National Health Service Rationing: Implications for the Standard of Care in Negligence

Oxford Journal of Legal Studies, Vol. 21, No. 3 (2001), pp. 443–471 National Health Service Rationing: Implications for the Standard of Care in Negligence

CHRISTIAN WITTING∗

Abstract—In this paper it is argued that courts must, where appropriate, take into account the fact that National Health Service hospitals are under-funded when they determine the standard of care owed by such hospitals and their professional staff to patients. Although this suggestion is inconsistent with the traditional view of the courts, its adoption would bring negligence cases into harmony with judicial review decisions. It would also cohere with a new understanding of accident causation within complex organisations, which suggests that many of the injuries suffered by patients in under-funded hospitals are the result of systemic failures that cannot necessarily be attributed to those who are the last actors in the causal chain leading to damage.

1. Introduction: The Issue Defined

Two important developments have given rise to the need for a reconsideration of the manner in which the law formulates the standard of care owed by National Health Service (NHS) hospitals and their professional employees to patients. The first development is the now apparent inconsistency in the ways in which courts have dealt with the issue of NHS under-funding when determining applications for judicial review and claims for compensation in negligence. This paper discusses how this inconsistency should be resolved. The second development, which is also of importance (but which will require further re- search), is the Government’s plan to implement national standards of clinical practice for NHS hospitals. It is possible that courts will adopt the national standards in formulating the standard of care required to avoid liability in negligence. However, if the argument presented here is accepted, courts will need to ensure that they carefully distinguish between systemic and non-systemic failures when determining the standard of care to be applied.

∗ Lecturer, Department of Law, University of Nottingham. I would like to thank Dr Jose´ Miola of the Leicester Law School and the anonymous referee for their comments on an earlier draft of this paper. All errors and omissions remain my own.  2001 Oxford University Press 444 Oxford Journal of Legal Studies VOL. 21 The inconsistency in judicial attitudes, which is the focus of this paper, should be elaborated upon at the outset. The courts have exercised considerable restraint in awarding administrative law remedies in order to guide the processes by which NHS hospitals and their staff make clinical decisions. This is because those decisions incorporate both operational and managerial characteristics. Decisions are managerial in so far as healthcare professionals must determine the allocation of scarce resources. The courts do not possess the expertise required to fulfil this task. For this reason, they are understandably reluctant to interfere with the decision-making discretion of hospitals and their professional staff. However, the courts have not displayed a similar restraint in deciding cases of professional negligence brought against the NHS—they have tended to eschew evidence of under-funding. Although this will be unexceptionable in cases where failures to take care are the consequence of avoidable technical errors, there are many cases in which a lack of care on the part of individual decision-makers is not a significant cause of injury. These are cases of systemic failures, which characterize NHS hospitals (or units within them) as a whole. Systemic failures are not, ordinarily, capable of attribution to under-funded hospitals or to their professional employees. It will be argued that that the courts must pay greater heed to the effects of under-funding in determining medical negligence cases involving NHS hospitals and their professional staff. To date, the courts have not properly considered how the ordinary model of decision-making upon which negligence principles are based, which assumes substantial autonomy and an ability to choose in a way that will avoid the causation of harm, is to be reconciled with the restrictive context within which healthcare professionals make treatment decisions. The NHS stands in a unique position. It cannot simply withdraw its services in the same way that private hospitals can, should the desired level of facilities not be available to treat patients. The NHS is under a statutory duty to promote and provide comprehensive healthcare and under political pressure to keep hospitals and wards open. The courts should recognize the polycentric nature of decision- making in healthcare and the causal influence of under-funding upon the healthcare system. This can be done by incorporating consideration of under- funding into the formulation of the standards of care applicable to NHS hospitals and their professional staff. Such a development would ensure that hospitals and their staff are less vulnerable to findings of negligence for systemic failures in care which cannot reasonably be attributed to them.

2. The Reality of Healthcare Funding

A. Cost cutting

In essence the problem is that, despite the best efforts of doctors, nurses and other staff, the NHS is not sufficiently centred around the needs of individual patients. There AUTUMN 2001 National Health Service Rationing 445

are two major reasons why this is the case. First, decades of under-investment and second, because the NHS is a 1940s system operating in a 21st century world.1 That NHS hospitals are under-funded, and that they have struggled to satisfy basic demands for healthcare, is so well known as to be axiomatic.2 The inability adequately to satisfy demand has been the result of several factors. An ever- growing range of illnesses and diseases are susceptible to effective medical treatment. New diagnostic and operative techniques permit the successful treat- ment of not only acute conditions but of chronic conditions as well.3 These advances have, in turn, altered perceptions of what it means to be in ‘good health’, creating expectations that life- and health-prolonging procedures should be made readily available.4 These advances have also ensured that an ever- greater proportion of the population lives to old age, further increasing the demand for services. Despite this, successive governments have sought to limit real growth in NHS funding, partly out of a justified fear that spending has the potential to balloon out of control. Although funds to the NHS have increased, in real terms, by 3 per cent per annum throughout its existence,5 much of the extra funding has been absorbed by increased staffing and technology costs.6 In its effort to curb dramatic increases in healthcare expenditure over the last decade, the Government has quite patently ‘downgraded’ the hospital system. Major infrastructure works for public hospitals have been cancelled, postponed or down sized.7 Indeed, it has been estimated that the NHS maintenance backlog now stands at £3.1 billion.8 Hospital beds are in short supply and patients are required to vacate them expeditiously after treatment. Recurrent expenditure on staffing and services, such as cleaning, has been reduced.9 Staff-to-patient ratios have declined dramatically. Figures indicate, for example, that there are a mere 1.8 practising doctors per thousand persons in Britain, as opposed to a European Union average of 3.1 per thousand.10 At least 25 per cent more consultants are required in the major medical specialties.11 London hospitals have been operating with 15 per cent fewer nurses than required.12 The hours worked by the staff who are employed within the NHS are long and intense.13 Although junior house officers are now working fewer hours than they once did (only 35 per cent work

