Litigation has provided patients with access to healthcare that was initially denied to them. Judicial review of decisions made within the National Health Service (NHS) has provided those in extreme circumstances with the ability to scrutinize the viability of decisions not to provide them with treatment. Syrett outlines that judicial review allows patients to, ‘redress the imbalance of power inherent in the physician-patient relationship…
‘1 Syrett adds that this action, ‘connects the legal framework to those ethical principles’2 and necessarily, ‘underpin[s] the practice of medicine. ‘3 Judicial review ensures that Primary Care Trusts (PCT) and Health authorities are answerable for their decisions as illustrated by Dyson J who stated ‘but if they decided to depart from it, they had to give clear reasons for doing so and those reasons would have been susceptible to a Wednesbury challenge. ‘
There are a number of cases in which litigation has proved a better alternative for patients who have been denied medical assistance due to resource allocation decisions; in R v North and East Devon Health authority, ex parte Coughlan [1999] Miss Coughlan a tetraplegic was told by her health authority that the home which had been provided to her and others for life, would be shut down. She applied for judicial review of the decision as it violated the promise which had been made.
Upon hearing the case Lord Woolf MR remarked, ‘… no hesitation concluding that the decision to move Miss Coughlan against her will and in breach of the [H]ealth [A]uthority’s own promise was in the circumstances unfair. ‘5 It was held that the Health Authority must uphold the initial promise made to Miss Coughlan regardless of the financial implications. Furthermore judicial review ensures that the reasoning applied in resource allocation decisions are clear and fair.
This is demonstrated by the case of R.(Linda Gordon) v. Bromley NHS Primary Care Trust [2006]6 in which Ousley J asserted the PCT’s decision not to fund the patients treatment lacked clarity, and therefore could not be reasonably justified. Syrett highlights the benefits of applications for judicial review, in that the, ‘[a]ccountability for reasonableness’ therefore prescribes that decision-making should be characterised by public accessibility of decisions and their rationales’7 which ensures the, ‘fair distribution of healthcare resources.
The case of R (Ann Marie Rogers) v Swindon Primary Care Trust and The Secretary of State [2006] demonstrates that judicial review ensures that resource allocation decisions within the NHS are based upon rational reasoning. Sir Anthony Clarke MR asserted in this case that: ‘… question is whether the policy was rational… which could justify the pct refusing treatment to one woman within the eligible group but granting it to another…
discrimination between patients in the same eligible group cannot be justified… the policy of the pct is irrational… ‘9 There are however a drawbacks to litigation being a viable means of resource allocation for a number of reasons. Newdick and Syrett outline that individualistic claims for judicial review of resource allocation decisions divert vital finite financial resources from the NHS into litigation proceedings which inevitably affects other patients’ access to healthcare.
Newdick and Syrett highlights that, ‘treatment for one patient is likely to affect others’10 and that an ‘individual cannot be considered in isolation from those of the public as a whole. ’11 Syrett outlines that individual litigation claims, ‘risks both imperilling medicine’s role as social practice and diverting finite physical and financial healthcare resources toward the courtroom. ’12 This illustrates impracticality of using litigation as a means of resource allocation; unintentionally judicial review fuels the issue of limited resources within the NHS.
This was the reasoning of the Court in R (on the application of F) v Oxfordshire Mental Health NHS Trust [2001] the Court stated, ‘decisions involving the allocation of scarce resources… granting one request will inevitably mean refusing others should not be judicialised… difficult decisions… will not be made any easier… if… encumbered with legalistic procedures’13 this is seconded by Sir Thomas Bingham MR who asserted, ‘common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot…
Build all the hospitals and specialist units they would like. ’14 Newdick and Syrett outline that dangers of legal intervention in health care decisions highlighting the British Columbia case Auton v British Columbia (2004)15 in this case the Court, ‘insisted that autistic children have access to treatment for their condition’16 without reference to the effectiveness of the treatment, the cost and from whom ‘the resources would be diverted’17 from to fund it. The decision demonstrates the dangers of the courts involvement in resource allocation decisions.
Syrett asserts that litigation may leave patients with, ‘unrealistic expectations that [C]ourts can assist patients by increasing NHS funding. ’18 Furthermore Dobson J in the case of Eisai Ltd v National Institute for Health and Clinical Excellence (NICE) [2007] highlighted that Courts’ lack expertise in the medical field, proving that they lack to tools to sufficiently decide upon the reasoned judgments of health care experts’ exampling that they are not the best means of resource allocation. The, ‘[C]ourt has no part to play in adjudicating between the rival merits of the arguments of the experts.
’19 Syrett furthers this by remarking ‘the court lacks the appropriate expertise to resolve such matters. ’20 Newdick to summarise asserts, ‘treatment and litigation are both costly. ’21 In light of litigation not being the best method for resource allocation due to the Court’s lack of expertise and financial pressures it places upon the NHS budget. Organisations within the NHS such as PCT remain responsible for managing the budget allocated to the NHS while interpreting National Institute for Clinical Excellence (NICE) guidelines and carrying out many resource allocation decisions which NICE has not addressed.
A large number of resource allocation decisions are carried out by clinicians (nurses, general practitioners, hospital consultants) who decide at the point of a patient seeking medical assistance whether or not to treat them; these decisions occur at micro level within the NHS. Macro level resource allocation decisions, ‘are made by the treasury, which allocates resources between government departments including the department of health. Within those constraints, the department of health allocates resources to health authorities’22
Hasman et al derived from their study that those who make decisions at micro level, ‘considered clinical effectiveness, cost effectiveness, gross cost, equality and political directive as the most important’23 when allocating resources. Jackson however has argued that doctors do not consciously apply rationing to decisions, in day to day practice; at the most ‘If a patient is suffering from symptoms which are very likely to be caused by a minor illness but there is a remote chance that there is something much more serious wrong with them the doctors will adopt a wait and see approach.
’24 The Government plays a minor role in the allocation of resources, as it has refused to create a framework for resource allocation decisions. It has not created substantive rights to health care in light of limited resources; it did however, ‘in January 2009 produce the first NHS constitution, setting out patients’ rights and responsibilities within the NHS. ’25 This has influenced resource allocation decisions to a certain extent.