essay plan medical law
Intro. Essence of the question is: Are the courts proper places for deciding questions regarding the allocation of NHS resources? Further question to answer: Are judges the right people to make such decisions or should MPs make the decisions?
To answer these questions you are really asking who should make decisions regarding spending and treatment? Should it be:-
d. NHS managers.
So split the essay up into sections dealing with a to e.
Then you must point out that all the above groups approach the issue with different agendas and needs and that it is impossible to satisfy everyone.
Introductory paragraph should explain this and could go something like this.
Firstly refer to the quotation in the question, - The words of judges in R v Cambridge HA are fairly uncontroversial – a statement that it is difficult to argue with, when life is at stake then all and any treatment that can save that life should be given, BUT that is only in a “perfect world.” Because we’re not in a perfect world there are many reasons why treatments are not always available.
These include, - funding, clinical needs, doctors opinions, clinical needs of other patients, interests of the community in general, taxpayers etc.
When resources are limited then it follows that expenditure on one type of treatment will automatically reduce the money available for other types of treatment.
So decisions about whether treatment is or is not carried out are contentious and controversial. MPs are reluctant to do anything
1. Enacting legislation that aims to put a stop to so-called post code lotteries regarding treatment –ie. legislation guaranteeing minimum levels of treatment or equal access to drugs or procedures would be popular with voters but would be expensive and therefore unpopular with tax payers.
2. BUT expressly limiting spending on the NHS is unpopular with voters but goes down well with tax-payers.
So MPs pass the buck and decisions about resources are left to NHS professionals (doctors or managers) and in many cases to judges. Increasingly judges are being called upon to decide how NHS resources are allocated. This is done by way of judicial review or when a patient alleges that failure to carry out treatment amounts to negligence.
Now move on to main body of essay and discuss whether it is appropriate for courts to make decisions regarding resource allocation. You will discuss Judicial review and negligence actions, giving a chronological list of the cases etc.
Deal first with NHS legislation. You should discuss the National Health Service Constitution which states: “The NHS is committed to providing the best value for taxpayer’s money and most effective, fair and sustainable use of finite resources.” The NHS Constitution also states that patients have: “…the right to expect local decisions on funding of …drugs and treatments to be made rationally and following a proper consideration of the evidence.” Finally the NHS Constitution states that patients: “…have the right to drugs and treatments that have been recommended by NICE for use in the NHS, if your doctor says they are clinically appropriate…” Also care must be taken to must ensure that decisions do not ‘override a GP’s clinical judgement.” So there are many factors to consider and discuss, if you break down the above sections of the NHS constitution you can see that cost is relevant, also there is a requirement of ‘Wednesbury Reasonableness’. So who is best placed to decide such issues. Answer should be the courts by way of judicial review. See concept of justiciability. Minister for Civil Service Case per Lord Scarman where he basically stated that certain decisions are capable of being scrutinised by the courts and others are not, generally health spending is an area that the courts are willing to scrutinise.
Then discuss whether there is a right to receive healthcare. S.3 The National Health Services Act 1977 requires the Secretary of State: “to such extent as he considers necessary to meet all reasonable requirements with regard to hospital accommodation…medical, dental, nursing, ambulance services…such other facilities for the care of expectant and nursing mothers and young children as he considers appropriate…and for the prevention of illness…as he considers appropriate.”
This places decisions about health spending in the hands of politicians but the actions of politicians are subject to judicial review so we come full circle and say even when decisions about spending are placed directly in the hands of MPs the courts are still appropriate places to review those decisions.
Also you must take account of the doctor’s duty to what is best for his/her patient. Here you may argue that courts are not always very good ruling on the extent of doctor’s duty to his/her patient. Alleging that not providing treatment amounts to negligence is risky because of the Bolam Test. (Bolam v Friern HMC. ) In Bolam McNair J. stated. “A man need not possess the highest expert skill at the risk of being found negligent…it is sufficient if he exercises the ordinary skill of an ordinary, competent man exercising that particular art…The test is the standard of the ordinary skilled man exercising and professing to have that special skill.” The judge in Bolam continued: “(a doctor) is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art…Putting it the other way round a man is not negligent, if he is acting in accordance with such practice because there is a body of medical opinion who take a contrary view.” Therefore the patient has the right to competent medical treatment but the standard of care is set by the medical profession and a decision not to provide treatment will similarly not be negligent if it complies with Bolam test. See also In the case of Maynard v West Midlands HA. Lord Scarman stated: “I have to say that a judge’s preference for one body of distinguished opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed and honestly held were not preferred. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another.”
However you can then discuss attempts by the courts to mitigate the harshness of the Bolam Test In the case of Hucks v Cole, Sachs LJ. stated: “…If the court finds on an analysis of the reasons given for not taking those precautions that in the light of current professional knowledge, that there is no proper basis of the lacuna and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence.”