1 Department of Health (DOH), The NHS Plan, Cm 4818 (2000), para. 2.9. 2 The NHS has become a ‘monument to institutionalized scarcity’: R Klein, P Day and S Redmayne, Managing Scarcity: Priority Setting and Rationing in the National Health Service (1996) 37. The Prime Minister has freely admitted to this: S. Hall ‘Blair admits leaving NHS short of cash’, The Guardian, 11 November 2000. 3 C. Newdick, Who Should We Treat? (1995) at 5. 4 HC Library, Hospital waiting lists and waiting times (HC Library Research Paper (1999) No. 60) at 10. 5 NHS Executive, NHS Performance Indicators: July 2000 (2000) at 3. 6 C. Newdick, aboven3at3. 7 NHS Executive, aboven5at3. 8 DOH, The NHS Plan, aboven1at31(box). 9 ‘Patients perceive a major deterioration in the cleanliness of hospitals . . . ’: ibid para. 4.14. 10 Ibid at 31 (box). 11 R. Woodman ‘Royal college demands 2000 more NHS consultant physicians’ (1999) 319 BMJ 12. This represents a conservative estimate of about 2000 positions. The Government has announced plans to recruit 7500 more consultants by the year 2004 to combat shortages: DOH, The NHS Plan, aboven1atpara. 5.4. 12 ‘Operations cancelled as hospital crisis worsens’, Sunday Times, 15 October 2000. 13 ‘Too many staff are rushed off their feet’: DOH, The NHS Plan, aboven1at31(box). 446 Oxford Journal of Legal Studies VOL. 21 more than 56 hours per week),14 senior doctors have been required to take up much of the excess. In a relatively recent survey, it was found that senior house officers worked a mean average of 56.9 hours per week,15 around which there was considerable variation, including very long hours of work for some.16 Consultants do no better.17 Doctors work these excessive hours, not necessarily under contractual obligations, but out of the practical concern that patients will not otherwise obtain basic healthcare.18 The Government has admitted that these conditions are unacceptable. However, reform will take time, if only because staff have been difficult to recruit recently.19,20 At the same time as the hospital system has been downgraded, funds have been redirected from secondary care to primary care and community nursing. The Government is expanding the size and importance of local practices, through the formation of health authority sub-committees known as ‘primary care groups’, based upon general practices and community nurses. Incentives have been offered to general practitioners to offer a wider range of treatments, such as the performance of minor operative procedures.21 This avoids the need for expensive referrals to hospitals.22 Over time, primary care groups are expected to evolve into fully-fledged trusts.23,24 Primary care trusts will be allocated budgets for expenditure upon secondary care. Eventually, they will take over many of the services once thought to be the province of hospitals. A Department of Health White Paper optimistically points to new opportunities for primary care trusts, stating that they will be able ‘to deploy resources and savings to strengthen local services and ensure that patterns of care best reflect their patients’ needs’.25 The department will undoubtedly be pleased if overall healthcare costs can be reduced as well.

14 L. Beecham ‘Too many junior doctors are working too long hours’ (2000) 320 BMJ 62 at 62. 15 P. Baldwin, R. Newton, G. Buckley, M. Roberts and M. Dodd, ‘Senior house officers in medicine: a postal survey of training and work experience’ (1997) 314 BMJ 740 at 741. 16 See, e.g., Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293. 17 L. Beecham ‘UK consultants warn of overwork and general demoralisation’ (1999) 318 BMJ 1576 at 1576. 18 P. Baldwin et al, above n 15 at 740. 19 DOH, The NHS Plan, above n 1 at para. 5.2. For this reason, the Government has sought to delay the implementation of the EC Working Time Directive in relation to doctors, which would limit to 48 the number of hours per week which an employer could legally demand of an employee until the end of this decade. 20 The difficulties that will be experienced in reaching the various recruitment targets set by the DOH are outlined in recent statements made by professional bodies: British Medical Association, ‘Why the NHS needs 10, 000 more GPs’, Press Release, 19 December 2000; Royal College of Nursing, Making up the difference (2000) at 28. See also J. Carr-Brown, J. Elliott and E. Hamzic ‘Crisis of key workers’, The Sunday Times, 31 December 2000. 21 The results have not always been as anticipated, as is pointed out in A. Coulter, ‘Managing demand at the interface between primary and secondary care’ (1998) 316 BMJ 1974 at 1975–6. 22 The DOH’s description of these primary care groups emphasises the financial benefits that will flow from their creation: ‘They will have . . . the freedom to use NHS resources wisely, including savings [sic]. With these new opportunities will go [sic] the need to account for their actions. They will be subject to clear accountability arrangements and performance standards’: DOH, The New NHS: Modern, Dependable, Cm 3807 (1997), para. 5.8. 23 National Health Service (NHS) Act 1977, ss 16A–B, as inserted by National Health Act 1999, s 2. See DOH, The New NHS, above n 1. 24 In what follows the focus will be upon the position of primary care ‘trusts’ rather than ‘groups’. 25 DOH, The New NHS, aboven1atpara. 5.17. AUTUMN 2001 National Health Service Rationing 447 Changes have been made, not only to institutions and management structures, but also in the funding of longer-term treatment. This is exemplified by the blacklisting of expensive drugs.26 Many new drugs, which are proving to be effective in combating a range of illnesses and diseases, have been developed at great expense and can, therefore, only be acquired at considerable cost to the health authorities. The case of beta interferon for multiple-sclerosis sufferers has been a case in point. Costing about £10,000 per year to supply to individual patients, the NHS has adopted inconsistent practices (post-code rationing, for example) in making this available to some but not to others. According to the Multiple Sclerosis Society, the NHS ‘has been prescribing beta interferon for fewer than 3 % of British MS patients, [which is] the lowest rate of any European country’.27 Yet beta interferon appears to be much more effective in relieving the symptoms of MS (and reducing the incidence of side-effects) than more conventional, cheaper NHS-approved drugs.28 A similar situation obtains with respect to a range of other drugs. The fiscal pressures imposed upon the healthcare system—and upon hospitals in particular—have yielded ostensibly ‘positive’ results. Hospitals have been treating greater numbers of patients at lower per patient costs. However, costs of a different kind have been on the rise. First, the evidence suggests that it is becoming more difficult to gain entry to the hospital system. A House of Commons Research Paper indicates that, over a recent five-year period, the average waiting time for in-patient admissions increased from 35 to 45 days.29 Secondly, once patients are admitted, they are afforded less than exemplary treatment due, mainly, to the great number of patients that each member of the professional staff must care for. NHS hospital services have, inevitably, been ‘diluted’. One study concluded that there is, within the NHS, a ‘systemic bias towards under-treatment’.30 This has had an inevitable impact upon the effectiveness of a significant proportion of treatments. Diluted services have given rise, inter alia, to more re-admissions (including emergency re-admissions),31 a growing number of lawsuits32 and an ever-increasing damages bill.33 Most of these facts are, of course, notorious.

