NHS Resource Allocation
Budgetary allocation for NHS cannot escape reign of austerity that UK has faced since 2008 – although more money is given to it
each year, it is chronically underfunded which will only worsen as the population continues to age
A human right to treatment
Why should I be able to claim a human right to treatment?
What is meant today by “medical treatment”? or “health care”?
Can that lead to problems in constructing treatment rights?
Protecting health rights
= international treaties do not phrase rights in absolute terms
- International Covenant on Economic Social and Cultural Rights
o Article 12
▪ ‘highest attainable standard of physical and mental health’-subjective
- European Convention on Human Rights and Biomedicine
o Article 3 “Equitable access to health care”
▪ UK not a signatory of, but Convention is in Council of Europe which Court of HR looks at
- European Convention on Human Rights
o Article 2- Right to life
▪ Being deprived of medical treatment may end their life
o Article 3 – Prohibition of torture
▪ Being deprived of medical treatment could put them in lots of pain
o Article 8 - Right to respect for private and family life
▪ Being deprived of medical treatment so that their quality of life is diminished (lack of mobility)
o Article 14- Prohibition on discrimination
▪ Being deprived of medical treatment whereas someone else is granted it
→ using these treaties has little practical use (are the courts the best people to make complicated practical decisions regarding
resource allocation?)
Can the ECHR be used to assert a right to demand medical treatment?
Matter for individual MS for resource allocation and decide on case-by-case basis, meaning they have not generally found
violations of HR
Scialaqua v Italy (1998)
- Claimed that Italian authorities breached article 2 as they would not fund cost of life saving herbal remedies as they
were not on list of officially state recognised medicine
- European Commission of HR (no longer exists) held claim as inadmissible
o Even if ECHR could be interpreted as imposing on state, the article could not be interpreted as an obligation
for state to cover cost of certain medical treatment which were essential to save life if they were not on list of
recognised medical treatments
BUT → Article 2 can be used in cases regarding emergency medical treatment where the ECHR can be used to scrutinise
questions regarding resource allocation
Mehmet Şentürk and Bekir Şentürk v Turkey (2013)
- Man drove wife to multiple hospitals and was turned away
- At 4th hospital, the team saw that her 8.5month old baby had died in womb, meaning she needed emergency operation
to save mother’s life
- Turkish Health Ministry and Medical Council found hospital had asked woman for deposit to cover cost of treatment
o Claimant said reason wife declined treatment was because they asked for a deposit
- Emergency doctor arranged woman to be driven to 5th hospital in private hospital, which did not have medical team so
she died in ambulance
- ECHR looked at position of foetus in womb, which fell outside their jurisdiction
o BUT found that issue can arise in Article 2 when shown that authorities of a Contracting State put an
individual’s life at risk through the denial of health care they have undertaken to make available to the
population in general
o Court took view that if state does not provide sufficient regulatory framework to guarantee that rights of
patient are protected in medical emergency, article 2 can be held to be violated (hospital were asking for
money upfront, meaning they were not guaranteeing that care would be provided in emergency to patient
regardless)
▪ see Cyprus v. Turkey [GC], no. 25781/94 and Nitecki v. Poland no. 65653/01
Asiiye Genç c Turquie (Application no 24109/07), Judgment of 27 January 2015
- baby born in hospital without specialist unit to treat respiratory distress of child
- hospital stabilised child, before moving child to 2nd hospital with neonatal unit
, - 110km ambulance journey with nurse from first hospital
- At second hospital, baby was refused treatment as all the incubators were occupied
- doctor at second hospital said that she examined baby (but denied by accompanying staff from first hospital)
- ambulance driver took baby to third hospital, but was refused admission for same reason as second hospital
- doctor at third hospital thought it best to leave baby in incubator in ambulance to avoid hypothermia
- baby died on return journey to second hospital
- Court found that baby was denied emergency care, which was the cause of their death
o Turquie had not enacted sufficient regulatory regime to guarantee efficient public hospital system where
there was a place for a baby needing emergency medical treatment, therefore violation of Article 2 ECHR
→ ECHR put tanks on lawn of MS in question as MS is required to provide sufficient resources for healthcare (3 of judges in
ECHR thought they’d gone too far)
In UK, healthcare is free at point of use (do not charge for A&E) but if someone is denied life-saving treatment due to lack of
resources in an emergency situation and they die, it could potentially be challenged
How the NHS is regulated by statue (its operation of the NHS and how resource allocation decisions are taken)
NHS Act 2006 (subject to major revision by the Health and Social Care Act 2012) → only focus on section 1(1), section 1(c) and
section 3
Duty of the Secretary of State for Health under the National Health Service Act 2006
Section 1. The Secretary of State’s duty to promote a comprehensive health service
(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure
improvement
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness.
