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Resource Allocation in the National Health Service

Published online by Cambridge University Press:  24 February 2021

Christopher Newdick
Christopher Newdick*
Affiliation:
Barrister and Reader in Health Law at the University of Reading, U.K.
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Extract

In the United Kingdom, how does the National Health Service (NHS or the Service) respond to the pressures imposed on it by patients, doctors and the government? What techniques for distributing resources have been adopted for managing these pressures? Part I of this Article explains the administrative evolution of the NHS. Part II discusses the legal framework surrounding the allocation of resources throughout the different tiers of the NHS: (1) from the Secretary of State for Health to health authorities, (2) from health authorities to hospitals and general practitioners (GPs), and (3) from doctors to patients. Part III comments on the case for a standing committee to advise the government on matters of resource allocation within the NHS. It also considers the legal, political, and managerial contributions to the debate and, in particular, comments on the future of the traditional notion of clinical freedom.

Section A describes the culture that developed within the NHS, Section B discusses the pressure for reform that developed during the 1980s, and Section C reviews the system of the “internal market” for health that was introduced in 1990.

Type
Articles
Information
American Journal of Law & Medicine , Volume 23 , Issue 2-3: Managed Care Phase Two Structural Changes And Equity Issues , 1997 , pp. 291 - 318
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1997

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References

1 See KLEIN, RUDOLPH, The New Politics of the N.H.S. (3d ed. 1995)Google Scholar, for the most authoritative account of the development of the NHS by a social scientist.

2 Ministry of Health, A National Health Service, 1944Google Scholar, Cmd. 6502, reprinted in KLEIN, RUDOLPH, The Politics of the National Health Service 10 n.10 (1983)Google Scholar.

3 See Michael Foot, 2 Aneurin Bevan ch. 8 (1973).

4 See id.

5 The modern legislation is contained in the National Health Service Act of 1977, discussedinfra Part III.A. 1.

6 See KLEIN, supra note 1, at 33.

7 See id.

8 Id. at 33.

9 See id.

10 Id. at 42.

11 Id. at 47. As he puts it, “[t]he captain shouted his orders: the crew went on as before.” Id. at69.

12 See HARRISON, STEPHEN ET AL., Just Managing: Power and Culture in the Nationalhealth Service 26 (1992)CrossRefGoogle Scholar.

13 Eng. C.A. Jan. 6, 1988 (LEXIS, Enggen Library, Cases file).

14 See ENTHOVEN, ALAIN C., Reflections on the Management of the National Healthservice—An American Looks at Incentives to Efficiency in Health Services Managementin the UK 13-15 (1985)Google Scholar.

15 See id.

16 See id. at 13, 34-37.

17 See id. at 13.

18 Id. at 13-15.

19 See id. at 38-42.

20 See id.

21 See National Health Service and Community Care Act of 1990, § 4 (Eng.).

22 See id. § 97A, amended by Health Services Act of 1995 (Eng.).

23 See id. § 4.

24 See APPLEBY, JOHN, Developing Contracts—A National Survey 10 (1994)Google Scholar.

25 Fund-holding practices are allocated specific sums of money each year to spend for thebenefit of their patients in the manner the fund-holders think most suitable. See National HealthService and Community Care Act of 1990, §§ 14, 15 (Eng.).

26 Also, much paperwork is generated by hospitals having to invoice fund-holders for servicesprovided to patients. Indeed, some hospitals have failed to issue invoices and lost their entitlementto income. At present, there is concern whether the additional efficiency savings generated by theinternal market are greater than the transaction costs associated with its management. See Audit Comm'n, What the Doctor Ordered—A Study of GP Fundholders in England and Wales ¶¶ 78, 86 (HMSO 1996)Google Scholar.

27 See Clinical Services Advisory Group, Cystic Fibrosis (HMSO, 1993)Google Scholar [hereinafter Cystic Fibrosis]; see also Clinical Services Advisory Group, Neonatal Intensive Care (HMSO, 1993) [hereinafter Neonatal Intensive Care]Google Scholar.

28 See Cystic Fibrosis, supra note 27; see also Neonatal Intensive Care, supra note 27.

29 See Department of Health, Government Response to the Reports of the Clinicalstandards Advisory Group (1993)Google Scholar.

