Allocation of resources Flashcards
Identify the central issue
o This question concerns the allocation of resources in the National Health Service
Identify key issues in question
o Age
o Are they a legal guardian?
o Is it terminal?
o Previous lifestyle
o Prognosis
o Any side effects to routine NHS treatment?
o Has new drug been licensed/appraised by NICE?
o What is effectiveness of new drug?
o Life expectancy with new drug
o Cost of drug
o Does the consultant approve of the new drug?
Factors ICB can/cannot consider in deciding whether to fund treatment - scarcity of resources and need to ration health care in NHS
- Principle 1 - NHS Constitution
NHS provides a comprehensive service, available to all
This can only occur through rationing resources and allocating resources
o MACRO Rationing – how much of national budget should be allocated to health/the NHS
o MESO Rationing – within the NHS, how much should be spent on different types of healthcare?
o MICRO Rationing – which individual patients should be able to access a given treatment?
Factors ICB can/cannot consider in deciding whether to fund treatment - NHS’ Rationing strategies
- Equality
NHS Constitution Principle 1
Treat patients equally to those with equivalent health need
Non-discriminatory (Art 14 ECHR)
Which patients to treat? (age, social utility, behaviour) - Need
NHS Constitution Principle 2
How to construct a hierarchy of needs?
Distinction between life enhancing and life saving treatment - Cost Effectiveness Test – Quality-Adjusted Life Years (QALY) test used by NHS
NHS Constitution Principle 6 – maximising health gains
Quality of life (from 0-1) before treatment x life expectancy before treatment
Quality of life after treatment x life expectancy after treatment
QALY = After treatment – before treatment
Cost per QALY = Treatment cost/QALY
General threshold = up to £20,000 per treatment covered on NHS
Threshold for terminally ill patients: - ‘Appraising Life Extending, End of Life Treatments’ (2009)
- NICE set higher threshold of £50,000 per QALY where:
1. Life expectancy is less than 24 months
2. Sufficient evidence that will give extension of life of 3 months or more
Factors ICB can/cannot consider in deciding whether to fund treatment - public law duty
Section 1 NHS Act 2006, as amended by Health and Social care Act 2012
* Sec of State must continue promotion of comprehensive health service
* Services must be free of charge except in so far as the making and recover of charges is expressly provided for by or under nay enactment
Section 3(1) NHS Act 2006
* An ICB must arrange for the provision of the following to such an extent ad it considers necessary to meet the reasonable requirements of the person for whom it had responsibility
R (Burke) v General medical Council and Others
* There is no generic right to treatment and no corresponding common law duty to provide it
General Medical Council Guidance
* “Good doctors work in partnership with patients and respect their rights to privacy and dignity. They treat each patient as an individual. They do their best to make sure all patients receive good care and treatment that will support them to live as well as possible, whatever their illness or disability.”
* Also see hypocritic oath
Factors ICB can/cannot consider in deciding whether to fund treatment - if treatment is not yet licensed, or appraised/approved by NICE
- Significance of this for patient
- If seeking treatment that isn’t ordinarily available to them, Individual Funding Request (IFR) to ICB to fund treatment on the grounds that the patient’s case is exceptional
- R (Ann Marie Rodgers) v Swindon PCT and Sec of State
In deciding whether a patient’s case is exceptional, the non-medical or personal circumstances of a particular patient should be treated as irrelevant
Where the clinical needs are equal, and resources are not an issue, discrimination between patients in the same eligible group cannot be justified on the basis of personal characteristics not based on healthcare. - R (Murphy) v Salford PCT
In deciding whether to fund treatment in an individual patient’s case, NHS body is entitled to take account of financial restraints on its budget as well as patient’s circumstances
ICB should consider patient’s case ‘in the round’
4 principles:
1. When an NHS body makes a decision about whether to fund a treatment in an individual patient’s case it is entitled to take into account the financial restraints on its budget as well as the patient’s circumstances (paragraph 58 Rogers).
2. Decisions about how to allocate scarce resources between patients are ones with which the Courts will not usually intervene absent irrationality on the part of the decision-maker (page 991 B). There are severe limits on the ability of the Court to intervene (paragraph 25 Otley).
3. The Court’s role is not to express opinions as to the effectiveness of medical treatment or the merits of medical judgment (page 905 B).