(2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.
(3) The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.
(4) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided
for by or under any enactment, whenever passed
NB - after 2012 legislation alteration, the Sec of State no longer has all duties regarding provision of services to reflect the reality
that there are different boards/hospitals as day-to-day running was carried out at local level rather than one person
Other duties places on Secretary of State
- Duty to promote improvement of quality of service
o s. 1 A NHS Act 2006
- Duty in relation to the NHS Constitution
o s.1 B NHS Act 2006 “In exercising functions in relation to the health service, the Secretary of State must have
regard to the NHS Constitution.”
o See also the NHS Constitution updated October 2015 https://www.gov.uk/government/publications/the-nhs-
constitution-for-england (separate constitutional document about principles and values which English Law
stipulates elsewhere)
▪ Open duty
- Duty to reduce inequality’s
o 1C NHS Act 2006.
o Does this mean the end of postcode prescribing?
Other key NHS organisations and their obligations regarding the provision of services
NHS Commissioning Board (NHS England)
- Duty to hold the commissioning groups to account-created under S1 H NHS Act 2006
- The Board is able to commission certain services
o Specialist services such as neonatal services, treatment for rare cancer
o Rare drugs that doctors will have to seek permission to use from NHS England
- Commissioning GP services and other primary care services
- Vaccinations and screening services
- Healthcare services in prisons and armed forces
Creation of Clinical Commissioning Groups- s1 I NHS Act 2006 Duties of Clinical Commissioning Groups (CCG’S)
- Comprised of representative GPs and other healthcare professionals (totalling 195 CCGs across England)
- Role stated in s3 of NHS Act – manages 2/3rds of total NHS England budget and to improve efficiency
o Used to be only for Sec of State but now on these clinical groups
- Express obligations are placed upon local Clinical Commissioning Groups
o Not an absolute duty – discretion given to the clinical groups as to provision of services (wide discretion)
,(Reform suggestion that CCGs will be abolished) – not likely to happen by summer!!
Specific Obligations in relation to public health are placed on the Secretary of State and on Local Authorities
- Secretary of State has a duty to improve public health
o s2 A NHS Act 2006
o Public Health England is executive agency of Department of Health and Social Care (undertaking statutory
duties set on Sec of State for Health and Social Care) – currently subject to re-organisation following
development of COVID-19
- Secretary of State and local authorities have a duty to protect public health
o s.2B NHS Act 2006
→ Local authorities have a role in public health promotion as well as duties being imposed on the Secretary of State for Health
NHS Trusts and NHS Foundation Trusts
- NHS Trusts - provide services
o hospitals, ambulance, community and mental health
- NHS Foundation Trusts have greater degrees of operational autonomy as operate in relation to council of governors
and board of directors
o S. 30 NHS Act 2006
o Commissioned to provide services by other NHS bodies
Role of GPs and operation of Primary care Networks and Integrated Care Systems.
