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Ethical Issues

Resource Allocation

Legal considerations

We consider below the legal implications of some topical issues relating to resource allocation in the National Health Service.

  • Is there a right to medical treatment?
  • Going abroad for treatment

Does the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998) provide a right to medical treatment?
Article 2 states that there is a ‘right to life’. There is a positive obligation upon the State to ensure that this right is respected. Does this mean that there is a right to medical treatment? The positive obligation under Article 2 must be interpreted in a way that does not impose an impossible or disproportionate burden on the authorities. Therefore, although the State cannot be expected to fund every treatment, it must act reasonably in allocating resources.

The European Court in Osman v UK ((1998) 29 EHRR 245) said that there will be a range of policy decisions relating to the use of state resources which it will be up to the contracting states to assess on the basis of their aims and priorities, subject to these being compatible with the values of democratic societies and the fundamental rights guaranteed in the Convention.

Article 8 provides a right to respect for private and family life. This does not impose an obligation upon the State to provide medical treatment. Article 8(2) allows the state to restrict the right to respect for private and family life in the interests of the protection of health or morals, or the protection of the rights and freedoms of others. This requires a balance to be struck between the interests of the community and those of the individual.

A refusal to fund medical treatment because of the advanced age of the patient could be a breach of Article 2 and Article 14 (prohibition on discrimination). Article 14 would also be relevant where resources are not allocated for treatment on the grounds of gender.

Treatment in EU Member States

E112 authorisation is a Department of Health scheme whereby prior authorisation can be obtained for a patient to receive treatment abroad where he/she would otherwise face ‘undue delay’.
If approved, payment under the NHS would be made by the PCT.

Watts v Bedford PCT and the Department of Health [2004] EWCA Civ 166.

Mrs Watts suffered constant hip pain and had limited mobility. She was on an NHS waiting list for a hip replacement and given a waiting time of approximately one year. She applied to have the operation performed in France under E112 authorisation. The PCT refused, one of the reasons given was that as she would receive the operation within the normal waiting time she would not suffer undue delay.

The normal NHS waiting time for the treatment had been used as a threshold, but the Court said that this could not be the sole determinant of what constitutes ‘undue delay’. The fact that a waiting time is normal (in the UK) does not necessarily mean that it is reasonable. Other relevant factors that should be taken into account are: whether the patient is in pain, has had repeated delays in treatment or will suffer deterioration if treatment is delayed, in assessing whether there has been undue delay.

The original waiting time for Mrs Watts of one year would have amounted to undue delay despite the fact that this fell within NHS Target waiting times. However, she was reassessed about three months later and, because her condition had deteriorated she was reclassified as an urgent patient to be provided treatment within 3 to 4 months time, thus there was no undue delay

The attitude of the Courts to resource allocation

A patient who has been refused treatment may appeal to the court by way of judicial review. In reviewing the decision to refuse treatment the court does not look at the merits of the decision but rather whether it was taken lawfully, e.g. did the decision-maker have the power to make the decision, were the correct procedures followed, were relevant considerations taken into account and was it reasonable and proportionate. The court would then decide whether the PCT has acted lawfully in refusing to fund treatment. Traditionally the courts have been reluctant to involve themselves in the allocation of resources as they consider that judges lack the expertise to make such decisions and that those charged with the duty, i.e. managers in Health Authorities (now PCTs) should be left to make the decision. The court does have the right to find that a decision is unlawful.

It is true that the NHS does have a statutory duty to provide medical treatment. But that is not and, because resources are finite, cannot be, a duty to provide all conceivable treatments in all circumstances. In R v East Devon Health Authority ex p Coughlan, [2000] 3 All ER 850, the Court of Appeal said that, in exercising judgments about resource allocation, the Secretary of State for Health (and therefore all bodies which took their powers from him) had “to bear in mind the comprehensive service which he is under a duty to promote….However, as long as he pays due regard to that duty, the fact that the service will not be comprehensive does not mean that he is necessarily contravening [his statutory duty]. The truth is that, while he has the duty to continue to provide a comprehensive free health service and he must never….disregard that duty, a comprehensive health service may never, for human, financial and other resource reasons, be achievable….In exercising his judgment the Secretary of State is entitled to take into account the resources available to him and the demands on those services. In R v Secretary of State for Social Services and others ex p Hincks (1980) 1 BMLR 93 the Court of Appeal held that s. 3(1) of the Health Act does not impose an absolute duty to provide the specified services. [He] is entitled to have regard to the resources made available to him under current government policy.”