26 NHS (General Medical Services) Regulations 1992 (SI 1992/635), Sch 10. 27 J. Cornwall ‘Wonderdrugs’, The Sunday Times Magazine, 15 October 2000. 28 See R v North Derbyshire Health Authority, ex parte Fisher [1997] 8 Med LR 327, discussed below. 29 HC Library, above n 4 at 18. See also N. Hawkes ‘NHS keeps patients ‘‘waiting for longer’’ ’, The Times,14 November 2000 (reporting on research which suggests that waiting times are (now at least) much longer, the average patient waiting 203.8 days between seeing a GP and obtaining in-patient treatment). 30 Aaron and Schwartz (1984), quoted in R. Klein et al, aboven2at90. 31 HC Library, aboven4at11. 32 ‘The rate of litigation increased from 0.46 to 0.81 claims per 1000 finished consultant episodes between 1990 and 1998’: P. Fenn, S. Diacon, A. Gray, R. Hodges and N. Rickman ‘Current cost of medical negligence in NHS hospitals: analysis of claims database’ (2000) 320 BMJ 1567 at 1567. This represents a 7 per cent per annum increase in the propensity to litigate: ibid at 1568. 33 It is estimated that the NHS legal bill was approximately £84 million in 1998, although this is likely to be a conservative estimate: ibid at 1570. Total outstanding claims are calculated to stand in the region of £2.8 billion: ibid. 448 Oxford Journal of Legal Studies VOL. 21 B. Prioritizing and standards setting The emphasis in government healthcare planning has been, as is evident, upon the ways in which costs can be cut. However, cost cutting is not the only possible response to a shortfall in funding. An alternative response is to make more careful use of existing funds through prioritizing expenditure. This is something that successive governments have failed to do to a satisfactory extent. They have stubbornly clung to the original tenet that the NHS is to be ‘comprehensive’34 in the promotion and provision of healthcare.35 The explanation for this is easy to discern. Prioritizing through the iteration of a hierarchy of needs necessarily entails discriminating between patients in controversial ways. As Brazier remarks, ‘[g]iving a little cash to each potential group of claimants may be easier than making unpopular decisions’.36 The Government has, instead, resorted to ex- tolling the virtues of devolved decision-making at regional and hospital levels, ostensibly so that services can be tailored to meet the needs of local communities.37 This has the advantage of scattering decision-making loci and of creating a greater sense of shared blame for treatment inadequacies. Although politically expedient, this kind of devolution requires that much decision-making about treatment be made in a reactive way, as and when the circumstances require. Doctors, in particular, have come to be described, not merely as clinicians, but as ‘managers’ of hospital resources38 and have been required to ‘balance’ clinical objectives with the need for fiscal prudence and restraint. The imposition of management responsibilities means, in the first instance, asking what are the cost implications of different methods of treatment. Doctors have been required to take into account the ‘opportunity costs’—the likely costs to third party patients—of different modes of treatment. The most clinically effective treatments might need to be abandoned in favour of more cost-effective treatments. For this reason, treatments occasionally differ from those that are offered in private hospitals.39 In the most extreme cases, the management role has entailed advising against the continuation of treatments that carry a low chance of success or which would unduly limit the ability of the hospital to treat other patients. An example of such a case is R v Cambridge Health Authority, ex parte B,40 examined below. A limited number of initiatives have been taken by the last two governments more carefully to prioritize expenditure. These have resulted, as adumbrated, in restrictions upon the range of prescribable drugs and also in more careful assessment of the clinical efficacy of proposed treatments. A National Institute

34 NHS Act 1977, s 1. 35 Note, however, that in R v North Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622, the Court of Appeal held that the ‘truth is that, while he has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty, a comprehensive health service may never, for human, financial and other resource reasons, be achievable’: ibid at 633. 36 See, e.g., M. Brazier, ‘Rights and Health Care’ in R. Blackburn (ed), Rights of Citizenship (1993) at 58. 37 DOH, The New NHS, aboven1atch5. 38 C. Newdick, aboven3at168. 39 R. Klein et al, aboven2at121–2. 40 [1995] 1 WLR 898. AUTUMN 2001 National Health Service Rationing 449 of Clinical Excellence (NICE) was established recently, with the task of collecting and disseminating information about the efficacy of different technologies and treatments. It is charged with the responsibility of ensuring that its guidance reflects a balance between clinical effectiveness, cost effectiveness41 and other criteria (so called ‘evidence-based medicine’). To complement the drive for greater clinical efficacy, the Government has begun to develop ‘National Service Frameworks’, which will specify service standards in a range of particular specialisations based upon evidence of clinical success. The standards set out in the frameworks will, in turn, be incorporated into ‘service agreements’ between primary care trusts and the NHS Trust hospitals that provide secondary care services.42 An interesting question arises as to what effect the introduction of these national clinical standards will have upon the courts’ formulation of the standard of care owed by NHS hospitals in negligence. In the view of Kennedy and Grubb: Increasingly, NICE guidelines will be taken to set the standard and quality of care that a patient is entitled to expect. Thus, while not determinative of the duty of care in negligence, these standards are likely to be seen by the courts as the expected level of care, such that departure will require some demonstrable justification relating to the individual patient’s particular circumstances.43 This appears to be the logical consequence of the introduction of such guidelines. Given the Bolam44 test for breach of duty, which compares the acts and omissions of defendant doctors with the practices that would be accepted as proper by comparably skilled medical practitioners (determined by reference to the judgments of ‘responsible bod[ies] of medical opinion’),45 the institution of national clinical standards would create benchmarks of practice, informing medical opinion and the law itself. This may be an admirable development. However, if the argument to be presented in this paper is accepted, courts should be wary about adopting the clinical standards in an inflexible way, which would not permit of any variations in standards depending upon the level of funding available to hospitals or units within hospitals. The introduction of national clinical standards is being accompanied by a new regulatory regime under the Health Act 1999.46 One element of this regime will be a system of rolling hospital inspections by the newly-created Commission for Health Improvement (CHI), which will also have the power to investigate alleged

