This page intentionally left blank Law, Legitimacy and the Rationing of Healthcare A Contextual and Comparative Perspective Keith Syrett argues for a reappraisal of the role played by public law adjudication in questions of healthcare rationing. As governments worldwide turn to strategies of explicit rationing to manage the mismatch between demand for and supply of health services and treatments, disappointed patients and the public have sought to contest the moral authority of bodies making rationing decisions. This has led to the growing involvement of law in this field of public policy. The author argues that, rather than bemoaning this development, those working within the health policy community should recognise the points of confluence between the principles and purposes of public law and the proposals which have been made to address rationing’s ‘legitimacy problem’. Drawing upon jurisprudence from England, Canada and South Africa, the book evaluates the capacity of courts to establish the conditions for a process of public deliberation from which legitimacy for healthcare rationing may be derived. DR KEITH SYRETT is a Solicitor and Senior Lecturer in Law at the University of Bristol. Cambridge Law, Medicine and Ethics This series of books was founded by Cambridge University Press with Alexander McCall Smith as its first editor in 2003. It focuses on the law’s complex and troubled relationship with medicine across both the devel- oped and the developing world. In the past twenty years, we have seen in many countries increasing resort to the courts by dissatisfied patients and a growing use of the courts to attempt to resolve intractable ethical dilemmas. At the same time, legislatures across the world have struggled to address the questions posed by both the successes and the failures of modern medicine, while international organisations such as the WHO and UNESCO now regularly address issues of medical law. It follows that we would expect ethical and policy questions to be integral to the analysis of the legal issues discussed in this series. The series responds to the high profile of medical law in universities, in legal and medical practice, as well as in public and political affairs. We seek to reflect the evidence that many major health-related policy debates in the UK, Europe and the international community over the past two decades have involved a strong medical law dimension. Organ retention, embry- onic stem cell research, physician-assisted suicide and the allocation of resources to fund health care are but a few examples among many. The emphasis of this series is thus on matters of public concern and/or practical significance. We look for books that could make a difference to the development of medical law and enhance the role of medico-legal debate in policy circles. That is not to say that we lack interest in the important theoretical dimensions of the subject, but we aim to ensure that theoretical debate is grounded in the realities of how the law does and should interact with medicine and health care. General Editors Professor Margaret Brazier, University of Manchester Professor Graeme Laurie, University of Edinburgh Editorial Advisory Board Professor Richard Ashcroft, Queen Mary, University of London Professor Martin Bobrow, University of Cambridge Dr Alexander Morgan Capron, Director, Ethics and Health, World Health Organization, Geneva Professor Jim Childress, University of Virginia Professor Ruth Chadwick, Cardiff Law School Dame Ruth Deech, University of Oxford Professor John Keown, Georgetown University, Washington, D.C. Dr. Kathy Liddell, University of Cambridge Professor Alexander McCall Smith, University of Edinburgh Professor Dr. Mo´nica Navarro-Michel, University of Barcelona Marcus Radetzki, Marian Radetzki, Niklas Juth Genes and Insurance: Ethical, Legal and Economic Issues 978 0 521 83090 4 Ruth Macklin Double Standards in Medical Research in Developing Countries 978 0 521 83388 2 hardback 978 0 521 54170 1 paperback Donna Dickenson Property in the Body: Feminist Perspectives 978 0 521 86792 4 Matti Ha¨yry, Ruth Chadwick, Vilhja´lmur A ´ rnason, Gardar A ´ rnason The Ethics and Governance of Human Genetic Databases: European Perspectives 978 0 521 85662 1 Ken Mason The Troubled Pregnancy, Legal Wrongs and Rights in Reproduction 978 0 521 85075 9 Daniel Sperling Posthumous Interests: Legal and Ethical Perspectives 978 0 521 87784 8 Law, Legitimacy and the Rationing of Healthcare A Contextual and Comparative Perspective Keith Syrett CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK First published in print format ISBN-13 978-0-521-85773-4 ISBN-13 978-0-521-67445-4 ISBN-13 978-0-511-37880-5 © Keith Syrett 2007 2007 Information on this title: www.cambridge.org/9780521857734 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written p ermission of Cambrid g e University Press. Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not g uarantee that any content on such websites is, or will remain, accurate or a pp ro p riate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org paperback eBook (NetLibrary) hardback To the memory of my father and of my mother [...]... ‘Problems of Medical Law’, in S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (Oxford: Clarendon Press, 5th edn, 2003) at 263 12 Law, Legitimacy and the Rationing of Healthcare healthcare resources are not present elsewhere The mismatch between the demand for, and supply of healthcare resources which is analysed in Chapter 2 presents a political (and increasingly, a legal) challenge... for a more positive evaluation of the role of law, and particularly of the courts, in this field However, working from the premise that a proper appreciation of the function of law cannot be developed in isolation from the socio-political environment in which it operates, it is necessary also to attain an understanding of the character of allocative decisionmaking in healthcare and of the nature of the. .. resources and the financing of healthcare in three jurisdictions: England, Canada and South Africa In view of the growing involvement of the legal process in this arena of public policy, a characteristic which is readily apparent from the Herceptin example, such an analysis appears crucial to the development of a full understanding and critique of this form of allocative decisionmaking However, Chapters... to offer an exhaustive account of the statute and case law relating to the allocation of scarce Introduction 11 healthcare resources in any individual jurisdiction, and readers with an interest in such analysis are advised to look elsewhere.43 Rather, the intention is to present a critical reading of public law adjudication which emphasises the facilitative capabilities of legal principles, values and. .. demand and supply in this area By contrast, Chapters 4 and 5 focus primarily upon the theoretical context Drawing upon recent academic analyses of health policy and, more broadly, upon theories of democracy, Chapter 4 will seek to explain why rationing (in particular, the explicit variant) has generated a problem of legitimacy for those who must make decisions on the allocation of scarce healthcare. .. http://news.bbc.co.uk/1/hi/england/staffordshire/4430036.stm (accessed 8 January 2007) ‘Breast Cancer Campaign’, The Sun, 30 September 2005 4 Law, Legitimacy and the Rationing of Healthcare The issue was also regularly raised in both Houses of Parliament,15 was discussed in Select Committee16 and was the subject of both a private members’ debate in Westminster Hall17 and an Early Day Motion sponsored by the shadow Health Secretary.18... necessitate the making of value judgments, raising the issue of who should make rationing decisions, which is explored in Chapter 3 20 Law, Legitimacy and the Rationing of Healthcare of the resource, or of the degree of the patient’s need for the service This approach has been adopted in part because the book’s focus upon publicly funded healthcare necessarily inclines towards acceptance of those understandings... and activation of internal and external mechanisms for appeal and review Indeed, perhaps paradoxically, the techniques of ‘evidence-based medicine’ actually served to fuel the controversy in this instance, in that the campaign to make Herceptin available on the NHS for those suffering from early-stage breast cancer was largely stimulated by the results of the three major international clinical trials... rights, as distinct from judicial review of the legality of administrative decisions and actions This aspect of the discussion may therefore be regarded as a contribution to the literature on the relationship between law, human rights and healthcare. 48 46 47 48 For discussion, see Coulter and Ham (eds.), The Global Challenge of Health Care Rationing; C Ham and G Robert (eds.), Reasonable Rationing. .. 14 Law, Legitimacy and the Rationing of Healthcare this extent the book’s argument that the function of law in this context merits fresh evaluation is as applicable to that system as to the others surveyed, albeit that analysts of the system will be obliged to consider the role of private, as well as public, law As regards the problems of rationing which arise within health systems in developing nations, . page intentionally left blank Law, Legitimacy and the Rationing of Healthcare A Contextual and Comparative Perspective Keith Syrett argues for a reappraisal. Law, Legitimacy and the Rationing of Healthcare Herceptin and the NHS: a case study of the rationing of treatment Herceptin (the brand name of the drug trastuzumab)