Simple rationality? The law of healthcare resource allocation in England

This paper examines the law relating to healthcare resource allocation in England. The National Health Service (NHS) Act 1977 does not impose an absolute duty to provide specified healthcare services. The courts will only interfere with a resource allocation decision made by an NHS body if that decision is frankly irrational (or where the decision infringes the principle of proportionality when a right under the European Convention on Human Rights (ECHR) is engaged). Such irrationality is very difficult to establish. The ECHR has made no significant contribution to domestic English law in the arena of healthcare provision. The decision of the European Court in the Yvonne Watts case establishes that, in relation to the question of entitlement to seek treatment abroad at the expense of the NHS, a clinical judgment about the urgency of treatment trumps an administrative decision about waiting list targets. That decision goes against the grain of domestic law about healthcare allocation, but is not likely to have wide ramifications in domestic law.