- GPs are in a separate contractor position
o GPs operate practices under contracts with NHS Commissioners
o Individual GPs can make arrangements with the practice (become sole owner of the practice, equity partners,
salaried partners or employees of the practice)
o (See generally sections 83-91 NHS Act 2006.)
- The NHS is currently subject to further reform under the NHS Long Term Plan. This has led to the introduction of
Sustainability and Transformation Partnerships and Integrated Care Systems
- GP practices have been encouraged to join a network of around 1000 Primary Care Networks covering communities of
between 30-5000 patients 30-5000 patients
o Aim is to provide health and social care through multi-professional teams in a community setting.
o Collaboration with non-GP’s is to be a requirement
National Institute for Health and Care Excellence (NICE)
An ‘attempt’ to rationalise and nationalise our health care resource allocation decision-making that will be ongoing by way of
CCGs
- Established under the National Institute for Health and Care Excellence (Constitution and Functions) and the Health and
Social Care Information Centre (Functions) Regulations 2013/259
o You can’t just demand a drug even if it has been approved, a doctor has to ensure that it is the right drug for
you
- Core purposes:
o Preparation of standards on:
▪ provision of NHS services, public health services and social care
▪ provision of advice and guidance to sec of state on any quality matter whilst having regard to
• broad balance of benefits/costs
• degree of need of persons
• desirability of promoting innovation
o must all be done effectively, efficiently and economically
▪ Ideally their decisions were intended to be based on pure clinical need and efficiency but they had to
include consideration of what was best for health care service itself
- ‘living lie’ – subject to commercial and political pressures as well as seeing a massive influence from media as it became
easier to approve new/expensive treatment than to refuse it
NB - The distribution of selected treatment still varies across the country as health authorities are required to balance their
individual budgets
If someone is refused treatment, they may be able to challenge that based on statutory obligation placed on:
- Secretary of State
o by virtue of that at national level, NHS England and their commission of services
- Clinical Commissioning Groups
o in relation to commission of services and their ability to commission things and allow them to go ahead
▪ CCG must have regard to national guidance such as that produced by NICE
• R v North Derbyshire Health Authority (ex parte Fisher)
, To use public law, you can challenge operation of those statutory discretions under s1 or s3 of NHS 2006 Act (not defined in
absolute terms, but can be viewed as duties in relation to reasonableness of actions in question)
Legal situation
= obligation on secretary of state is limited to providing the services identified to extent that NHS England considers that they
are necessary to meet all reasonable requirements (wide discretion in hands of NHS England as to scope of reasonable
requirements and how to go about its task). The ECtHR states that nation states enjoy a wide margin of appreciation in
determining how or whether to allocate scarce resources involving social, economic and health care policy
Challenging NHS Resource Allocation Decisions by Judicial Review (is NHS body acting reasonably?)
→ Today, challenges are brought directly against NHS Commissioning Groups if resources are denied BUT some of these actions
are brought against NHS England as they commission certain services at national level because responsibility on day-to-day level
for healthcare commissioning is now given to local NHS bodies to determine (previously the Sec of State had a more direct
operational role)
Early cases
R v Secretary of State for Social Services, ex p Hincks. [1980]
- applicants on waiting list for orthopaedic surgery (resource allocation cuts meant surgery was postponed)
- argued sec of state had failed to fulfil duties under state which was originally imposed directly on him under s3 of
legislation which is now imposed directly on CCGs
o argued there was an obligation to provide comprehensive health service, and by funding treatment they were
acting contrary to this
o argued that if sec of state needed extra funding, he should go to parliament for more money
- unsuccessful as court held that if sec of state is doing all he can on the matter, he cannot be fauled
o Lord Denning - “It cannot be supposed that the Secretary of State has to provide all the latest equipment. As
Oliver LJ said in the course of argument, it cannot be supposed that the Secretary of State has to provide all
the kidney machines which are asked for, or for all the new developments such as heart transplants in every
case where people would benefit from them.”
