Abstract
Health care is not just about the rights of individuals. It is part of a larger endeavour to secure optimum performance from finite funds for a community of patients and to do so fairly, safely and effectively. At a time of economic austerity, questions arise about affordability. Health economists refer to this as “opportunity cost” because choices to commit finite funds to particular purposes prevent those funds being available for other purposes. Inevitably, choices that favour the needs of individuals (what I call the “individualist” approach) tend to disfavour the needs of communities (what I call the “community” approach). My purpose is to discuss the limitations of the “individualist” approach to rationing and the need for clearer population-based objectives in health care. By itself, the individualist approach is not equipped to respond to the challenges presented by scarce resources, especially in the light of the increase in chronic, “lifestyle” diseases. I do not deny the importance of the individual perspective but argue that we need to rebalance the debate.
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Notes
- 1.
Clinical commissioning groups replaced primary care trusts as the commissioners of NHS care from April 2013. See the Health and Social Care Act 2012. For convenience, the word “commissioner” is used to describe the public function of purchasing health care on behalf of a community..
- 2.
See the National Health Service Act 2006, s 1.
- 3.
Under the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002, SI 2002, No 2375.
- 4.
See Secretary of State’s Directions on the National Institute for Clinical Excellence 2003.
- 5.
See generally Newdick (2005a).
- 6.
In truth, although it is easy to find single-issue pressure groups, finding genuine representatives of “public” interests is more difficult.
- 7.
“Each of the [NHS bodies] must, in performing its functions, have regard to the NHS Constitution [and] Each person who provides NHS services under a contract, agreement or arrangements [inc PMS and GMS] must, in doing so, have regard to the NHS Constitution” (Health Act 2009, s2).
- 8.
For the evolution of case law in this area, see Newdick (2005b).
- 9.
NHS Constitution, Principle 1(6).
- 10.
Defining Guiding Principles for Processes Supporting Local Decision Making About Medicines, 3 and 14.
- 11.
Direction to PCTs and NHS trusts concerning decisions about drugs and other treatments, 2009.
- 12.
NHS Constitution, Principle 2a.
- 13.
Direction to PCTs and NHS trusts concerning decisions about drugs and other treatments, 2009.
- 14.
Defining Guiding Principles for Processes Supporting Local Decision Making About Medicines, 23.
- 15.
See http://www.berkshire.nhs.uk/ search: priorities, containing the South Central Ethical Framework and the 170 treatment recommendations made within it. The author is a founder member of the committee which commenced work in 1999. This accountability for reasonableness approach is championed in Daniels (2008), chapter 4, and Daniels and Sabin (2008), chapters 3 and 4. See also chapter “Accountability for Reasonableness and Priority Setting in Health”.
- 16.
Exceptional circumstances are considered below.
- 17.
The lawfulness of this approach was confirmed by the Court of Appeal in AC v Berkshire West PCT and the EHRC [2011] EWCA Civ 247, concerning the interaction of two policies on (a) transgender treatment and (b) cosmetic surgery. The former permitted transgender surgery, but the latter excluded cosmetic surgery. The applicant was a male-to-female transgender patient who wished to have her breasts enhanced. Consistent with the cosmetic policy, the health authority refused the treatment in order to preserve consistency with other female patients with small breasts. The Court of Appeals upheld the lawfulness of the policy.
- 18.
See NHS Expenditure in England (HC Library, SN/SG/724, 2009): www.nhshistory.net/search: keywords.
- 19.
Our Health and Wellbeing Today (HM Government 2010), paras 3.6–7.
- 20.
See Fair Society, Healthy Lives (The Marmot Review 2010).
- 21.
Closing the Gap in a Generation – Health equity through action on the social determinants of health (WHO 2008) 120.
- 22.
See Health Inequalities (HC 286-1, Third Report, 2008–09) 26. Within each social class, differentials of health status exist between gender (men worse than women), age (old worse than young) and ethnic sub-groups (South Asians worst); see ibid. 18 and 59. See also Tackling Inequalities in Life Expectancy in Areas with the Worst Health Deprivation, HC 186 Session 2010–11, 26.
- 23.
- 24.
The debate is clearly discussed by Holland (2007).
- 25.
See, e.g., Enabling Effective Delivery of Health and Wellbeing (DoH, 2010), 21. In Healthy Lives, Healthy People – Update and Way Forward (2011, HM Government), 5: “The bold changes… are a response to the challenges we face to the public’s health. For example, two out of three adults are overweight or obese; and inequalities in health remain widespread, with people in the poorest areas living on average 7 years fewer than those in the richest areas, and spending up to 17 more years living with poor health.”
- 26.
Sure Start schemes are described at www.dcsf.gov.uk/ search: every child matters.
- 27.
Fair Society, Healthy Lives (The Marmot Review 2010) 38.
- 28.
Tackling Inequalities in Life Expectancy in Areas with Worst Deprivation (HC 470, Third Report of Session 2010–11) 5.
- 29.
Interest is being shown in “libertarian paternalism”; see Nudge – improving decisions about health, wealth and happiness (Penguin Books 2009). However, this argument is framed firmly within the “libertarian” tradition in which individual choice is dominant. It does not claim to have a “community” perspective. Some will doubt whether lifestyle diseases established over many generations will be amenable to such a policy. See Menard (2010).
