This paper examines the law relating to healthcare resource allocation in England. The National Health Service (NHS) Act 1977 does not impose an absolute duty to provide specified healthcare services. The courts will only interfere with a resource allocation decision made by an NHS body if that decision is frankly irrational (or where the decision infringes the principle of proportionality when a right under the European Convention on Human Rights (ECHR) is engaged). Such irrationality is very difficult to establish. The ECHR has made no significant contribution to domestic English law in the arena of healthcare provision. The decision of the European Court in the Yvonne Watts case establishes that, in relation to the question of entitlement to seek treatment abroad at the expense of the NHS, a clinical judgment about the urgency of treatment trumps an administrative decision about waiting list targets. That decision goes against the grain of domestic law about healthcare allocation, but is not likely to have wide ramifications in domestic law.
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↵ii The exact nature and the mechanism of the importation of the ECHR into English law are complex and for these purposes irrelevant.
↵iv Article 14 provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
↵v The general attitude of the English courts in resource allocation cases to attempts to use European Directives to widen general principles of domestic law is shown well in R (on the application of Pfizer Ltd) v Secretary of State for Health.31
↵vi Article 22 of Regulation 1408/71 and Article 49 of the EC Treaty. The question of whether other contracting states have similar obligations to their nationals which they could discharge by paying for treatment abroad, so effectively requiring contracting states which do not otherwise have a publicly funded healthcare system to pay for one, is a complex one, which is outside the scope of this paper.
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