- Discretion for sec of state that is subject to scrutiny by court for reasonableness, but they give him a large margin to
make decisions and court will not second guess NHS resource allocation decisions
R v Central Birmingham HA, ex p Walker (1987)
- Baby had hole in heart therefore needed surgery, which was suspended on 5 different occasions due to shortage of
appropriate nursing staff
- Argued that sec of state had not complied with obligation set out under legislation
- Unsuccessful as court said that it was not for court to second guess rationing decisions or substitute their own
judgement for those responsible for allocation of resources
o Sir John Donaldson - Court would only intervene if satisfied that there was a prima facie case of failing to
allocate resources in a way that was wednesbury unreasonable
▪ Setting high bar for intervention
R v Cambridge DHA, ex p B [1995]
- 10 year old child with acute leukaemia, who had had chemo and bone marrow transplant
- Doctors thought continued treatment was not in her best interest (recommended palliative care and pain relief)
- Father got second opinion, with a London hospital doctor saying he would have performed further treatment
- No NHS beds available, therefore any treatment would have to be funded privately (£75,000)
- Father went to Health Authority for funding
o They said there were unlikely to fund (deemed experimental)
- Father went to court and brought action for judicial review and said it was unreasonable not to fund
o First instance judge set bar for HR (article 2, right to life) but HRA not passed so ECHR was used as persuasive
authority – when there is a fundamental right engaged, the NHS must provide substantial objective
justification on public interest grounds for infringing the right
▪ Health Authority did not take into account the father’s views
▪ Finite resources – ‘But where the question is whether the life of a ten year old child might be saved,
by however slim a chance, the responsible authority must in my judgment do more than toll the bell
of tight resources. It must explain the priorities that have led it to decline to fund the treatment.’
o CA – took orthodox approach taken by courts in cases (Hinx and Walker previously) by accepting difficult
resource allocation decisions have to be made
▪ ‘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’
→ court cannot become a proxy resource allocation body as they are within remit of NHS body itself
Budgetary allocation for NHS cannot escape reign of austerity that UK has faced since 2008 – although more money is given to it
each year, it is chronically underfunded which will only worsen as the population continues to age
A human right to treatment
Why should I be able to claim a human right to treatment?
What is meant today by “medical treatment”? or “health care”?
Can that lead to problems in constructing treatment rights?
Protecting health rights
= international treaties do not phrase rights in absolute terms
- International Covenant on Economic Social and Cultural Rights
o Article 12
▪ ‘highest attainable standard of physical and mental health’-subjective
- European Convention on Human Rights and Biomedicine
o Article 3 “Equitable access to health care”
▪ UK not a signatory of, but Convention is in Council of Europe which Court of HR looks at
- European Convention on Human Rights
o Article 2- Right to life
▪ Being deprived of medical treatment may end their life
o Article 3 – Prohibition of torture
▪ Being deprived of medical treatment could put them in lots of pain
o Article 8 - Right to respect for private and family life
▪ Being deprived of medical treatment so that their quality of life is diminished (lack of mobility)
o Article 14- Prohibition on discrimination
▪ Being deprived of medical treatment whereas someone else is granted it
→ using these treaties has little practical use (are the courts the best people to make complicated practical decisions regarding
resource allocation?)
Can the ECHR be used to assert a right to demand medical treatment?
