Social factors and the allocation of scarce resources

The NHS does not ordinarily take social factors into account when considering the allocation of scarce resources. In 2011, this approach was subject to judicial review on behalf of Mr Condliff, a morbidly obese former policeman. Mr Condliff had a body mass index of 40 and, due to underlying medical conditions, was deemed ineligible for open bariatric surgery. The surgery can be undertaken laparoscopically, but North Staffordshire Primary Care Trust (PCT), in whose catchment area Mr Condliff lives, does not ordinarily provide the surgery to patients with a body mass index of below 50. The PCT does, however, allow for patients to make claims for exceptional treatment by means of an individual funding review. In relation to such a review though, the PCT's policy states that:

‘In reaching a decision as to whether a patient's circumstances are exceptional, the Panel is required to follow the principle that non-clinical or social factors including social value judgments about the underlying medical condition or the patient's circumstances are never relevant.’1

According to the trust, social factors included, but were not confined to, age, gender, ethnicity, employment status, parental status, marital status and religious or cultural factors.2

Mr Condliff challenged the lawfulness of the trust's social exclusion policy claiming that it was in breach of Article 8 of the European Convention on Human Rights, the right to a private life. He also argued that the trust had failed to provide sufficient grounds for its decision and was therefore in breach of Article 6 of the European Convention on Human Rights, the right to a fair trial.

The court of first instance addressed itself to the question of whether a policy that explicitly excluded social factors was lawful. Mr Condliff argued that Article 8 imposed a positive obligation upon the relevant public body—in …