Litigation and resource Allocation of Healthcare in the NHS.

‘...question is whether the policy was rational... which could justify the pct refusing treatment to one woman within the eligible group but granting it to another... discrimination between patients in the same eligible group cannot be justified... the policy of the pct is irrational...’

There are however a  drawbacks to litigation being a viable means of resource allocation for a number of reasons. Newdick and Syrett outline that individualistic claims for judicial review of resource allocation decisions divert vital finite financial resources from the NHS into litigation proceedings which inevitably affects other patients’ access to healthcare. Newdick and Syrett highlights that, ‘treatment for one patient is likely to affect others’ and that an ‘individual cannot be considered in isolation from those of the public as a whole.’ Syrett outlines that individual litigation claims, ‘risks both imperilling medicine's role as social practice and diverting finite physical and financial healthcare resources toward the courtroom.’ This illustrates impracticality of using litigation as a means of resource allocation; unintentionally judicial review fuels the issue of limited resources within the NHS. This was the reasoning of the Court in R (on the application of F) v Oxfordshire Mental Health NHS Trust [2001] the Court stated, ‘decisions involving the allocation of scarce resources... granting one request will inevitably mean refusing others should not be judicialised... difficult decisions... will not be made any easier... if... encumbered with legalistic procedures’ this is seconded by Sir Thomas Bingham MR who asserted, ‘common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot...build all the hospitals and specialist units they would like.’

Newdick and Syrett outline that dangers of legal intervention in health care decisions highlighting the British Columbia case Auton v British Columbia (2004) in this case the Court, ‘insisted that autistic children have access to treatment for their condition’ without reference to the effectiveness of the treatment, the cost and from whom ‘the resources would be diverted’ from to fund it. The decision demonstrates the dangers of the courts involvement in resource allocation decisions.

Syrett asserts that litigation may leave patients with, ‘unrealistic expectations that [C]ourts can assist patients by increasing NHS funding.’  Furthermore Dobson J in the case of Eisai Ltd v National Institute for Health and Clinical Excellence (NICE) [2007] highlighted that Courts’ lack expertise in the medical field, proving that they lack to tools to sufficiently decide upon the reasoned judgments of health care experts’ exampling that they are not the best means of resource allocation. The, ‘[C]ourt has no part to play in adjudicating between the rival merits of the arguments of the experts.’ Syrett furthers this by remarking ‘the court lacks the appropriate expertise to resolve such matters.’ Newdick to summarise asserts, ‘treatment and litigation are both costly.’

In light of litigation not being the best method for resource allocation due to the Court’s lack of expertise and financial pressures it places upon the NHS budget. Organisations within the NHS such as PCT remain responsible for managing the budget allocated to the NHS while interpreting National Institute for Clinical Excellence (NICE) guidelines and carrying out many resource allocation decisions which NICE has not addressed.

A large number of resource allocation decisions are carried out by clinicians (nurses, general practitioners, hospital consultants) who decide at the point of a patient seeking medical assistance whether or not to treat them; these decisions occur at micro level within the NHS. Macro level resource allocation decisions, ‘are made by the treasury, which allocates resources between government departments including the department of health. Within those constraints, the department of health allocates resources to health authorities’

Hasman et al derived from their study that those who make decisions at micro level, ‘considered clinical effectiveness, cost effectiveness, gross cost, equality and political directive as the most important’ when allocating resources. Jackson however has argued that doctors do not consciously apply rationing to decisions, in day to day practice; at the most ‘If a patient is suffering from symptoms which are very likely to be caused by a minor illness but there is a remote chance that there is something much more serious wrong with them the doctors will adopt a wait and see approach.’ 

 The Government plays a minor role in the allocation of resources, as it has refused to create a framework for resource allocation decisions. It has not created substantive rights to health care in light of limited resources; it did however, ‘in January 2009 produce the first NHS constitution, setting out patients’ rights and responsibilities within the NHS.’ This has influenced resource allocation decisions to a certain extent.

 

In further reference to NICE, Dent and Sadler outline its functions:

NICE... giving guidance on interventions of uncertain value and providing clinical guidelines and clinical audit packages...NICE's decisions are based on an assessment of the technology, usually prepared by independent researchers commissioned by the Health Technology Assessment programme.  

Although many commentators have argued that NICE has been a success, many have asserted that it is not an effective body for the allocation of resources. Syrett has outlined ‘that there are doubts as to whether cost-effectiveness analysis, which is central to the decision-making process of the NICE Appraisal Committee, is consonant with societal values  while Sabin and Daniels argue NICE ‘should incorporate social value judgments into its recommendations to the [NHS]... it gives no priority to worst off (sickest) patients; it aggregates benefits, even trivial ones, so that curing headaches for many people might outweigh saving a few lives.’

Furthermore many commentators have argued that NICE reliance on Quality Adjusted Life Year (QALY) technique is an insufficient method of resource allocation. Bate et al assert that ‘even interventions with a low incremental cost per QALY still require extra resources.’ While Norheim asserted, ‘more work needs to be done on methods for quantifying the distribution of QALYs.’

 Alternatives to current methods of resource allocation have been posed by a number of commentators from an ethical, economic and clinical perspective. Donaldson et al from the economic perspective suggest that PCT can eliminate waste of resources by implementing, ‘programme budgeting and marginal analysis.’  Donaldson et al give an example of ‘a trust in the east of England[that]  used this process to release resources from services that were of little value to mental health patients...’  they assert that by not funding unnecessary services, financial resources were better allocated to greatly needed treatments. Furthermore Donaldson et al suggest that there is a tension between national decisions and local health needs; they suggest that there should be a greater focus on local resources allocation decisions which will help to ‘avoid the continuing cycle of boom and bust in health care’ as these frameworks will be better tailored to these regional needs.

Norheim from the clinical perspective argues for an enhancement of the fairness of resource allocation decisions. Norheim asserts that patients with similar disease of the same severity should be given equal priority by clinicians. In addition Norheim outlines that clinicians, ‘should not always fight for more resources for their patients if this leads to lower priority for other patient groups with stronger claims.’ In furtherance to this he adds that clinicians should make transparent choices.

Daniels and Sabin from the ethical perspective argue that ‘decision makers should be accountable for the reasonableness of their decisions...’ that the process must be public (fully transparent) about the grounds for its decisions...’ and that, ‘decisions should be revisable in light of new evidence and arguments...’

In light of the suggested changes to current resource allocation methods; litigation is not a viable means for resources to be allocated within the NHS. Resource allocation should still be carried out by PCT while NICE guidelines should still be considered, however these bodies along with Health Authorities should create frameworks which are tailored to the needs of the different regional populations in Britain.

 

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