Matter for individual MS for resource allocation and decide on case-by-case basis, meaning they have not generally found
violations of HR
Scialaqua v Italy (1998)
- Claimed that Italian authorities breached article 2 as they would not fund cost of life saving herbal remedies as they
were not on list of officially state recognised medicine
- European Commission of HR (no longer exists) held claim as inadmissible
o Even if ECHR could be interpreted as imposing on state, the article could not be interpreted as an obligation
for state to cover cost of certain medical treatment which were essential to save life if they were not on list of
recognised medical treatments
BUT → Article 2 can be used in cases regarding emergency medical treatment where the ECHR can be used to scrutinise
questions regarding resource allocation
Mehmet Şentürk and Bekir Şentürk v Turkey (2013)
- Man drove wife to multiple hospitals and was turned away
- At 4th hospital, the team saw that her 8.5month old baby had died in womb, meaning she needed emergency operation
to save mother’s life
- Turkish Health Ministry and Medical Council found hospital had asked woman for deposit to cover cost of treatment
o Claimant said reason wife declined treatment was because they asked for a deposit
- Emergency doctor arranged woman to be driven to 5th hospital in private hospital, which did not have medical team so
she died in ambulance
- ECHR looked at position of foetus in womb, which fell outside their jurisdiction
o BUT found that issue can arise in Article 2 when shown that authorities of a Contracting State put an
individual’s life at risk through the denial of health care they have undertaken to make available to the
population in general
o Court took view that if state does not provide sufficient regulatory framework to guarantee that rights of
patient are protected in medical emergency, article 2 can be held to be violated (hospital were asking for
money upfront, meaning they were not guaranteeing that care would be provided in emergency to patient
regardless)
▪ see Cyprus v. Turkey [GC], no. 25781/94 and Nitecki v. Poland no. 65653/01
Asiiye Genç c Turquie (Application no 24109/07), Judgment of 27 January 2015
- baby born in hospital without specialist unit to treat respiratory distress of child
- hospital stabilised child, before moving child to 2nd hospital with neonatal unit
, - 110km ambulance journey with nurse from first hospital
- At second hospital, baby was refused treatment as all the incubators were occupied
- doctor at second hospital said that she examined baby (but denied by accompanying staff from first hospital)
- ambulance driver took baby to third hospital, but was refused admission for same reason as second hospital
- doctor at third hospital thought it best to leave baby in incubator in ambulance to avoid hypothermia
- baby died on return journey to second hospital
- Court found that baby was denied emergency care, which was the cause of their death
o Turquie had not enacted sufficient regulatory regime to guarantee efficient public hospital system where
there was a place for a baby needing emergency medical treatment, therefore violation of Article 2 ECHR
→ ECHR put tanks on lawn of MS in question as MS is required to provide sufficient resources for healthcare (3 of judges in
ECHR thought they’d gone too far)
In UK, healthcare is free at point of use (do not charge for A&E) but if someone is denied life-saving treatment due to lack of
resources in an emergency situation and they die, it could potentially be challenged
How the NHS is regulated by statue (its operation of the NHS and how resource allocation decisions are taken)
NHS Act 2006 (subject to major revision by the Health and Social Care Act 2012) → only focus on section 1(1), section 1(c) and
section 3
Duty of the Secretary of State for Health under the National Health Service Act 2006
Section 1. The Secretary of State’s duty to promote a comprehensive health service
(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure
improvement
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of illness.
(2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.
(3) The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.
(4) The services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided
for by or under any enactment, whenever passed
NB - after 2012 legislation alteration, the Sec of State no longer has all duties regarding provision of services to reflect the reality
that there are different boards/hospitals as day-to-day running was carried out at local level rather than one person
Other duties places on Secretary of State
- Duty to promote improvement of quality of service
o s. 1 A NHS Act 2006
- Duty in relation to the NHS Constitution
o s.1 B NHS Act 2006 “In exercising functions in relation to the health service, the Secretary of State must have
regard to the NHS Constitution.”
o See also the NHS Constitution updated October 2015 https://www.gov.uk/government/publications/the-nhs-
constitution-for-england (separate constitutional document about principles and values which English Law
stipulates elsewhere)
▪ Open duty
- Duty to reduce inequality’s
o 1C NHS Act 2006.
o Does this mean the end of postcode prescribing?
