With an increasing recognition of the squeeze on NHS services, attention is turning to the legality of provider policies on rationing expenditure. But the approach has been well tested and should continue, argues Tony Yeaman

Scarcely a week goes by without a public figure speaking out on the predicament facing the NHS. Senior MPs have warned that it is crunch time, with more funding needed if the NHS is to avoid collapse.

‘There is already judicial recognition that rationing of expenditure is sadly inevitable’

Despite greater optimism about the economy, NHS finances and the rationing of funds remain a political hot potato.

Martin McShane, NHS England’s director for people with long term conditions, underscored this issue in January when he argued that the massive increase in the number of people with chronic conditions such as diabetes and dementia was threatening to “overwhelm” the NHS and represents the “healthcare equivalent to climate change”.

Caring for 15.4 million people in England with at least one long term condition already takes up 70 per cent of the NHS’s £110bn budget, as well as just under £11bn of the £15.5bn spent on social care in the country. Now the debate is starting to include conversations on whether to charge patients.        

Plaster

A survey by Doctors.net.uk found 32 per cent of 800 GPs supported charging patients for visits to accident and emergency, as it is believed 30-40 per cent of these visits are unnecessary; and charging would ease the crisis in emergency care in relation to problems that can be dealt with by them. However, the British Medical Association and the Royal College of GPs are opposed, arguing that this penalises the poorest.

In March, former Labour health minister Lord Warner urged everyone to pay a £10 per month NHS “membership charge” to prevent it from sliding into a decline that threatens its very existence.

In a report written for think tank Reform, Lord Warner said dramatic action is needed as the NHS faces an expected £30bn a year gap by 2020 between demand for healthcare and its ability to respond.

Weight of reform

On top of this are proposed reforms following reviews into care and the health service over the last 18 months, with Francis, Berwick and Keogh being key. With the new statutory duty of candour, the financial challenges look harder than ever.

It is useful from a legal point of view that there is already judicial recognition that rationing of expenditure, in the guise of withholding or refusing certain treatments, is sadly inevitable, with the availability of certain treatments being restricted.

‘A failure to make rationing decisions would mean the irresponsible diversion of valuable resources away from patients’

The courts have made this clear in decisions about experimental cancer treatments, where it was felt that a failure to make rationing decisions would mean the irresponsible diversion of valuable resources away from the majority of patients to benefit a smaller cohort.

The court noted in the leading case authority on this issue that, ideally, treatment would be provided regardless of cost, but to believe this was possible would be impractical, and health bodies have had to regard resources in determining what treatments they could provide.

Updating policies

There have been further decisions where providers’ policies and therefore funding decisions have been found to be unlawful. But the providers, rather than being required to provide the treatment sought, have instead had to make the necessary policy amendments to bring these into line with the law.

The courts have, for example, previously accepted a primary care trust’s case that it could, in exercising a rational approach to treatments, rule out funding in cases where clinical effectiveness was not proved.

‘There is recognition that resources are limited and rationing inevitable, leading to focus on the legality of the provider policies’

Similarly, courts have rejected assertions that an individual’s human rights were being breached by an individual funding request policy which provided that non-clinical, social factors could not be taken into account when determining exceptionality.

The minutiae of the law surrounding rationing, while lengthy and detailed, is well established. Doubtless, decisions refusing funding will continue to be challenged, but there is clear recognition from the judiciary that resources are limited and rationing inevitable, leading to a focus on the legality of the provider policies on rationing.

These have been well tested and should continue, whatever structural, systemic or simply financial solutions are put in place for the NHS.

Tony Yeaman is national head of healthcare at Weightmans LLP

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