41 The National Institute for Clinical Excellence (Establishment and Constitution) Amendment Order 1999 (SI 1999/2219). 42 DOH, The New NHS, aboven1atpara. 5.28. 43 I. Kennedy and A. Grubb, Medical Law (3rd edn, 2000) at 125 (emphasis in original). See also K. Barker ‘NHS Contracting: Shadows in the Law of Tort?’ (1995) 3 Med L Rev 161. 44 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. 45 Ibid 587, per McNair J. Cf. Bolitho v City and Hackney Health Authority [1998] AC 232 and M. Brazier and J. Miola ‘Bye-Bye Bolam: A Medical Litigation Revolution?’ (2000) 8 Med L Rev 87. 46 Described in A. Davies ‘Don’t Trust Me, I’m a Doctor—Medical Regulation and the 1999 NHS Reforms’ (2000) 20 OJLS 437. 450 Oxford Journal of Legal Studies VOL. 21 failures to meet the standards defined in the ways just described.47 Another element of the regime will be the development of a ‘National Survey of Patient and User Experience’, which will be conducted and published annually. Poor survey performance could be the trigger for further involvement by CHI.48 Ostensibly concerned with instituting uniform standards of practice within the healthcare system (and ending postcode rationing), the fear has been articulated that these initiatives continue primarily to reflect concerns about costs. Davies, for example, concludes that, ‘although much of the rhetoric surrounding the 1999 reforms implies that doctors have been failing in various ways, the government is seeking not just to tackle these failures but to pursue its own central aim of limiting NHS expenditure’.49 This would be significant in so far as it suggests that the trade-off between healthcare and cost containment will continue into the future. The House of Commons Select Committee on Public Accounts has virtually admitted that a trade-off of this nature is acceptable to the Government, leaving without comment a recent admission by the NHS Executive that ‘when financial disciplines were applied in cash-limited services, for example where managers took decisions to reduce spending in order to stay, or nearly stay, within their budget, there could be some detrimental effect on patient care’.50

3. Recognition of Under-Funding in Judicial Review Cases

A. Reluctance to intervene Given that resource allocation issues are sure to become ever more prevalent, it is likely that courts will be faced with a greater number of applications for judicial review and claims for damages in negligence. According to one writer, the ‘courts ain’t seen nothing yet’.51 This gives rise to a number of questions. To what extent (if any) has recognition of NHS under-funding impacted upon the reasoning of the courts in the judicial review of decision-making by health authorities and their staff? Have the courts been inclined to view applications for remedies against the NHS more or less favourably in light of chronic under- funding? Medical decisions are very likely to fall in that large borderland between policy and operational decisions. These decisions often involve ‘managerial’ (or low- level policy) choices about how scarce funds should be expended. Indeed, it is governmental policy that these decision-makers are charged with responsibilities

47 Health Act 1999, s 20; Commission for Health Improvement (Functions) Regulations 2000 (SI 2000/ 662), reg 2. See also DOH, A First Class Service: Quality in the New NHS (1998) paras 4.22–4.31. 48 DOH, A First Class Service, above n 47 at para. 1.17. 49 A. Davies, above n 46 at 447–8. A recent u-turn by NICE on the issue of whether to permit the anti-flu drug Relenza to be funded by the NHS appears to justify this claim. See N. Timmins ‘Anti-flu drug given approval’, Financial Times, 22 November 2000. 50 HC Select Committee on Public Accounts, Fifth Report (HC Paper (2000) No. 128) at para. 9. 51 J. Keown ‘Funding ‘Sex-Change’ Operations’ (2000) 59 CLJ 257 at 259. AUTUMN 2001 National Health Service Rationing 451 as resource ‘managers’. The hybrid nature of many of these decisions renders them un-amenable to findings of administrative irregularity. This is, in part, because courts are less able than administrators to assess the social impact of particular patterns of expenditure.52 Indeed, we find that the courts have largely deferred to the decisions of health authorities (which are delegates of the Secretary of State for Health with responsibility to implement the duties that fall upon him),53 NHS Trust hospitals (commissioned to provide those services) and their employee doctors and nurses. In the very first case in which an allocation decision was challenged, R v Secretary of State for Social Services, ex parte Hincks,54 the Court of Appeal held that the Secretary of State and his delegates are under a duty to supply health services to such an extent as ‘can be provided within the resources available’.55 Only in the most obvious cases would grounds for review be established. The courts have consistently taken this approach in subsequent cases. In Re J (a minor),56 the Court of Appeal was required to decide whether to uphold an order that, if a severely mentally and physically handicapped child with a short life expectancy and no prospects for development were to suffer a life threatening event, the hospital should not intervene with intensive therapeutic measures such as artificial ventilation. It held that the courts should not intervene so as to require medical practitioners to treat patients in particular ways.57 This was, primarily, on the basis of the difficult resource allocation decisions faced by such practitioners. Thus, Lord Donaldson MR stated that the order of Waite J (in the court below) did not ‘adequately take account of the sad fact of life that health authorities may on occasion find that they have too few resources, either human or material or both, to treat all the patients . . . in the way in which they would like to treat them’. In these circumstances, said His Lordship, it is ‘their duty to make choices’.58 The court was in no position to judge ‘the competing claims to a health authority’s resources [or] to express any view as to how it should elect to deploy them’.59 Balcombe LJ agreed, fearing that the