Other key NHS organisations and their obligations regarding the provision of services
NHS Commissioning Board (NHS England)
- Duty to hold the commissioning groups to account-created under S1 H NHS Act 2006
- The Board is able to commission certain services
o Specialist services such as neonatal services, treatment for rare cancer
o Rare drugs that doctors will have to seek permission to use from NHS England
- Commissioning GP services and other primary care services
- Vaccinations and screening services
- Healthcare services in prisons and armed forces
Creation of Clinical Commissioning Groups- s1 I NHS Act 2006 Duties of Clinical Commissioning Groups (CCG’S)
- Comprised of representative GPs and other healthcare professionals (totalling 195 CCGs across England)
- Role stated in s3 of NHS Act – manages 2/3rds of total NHS England budget and to improve efficiency
o Used to be only for Sec of State but now on these clinical groups
- Express obligations are placed upon local Clinical Commissioning Groups
o Not an absolute duty – discretion given to the clinical groups as to provision of services (wide discretion)
,(Reform suggestion that CCGs will be abolished) – not likely to happen by summer!!
Specific Obligations in relation to public health are placed on the Secretary of State and on Local Authorities
- Secretary of State has a duty to improve public health
o s2 A NHS Act 2006
o Public Health England is executive agency of Department of Health and Social Care (undertaking statutory
duties set on Sec of State for Health and Social Care) – currently subject to re-organisation following
development of COVID-19
- Secretary of State and local authorities have a duty to protect public health
o s.2B NHS Act 2006
→ Local authorities have a role in public health promotion as well as duties being imposed on the Secretary of State for Health
NHS Trusts and NHS Foundation Trusts
- NHS Trusts - provide services
o hospitals, ambulance, community and mental health
- NHS Foundation Trusts have greater degrees of operational autonomy as operate in relation to council of governors
and board of directors
o S. 30 NHS Act 2006
o Commissioned to provide services by other NHS bodies
Role of GPs and operation of Primary care Networks and Integrated Care Systems.
- GPs are in a separate contractor position
o GPs operate practices under contracts with NHS Commissioners
o Individual GPs can make arrangements with the practice (become sole owner of the practice, equity partners,
salaried partners or employees of the practice)
o (See generally sections 83-91 NHS Act 2006.)
- The NHS is currently subject to further reform under the NHS Long Term Plan. This has led to the introduction of
Sustainability and Transformation Partnerships and Integrated Care Systems
- GP practices have been encouraged to join a network of around 1000 Primary Care Networks covering communities of
between 30-5000 patients 30-5000 patients
o Aim is to provide health and social care through multi-professional teams in a community setting.
o Collaboration with non-GP’s is to be a requirement
National Institute for Health and Care Excellence (NICE)
An ‘attempt’ to rationalise and nationalise our health care resource allocation decision-making that will be ongoing by way of
CCGs
- Established under the National Institute for Health and Care Excellence (Constitution and Functions) and the Health and
Social Care Information Centre (Functions) Regulations 2013/259
o You can’t just demand a drug even if it has been approved, a doctor has to ensure that it is the right drug for
you
- Core purposes:
o Preparation of standards on:
▪ provision of NHS services, public health services and social care
▪ provision of advice and guidance to sec of state on any quality matter whilst having regard to
• broad balance of benefits/costs
• degree of need of persons
• desirability of promoting innovation
o must all be done effectively, efficiently and economically
▪ Ideally their decisions were intended to be based on pure clinical need and efficiency but they had to
include consideration of what was best for health care service itself
- ‘living lie’ – subject to commercial and political pressures as well as seeing a massive influence from media as it became
easier to approve new/expensive treatment than to refuse it
NB - The distribution of selected treatment still varies across the country as health authorities are required to balance their
individual budgets
If someone is refused treatment, they may be able to challenge that based on statutory obligation placed on:
- Secretary of State
o by virtue of that at national level, NHS England and their commission of services
- Clinical Commissioning Groups
o in relation to commission of services and their ability to commission things and allow them to go ahead
▪ CCG must have regard to national guidance such as that produced by NICE
• R v North Derbyshire Health Authority (ex parte Fisher)
, To use public law, you can challenge operation of those statutory discretions under s1 or s3 of NHS 2006 Act (not defined in
absolute terms, but can be viewed as duties in relation to reasonableness of actions in question)
Legal situation
= obligation on secretary of state is limited to providing the services identified to extent that NHS England considers that they
are necessary to meet all reasonable requirements (wide discretion in hands of NHS England as to scope of reasonable
requirements and how to go about its task). The ECtHR states that nation states enjoy a wide margin of appreciation in
determining how or whether to allocate scarce resources involving social, economic and health care policy
Challenging NHS Resource Allocation Decisions by Judicial Review (is NHS body acting reasonably?)
