Allocating Health Care Resources in an Imperfect World
| Date | 01 November 1995 |
| Author | Alan Parkin |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02057.x |
| Published date | 01 November 1995 |
November
19951
Allocating Health Care Resources
in
an
Imperfect World
Allocating Health Care Resources in an
Imperfect World
Alan
Parkin”
Introduction
Despite the publicity generated by
R
v
Cambridge District Health Authority, ex
parte
B,’
it could be argued that the decision, that courts have little or no role to
play in the allocation of health resources, represents merely the orthodox public
law position. Nevertheless, the litigation and the distressing circumstances which
lie behind it do encapsulate important issues and dilemmas within our society and it
is the purpose of this note to explore some of these. In particular, it will be argued
that to characterise this case as representing a conflict of interest between medicine
and law, as though law was trespassing on medical or health administration, is
mistaken and demonstrates a misunderstanding of the role of law in our society.*
The facts
of
the case
B,
who was then
10
years of age, had suffered a relapse of acute myeloid
leukaemia, having previously undergone two courses of chemotherapy and a bone
marrow transplant. The doctors treating her thought that further treatment would
not be in her best interests as the chances of a successful outcome were very small.
In addition, the side effects of further treatment would be severe. Although her
father found a doctor who was willing to carry out the treatment privately, this
would involve the Health Authority in an ‘extra contractual referral’ if it was to
assume responsibility for the cost, which was put at
&15,000
for the initial
chemotherapy. The cost of a further transplant if the chemotherapy was successful
was estimated at
E60,000.
Taking all these issues into account, the Health
Authority decided not to fund the treatment.
B’s
father brought an application for
judicial review.
Certiorari
was granted at first instance, although an order of
mandamus
was refused. On the same day, the Court of Appeal allowed an appeal
by the Health Authority. In the event, the treatment was funded by an anonymous
donor.
The first instance decision
The thrust of Mr Justice Laws’ reasoning is concerned with the extent to which the
Health Authority could refute what otherwise would have been an overriding
*Law School, University of Hull.
1
2
The
Times
(15
March
1995) 145
NU
415, [1995]
2
All
ER
129
(CA).
It is not without irony that a dispute
of
this nature can take place at the same time as the Law
Commission has felt it necessary to discuss the circumstances in which individual patients can take
steps to ensure that they are protected from the unwanted attentions of doctors at the end of their lives:
Law
Commission Paper
No
231,
Mental
Incupucity (London:
HMSO,
1995)
esp Part
V,
‘Advance
Statements About Health Care.
’
@
The Modern
Law
Review Limited
1995
867
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