Health Care Law

Conclusion

One probable success (the case of Mrs Tonge) is not a great deal to set against the courts' overwhelming reluctance to play a part in challenging resource allocation decisions. Nevertheless, where such decisions are inherently unreasonable—for example, as Margaret Brazier has suggested,¹¹ a refusal to treat patients because they are divorced, or because they are Labour Party members—a remedy would be available through the courts. Presumably gender biased rationing decisions would similarly be susceptible to judicial review, although there might be evidential difficulties. Age-related denial of treatment would probably not in itself be considered to be ‘Wednesbury unreasonable’. If it could be shown that within the one health authority a particular patient or a group at a set age were denied treatment others at the same age received, there might be scope for an application to the courts. Evidence sufficient to satisfy judges ‘notoriously unwilling to overturn doctors' decisions’¹¹ would be hard to collect.

While courts cannot be expected to determine health care policy, their refusal to examine in any detail the decision-making processes of Health Service authorities has ratified ‘the opacity of current decision-making’.¹² Instead of forcing authorities to take decisions in a reasoned and justified manner, the courts by their very conservative application of the Wednesbury decision have allowed them to hide from public scrutiny.