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*. Lecturer, School of Law, Queen Mary University of London. The author is grateful to Conor Gearty, Thomas Poole, Carol Harlow, Peter Littlejohns and the two anonymous reviewers for their useful comments on previous versions of this article. The usual disclaimer applies.
I.
Introduction
Patients have been resorting to the courts in many jurisdictions to challenge administrative decisions which deny them the funding of health treatments by public health systems. This phenomenon is the topic of several case studies and comparative analyses aimed at understanding the actual and potential impact of adjudication on health systems and, in particular, how litigation affects fairness in the access to health care. It has also provoked a normative debate about whether, and if so to what extent, judges should get involved in decisions regarding the allocation of health care resources.1
English2courts are no exception as they have been judging claims against health care rationing decisions for over 30 years. Even so, the impact of this sort of litigation on the National Health Service (NHS) has not received much attention from the social rights literature compared to the copious scholarship on the same phenomenon in jurisdictions such as Canada, South Africa, Brazil and Colombia.3This lack of interest is most likely due to the absence of a justiciable right to health written in legislation and a general perception that English courts usually refrain from interfering with discretionary allocative decisions and issues of social policy.
However, this lack of attention to the case of England is a serious lapse in this literature. The English case law offers a wide spectrum of responses to the dilemma between holding decision-makers in the NHS accountable and recognising their expertise and constitutional role. England is also a jurisdiction in which adjudication has contributed to produce incremental, but significant and enduring, changes in the way the health system makes rationing decisions. This article aims at filling this gap and, by doing so, it will offer contributions not only to the literature on social rights but also to the public law, medical law and socio-legal studies scholarship.
The English case law on health care rationing can be divided into two stages. This...