Allocation of resources in the NHS 2: challenging rationing decisions Flashcards
The Nature and Purpose of Judicial Review
Separation of Powers doctrine: Judicial Review is triggered when a public authority exceeds its powers whilst carrying out executive or legislative duties - courts can enforce rule of law but courts also have limits of powers vested upon them and can only examine legality of a decision not merits of a decision
R v Cambridge Health Authority, ex p B
courts do not assess merits of a decision - courts are reluctant to decide who should get med treatments where resources are finite
R (Murphy) v Salford Primary Care Trust [2008] EWHC 1908 (Admin), [10] (Burnett J): Ideal to think everyone can benefit from a publicly funded treatment but this is not true so ppl who run NHS must make difficult decisions to decide who gets treatment
Courts only intervene in rare circumstances
Re J (A Minor) (Child in Care: Medical Treatment) -
May be inappropriate for courts to dictate how resources are spent since courts have no knowledge to competing claims and who else needs resources so by granting someone who files JR proceeding could potentially take resources away from others who they don’t know ab
The grounds for judicial review
Illegality
E.g. ultra vires, fettering discretion, failing to take relevant factors into account/taking irrelevant factors into account, breach of a Convention right (HRA 1998). ICB made decision that they had no grounds to do so, may produce a policy which they apply to patients in an overly rigid fashion - not properly exercising their discretion and fettering it, may take irrelevant factors or failed to take into account relevant factors when making a decision
Irrationality
E.g. Wednesbury unreasonableness, ‘anxious scrutiny’ irrationality. Require compelling reasons not to find decision irrational
Procedural impropriety
E.g. Breach of principles of natural justice (i.e. procedural fairness), such as failure to provide reasons for a decision. (Breach of a Convention right contained in Human Rights Act 1998) failed to abide by rules of natural justice
Judicial review remedies
Quashing order (certiorari) policy/decision that is unlawful is voided and a new decision is drawn up, same outcome may still be reached, just that the decision making process will now be lawful so no guarantee if you are successful in claim doesn’t mean you get resources you want
Mandating order (mandamus)
Prohibition order
Injunction
declaration
Illegality
GCHQ - lord diplock - decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.’
if decision maker fails to understand stat duty or scope of duties then may have illegality ground
Section 1 National Health Service Act 2006
Duty to promote rather than to provide a comprehensive health service. - now falls on ICB
purpose of legislation - benefit society as a whole, rather than to offer private remedies to individual citizens
Scope of the statutory duty
R v Secretary of State for Social Services, ex p Hincks - SoS duty can be found in section 3(1)
Scope of duty isnt clear at time so claimants complained they had been waiting for hip replacement surgery for too long and claimed SoS had stat duty in s.3 to provide healthcare services in a timely fashion, at end of 70s very long wait times were common in NHS,
Wien J - 1st courts found not their role to direct parl as to what funds to make available nor allocate them, statute grants minister discretion on how to allocate resources
Court could only interfere if the Secretary of State acted so as to frustrate the policy of the Act or as no reasonable Minister could have acted. Only if they were misusing or abusing powers or if making decisions which were irrational
Appeal: Wednesbury unreasonable - extremely high lvl of unreasonableness before courts intervene
R v North and East Devon Health Authority, ex p Coughlan - decision makers have wide discretion for resources, if they create a legitimate expectation about resources through for example a specific promise, courts look at if taking back the promise would be so unfair that it is unlawful
irrationality - Policies (fettering of discretion).
R v Port of London Authority, ex p Kynoch Ltd
Public auth produces an inflexible policy where there is no exceptions that decision maker has unlawfully fettered discretion, where decision maker stops considering merits of each application as policy = so rigid
Distinction between a policy which is flexible enough to take account of the unusual or exceptional, and a rigid rule.