In R v North West Lancashire Health Authority ex p A and others [2000] 1 WLR 977, which concerned the legality of a refusal to fund gender reassignment surgery, the Court of Appeal said this about the general principles to be applied in making decisions about resource allocation:

“As illustrated in the Cambridge Health Authority and Coughlan cases, it is an unhappy but unavoidable feature of state funded health care that Regional Health Authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each Authority, in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each Authority, keeping well in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible. It makes sense to have a policy for the purpose - indeed, it might well be irrational not to have one - and it makes sense too that, in settling on such a policy, an Authority would normally place treatment of transsexualism lower in its scale of priorities than, say, cancer or heart disease or kidney failure. Authorities might reasonably differ as to precisely where in the scale transsexualism should be placed and as to the criteria for determining the appropriateness and need for treatment of it in individual cases.

It is proper for an Authority to adopt a general policy for the exercise of such an administrative discretion, to allow for exceptions from it in “exceptional circumstances” and to leave those circumstances undefined; see In re Findlay [1985] 1 AC 318, HL, per Lord Scarman at 335H-336F. In my view, a policy to place transsexualism low in an order of priorities of illnesses for treatment and to deny it treatment save in exceptional circumstances such as overriding clinical need is not in principle irrational, provided that the policy genuinely recognises the possibility of there being an overriding clinical need and requires each request for treatment to be considered on its individual merits”.

R v Cambridge HA ex p B [1995] 2 All E.R. 129

A ten year old girl had non Hodgkin’s lymphoma with common acute lymphoblastic leukaemia. She was receiving palliative care only. Her father had sought other medical opinions recommending other treatments. He wanted the Health Authority to fund a further course of chemotherapy and a bone marrow transplant. It refused on the grounds that the proposed treatment was unproven and that the cost was disproportionate to the likely benefit.
In the court of first instance Laws J. said that where a life was at stake then a health authority must ‘do more than toll the bell of tight resources’ and must explain the priorities that led them to decline to fund the treatment. He referred to the fundamental right to life and that the Health Authority should justify any limitation on that right if it refused to fund treatment.
However, the Court of Appeal did not invoke the right to life. The court said that in reviewing the decision of the Health Authority it must only look at the lawfulness of its decision and not the merits.
“Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make.”

Has the law moved on? Now that the Human Rights Act 1998 is in force could an individual argue that a decision to refuse to fund treatment infringes his right to life? The English courts’ reluctance to adjudicate in disputes about the allocation of resources is mirrored in the jurisprudence of the European Court of Human Rights at Strasbourg. Probably, in relation to resource allocation questions, the European Convention on Human Rights adds little to the position under purely domestic public law. If a decision about funding is made irrationally (for instance taking into account irrelevant factors or not taking into account obviously relevant factors), then the court is likely to interfere. But irrationality is hard to show. It is no easier simply because the argument is framed in terms of Article 2. Although Article 2 does give an absolute right to life, it does not follow that it confers an absolute right to have whatever is necessary to maintain life. The courts recognise that resources are limited. If person X could go to court saying: “It is a breach of my Article 2 right not to have this treatment”, person Y could equally go to court saying: “My Article 2 right to have treatment has been breached because the resources needed were all used up on person X.” The only way out of that sort of bickering is to resort, in Article 2 debates about resource allocation, to the old public law principles. And that is what the courts have done. If a decision not to fund treatment is based on factors that are relevant e.g. clinical effectiveness of treatment and is made as a result of an explicit and transparent process, then the refusal would probably be justifiable. Courts are likely to regard PCTs as acting reasonably if they refuse to fund treatment where the cost is high and the prospects of success or benefit are limited.

Where decisions about allocation of resources have been made on the grounds (for example), of race, colour or creed, Article 14 of the ECHR is quick to strike them down, (although the public law principles of impartiality and irrationality would produce the same result).
If a decision not to fund treatment is based on factors that are relevant e.g. clinical effectiveness of treatment and is made as a result of an explicit and transparent process, then the refusal would probably be lawful. Courts are likely to regard PCTs as acting reasonably if they refuse to fund treatment where the cost is high and where there is limited prospect of success or benefit of the treatment.