30 See Department of Health, The Griffiths Report, NHS Management Inquiry 10 (1983)Google Scholar.

31 Id.

32 See id.

33 See id.

34 See generally NEWDICK, CHRISTOPHER, Who Should We Treat? Law, Patients and Resources in the N.H.S. 204-12 (1995)Google Scholar.

35 National Health Service Act 1977, § 97(1)-(2). substituted by Health Authorities Act 1995,§§ 2(1), 8 (Eng.).

36 See id. § 97(3).

37 See id. § 97A.

38 See National Health Service and Community Care Act of 1990, § 15(1), amended by HealthAuthorities Act 1995, § 2(1).

39 See National Health Service Executive, Hospital and Community Health Servicesresource Allocation: Weighted Capitation Formula (1944).

40 See id.

41 R. v. Secretary of State for the Environment, ex parte Nottinghamshire County Council[1986] App. Cas. 240, at 247; see also R. v. Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council [1991] 1 App. Cas. 521.

42 See Office of Health Economics, Compendium of Health Statistics (8th ed. 1992).

43 See id.

44 See APPLEBY, JOHN, Financing Health Care in the 1990’S, at 73 (1992)Google Scholar; Parkin, D., Comparing Health Service Efficiency Across Countries, in Providing Health Care: The Economics of Alternative Systems of Finance and Delivery 179 (McGuire, A. et al. eds., 1991)Google Scholar.

45 See APPLEBY, supra note 44, at 73; Parkin, supra note 44, at 179.

46 National Health Service Act of 1977, § 3 (Eng.).

47 Department of Health, The Health of the Nation (1992)Google Scholar.

48 Department of Health, The Patient’s Charter 8-10 (1991)Google Scholar. The waiting period wasreduced to 18 months in 1995. This initiative has had a dramatic effect on reducing overall waitingtimes, but there is a suspicion that some urgent cases have had to be postponed in order to includenonurgent treatments within the deadline.

49 1 B.M.L.R. 93 (Eng. C.A. 1980), available in LEXIS, Enggen Library, Cases File.

50 See id.

51 See id. at 94.

52 See id.

53 Id. at 95 (per Lord Denning MR.).

54 Id. at 97 (per Bridge L.J.).

55 See National Health Service Act of 1977, § 1(2) (Eng.).

56 See id. §§ 77-78.

57 See id.

58 Medicines are categorized as follows: (i) prescription only, i.e., only to be provided on adoctor’s instruction, (ii) pharmacy medicine, i.e., only to be dispensed by a pharmacist without theneed for a doctor’s prescription, and (iii) general sales list, i.e., may be supplied without restriction.

59 Priority Setting in the NHS: The NHS Drug Budget ¶ 878 [HC80-VII, Session 1993-1994].

60 See Office of Health Economics, supra note 42.

61 See id.

62 National Health Service Act of 1977, § 3 (Eng.).

63 Ministry of Welfare, Health and Cultural Affairs (The Netherlands), Choices Inhealth Care 90 (1992)Google Scholar.

64 This may be why NHS patients do not pay “hotel" charges involved with staying in hospital;they would be too expensive to collect. See Klein, supra note 1, at 35.

65 See WANDSWORTH, S. ET AL., Institute for Public Policy Research, Can We Affordthe NHS? 19-23 (1996)Google Scholar.

66 See Appleby, supra note 24, at 11.

67 See id.

68 See id.

69 Council of Civil Service Unions v. Minister for the Civil Service, [1985] App. Cas. 374, 410.

70 3 B.M.L.R. 32 (Eng. C.A. 1987), available in LEXIS, Enggen Library, Cases File.

71 See id.

72 See id.

73 Id.

74 See id. at 34.

75 Eng. C.A. Jan. 6, 1988 (LEXIS, Enggen Library, Cases File).

76 See id.

77 See id.

78 See id.

79 Id.

80 Re J, 4 All E.R. 614, 625 (Eng. C.A. 1992). But in Airedale NHS Trust v. Bland, 1 All E.R. 821, 879 (H.L. 1993), Lord Browne-Wilkinson stated that “it is not legitimate for a judge in reaching a view as to what is for the benefit of the one individual whose life is in issue to take into account the wider practical issues as to allocation of limited financial resources.”

