harassment, and a tribunal will ask what you did about it.

The public sector equality duty and your commissioners

When a provider delivers services on behalf of a local authority or the NHS, the public sector equality duty applies to those functions. In practice that means commissioners will expect evidence that you consider equality: how you know your service meets the needs of different groups, what data you hold, and what you changed as a result.

Keep it simple and real. An equality impact note on any significant change, a short annual review of who your service supports compared with the local population, and a record of adjustments made for individuals will cover most of what is asked for.

What inspectors look for

Under the single assessment framework, equity in experiences and outcomes and equity in access are quality statements in their own right. Inspectors will look at whether people with different characteristics get the same quality of care and the same outcomes, whether information is accessible, whether adjustments are made, whether restrictive practices fall on particular groups, and how the service responds when discrimination happens.

They will ask staff directly: how do you meet Amara's cultural needs, what adjustments have you made for Jordan, what would you do if a resident used racist language to a colleague. The four principles of person-centred care and the equality duties overlap heavily here, because personalised care is the practical answer to most equality questions. Our guide to equality, diversity and inclusion in care homes covers the policy and training side.

A discrimination audit you can do in an afternoon

1. Compare the characteristics of the people you support with the local population. Explain any large gap.
2. Read three care plans for people with a learning disability and three for other residents. Are they the same depth?
3. Look at every blanket rule in the building and name who it is really for.
4. Check that every person who needs easy read, large print, an interpreter or a loop actually has it.
5. Check the last six months of restrictive practice records. Who do they fall on?
6. Check that every person on the learning disability register has had an annual health check and that everyone on antipsychotics has had physical health monitoring.
7. Check the last three complaints from people with a protected characteristic and how quickly they were resolved.
8. Ask two workers from minority backgrounds whether they have ever experienced discrimination here and what happened.
9. Look at the training matrix for equality and for learning disability and autism training under the Health and Care Act 2022 requirement.
10. Check that your stock cupboard contains hair and skin products suitable for every resident.

What to do when you find discrimination

Act the same day. Separate the immediate protection of the person from the investigation. If it involves an adult at risk, make a safeguarding referral rather than deciding internally that it was not that serious. Tell the person and their family what happened and what you are doing, which is what duty of candour requires. Deal with the conduct through the disciplinary process where a worker is responsible.

Then look for the pattern, because single incidents usually are not single. If a worker felt able to say it, ask what made that feel acceptable. Staff who raise concerns about discrimination must be protected, and our guide to whistleblowing sets out the external routes if internal ones fail.

Final conclusion

Discrimination in health and social care is rarely hostile and is usually invisible to the people delivering it. The law gives you a useful set of tests: is this worse treatment because of who someone is, is a neutral rule disadvantaging a group, is someone being penalised for something their disability causes, and have we made the adjustments we reasonably could.

In learning-disability and mental-health services the stakes are highest, because diagnostic overshadowing turns discrimination into delayed diagnosis and shortened lives. The countermeasures are unglamorous and effective: treat behaviour change as a health question, make annual health checks and physical monitoring non-negotiable, send a current hospital passport with a worker who knows the person, escalate with specifics, and challenge assumptions out loud in the room. Do those, review your blanket rules, and you will remove more discrimination than any training day will.

Frequently asked

What is discrimination in health and social care?

Treating someone worse, or applying a rule that puts them at a disadvantage, because of a protected characteristic such as disability, race, religion, age, sex, sexual orientation or gender reassignment. It includes omissions as well as actions, for example failing to provide information in a format someone can understand, and intention is largely irrelevant because the law looks at the effect on the person.

What is the difference between direct and indirect discrimination?

Direct discrimination is treating someone less favourably because of a protected characteristic, such as refusing an admission because a person is autistic. Indirect discrimination is a rule or practice that applies to everyone but disadvantages a group, such as a single menu with no halal or vegetarian option. Direct discrimination can almost never be justified; indirect discrimination can be lawful if it is a proportionate means of achieving a legitimate aim.

What are the types of discrimination in care?

Direct discrimination, indirect discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment and victimisation, plus discrimination by association and by perception. Discriminatory abuse is also a recognised category of abuse under Care Act statutory guidance, which means serious cases go through safeguarding.

What is diagnostic overshadowing?

It is when a physical health symptom is put down to a person's learning disability, autism or mental illness instead of being investigated. A withdrawn man is said to be having a bad patch when he has a urinary infection; a woman with schizophrenia who reports stomach pain is recorded as somatising and has bowel cancer. It is a leading cause of avoidable deaths among people with a learning disability.

What are reasonable adjustments in a care setting?

Changes a service makes so a disabled person is not disadvantaged: easy read plans, menus and complaints forms, longer appointment times, a quiet space, a working hearing loop, a booked BSL interpreter, text reminders, a support worker present at appointments, and adjusting routines such as medicine rounds. The duty is anticipatory, so you must plan for likely needs rather than waiting to be asked.

Is discrimination a safeguarding issue?

It can be. Care Act statutory guidance lists discriminatory abuse as a category of abuse and neglect, covering harassment, slurs and unequal treatment linked to a protected characteristic. Where an adult with care and support needs is affected, make a safeguarding referral to the local authority rather than handling it only as a complaint or a disciplinary matter.

What should a manager do if a resident racially abuses a member of staff?

Take it seriously the same day and tell the worker you are doing so. Record it as an incident, assess capacity and whether it relates to a condition such as dementia, and put an agreed response in the care plan. Do not quietly rearrange the rota and treat it as part of the job. Employers have a duty to protect staff from harassment and will be asked what action they took.

Can a do not resuscitate decision be based on a learning disability?

No. A DNACPR decision must be individual and clinically based, discussed with the person or those close to them, and never made because of a learning disability, autism, age or an assumption about quality of life. Blanket decisions applied to groups were found to be unlawful. If you see one justified on those grounds, challenge it in writing that day and consider a safeguarding referral.

Sources

• Equality Act 2010
• Equality and Human Rights Commission: services, public functions and associations code of practice
• Care Act 2014 and its statutory guidance on types and indicators of abuse
• NHS England: Learning from Lives and Deaths, people with a learning disability and autistic people
• Care Quality Commission: single assessment framework, equity in access and equity in experiences and outcomes
• Health and Care Act 2022: learning disability and autism training requirement
• Mental Capacity Act 2005 and its Code of Practice
• NHS England: physical health checks for people with severe mental illness