Resource Allocation and the Duty to Give Reasons

Health Care Analysis 14 (3):145-156 (2006)

In a much cited phrase in the famous English ‘Child B’ case, Mr Justice Laws intimated that in life and death cases of scarce resources it is not sufficient for health care decision-makers to ‘toll the bell of tight resources’: they must also explain the system of priorities they are using. Although overturned in the Court of Appeal, the important question remains of the extent to which health-care decision-makers have a duty to give reasons for their decisions. In this paper, I examine the philosophical foundations of the legal obligation to give reasons in English law. Why are judges sometimes supportive of the imposition of a duty to give reasons and sometimes not? What is it about the context of life and death health care allocation problems that makes it unsuitable in their view for such a duty; and is this stance justified? What is it to give a reason for a decision? I examine Frederick Schauer’s account of reason-giving in terms of generalisation and commitment and I suggest that it provides an overstated account of what giving a reason commits one to. I go on to examine an idea of judicial creation: that where value judgements are “inexpressible” there is a strong reason not to impose a duty to give reasons on to public bodies. The strongest case for a duty to give reasons is in terms of the value of respect for citizens. I argue that there is nothing in the very nature of reason-giving that ought to preclude the imposition of such a duty in this context, but concede that there is a serious danger of legalism that could result in a hamstringing of health care decision-making. It is up to judges and lawyers to seek to avoid this danger
Keywords Autonomy  ‘Child B’  Duty to give reasons  Incommensurability  Reasons  Resource allocation  Tragic choices  Value Judgements in Law
Categories (categorize this paper)
DOI 10.1007/s10728-006-0024-6
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 39,711
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

Add more citations

Similar books and articles

The Case for a Duty to Research: Not yet Proven.Iain Brassington - 2014 - Journal of Medical Ethics 40 (5):329-330.
How Should INGOs Allocate Resources?Scott Wisor - 2012 - Ethics and Global Politics 5 (1):27-48.
Reproductive Reasons and Procreative Duty.James McBain - 2013 - International Journal of Applied Philosophy 27 (1):67-74.
Legal Obligation as a Duty of Deference.Kimberley Brownlee - 2008 - Law and Philosophy 27 (6):583 - 597.
Responsibility in Negligence: Why the Duty of Care is Not a Duty “To Try”.Ori J. Herstein - 2010 - Canadian Journal of Law and Jurisprudence 23 (2):403-428.


Added to PP index

Total views
197 ( #32,446 of 2,328,397 )

Recent downloads (6 months)
3 ( #548,982 of 2,328,397 )

How can I increase my downloads?


My notes

Sign in to use this feature