British Oxygen Co v Minister of Technology - …anyone exercising statutory discretion cannot ‘shut his ears to an application’. Needs to be exceptions to the rule
R v North West Lancashire Health Authority, ex p A, D and G - because health auth didn’t rec gender surgery as legitimate treatment for gender dysphoria no way that these women could be considered on their merits - didn’t take into account ind exceptional circ - no way these women could demonstrate overriding clinical need - unlawful fettering discretion
Irrationality
GCHQ - lord diplock - wednesbury’s unreasonableness - so outrageous, defies logic that nobody with a sound mind and morals would come to it
R v North Derbyshire Health Authority, ex p Fisher - local health auth suggested they didn’t have resources to respond to all requests to treat patients in that area that may benefit from treatment, so they didn’t allow anyone to have it - irrational
Exceptional cases
The NHS Constitution for England informs patients of the following:
right to drugs and treatments that have been recommended by NICE for use in the NHS if tour doctor says they are clinically appropriate for you
right to expect local decisions on funding of other drugs and treatment be made rationally following a proper consideration of evidence, if the local NHS decides not to fund a drug or treatment you and our doctor feel would be right for you, they will explain that decision to you
Can request treatment through an individual funding request if denied then NHS must provide reasons and grounds for refusal
R (Ann Marie Rogers) - Seeking access to drug not appraised by NICE but doctor thought would benefit from and trust has policy of not funding treatments not appraised by NICE except in exceptional circ
Exceptionality policy = irrational, around 20 women in area that could have benefitted from this drug so how could exhibit exceptional circ if all 20 other women needed treat and non medical considerations are irrelevant when looking at exceptionality
R (Otley) - cancer treat not approved within NHS, claimant responded well to self funded drug but couldnt afford it, applied to PCT but denied - policy which inc considering impact on funding on health of whole population in area - court found nothing irrational ab policy but application to O was unlawful - panel that considered her funding had not taken into account relevant factors - fact there was no other alt drugs, she had responded very well and would have prolonged her life and would not put pressure on other healthcare treatment as drugs were relatively inexpensive
R (Murphy) v Salford Primary Care Trust - Kidney cancer and hadnt responded well to existing NICE treat doctor found an alt treatment and applied to primary care trust to fund that treatment, several factors were put forward to mark her case as exception inc fact she had breast cancer too so couldnt participate in clinical trial to access treatment, other health issues but when panel looked @ factors said none of them were sufficient by themselves to accept funding
Court said primary care trust in considering a patients circ, look at factors one by one but then altogether and this was not done so panel decision was quashed
Procedural Impropriety
GCHQ lord diplock - to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred.’
Reasons given for refusing treatment must be defensible
R (Rose) - funding for freezing eggs,
CCG had a policy which did not fund the freezing of eggs for fertility, save in exceptional circumstances. Why? Because freezing of eggs had a low chance of success and so was not clinically effective.
NICE updated guidelines said evidence supports effectiveness of oocyte cryopreservation.
Court found although commissioning group not obliged to follow NICE guidelines could not legitimately disagree with eval of scientific evidence for refusing treatment
Reasons must be defensible in this case no legitimate reason provided
Human rights challenges
- Article 2 (Right to life) - only successful in particular circ where D has already assumed resp for claimant life or welfare
- Article 3 (Prohibition of inhuman and degrading treatment) - flounded on basis situation described does not reach req levl of severity to constitute torture or degrading treatment
- Article 8 (Right to respect for private and family life) - fail at proportionality test stage, qualified right can be interfered with lawfully as long as interference is pursuing a legitimate aim, necessary and no more than is necessary to achieve that aim
- Article 14 (Rights must be protected and applied without discrimination). - appears sometimes, not a freestanding right, only arg in conjunction with another convention right
ECHR - confirmed wide margin of appreciation in determining how or whether to allocate scarce resources involving social, economic and health care policy - States enjoy wide discretion in determining whether or how to allocate scarce resources
Article 2 – Right to Life
negative right, obliges public bodies to refrain from actively taking citizens lives and positive element as obliges public auth to actively protect life
Not generally possible to use Article 2 to force health authorities to fund expensive medicines
However, in exceptional circumstances, it has been used to challenge a failure to provide potentially life-saving measures in healthcare contexts, such as…
Savage case
mentally ill patient with known suicide risk, Was there an obligation, under Article 2, to do all that could reasonably be expected in order to prevent that risk from materialising?