81 Collier, Eng. C.A. Jan. 6, 1988 (LEXIS, Enggen Library, Cases File).

82 Id.

83 See Bowling, Ann, Health Care Rationing: The Public’s Debate, 312 British Med. J. 670 (1996)CrossRefGoogle ScholarPubMed.

84 National Health Service Executive, Guidance on Extra Contractual Referrals ¶ 51 (1993)Google Scholar.

85 See Secretary of State for Employment v. A.S.L.E.F., 2 Q.B. 455, 493 (1972). In R v. Cambridge HA, ex parte B, 2 All E.R. 129 (1995) (discussed infra), in an unreported judgment, JusticeLaws expressed sympathy for the proposition that the courts should be sure that good reasons reallydo explain why treatment of needy patients cannot be provided. He said:

merely to point to the fact that resources are finite tells one nothing about the wisdom, or .. . the legality of a decision to withhold funding in a particular case.... Where the question is whether the life of a 10 year-old child might be saved, by however slim a chance, the responsible Authority must do more than toll the bell of tight resources. They must explain the priorities that have led them to decline to fund the treatment.

Id. But these comments were not endorsed by the court of appeal.

86 Eng. C.A. Feb. 2, 1989 (LEXIS, Intlaw Library, UKCase File).

87 See id.

88 See id.

89 See id.

90 Id. (per Mustill L.J., representing the gist of the defence).

91 See id.

92 See id.

93 See id.

94 Id.

95 See id. (per Slade L.J.)-

96 See id. (per Dillon L.J.).

97 See id.

98 Id.

99 See id.

100 A recent decision of the House of Lords, however, may have the opposite effect. Stovin v. Wise considered the liability in negligence of a local authority for failing to exercise its statutorydiscretion to keep its roads safe, which failure led to a motor accident. See 3 All E.R. 801 (1996).Denying the existence of a duty of care to the plaintiff, Lord Hoffman said that

the minimum pre-conditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.

Id. at 828. One such ground is where the statute creates expectations in the community on which a party relies on the public authority. See id. at 829. This appears to have a restrictive impact on the court of appeal’s reasoning in Bull. Its effect on the liabilities of NHS Trust hospitals has yet to be assessed.

101 See National Health Service Act of 1977 (Eng.); National Assistance Act of 1948 (Eng.).

102 See National Health Service Act of 1977, § 1(2).

103 See National Assistance Act of 1948, § 22(1).

104 See Health Service Commissioner, Second Report for Session 1993-94, Case No. 197(failure to provide long-term NHS care for a brain-damaged patient).

105 See id.

106 See id.

107 See id.

108 See id.

109 See id.

110 See id.

111 See id.

112 See id.

113 See id. ¶ 18.

114 Id. ¶ 22.

115 The court of appeal appears to have taken a similar view in White v. Chief Adjudication Officer, 17 B.M.L.R. 68 (1994).

116 See National Health Service Executive, NHS Responsibilities for Meeting Continuing Health Care Needs, HSG (1995)Google Scholar. Health Service Guidelines have no direct legal force; they are administrative measures designed to assist the operation of the Service.

117 See Newdick, Christopher, Patients, or Residents?: Long-Term Care in the Welfare State, 4 Med. L. Rev. 144 (1996)CrossRefGoogle Scholar.

118 See id.

119 For differing conclusions on whether transexual surgery is medically “necessary,” compare Rush v. Parham, 625 F.2d 1150 (5th Cir. 1980), with Pinneke v. Preiser, 623 F.2d 546 (8th Cir.1980).

120 (1995) 25 B.M.L.R. 1 (Eng. C.A.).

121 See id.

122 See id.

123 Id. at 3.

124 Id.

125 See id.

126 Priority Setting in the NHS: Purchasing ¶ 113 (H.C. 134-1, Session 1994-95).

127 See Underwood, M. & Bailey, J., Coronary Bypass Surgery Should Not be Offered to Smokers, 306 Brit. Med. J. 1047 (1993)CrossRefGoogle Scholar.

