The fastest growing sector of the prison population is older people. Although the numbers are still relatively small (just under 2,500 in 2007), it would seem that the ‘sameness’ principle within prisons renders older prisoners invisible. The health of older prisoners is a matter of concern - research indicates that you age 10 years faster in prison (Uzoaba, 1998) which can compound the problems that may be associated with ageing. The provision of health and social care do not match those for older people outside of the prison system. This article considers the legal issues surrounding the treatment of older prisoners. It recognises that restrictions on liberty are a component of the prison system; however, it questions whether the consequences of ‘sameness’ infringe the legal rights of older prisons. It recommends a statutory presumption of equivalence of care, which can only be rebutted expressly or by necessary implication.