Rationing in the NHS The NHS just like

Rationing in the NHS • “ The NHS - just like every other health system in the world, public or private - has never, or will never, provide all the care it might theoretically be possible to provide. That would probably be true even if the whole of the UK gross domestic product was spent on health care. So within our expanding health system there will always be choices to be made about the care to be provided. ” Alan Milburn 2000 (former Secretary of State for Health)

Right to Health care? • World Health Organisation (WHO) – Promotion of Rights of Patients in Europe 1995 • EU European Social Chapter – Chapter 13 • European Convention Of Human Rights – Article 2 • UN Universal Declaration of Human Rights – Article 25 • Patient’s Charter

Legal Framework of the NHS • National Health Service Act 1977 – Section 1: broad general duty imposed on the Secretary of State ‘to continue the promotion in England Wales of a comprehensive health service to secure improvement in the physical and mental health of people and in prevention, diagnosis and treatment of illness’ – Section 2: grants the Secretary of State power to provide “such services as he considers appropriate” for the purpose of discharge of his duties – Section 3: that such provision is “to such extent as he considers necessary to meet all reasonable requirements. ”

Statute Law (cont) • Specific statutory duties – Mental Health Act 1983 – Chronically Sick and Disabled Persons Act 1970 – NHS and Community Care Act 1990 • Anti-discrimination legislation – Race Relations Act 1976 – Sex Discrimination Act 1975 • Health Act 1999 – Imposes a statutory duty on health authorities/PCTs/NHS Trusts to monitor and improve quality of health care • Human Rights Act 1998

Health care under the NHS Limits to provision • • Selected List Scheme (Black List) ‘Rational Prescribing’ PCT Budgets National Institute for Clinical Excellence (NICE) – clinical guidelines – cost-effectiveness – ‘postcode rationing’ • Commission for Healthcare Audit and Improvement (CHAI) • National Service Frameworks (NSFs)

Access to health services Public Law cases • R v Secretary of State for SS ex p Hincks (1980) – provision of services not absolute – subject to resources • R v Central Birmingham HA ex p Walker (1987) – court will not interfere unless pubic body has acted unreasonably • Re J (1990) – resources limited and choices by health authorities on allocation necessary • R v Cambridge HA ex p B (1995) – Court not the arbiter of merit; health authority legally charged with making decisions

Public Law cases (cont) • R v North Derbyshire HA ex p Fisher (1997) – Health authority should not operate a ‘blanket ban’ on treatments • A, D and G v North West Lancashire HA (1999) – rationing acceptable but must be based on proper assessment of competing need

Civil Law/negligence • Breach of statutory duty – Re HIV Haemophiliac Litigation (1990) – must establish a statutory duty existed; duties under NHS Act 1977 not intention of Parliament to impose duty enforced by civil action • Negligence – DHSS v Kinnear (1984) • able to challenge operational issues but not policy issues – Bull v Devon AHA (1993) • Health authority must carry out its functions properly

Summary • Courts unwilling to be drawn into policy questions concerning distribution of finite resources – claims based on failure to provide a service because of insufficient resources unlikely to succeed – ‘blanket bans’ on a particular procedure have been challenged successfully