4. It is lawful for an NHS body to decide to decline to fund treatment save in exceptional circumstances, provided that it is possible to envisage such circumstances (paragraphs 59, 62 and 65 Rogers).
- Consideration of social factors vs clinical factors
o Ford (Article)
‘the trigger for requesting exceptional funding from NICE is the patient’s clinical need, rather than their personal or social circumstances’
‘The idea that PCT funding of cancer drugs hinges on whether or not a patient is exceptional does not sit comfortably with the axiom that doctors should treat all patients with equal concern’ – if discriminating on basis of age, colour, culture, gender, race, religion etc is not permitted, are there any non-clinical ‘exceptional circumstances’ that can be morally used to distinguish between patients when choosing who should have treatment funded?
‘Funding patients on the basis of exceptionality, determined locally, is not the answer’
Exceptionality ‘has been far too broadly and loosely defined’ - Postcode lottery?
o Iacobucci – considerable regional variation in how IFRs are handled has lead to concerns about a postcode lottery in discretionary funding
Factors ICB can/cannot consider in deciding whether to fund treatment - is patient terminally ill?
- NICE Supplementary Guidance – Appraising Life Extending. End of Life Treatments (2009)
- NICE set higher threshold of £50,000 per QALY where:
1. Life expectancy is less than 24 months
2. Sufficient evidence that will give extension of life of 3 months or more
Factors ICB can/cannot consider in deciding whether to fund treatment - is patient’s age a factor?
- NICE, Social Value Judgements Guidance, 6.3
- Patients should not be denied, or have restricted access to, NHS treatment simply because of their age
- Would violate Art 14 ECHR is discriminated due to age
- However, age can be taken into account is it is an indicator of benefit or risk
Factors ICB can/cannot consider in deciding whether to fund treatment - is patient’s past or current behaviour provided relevant?
- NICE, Social Value Judgements Guidance 6.6
- Care should not be denied to patients with conditions that are, or may have been, dependent on their behaviour
- However, if behaviour is likely to continue and make treatment less clinically effective or cost effective, it may be taken into account
Legal avenues that the patient could use to challenge the decision is ICB refused to fund treatment - judicial review (3 cases)
Ex p B
* The courts are not arbiters as to the merits of cases of this kind – reluctance to intervene as to who should receive resources and care
* ‘difficult and agonising judgments have to be made as to how a limited hospital budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make
Murphy
* ‘this court will interfere with (medical) assessments and judgments only in very rare circumstances’
Re J (A Minor)
* Courts have no idea of who else requires access to the finite resources so by granting one person access may result in taking resources away from someone else without knowing consequence of this – courts reluctant for this reason
Legal avenues that the patient could use to challenge the decision if ICB refuses to fund treatment - illegality (7)
GCHQ – DM must understand correctly the law that regulates his decision making power and must give effect to it
Section 1 NHS Act 2006
* Duty to promote rather than to provide a comprehensive health service
Ex p Hincks
* Claimants complained waiting too long for hip replacement surgery – claimed there was a duty to provide the treatment in a timely fashion
* Court said failure of duty only existed if the Minister’s action was thoroughly unreasonable
Ex p Coughlan
* Once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy
* Health authority generated a substantive legitimate expectation that the care home would be hers for life
* Frustrating this legitimate expectation would have been so unfair it amounted to an abuse of power
* Craig and Schonberg – the policy change was not irrational in the Wednesbury sense, but the breach of promise amounted to an abuse of power
Ex p Kynoch
* Distinction between a policy which is flexible enough to take account of the unusual or exceptional, and a rigid rule
British Oxygen
* Anyone exercising statutory discretion cannot ‘shut his ears to an application’ – otherwise would be fettering of discretion
Ex p A, D and G
* Applicants suffered from gender identity dysphoria – procedures would not be provided ‘except in cases of overriding clinical need’
* Court said policy was acceptable, but the policy must genuinely recognise the possibility of there being an overriding clinical need and require each request to be considered on its individual merits
Legal avenues that the patient could use to challenge the decision if ICB refuses to fund treatment - irrationality (6)
GCHQ – Wednesbury unreasonableness – so outrageous in its defiance of logic or of accepted moral standards that no sensible person could have arrived at it
Ex p Fisher
* Patient with MS – local health authority refused to pay for treatment as had limited resources.