52 See, e.g., R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240 at 250–1, per Lord Scarman; R v Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council [1991] 1 AC 521 at 595–7, per Lord Bridge; R v East Sussex County Council, ex parte Tandy [1998] AC 714 at 749, per Lord Browne-Wilkinson; Barrett v Enfield London Borough Council [1999] 3 WLR 79 at 105, per Lord Hutton. 53 The duties of the Secretary of State for Health are set out in the NHS Act 1977, ss 1 and 3. These have been delegated to health authorities under the NHS (Functions of Health Authorities and Administrative Arrangements) Regulations 1996 (SI 1996/708). 54 (1980) 1 BMLR 93. 55 Ibid at 95, per Lord Denning MR. See also R v Sheffield Health Authority, ex parte Seale (1994) 25 BMLR 1 at 3, per Auld J. 56 [1992] 4 All ER 614. Note that the case was decided in the court’s wardship jurisdiction. The relevant principles are, however, analogous to those deployed in administrative law decisions. 57 Ibid at 625, per Balcombe LJ (‘I find it difficult to conceive of a situation where it would be a proper exercise of the jurisdiction to make an order positively requiring a doctor to adopt a particular course of treatment in relation to a child’) and 626, per Leggatt LJ (‘I can myself envisage no circumstances in which it would be right directly or indirectly to require a doctor to treat a patient in [a] way that was contrary to the doctor’s professional judgment and duty to the patient’). 58 Ibid at 623. 59 Ibid. 452 Oxford Journal of Legal Studies VOL. 21 effect of a court order might be to ‘deny the benefit of those limited resources to a child who was much more likely than J to benefit from them’.60 In R v Cambridge Health Authority, ex parte B,61 a young girl, B, suffered from acute myeloid leukaemia and required a third course of chemotherapy and a second bone marrow transplant in order to live. The chance of these procedures succeeding was small (in the order of two to four per cent) and her doctors recommended that these not be offered to her. The defendant health authority confirmed that the treatment would not be offered for the reason that, besides entailing great suffering for B, it would be very costly. Given the critical nature of B’s condition,62 her father sought judicial review of that decision. The Court of Appeal refused to quash the decision and grant mandamus. Sir Thomas Bingham MR stated that ‘[d]ifficult and agonising judgments have to be made as to how a limited [hospital] budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make’.63 Sir Stephen Brown P and Simon Brown LJ agreed. Ex parte B was recently affirmed as correct by the House of Lords in R v East Sussex County Council, ex parte Tandy.64

B. Grounds of review: (ir)relevance The cases just examined reflect the grave reservations harboured by the courts in applications for judicial review of medical decision-making. But, given that a case might be found suitable for the issue of certiorari (and where relevant mandamus), what are the most cogent grounds of review? The obvious grounds of importance include (ir)relevance and irrationality. These grounds overlap in many cases,65 but are treated as conceptually distinct. With respect to (ir)relevance, courts intervene in decision-making on the basis that legislative and other public powers are conferred upon persons for reasons, in relation to which certain matters will be relevant to decision-making while others will not be. The end and aim of the duties conferred upon the Secretary of State for Health and his delegates centres upon the promotion of public health. Matters unconnected with public health issues are unlikely to be of great relevance to the decisions made by health authorities and their employees. For example, the fact that a patient’s hair is red is unlikely to be relevant to the decision whether to offer him or her a particular form of healthcare.66 Relevant considerations would include matters such as the patient’s prognosis, susceptibility to treatment, medical history, age, allergies, and so on. The cases make it obvious that the

60 Ibid at 625. 61 [1995] 1 WLR 898. 62 Her doctor estimated that she had between 6 and 8 weeks to live. 63 [1995] 1 WLR 898, 906. 64 [1998] AC 714 at 749, per Lord Browne-Wilkinson. 65 See, e.g., R v North West Lancashire Health Authority, ex parte A,D&G[2000] 1 WLR 977. 66 See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229, per Lord Greene MR. AUTUMN 2001 National Health Service Rationing 453 courts have accepted that issues of cost (and opportunity cost) are relevant in medical decision-making as well. However, this is not to say that applications for judicial review on the ground of (ir)relevance invariably fail. In R v North Derbyshire Health Authority, ex parte Fisher,67 Dyson J held that a health authority’s policy of not funding beta interferon was unlawful because it was in direct contradiction to a departmental circular. That circular called for the development of ‘local arrangements to manage the entry of such drugs into the NHS’.68 The defendant health authority applied a policy of funding beta interferon only in conjunction with clinical trials. No clinical trials were scheduled and, for this reason, there was no prospect of the applicant obtaining the drug. Dyson J said that the defendant authority had not given proper consideration to the circular in applying its own policy, the primary aim of which was ‘not to prescribe drugs in order to treat patients, but to test their efficacy’.69 A blanket ban on beta interferon treatment, which was what the policy amounted to, ‘was the very antithesis of national policy’.70 Proper reasons were required to convince the court that departure from national policy was lawful.71 R v North West Lancashire Health Authority, ex parte A,D&G72 was a very similar case. The defendant authority had formulated a policy which, although recognizing that gender identity dysphoria (‘transsexualism’) is a medical illness, left virtually no scope for funding its treatment. The policy had specified that gender ‘reassignment’ would not be offered, subject to an exception of overriding need in order to avoid ‘serious mental illness’. The applicants’ requests for reassignment surgery were refused, each in similar terms, and they sought judicial review. Auld LJ, with whom Buxton and May LJJ essentially agreed, discussed the decision-making process in terms of the relevance and weight of various factors. He acknowledged that health authorities were entitled to determine a list of priority treatments73 and even agreed that it would ‘make sense’ for an authority to ‘place treatment of transsexualism lower in its scale of priorities than, say, cancer or heart disease or kidney failure’.74 But, that was not the point. His Lordship stated:

[I]n establishing priorities—comparing the respective needs of patients suffering from different illnesses and determining the respective strengths of their claims to treat- ment—it is vital for an authority: (1) accurately to assess the nature and seriousness of each type of illness; (2) to determine the effectiveness of various forms of treatment

67 [1997] 8 Med LR 327. 68 Ibid at 336. 69 Ibid. 70 Ibid at 337. Note that this decision was influenced, not only by the inconsistency in policies, but also by the fact that £50,000 had been set aside for the supply of beta interferon by the health authority, which had not been spent. According to Dyson J, ‘The respondents had funds available, but chose not to allocate them’: ibid. 71 Ibid at 336. 72 [2000] 1 WLR 977. 73 Ibid at 991. 74 Ibid. 454 Oxford Journal of Legal Studies VOL. 21

for it; and (3) to give proper effect to that assessment and that determination in the formulation and individual application of its policy.75 Despite acknowledging that transsexualism is an illness, the health authority did little to demonstrate any conviction about this. Its lack of conviction was evident in the way it had grouped gender reassignment alongside conditions such as minor cosmetic surgery, tattoo removal, homeopathy and ‘alternative medicine’ in a list of priorities.76 In rejecting the applicants’ requests for treatment, it had failed to give sufficient weight to the facts.77 In the words of Buxton LJ, it had failed to demonstrate a sufficient ‘degree of rational consideration’ of the status of transsexualism as an illness.78

C. Grounds of review: irrationality With respect to the ground of irrationality, the courts are concerned to test whether decisions taken are defensible in the round, especially in terms of their logical cogence, adherence to reason and their certainty of application. The orthodox view is that the courts are concerned with whether the ‘decision is rational and not whether it is right’79—observing the legality/merits distinction. They will intervene only if a particular decision is Wednesbury unreasonable80 in the sense that it is, for example, ‘so outrageous in its defiance of logic or accepted moral standards that no sensible person . . . could have arrived at it’.81 The threshold of such unreasonableness is, obviously, high. Where particular decisions to treat, to treat in a particular way, or to refuse treatment are influenced by funding considerations, they are unlikely to be capable of characterization as irrational in this way.82 The nature of the healthcare professional’s position as clinical assessor and resource manager means that both clinical and resource implications must be weighed.83 Opportunity costs must be considered. This was acknowledged in one of the earliest decisions in which an allocation decision was challenged for its irrationality, R v Central Birmingham Health Authority, ex parte Walker.84 Sir John Donaldson MR, on behalf of a unanimous Court of Appeal, stated that, if the court were prepared to grant leave in cases where patients were aggrieved by what are essentially funding decisions, ‘we should ourselves be using up National Health Service resources by requiring the authority

75 Ibid at 991–2. 76 Ibid at 922. 77 Ibid at 994–5. 78 Ibid at 999. 79 A. Grubb ‘Infertility Treatment: Access and Judicial Review’ (1996) 4 Med L Rev 326 at 327. 80 After the leading case, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 81 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410, per Lord Diplock. 82 See, e.g., R v Ethical Committee of St Mary’s Hospital (Manchester), ex parte H [1988] 1 FLR 512. 83 Ibid. 84 (1987) 3 BMLR 32. AUTUMN 2001 National Health Service Rationing 455 . . . to meet the complaints of their patients’. Although the jurisdiction to intervene existed, it was to be used ‘extremely sparingly’.85,86 Allocation requires the weighing of competing interests, which are not always directly comparable and which cannot, therefore, be taken in any precise, scientific or uncontroversial ways. The courts have accepted that allocation decisions might be somewhat arbitrary and yet not be unreasonable. R v Sheffield Health Authority, ex parte Seale87 is a case in point. The applicant was denied in vitro fertilisation treatment on the basis that funds were limited and that they were to be allocated only to those in the 25 to 35 year age range. Counsel for the applicant argued that this was irrational, on the basis that persons 35 years of age and older can often be treated successfully and that the upper limit imposed could not be sufficiently justified (even though it was acknowledged that the likelihood of success does diminish with age). Auld J stated that it was not absurd for this authority, acting on the advice that the efficacy of this treatment decreases with age and that it is generally less effective after the age of 35, to take that as an appropriate criterion when balancing the need for such a provision against its ability to provide it and all the other services imposed upon it under the legislation.88

D. A change in attitude? From the foregoing, it appears that the courts have taken a forgiving view of the difficulties faced by healthcare professionals in their role as resource managers. However, it is possible that they will more readily intervene in medical decision- making in the future,89 especially where it can be said that a legitimate expectation of medical treatment of a certain standard (i.e., of a substantive benefit) has not been accommodated. This possibility—indicative, perhaps, of an increased willingness on the part of the courts to intervene in cases of hardship, even where the decision impugned was clearly within the power of the decision- maker—follows from the decision of the Court of Appeal in R v North and East Devon Health Authority, ex parte Coughlan.90 In that case, the applicant, who was a chronically sick and disabled patient, had been moved from a hospital to a purpose-built facility for long-term residence. The health authority provided an assurance in the form of a ‘promise’ that the new facility would be a ‘home for life’.91 However, the successor to the authority, after considering the promise given, made a decision to close the facility, which was described as ‘a prohibitively

