The National Health Service and Community Care Act 1990, section 47, states that ‘..where it appears to a local authority that any person for whom they may provide or arrange the provision of community care services, may be in need of any such services, the authority shall carry out an assessment of his needs for those services, and then decide whether his needs call for the provision of them of any such services.´ This Act implies that the NHS has a definite duty to provide healthcare when required. However, access to such services will be granted on the basis of assessment of need and there is no guarantee of medical attention. Also, it would be fair to say that the NHS responsibilities really only cover the provision of the minimum healthcare needed by any patient. This is inevitable as scarce resources require an allocation of services based on an assessment of need.
A form of administrative and operational regulation created in the United Kingdom was The Patient´s Charter, which is a governmental document setting out non-legally enforceable expectations that patients can have of the health service. It set out for the first time, to try and implement the rights of citizens to such medical services from the NHS as discussed earlier. These ‘rights´ covered matters such as receiving care on the basis of clinical, emergency medical care at any time, referral to a consultant, expecting clear expectations including benefits and risks from treatments. The Patient´s Charter is to be replaced by a new NHS Charter which is more detailed and specific, placing high value on the concepts of fairness; excellence, meaning the best available service as quickly as possible; partnership; communication and the need for NHS staff to be treated with dignity and respect. The Charter differentiates between the minimum standard expected on a local as well as national level. However, it is still no more legally enforceable by courts, as it simply sets out the expected duties and standards to be attained by the NHS.
There have been many cases in the past, where patients have challenged the NHS for not fulfilling its responsibilities of properly caring for the nation´s health. One of these main cases is R v Secretary of State ex p. Hincks. Four people had been waiting for surgery for up to three years for pain relieving operations. This was longer than medically advised and so they sued the health secretary for failing to provide an adequate health service. The delay had arisen due to shortage of orthopaedic beds in the Birmingham area, partly caused by a decision not to build a new block on the hospital as there were insufficient funds. Distinguished consultants and surgeons in that area supported their complaint.
It was argued that the Secretary of State had failed to meet his duties set out in section 3 (1) of the National Health Service Act 1977: ‘It is his duty to provide throughout England and Wales, to such an extent as he considers necessary to meet all reasonable requirements – a) hospital accommodation b) other accommodation for the purposes of any services provided under this Act c) medical, dental, nursing and ambulance services´. It was claimed that all such duties must be fulfilled and any required funds in order to do so must be sought from Parliament. If it is then still unavailable, then a provision should be put into the statute to excuse the Secretary from his duty.
The Court of Appeal however, held there was no right to bring the action. It was agreed that section 3 of the Act does not impose an absolute duty. There is a necessary discretion, which includes an evaluation of financial resources available. Funds are not unlimited so the health service is only required to do its best in terms of allocation. Lord Denning said that the Minister could be considered to have failed in the discharge of the statutory duty only if his exercise of it was so thoroughly unreasonable as to be one, which no reasonable secretary could have made.
A similar case was that of R v Secretary of State ex p. Walker in 1992. This concerned a decision of the Central Birmingham Health Authority, that they were satisfied that a baby need an operation, but hat they were unable to conduct it at the time. The baby, David Walker was born premature and has been constantly monitored in hospital since birth, under the care of two consultants. He now needs an operation to repair a hole in his heart, which has been delayed due to a shortage of specially trained nurses and other facilities for the after-care in an intensive care unit. Any beds that have become free, have been taken up by other more urgent cases.
The applicant´s appeal was dismissed due to various reasons. Firstly, there was no danger to the baby and it was assured that any alarming developments would receive immediate emergency attention. The need of other more pressing cases could not be overlooked as there is always an inevitable balance of resources, making this case extremely unfortunate as well as distressing. The Court of Appeal found no unreasonableness in the decision made by the health authority or surgeons. Lord Donaldson emphasises that there will always be situations in which patients think that they are not being treated as quickly as they ought to be. He says that despite the level of funding, resources will always be finite. He also states that “It is not for this court, or any court, to substitute its own judgement for that of those who are responsible for the allocation of resources. This court could only intervene where it was satisfied that there was a prima facie case…of a failure to allocate resources to an extent which was Wednesbury...unreasonable.”
An interesting case is that of Re J (a minor) (Medical Treatment) in 1992, because a patient tried to establish a right to a certain kind of treatment. A 16-month-old boy was injured in a fall, leaving him physically and mentally handicapped. Doctors saw his level of functioning as likely to deteriorate and his life expectancy short. Until then he would require constant attention day and night. Consultants believed that it would not be medically appropriate and quite cruel to intervene with intensive measures such as artificial ventilation, if J were to suffer a life-threatening event. He would be unlikely to survive positive pressure ventilation and any such treatment would just artificially prolong his vegetative state. However, the mother brought an action to allow J to be given such life saving measures if an event arose, despite what the medical experts believed was in his best interests.