- 30.
The Government’s Response to the Health Committee Report on Health Inequalities (2009, Cm 7621), para 54 (figures taken from Prevention and Preventative Spending Health England Report No 4 (2009), 4). The European average is about 2.9 %.
- 31.
At present, no one seriously suggests individuals should be coerced into healthy lifestyles, although there is talk of “libertarian paternalism” and “stewardship.” As the avoidable costs of ill health escalate and impacts on others, there may be discussion of more forthright paternalism in this area. See, generally, Public Health: Ethical Issues (Nuffield Council of Bioethics 2007) chapter 1.
- 32.
For a US perspective on last chance treatments, see N Daniels and J Sabin, (note 15) chapter 5.
- 33.
See Incentives for Prevention (Health England Report No 3, 2009), 3 discussing the “politics” that can stand in the way of public health policies.
- 34.
Barrett et al. (2006). In one case in which a senior manager was held to have been unfairly treated, the court said: “As a bystander at the execution of Admiral Byng explained to Candide: “Dans ce pays-ci, il est bon de tuer un amiral de temps en temps pour encourager les autres.” It seems that the making of a public sacrifice to deflect press and political obloquy, which is what happened to the appellant, remains an accepted expedient of public administration in this country”, Gibb v Maidstone and Tonbridge Wells NHS [2010] EWCA Civ 678, [42], Sedley LJ.
- 35.
Although this does not represent the legal position because once statutory powers are delegated from central government to another statutory body, all the delegated powers are transferred to the delegee. See Blackpool Corporation v Locker [1948] 1 KB 349.
- 36.
- 37.
Otley v Barking and Dagenham PCT [2007] EWHC Admin 1927; [2007] LS Law 593, para 20.
- 38.
See, e.g., Supporting rational local decision-making about medicines (and treatments) (National Prescribing Centre 2008) 42.
- 39.
Otley, at para 20.
- 40.
See Case C-372/04 R(Watts) v Bedford PCT and the Secretary of State [2006] ECR I-4325, para 103. For criticism of the shortcomings of the ECJ’s reasoning in these cases, see Newdick (2006b).
- 41.
See Newdick (2008), discussing the failure of the ECJ to consider these matters.
- 42.
Case C-512/08 Commission v France [2010] ECR I-0000.
- 43.
Art 6(1). Non-hospital treatment may be obtained on a substantive-rights basis.
- 44.
Art 8(1).
- 45.
See N Daniels, (note 15) ch 3, asking “When Are Health Inequalities Unjust?” and using Rawls’ Difference Principle to assist his analysis.
- 46.
- 47.
Health Checks are now undertaken by the Care Quality Commission; see generally www.cqc.org.uk/ search: annual health check.
- 48.
See evidence of Dr Richard Harrad, Clinical Director of the Bristol Eye Hospital, to the House of Commons Public Administration Committee. See On Target – Government by Measurement (HC 62-1, 2003) paras 52–53.
- 49.
See the Investigation into Mid Staffordshire NHS Foundation Trust (Healthcare Commission, March 2009) para 49.
- 50.
ibid. 129.
- 51.
ibid. 134–35.
- 52.
Investigation into outbreaks of Clostridium difficile at Stoke Mandeville Hospital, Buckinghamshire Hospitals NHS Trust (Healthcare Commission, July 2006) 6.
- 53.
Investigation into Outbreaks of Clostridium difficile at Maidstone and Tunbridge Wells NHS Trust (Healthcare Commission, October 2007) 111, 113.
- 54.
Patient Safety, Sixth Report of Session 2008–09 (HC 151-I, 2009) para 300.
- 55.
Bevan and Hood (2006).
- 56.
See Le Grand (2006).
- 57.
See also O’Neill (2002).
- 58.
“Fear of numbers” has been identified as a sign of “ethical collapse”. See Jennings (2006).
- 59.
See Health Inequalities (HC 286-1, Third Report, 2008–09), 26. It is estimated that 80–85 % of variation in PCTs’ mortality statistics are caused by socio-economic factors outside the control of health care, such as poverty, intelligence and ethnicity.
- 60.
“Public finances are likely to come under pressure over the longer term, primarily as a result of an ageing population… Government would end up having to spend more as a share of national income on age-related items such as pensions and healthcare. But the same demographic trends would leave government revenues roughly stable as a share of national income. In the absence of offsetting tax increases or spending cuts this would eventually put public sector net debt on an unsustainable upward trajectory…The UK, it should be said, is far from unique in facing such pressures.” See Fiscal Sustainability Report 2011 (Office for Budget Responsibility) paras 4 and 5.
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Acknowledgements
Grateful acknowledgement is made to Maklu Publishers, Antwerpen, Apeldoorn and Portland for permission to republish this work which, subject to minor updating, originally appeared in Rationing Health Care: Hard Choices and Unavoidable Trade-offs (2012, edited by André den Exter and Martin Buijsen).
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Newdick, C. (2016). Rebalancing the Rationing Debate: Tackling the Tensions Between Individual and Community Rights. In: Nagel, E., Lauerer, M. (eds) Prioritization in Medicine. Springer, Cham. https://doi.org/10.1007/978-3-319-21112-1_11
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