→ Today, challenges are brought directly against NHS Commissioning Groups if resources are denied BUT some of these actions
are brought against NHS England as they commission certain services at national level because responsibility on day-to-day level
for healthcare commissioning is now given to local NHS bodies to determine (previously the Sec of State had a more direct
operational role)
Early cases
R v Secretary of State for Social Services, ex p Hincks. [1980]
- applicants on waiting list for orthopaedic surgery (resource allocation cuts meant surgery was postponed)
- argued sec of state had failed to fulfil duties under state which was originally imposed directly on him under s3 of
legislation which is now imposed directly on CCGs
o argued there was an obligation to provide comprehensive health service, and by funding treatment they were
acting contrary to this
o argued that if sec of state needed extra funding, he should go to parliament for more money
- unsuccessful as court held that if sec of state is doing all he can on the matter, he cannot be fauled
o Lord Denning - “It cannot be supposed that the Secretary of State has to provide all the latest equipment. As
Oliver LJ said in the course of argument, it cannot be supposed that the Secretary of State has to provide all
the kidney machines which are asked for, or for all the new developments such as heart transplants in every
case where people would benefit from them.”
- Discretion for sec of state that is subject to scrutiny by court for reasonableness, but they give him a large margin to
make decisions and court will not second guess NHS resource allocation decisions
R v Central Birmingham HA, ex p Walker (1987)
- Baby had hole in heart therefore needed surgery, which was suspended on 5 different occasions due to shortage of
appropriate nursing staff
- Argued that sec of state had not complied with obligation set out under legislation
- Unsuccessful as court said that it was not for court to second guess rationing decisions or substitute their own
judgement for those responsible for allocation of resources
o Sir John Donaldson - Court would only intervene if satisfied that there was a prima facie case of failing to
allocate resources in a way that was wednesbury unreasonable
▪ Setting high bar for intervention
R v Cambridge DHA, ex p B [1995]
- 10 year old child with acute leukaemia, who had had chemo and bone marrow transplant
- Doctors thought continued treatment was not in her best interest (recommended palliative care and pain relief)
- Father got second opinion, with a London hospital doctor saying he would have performed further treatment
- No NHS beds available, therefore any treatment would have to be funded privately (£75,000)
- Father went to Health Authority for funding
o They said there were unlikely to fund (deemed experimental)
- Father went to court and brought action for judicial review and said it was unreasonable not to fund
o First instance judge set bar for HR (article 2, right to life) but HRA not passed so ECHR was used as persuasive
authority – when there is a fundamental right engaged, the NHS must provide substantial objective
justification on public interest grounds for infringing the right
▪ Health Authority did not take into account the father’s views
▪ Finite resources – ‘But where the question is whether the life of a ten year old child might be saved,
by however slim a chance, the responsible authority must in my judgment do more than toll the bell
of tight resources. It must explain the priorities that have led it to decline to fund the treatment.’
o CA – took orthodox approach taken by courts in cases (Hinx and Walker previously) by accepting difficult
resource allocation decisions have to be made
▪ ‘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’
→ court cannot become a proxy resource allocation body as they are within remit of NHS body itself