85 Ibid at 36. 86 This case was followed in R v Central Birmingham Health Authority, ex parte Collier (unreported, Court of Appeal, 6 January 1988). Stephen Brown LJ stated that, even in cases where the failure to treat gives rise to an ‘immediate danger to health’, the courts are ‘in no position to judge the allocation of resources’ by the health authority or their employees: ibid. LEXIS transcript used. 87 (1994) 25 BMLR 1. 88 Ibid at 3. 89 See, e.g., J. Keown, above n 51 at 259. 90 [2000] 2 WLR 622. 91 Ibid at 644. Note that these were not the actual words used. However, the defendant authority admitted (unnecessarily?) that there had been a promise to that effect. 456 Oxford Journal of Legal Studies VOL. 21 expensive white elephant’.92 The applicant sought judicial review, claiming that she had a legitimate expectation of being able to remain in the facility. The court agreed and made essentially new law93 in holding that a promise or assurance could give rise to an enforceable legitimate expectation of, not only a procedural, but, also, a substantive benefit. In the words of Lord Woolf MR: Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.94 [M]ost cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract. We recognise that the courts’ role in relation to the third category is still controversial.95 The court was satisfied that the latter conditions were fulfilled and, importantly, that ‘the consequences to the health authority of requiring it to honour its promise are likely to be financial only’.96 For these reasons, it quashed the authority’s decision. The question whether the concept of legitimate expectations extends to encompass an expectation that a substantive benefit will be obtained has been the subject of a well-known debate. Although academic commentators have tended to favour the concept97 on the ground that the citizen should be able to rely with certainty on representations made by government officials,98 in no decision binding upon the Court of Appeal had the concept been judicially accepted. The Court of Appeal had, in fact, rejected the concept of a substantive legitimate expectation in R v Home Secretary, ex parte Hargreaves.99 Hirst LJ labelled the proposed extension of the concept a ‘heresy’.100 Pill LJ stated that the claim to a broader power of intervention than that contained in the Wednesbury doctrine was ‘wrong in principle’.101 Moreover, obiter comments relied upon by Lord Woolf MR in adopting the third category of legitimate expectation were made in the context of a very different case. The difference lay in the fact that, although the decision under review in R v Inland Revenue Commissioners, ex parte Preston102 would have had the effect of altering the applicant’s liability to tax in

92 Ibid at 656. 93 Query, though, the effect of an agreement between the parties that ‘in public law the health authority could break its promise to Miss Coughlan that Mardon House would be her home for life if, and only if, an overriding public interest required it’: ibid at 642. 94 Ibid at 646. 95 Ibid. 96 Ibid. 97 P. Craig ‘Legitimate Expectations: A Conceptual Analysis’ (1992) 108 LQR 79; P. Craig ‘Substantive Legitimate Expectations in Domestic and Community Law’ (1996) 55 CLJ 289; C. Forsyth ‘Wednesbury protection of substantive legitimate expectations’ [1997] PL 375. 98 See, e.g., P. Craig, Administrative Law (4th edn, 1999) at 616. 99 [1997] 1 WLR 906. 100 Ibid at 921. 101 Ibid at 924–5. 102 [1985] AC 835. AUTUMN 2001 National Health Service Rationing 457 a past year (after an agreement had purportedly been reached under which he agreed to withdraw certain claims for relief which subsequently became statute- barred), there was no possibility of a retrospective withdrawal of benefits in Coughlan. The benefit at issue in Coughlan was susceptible to prospective revocation or adjustment only, in the same way that any publicly provided benefits might be revoked or adjusted. This is to say that the problem of uncertainty was potentially of an acute and unusual nature in Preston; but of a very ordinary and usual kind in Coughlan.103 Lord Woolf MR stated that any decision not to honour the promise to the applicant would have been ‘equivalent to a breach of contract in private law’.104 But, of course, Coughlan was a public law case concerned not merely with voluntarily assumed relations between private parties, but with the distribution of limited resources across a wide range of uses. The impact of the decision was bound to affect third parties whose interests were not the subject of specific argument. For this reason, it is submitted that Coughlan is inconsistent with the resource allocation cases already discussed. It permits of intervention in favour of a particular person (or ‘a few people’) adversely affected by an administrative decision without taking into account the opportunity costs of adhering to previous decisions. Yet Coughlan was prima facie analogous to those earlier cases, being concerned with the expenditure of limited funds by a health authority which would have, undoubtedly, been required to deny third persons access to care as a consequence. This much was to be inferred from the defendant authority’s argument that the continued operation of the facility was ‘at an excessively high cost [which] did not represent value for money and left fewer resources for other services’.105 The decision appears to be equivalent to the upholding of an estoppel against a public authority precluding denial by it of an indefinite licence to remain on land, contrary to the public interest purposes for which discretionary powers are granted106 and contrary to orthodox understandings of the limits of judicial review. Having made the above comments, what remains unknown at this stage is what impact the Human Rights Act 1998 will have upon the development of English judicial review procedures. The Act requires that public bodies act compatibly with the rights enumerated in the European Convention on Human Rights (ECHR),107 except where this is made impossible by legislation.108 The Act also requires that the jurisprudence of the European Court of Human Rights (ECtHR) be taken into account by domestic courts,109 although its rulings will not be binding upon them. Both of these developments may prove significant. First, the specific enumeration of rights, such as the right to a person’s ‘home’

103 With respect to the significance of retroactivity in determining whether a legitimate expectation should be recognised, see P. Craig, above n 98 at 611–2. 104 [2000] 2 WLR 622, 656. 105 Ibid. 106 See, e.g., H. Wade and C. Forsyth, Administrative Law (7th edn, 1994) at 372 ff. 107 Human Rights Act 1998, s 6(1). 108 Ibid, s 6(2). 109 Ibid, s 2(1). 458 Oxford Journal of Legal Studies VOL. 21 under Article 8 ECHR, will require more careful consideration by the courts of the extent to which public bodies may act so as to impinge upon those rights. Courts may be expected to offer protection in administrative law that goes beyond the procedural and to have regard to the merits of individual cases. This leads to a second point, which is that the ECtHR has recently ruled in Kingsley v United Kingdom110 that judicial review proceedings which are, indeed, restricted to examining the legality of decision-making are unlikely to be compatible with the right to a fair hearing under Article 6(1) ECHR. Although this ruling is not binding upon English courts, it is consistent with development of the doctrine of proportionality in EC law, which permits of ‘high intensity’ review of decisions.111 However, this is not to suggest that consideration of the merits under high intensity review will necessarily lead to the perpetuation of decisions such as that in the Coughlan case. This is because the rights enumerated in the ECHR are undoubtedly qualified in nature. Article 8 ECHR, for example, is subject to the express qualification that restrictions upon the right to a home may be proper to secure ‘the protection of health or morals, or the protection of the rights and freedoms of others’—that is, third parties. This leads us back to the argument above, that the Court of Appeal in Coughlan, although having regard to possible developments under the Human Rights Act (not then in force),112 actually made no explicit reference to the interests of others.113 For this reason alone it can be considered a defective decision.