* Local HA claimed did not have resources to treat all patients who may benefit from the drug, so would not give it to anyone
* Court found this absurd and irrational
NHS Constitution for England
* Even if not approved by NCIE, if there has been medical treatment and your doctor thinks it beneficial, you can request access to treatment through Individual Funding Request – if denied, the NHS local HA must justify its reasoning and court decides if irrational or not
Ann Marie Rogers
* Cost of drug was not a consideration as there were only 20 people eligible
* Court found decision to refuse treatment irrational
Otley
* Cancer treatment not yet approved for use in NHS – applied to primary care trust but application was denied
* PCT had policy that included considering the cost
* Court found this policy not irrational but the way it was applied to Ms Otley was irrational because:
o Panel had not taken into account the lack of alternative treatments
o She had been responsive to the drug
o There was a ‘slim but important chance that treatment could prolong Ms Otley’s life by more than a few months’
o Proposed treatment required the allocation of only relatively small resources
Murphy
* Court found have to consider patient’s circumstance individually and in the round
Legal avenues that the patient could use to challenge the decision if ICB refuses to fund treatment - procedural impropriety (2)
GCHQ – failure to observe procedural rules that are expressly laid down in legislative instrument by which its jurisdiction is conferred
Rose v Thanet CCG
* Reasons given for refusing treatment must be defensible
* Patient sought to receive funding for freezing eggs
* CCG had policy which did not fund freezing of eggs for fertility, save in exceptional circumstances – why? – freezing of eggs had low chance of success so not clinically effective
* NICE updated guidelines to support effectiveness of egg freezing – CCG disagreed with this
* Court found CCG was not obliged to follow NICE guideline, however could not legitimately disagree with NCIE’s evaluation of the scientific evidence – reasons given for rejecting treatment must be defensible and in this case they were not
Legal avenues that the patient could use to challenge the decision if ICB refuses to fund treatment - Remedies
Quashing order – decision voided and new decision/policy drawn up. Same outcome may result
Mandating order – court compels DM to do something
Prohibition order – stop DM from doing something
Injunction – stop Dm from doing something
Declaration – statement saying decision is unlawful
Legal avenues that the patient could use to challenge the decision if ICB refuses to fund treatment - human rights challenges - Article 2 (3 cases)
Article 2 (Right to Life)
* Obliges public bodies to refrain from deliberately taking its citizens’ lives (negative conception) but also requires them to take adequate measures to protect life (positive conception)
* Not generally possible to use Art 2 to force health authorities to fund expensive medicines but could be possible to challenge refusal to provide potentially life-saving measures
* Savage
o Mentally ill patent – known suicide risk
o Local authority knew of this risk but patient still died from suicide
o HofL – there was an obligation under Art 2 to do all that could be reasonably expected to prevent the risk from materialising
o Art 2 was triggered by ‘real and immediate risk to life’ which the authorities knew or ought to have known at the time
* Gardner and Harris
o Applicants were women whose fathers had died during first wave of COVID-19 pandemic
o Challenged gov’s policy to discharge Covid-19 patients from hospital back to care homes – meant other residents contracted covid and died
o Claimed Art 2 imposed positive duty on Sec of State of Health to take appropriate steps to safeguard lives of those within England and do all that could have been required to prevent life from being avoidably put at risk
o Systems duty – required Ds to put in place a legislative and administrative framework designed to protect against risks to life – High Court found there was nothing wrong with the framework so did not consider this in depth
o Operational Duty – required State to take practical steps to safeguard people’s right to life from specific dangers in circumstances wherw there was link to state’s responsibility
o Must be these three for an operational duty to apply under Art 2 (Rabone criteria):
1. Real and immediate risk to life
2. Actual or constructive knowledge of the State of the risk
3. A sufficient connection or link with the responsibility of the State
o In Gardner, high Court dismissed Art 2 claim, whereas in Rabone Art 2 had been breached as residents of care home in Gardner were too large a class of claimants whereas in Rabone it was one specific claimant
* Ann Marie Rogers
o Argued refusal to fund treatment of her early breast cancer with Herceptin offended Arts 2 and/or Art 14 ECH
o Court found policy irrational, so Court did not consider it necessary to consider human rights arguments as well