The issue in this case was whether the court in the exercise of its inherent power to protect the interests of minors, should ever require a medical practitioner to adopt a course of treatment they would not have otherwise done so. Lord Donaldson MR failed to find any circumstance when this should be the case as such decisions are the fundamental duty owed to patients by practitioners. Lord Justice Balcombe agreed with the opinion and stressed “the absolute undesirability of the court making an order which may have the effect of compelling a doctor or health authority to make available scarce resources to a particular child without knowing whether or not there are other patients to whom those resources might more advantageously be devoted”.
A slightly different case is that of R v Ethical Committee of St Mary´s Hospital (Manchester) ex p. Harriot in 1988. In this, an applicant had been turned down as a suitable foster or adoptive parent , because she had a criminal record involving prostitution offences. She sought IVF treatment but was soon removed from the waiting list. She sought judicial review of the refusal to treat her, but failed on the basis she had been given an opportunity to make representations against the refusal, so there was no procedural unfairness.
Schiemann J was prepared to accept that a policy refusing treatment ‘to anyone who was Jew or coloured´ might be illegal. But he saw the hospital´s criteria in this situation as acceptable. The hospital had abided by conditions of the 1990 Act, including that in which a woman cannot be treated with IVF unless account has been taken of the welfare of any child who may be born as a result. There is also the question of fitness to parent, which the hospital must consider. Therefore the authority was right to refuse the woman treatment based on the welfare test, which excluded her on the reasonable basis she was unfit to parent from the benefits of treatment.
So far, all the applications for judicial review have failed. However, this was not the case in R v North and East Devon Health Authority ex p. Coughlan (2000). This case involved the appellant who had a road accident in 1971 and became severely disabled. She was moved from Newcourt Hospital to Mardon House, managed by the NHS trust where she was told she could stay for as long as she chose. In 1996 the Health Authority reviewed the option for placement and care of the appellant and concluded that they did not meet the eligibility criteria for NHS care. In 1998, Mardon House was closed with no alternative provision for the appellant. On the facts, Lord Judge Sedley concluded that the applicant´s situation was such that her disabilities were serious enough to be beyond the scope of local authority services. Therefore, she was entitled to free NHS care. This case implies that nursing care is part of the function of the NHS to provide a comprehensive health service and it cannot rely on social services to wholly take on that responsibility themselves.
The right of patients is obviously subject to the availability of resources. They cannot seek judicial review merely because they didn´t get the ‘best´ treatment, but must prove it was in some way irrational. Claims made against the NHS also include when there has been a breach of statutory duty like negligence. The duty of the NHS includes the greatest care for its patients with careful consideration and accuracy taken at all times and in every procedure. However, negligence is to be expected and medical negligence claims comprise of about £2.8 billion a year of NHS spending.
A significant case was that of Clunis v Camden and Islington HA in 1997. The plaintiff received psychiatric treatment and was detained at Guy´s hospital in 1992 under the Mental Health Act 1983. He was discharged that year, but under the 1983 Act, the district health authority had an obligation to provide after-care services until authorities were satisfied he no longer needed them. However, the plaintiff failed to attend appointments at the hospital and social services were advised that he had been seen waving screwdrivers and knives and talking about devils. The police officer did not detain the plaintiff and on the same day, he suddenly killed Jonathan Zito. He then pleaded guilty for manslaughter on the grounds of diminished responsibility .
The plaintiff claimed the defendant health authority had been negligent and responsible for breaching a duty of care at common law to treat him with reasonable professional care and skill. He argues that he should have been assessed earlier, in which case he would have been detained. The defendant health authority´s appeal was allowed on two grounds. Firstly, the claim was based on the defendant´s own illegal act of manslaughter. Secondly, the statutory obligations of the defendant to provide after-care to the plaintiff under section 117 of the Mental Health Act 1983, did not give rise to a common law duty of care. Therefore, there was no failure by the authority to provide the appropriate services.
In conclusion, it would be fair to say that the obligation of the NHS to provide a comprehensive and free health service is for practical purposes unenforceable. Patients may take action against the NHS but the courts are very likely to rule in favour of the health authority concerned as it is rarely found that they have acted in a way that is irrational or illegal. Neither of the 1977 or 1990 Acts state any assurance of health provision, but an obligation to provide the best service according to need and assessment, which is dependant on available facilities. It is inevitable that there will be patients dissatisfied with the level of care offered, but it is unjust for the courts to interfere with decisions of medical allocation. However, even if there is no legal right, moral obligations and expectations of NHS authorities will not be ignored and may shape the future of health legislation.