See also Bolitho v City & Hackney HA Lord Browne-Wilkinson stating: “The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has logical basis. In particular, in cases involving as they often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of the comparative risks and benefits and have reached a defensible conclusion on the matter.” The House of Lords thus strengthened patients’ rights against those of the medical profession by giving courts the right to decide if medical practice has fallen below the standard required by law. So you can argue here that courts are becoming more effective as places in which to challenge medical decisions and thus more appropriate in terms of the question.
Lord Woolf in “Are the Courts excessively deferential to the medical profession?” looked at the courts’ reluctance to scrutinise the actions of the medical profession. Firstly identified “the presumption of beneficence” or the reluctance of the courts to question the motives of doctors and a tendency to believe doctors rather than patients. Secondly Lord Woolf recognised that a expertise was needed to question a doctor’s actions and also that in field as wide ranging as medicine, there would be different approaches & opinions and in such cases it was understandable that the judiciary was reluctant to question a doctor’s actions. Next Lord Woolf observed that few of specialist lawyers are available to assist claimants in clinical negligence cases (also funding is in short supply, no legal aid and no-win no-fee not always available) and that even specialist lawyers were hampered by lack of information and money. The medical profession on the other hand, has the Medical Defence Union and the resources of specialist Defendant Clinical Negligence Teams did not suffer from such disadvantages and thus able to put a better case to the court and be more likely to win cases. Fourthly Lord Woolf noted that patients often had difficulty finding sympathetic medical experts willing to challenge the actions of a fellow doctor as there was a tendency for the profession to close ranks and protect there own members. Finally Woolf looked at the danger of defensive medicine becoming prevalent if the Bolam test abolished. This would lead to over treatment to avoid the risk of a claim was obviously very costly to NHS and the judiciary was reluctant to be seen as being to blame for this. These are reasons why courts are not appropriate places for deciding matters of resource allocation.
In most cases then, the judiciary are likely to be unwilling to subject the exercise of clinical judgement to scrutiny. In the case of R v North Derbyshire HA ex p. Fisher , Dyson J. stated: “When deciding whether to prescribe treatment a clinician has to have regard to many factors, including the resources available for that treatment…”
However there have been times when the ‘Bolam Test’ has been rejected. In the case of North West Lancashire HA v A, D and G the Court of Appeal stated that ‘each request for treatment must be considered on its individual merits.’ Also in Simms v Simms and an NHS Trust Butler-Sloss P. stated: “…if one waited for the Bolam test to be complied with to its fullest extent no innovative work such as the use of penicillin or performing heart transplant surgery would ever be attempted.” However there is still the problem of causation and the patient must prove that his/her injury was caused by the refusal to provide treatment. In most cases concerning refusal to prescribe experimental treatments that this will be very difficult for the patient to show that his/her injuries were caused by the denial of treatment and not by the progress of the underlying illness for which treatment was needed in the first place.
In Simms v Simms the court had to decide whether it had power to force doctors to carry out treatment when that treatment was in the patient’s best interests as doctors have a duty to act in the best interests of their patients.. In Simms the court reserved the right to scrutinise decisions taken by members of the medical profession regarding the allocation of resources but the court went on to accept it was impossible, without the parties making a separate application for judicial review, to scrutinise funding decisions taken by the health authority.
Applications for JR are very controversial. Lot of cases involving children. The courts have had top look at the issue of whether treatment can be ordered even when the treating doctors are opposed to carrying out. In the case of Re Wyatt (A Child) the court held that it was in the best interests of the patient to discontinue treatment. But in the case of An NHS Trust v B the court ordered that treatment should be continued despite medical opposition as it was in the best interests of the child. In that case the court employed a ‘balance sheet’ of the advantages and disadvantages of continuing treatment. Often called QUALYS.
Even if the patient is able to prove that he/she has been negligently refused treatment, private law may still prove an inadequate remedy because courts in negligence cases award compensation and there is no way of forcing health authorities to act.
A patient denied treatment may therefore consider challenging the decision to refuse treatment by means of judicial review. The NHS has a duty to provide medical treatment but this duty does not extend to providing every possible treatment in every possible case.
Also courts have been reluctant to allow actions to be brought against the NHS. Courts here are accepting that if Parliament will no act then it is inappropriate for them to make decisions. This was seen in the case of R v Secretary of State for Social Services ex. p Hincks where the Court of Appeal held that rights to health care, if they existed at all were not enforceable against the Minister of Health. Also in the case of R v East Devon HA ex p Coughlan the Court of Appeal stated: “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]… 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.”
Courts have accepted that the duty to provide health care qualified by the amount of resources available and if the decision not to provide treatment is based on the lack of available resources the courts will not force the NHS to reconsider.