128 See BRENNAN, TROYEN A., Just Doctoring: Medical Ethics in the Liberal State 176 (1991)Google Scholar.

129 National Health Service Executive, Primary Care: the Future ¶ 9.2 (1996)Google Scholar.

130 See Whitehead, M., The Health Divide, in Inequalities in Health 3055 (1988)Google Scholar.

131 Bolam v. Friern Hospital Management Committee, 2 All E.R. 118, 122 (1957). Modern lawconfirms that the courts must remain the ultimate arbiters of what is “responsible,” and be capable ofcondemning opinion despite the support of other doctors. See, e.g., Bouchta Swindon H.A., 7 Med.L. Rev. 62 (1996).

132 See generally JONES, MICHAEL, Medical Negligence (1991)Google Scholar.

133 Kendall, R., Improving Clinical Effectiveness—The Future, in Clinical Effectiveness:From Guidelines to Cost Effective Practice 138 (Deighan, M. & Hitch, S. eds., 1995)Google Scholar.

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135 See British Medical Ass'n, Medical Ethics Today—Its Practice and Philosophy app. (1993)Google Scholar.

136 See id.

137 General Medical Council (London), Contractual Arrangements in Health Care: Professional Responsibilities in Relation to the Clinical Needs of Patients8 (1992)Google Scholar.

138 Airedale NHS Trust v. Bland, 1 All E.R. 821 (1993).

139 See id.

140 Id. at 824. Note that “the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.” Id. at 869 (per Lord Goff).

141 See id.

142 See id.

143 See id.

144 Id. at 896 (per Lord Mustill).

145 Bolam v. Friern Hosp. Management Comm., 1 W.L.R. 582 (1957); see also Airedale, 1 AllE.R. 861 (1993).

146 Compare the importance attached to the patient’s own wishes in Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990). See NEwdick, supra note 34, at 276-88; Tomlin-son, Tom & Czlonka, Diane, Futility and Hospital Policy, Hastings Center Rep., May/June 1995, at 28CrossRefGoogle Scholar (recommending procedural, rather than substantive guidelines in this area).

147 Airedale, 1 All E.R. 861 (per Lord Keith).

148 Id. at 879.

149 Id.

150 See id. at 861.

151 British Medical Ass'n, supra note 135, at 300.

152 See Neuhauser, Duncan & Lewicki, Ann M., What Do We Gain from the Sixth Stool Guaiac?, 293 New Eno. J. Med. 226 (1975)CrossRefGoogle ScholarPubMed.

153 2 All E.R. 129 (1995).

154 See id.

155 Id. at 138. The patient died of her illness about a year later. See id. For a comparableapplication concerning a liver/bowel transplant for a baby, but offering greater prospects of a successful outcome, see McLaughlin v. Williams, 801 F. Supp. 633 (S.D. Fla. 1992).

156 See Murphy, Donald & Finucane, Thomas, New Do-Not-Resuscitate Policies: A First Step inCost Control, 153 Archives of Internal Med. 1641 (1993)CrossRefGoogle ScholarPubMed; Hope, Tony et al., Not Clinically Indicated: Patient’s Interest or Resource Allocation?, 306 Brit. Med. J. 379 (1993)CrossRefGoogle ScholarPubMed.

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159 See Orme, M., How to Pay for Expensive Drugs, 303 Brit. Med. J. 593 (1991)CrossRefGoogle ScholarPubMed; see also Williams, R., Can We Afford Medical Advances?’, 27 J. Royal C. Physicians 70 (1993)Google Scholar.

160 For attempts to develop concepts of rights within this “macro" approach, see Brennan, Troyen A., An Ethical Perspective on Health Care Insurance Reform, 19 Am. J.L. & Med. 46 (1993)Google ScholarPubMed, and Hall, Mark A., Rationing Health Care at the Bedside, 69 N.Y.U. L. Rev. 693 (1994)Google ScholarPubMed.

161 See Eddy, David M., Variations in Physician Practice: The Role of Uncertainty, Health Aff., Fall 1984, at 74CrossRefGoogle Scholar.