House of Lords: yes.
Article 2 was triggered by ‘a “real and immediate risk to life” about which the authorities knew or ought to have known at the time’’.
Patient died of suicide under care of health auth
Rabone case
depressed patient who died by suicide, while under the care of the Pennine NHS Trust.
Even though patient had been released from hospital temporarily, the Trust had already assumed responsibility for her care and had assessed her as a high risk.
SC found three factors must apply to generate positive duties under A.2
a real and immediate risk to life;
actual or constructive knowledge of the State of the risk;
a sufficient connection or link with the responsibility of the State.
All three criteria applied in Rabone – therefore Pennine NHS Trust breached Article 2. - patient was in immediate danger, hospital had assessed her and knew of risk and has assumed resp and under their care when let her out temporarily
R (Ann Marie Rogers) case
Argument that refusal to fund treatment of her early breast cancer with the drug Herceptin offended against Article 2 (and in conjunction with Article 14) of the Human Rights Act 1998.
After finding the policy irrational, the Court did not consider it necessary to consider other arguments Ms. Rogers raised, including Article 2. - never addressed issue as once decided exceptionally policy was irrational refused to consider any other arg she raised
Article 3 – Right to be free from torture
Price v United Kingdom
Inhumane treatment of a severely disabled patient with health issues relating to limbs and kidneys and req assistance that was not provided when needed
Prison authority’s inadequate treatment of a four-limb-deficient thalidomide victim with numerous health problems did amount to a violation of Article 3.
R (Watts) v Bedford Primary Care Trust
Direct challenge to resource allocation in the NHS, arg being made to wait a year for hip replacement was a breach of A.3 and A.8 - 70 and had osteoarthritis in both hips, very painful - didnt amount to breach of article 3 -nothing she had to endure was as severe
Article 8 – Right to private and family life
very rare cases
Coughlan case
The policy was found to amount to a breach of Art 8, and the interference in this case was not “necessary in a democratic society” as provided for in Article 8.2.
Raised A.8 and said by trying to remove her from care facility which is her home her A.8 right was violated (right to respect for his home)
However, most Article 8 cases have not been successful.
R v NW Lancashire Health Authority, ex p A, D and G - Auld LJ : ‘Article 8 imposes no positive obligations to provide treatment’.
R (Condliff) - Condliff argued the refusal to fund gastric band surgery was affecting his private and family life - eg his wife had to deal with the consequences of his incontinence (caused by his obesity for which he was seeking treatment) throughout the night. - dismissed
Alternative avenues to treatment if legal challenges fail? - denied funding
top up payments
pay part of your treatment, if NHS wont fund entirety of it
department of health 2009 guidance on NHS patients who wish to pay for additional private care - must be clear separation between publicly funded NHS treatment and privately funded treatment, and if possible have priv treatment separately and need to have funds available for treatment
fair? - NHS typically ‘all or nothing’. Funding system, either had treatment paid for entirely by NHS or you had to pay for it yourself
Top-ups creating a two-tier health system? - equity issues, in favour for those who can pay supplements for their healthcare
Treatment Abroad
S2 route (direct funding arrangement with other states; prior authorisation required)
- Applicants must meet eligibility criteria: - E.g. You're ordinarily resident in England and entitled to treatment on the NHS. - The requested treatment would normally be provided on the NHS to an individual in your circumstances. - The requested treatment is available under the treating country's state healthcare scheme. - ...NHS England has determined that the same or equivalent treatment cannot be provided to you on the NHS within a time period that's medically justifiable. - Some European countries req patients to make financial contribution to costs of healthcare
EU Directive route (Only available for treatments which took place before December 2020)
Uk leaving EU = patients seek treat abroad within EU MS under EU’s healthcare directives and apply for a refund from the NHS
The rationale lay in Art 49 EC Treaty: free movement of services.
Only applies to patients who applied for treatment before or during the Brexit transition period (i.e. before December 2020). - due to UK leaving EU
The only remaining route for NHS funding for treatment abroad for new patients is the S2 route.