Courts will only do this if decisions about funding are based on non-medical or personal circumstances or are found to be unreasonable .(Wednesbury). In the case of R v Central Birmingham HA ex. p Walker the court refused to make an order requiring the health authority to treat, stating: “the health authority could only do what was reasonable within their limited resources, human and financial.” In R v Central Birmingham HA ex parte Walker Donaldson MR said: “It is not for this court or indeed any court to substitute its own judgement for the judgement of those who are responsible for the allocation of resources.” In the case of R v Cambridge HA ex p B the court stated: “…judgments have to be made as to how a limited budget is best allocated to the maximum advantage to the maximum number of patients. That is not a judgment which the court can make.” And in the case of R v NW Lancashire HA ex p A and Others, the court stated: “"…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… The precise allocation and weighting of priorities is clearly a matter of judgment for each Authority…” In R (Rogers) v Swindon PCT the Court of Appeal declared a policy to restrict the availability of certain treatments unlawful because it was not based on financial considerations. Clarke MR stated: “…once financial considerations are ruled out…then the only concern which the PCT can have must relate to the legitimate clinical needs of the patient.” But As Syrett observes: “Provided cost plays a part in the decision making of a PCT…a court will allow the PCT considerable scope to do as it pleases.” Therefore to defeat an action HA just has to say that the denial of treatment was based financial reasons the patient will have great difficulty in showing that the decisions was unreasonable. Foster observes: “It is just as difficult to be Wednesbury Unreasonable as it was before.”
Also a finding in favour of the patient will not necessarily mean that the refused treatment will automatically be carried out. The court cannot make an order requiring the health authority to carry out treatment. The HA will simply be ordered to reconsider the issue and they may still reach the same conclusion and thus the courts may not be the right place to enforce patients rights.
Patients deciding how resources are spent, ie demanding treatment is obviously undesirable but The Human Rights Act 1998(HRA contains a number of provisions upon which challenges to refusal to treat may be based and the courts have shown an increased willingness to review health authority decisions . The requirement of ‘proportionality’ is an easier standard to satisfy than ‘Wednesbury Unreasonableness’ However the European Convention on Human Rights (ECHR) does not include a specific right to healthcare and in the case of Osman v UK the court held that the right to life could not be used to place “impossible or disproportionate burdens on the Authorities.” In the case of Arthur Hall & Co v Simons Lord Hoffmann considered financial burdens stating “The doctor owes a duty to the individual patient but he also owes a duty to his other patients which may prevent him from giving one patient the treatment or resources he would ideally prefer.”
There are a number of rights that can form the basis of health care actions. In particular Articles 2, 8, 9 and 12. Human Rights Act challenges are more suited to challenging decisions regarding withholding treatment and in a limited number of cases the courts have shown an increased willingness to review health authority decisions. This is particularly the case where those decisions have excluded clearly identifiable groups from treatment, for example in gender reassignment surgery cases or clinical trials.
Ethical considerations. Whoever makes the decisions – NHS managers have to take into account ethical consideration to a perhaps greeter extent than the courts, therefore it is arguable that decisions are best taken in the courts.
1. Must try to avoid the situation where the doctor is forced to tell a patient that treatment is simply too expensive to be prescribed despite its potential benefits.
2. Also doctor must be made aware of his/her duty to see that available resources are used in a manner that will do the most good to all his/her patients.
3. Also the ethics committee must ensure that its recommendations do not expose the doctor to the threat of litigation. Lack of funds to pay for treatment may not be a complete defence to an allegation of negligence.
4. Carers. Herring states: “Medication which may inhibit the progress of a condition is of huge benefit not just to the patient but those caring for him or her.”
Conclusion – when patient denied treatment / or questions about NHS spending are raised the most appropriate place to make these decisions is not always clear cut. Some argue should be left to individual doctors, or to local NHS managers or courts or finally to MPs. MPs unwilling to do anything. And wrong to leave decisions to doctors and NHS managers unchecked, there must be scrutiny and that has to be done in the courts. Courts are increasingly willing to scrutinise doctor’s decisions even those concerned with the exercise of clinical judgment. The Human Rights Act means the courts are more willing to find that decisions based on anything other than financial considerations are unlawful. But financial considerations remain the stumbling block and strangely the courts are more willing to question decisions taken by doctors than by health authority accountants.
[a] Books & Articles.
Brazier M. Medicine, Patients & the Law. 3rd ED. Penguin 2005.
Foster C. “Buying Life: The Herceptin Case in the Court of Appeal.” Solicitors Journal May 2006. P.588. Vol. 150; No 17; 558.
Jackson E. Medical Law Cases & Materials. 2nd Ed, OUP 2009.
Mason, MacCall Smith. Law & Medical Ethics. 7th ed. OUP 2005
Syrett K. “ Opening Eyes to the Reality of Scarce Health Care Resources.” (2006) Public Law 664-73.
Bolam v Friern HMC (1957) 1 WLR 587.
Bolitho v City & Hackney HA. (1997) 4 ALLER 771.
Price v UK  34 EHRR 1285.
R v Cambridge HA ex p B.  2 AllER 129.
R v East Devon HA ex p Coughlan  3 AllER 850.
R v North West Lancashire HA ex p A and Others.  1WLR 977.
R (Rogers) v Swindon PCT & Sec of State.  EWCA 392.
Re Wyatt (A Child)  EWHC 2247.
Simms v Simms and an NHS Trust.  EWHC 2734.
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