162 See id.

163 For a spectrum of judicial responses to the question, see Mariner, Wendy K., Patients'Rights After Health Care Reform: Who Decides What is Medically Necessary?, 84 Am. J. Pub. Health 1515 (1994)CrossRefGoogle Scholar.

164 The example is taken from Katskee v. Blue Cross/Blue Shield, 515 N.W.2d 645 (Neb.1994). Both the doctor and patient wanted the operation to proceed. See id. at 647-18. The courtapproached the problem under principles of contract law and interpreted the ambiguous provision inthe contract of insurance in the plaintiffs favor. See id. at 821.

165 See In re Conroy, 486 A.2d 1209 (N.J. 1985). In the absence of her own clear wish thattreatment should not be continued (the subjective test, e.g., in a living will), or the trustworthy evidence of someone else to the same effect (the limited-objective test), or that the burdens of treatmentoutweighed its benefits (pure-objective test), treatment should not be withdrawn. See id. at 1231—33.

166 See Veatch, Robert M. & Spicer, Carol Mason, Medically Futile Care: The Role of the Physician in Setting Limits, 18 Am. J.L. & Med. 15 (1992)CrossRefGoogle ScholarPubMed.

167 See Miller, Frances H., Denial of Health Care and Informed Consent in English and American Law, 18 Am. J.L. & Med 37 (1992)CrossRefGoogle ScholarPubMed.

168 Rosenberg, William & Donald, Anna, Evidence Based Medicine: An Approach to ClinicalProblem-Solving, 310 Brit. Med. J. 1122 (1995)CrossRefGoogle Scholar.

169 See Department of Health, Variations in Health—What Can The Department Ofhealth and the NHS Do? ¶ 4.60 (1995)Google Scholar.

170 See id.

171 Id.

172 See Bero, Lisa & Drummond, Rennie, The Cochrane Collaboration, 274 JAMA 1935 (1995)CrossRefGoogle ScholarPubMed.

173 See id.

174 See id.

175 See APPLEBY, JOHN ET AL., Acting on the Evidence 5 (1995)Google Scholar.

176 See Smith, R., The Poverty of Medical Evidence, 303 Brit. Med. J. 798 (1992)CrossRefGoogle Scholar.

177 See Department of Health, Clinical Outcomes Working Group, Clinical Outcome Indicators 4 (1995)Google Scholar.

178 See id.

179 Id.

180 See Department of Health, Guidelines on Admission to and Discharge From Intensive Care and High Dependency Units ¶ 3.5 (1996)Google Scholar.

181 Id.

182 Id.

183 Government Response to The First Report From The Health Committee, 1995, Cmnd. 2826, ¶ 4.

184 Id. ¶ 7.

185 Id. ¶ 8.

186 Royal College of Physicians of London, Setting Priorities in the N.H.S. ¶ 3.15 (1995)Google Scholar.

187 See National Health Service Executive, Local Voices: the Views of Local People in Purchasing for Health (1992)Google Scholar; see also Fleck, Leonard, Just Health Care Rationing: A Democratic Decisionmaking Approach, 140 U. Pa. L. Rev. 1579 (1992)CrossRefGoogle ScholarPubMed.

188 See Ham, Chris, Priority Setting in the NHS, 307 Brit. Med. J. 435 (1993)CrossRefGoogle ScholarPubMed.

189 See HUNTER, D., Ationing Dilemmas in Health Care 27 (1993)Google ScholarPubMed.

190 See, e.g., Priorities in Health Care, Swedish Government Official Reports, 5:1995, 136;Choices in Health Care, Government Committee on Choices in Health Care, The Netherlands, 1991.

191 Priorities in Health Care, supra note 190, at 136.

192 See Choices in Health Care, supra note 190.

193 See id. at 87-90.

194 See Katskee v. Blue Cross/Blue Shield, 515 N.W.2d 645 (1994) (whether a genetic predisposition to cancer is an illness, even before the condition becomes manifest).

195 See Mulley, Albert G. & Eagle, Kim A., What Is Inappropriate Care?, 260 JAMA 540 (1988)CrossRefGoogle ScholarPubMed.

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