4. Denial of Under-Funding in Negligence Cases

A. The problem of systemic failures We have considered the funding difficulties faced by the NHS and the response by the courts to this problem in judicial review decisions. Now we move on to consider how the problem impacts upon the law of negligence. In what follows, it will be assumed that medical decisions, despite their hybrid nature (in- corporating both operational and managerial aspects) are properly subject to the rules of negligence and that the proper action to take when damage occurs is an action in negligence.114 It will be assumed, further, that a hospital owes a duty to employ competent staff and to provide proper facilities.115 Hospital staff so employed owe a duty of care to the patients whom they treat and their employing hospital may be vicariously liable for the acts and omissions of those staff. The

110 Case 35605/97, The Times Law Report, 9 January 2001. 111 See M. Elliott ‘Legitimate Expectations: The Substantive Dimension’ (2000) 59 CLJ 421. 112 [2000] 2 WLR 622, 657-8. 113 The Court of Appeal extracted the provision in article 8(2), but only to the extent that that provision requires consideration of ‘the economic well-being of the country’. The court did not extract that part of the provision which refers to the ‘rights and freedoms of others’: ibid at 657. Needless to say, this demonstrates extraordinary selectivity in the consideration of the Convention. 114 This accords with recent comments by Lord Hutton in Barrett v Enfield LBC [1999] 3 WLR 79, 111. 115 Wilsher v Essex Area Health Authority [1987] 1 QB 730; Bull v Devon Area Health Authority [1993] 4 Med LR 117. AUTUMN 2001 National Health Service Rationing 459 question is, given the duty, what must be done reasonably to discharge it?116 Does under-funding impact upon what is reasonable? The argument presented in this paper is predicated upon the acceptance of a distinction between two kinds of negligence in respect of which different standards of care should be owed. Negligence may be the product of ordinary, individual failures to take care or it may be the result of failures that are systemic in nature. With respect to ordinary failures, negligence arises from incorrect technical decisions or from other avoidable mistakes, unrelated to the availability of resources. With respect to such failures, courts are correct in applying standards of care which presume that persons should act only where competent to do so. By contrast, failures in care are ‘systemic’ where they are the product of problems that are system-wide, rather than confined to particular mishaps. Systemic failures may be similar to ordinary failures where they result from incorrect technical decisions affecting whole hospitals or units within hospitals.117 An example of this kind of failure might be a general omission to warn patients who are to be anaesthetised, by written instructions, that they should not eat prior to surgery (because this would limit the effect of the anaesthetic). This kind of mistake is clearly avoidable and should be subject to the ordinary rules of negligence. Systemic failures are more likely, however, to result from under- funding. In these cases, a presumption that the hospital and its staff have the capacity to avoid injuries may not be warranted. Decision-making in healthcare is polycentric and the failures of the most immediate parties might be the least significant in the causal chain. Let us examine how under-funding produces systemic failures. We have already seen, for example, that hospitals lack sufficient staff numbers and bed space, which results in significant delays for even the most important kinds of operative procedures. Recent figures indicate that one million persons are waiting to have in-patient treatment.118 These persons must be subjected to preliminary testing to determine how quickly illnesses are progressing and how long patients can wait before their positions seriously deteriorate.119 Because medicine is not an exact science, there is attached to this process of assessment an inevitable risk of being incorrect. This risk need not exist. It exists only because the NHS lacks the capacity to treat patients expeditiously. Inadequate care is systemic in many other ways, such as in the use of out-dated or poorly-maintained hospital

116 As was noted in Bull v Devon Area Health Authority [1993] 4 Med LR 117, the duty is not a duty to ‘‘ensure’’ that proper care is offered: ibid at 131. Slade LJ stated: ‘If, as would appear, the word ‘ensure’ in this passage [in the judgment of the court below] implies an absolute and unqualified obligation, the passage . . . overstated the duty falling on the Authority . . .’: ibid. Similarly, Dillon LJ said that ‘the defendants were not ensurers [sic]’: ibid at 137. 117 See, e.g., Robertson v Nottingham Health Authority [1997] 8 Med LR 1, where it was found that there were in place no sufficient means for communicating information between medical staff on different shifts. 118 DOH, NHS Waiting List Figures—31 August 2000, Statistical Press Notice (2000/0561). 119 R v Central Birmingham Health Authority, ex parte Collier (unreported, Court of Appeal, 6 January 1988) is a very good illustration of this. The defendant hospital had on three occasions delayed open-heart surgery for a five-year-old boy at the top of the waiting list, on account of a shortage of intensive care beds. Other patients were treated first on the basis that the applicant’s son was not in as critical a position as the others. The boy’s father sought judicial review of the decision, obviously extremely concerned that his son would not live much longer. 460 Oxford Journal of Legal Studies VOL. 21 equipment and facilities, over-worked and tired staff, the inability to make available sufficient staff,120 the premature release of patients and in inadequate post-operative care. In the case of the NHS, systemic failures are often the product of a government-inspired managerial ethos accepting of the fact that there will be accidents and mishaps when hospital resources are being utilized to maximum efficiency. The accidents and mishaps which arise from adherence to such an ethos are avoidable, but only where that ethos is itself renounced, so that proper resources are allocated to healthcare. The suggestion that many failures in healthcare are systemic in nature has recently been accepted by a panel of experts under the chairmanship of the Chief Medical Officer in a report to the Health Secretary entitled An organisation with a memory.121 This report, concerned with issues of internal organisational management rather than with external liability, examines the processes employed by the NHS to record, investigate and ‘learn’ from ‘adverse healthcare events’.122 One of the key findings was that the NHS has relied too heavily upon a culture of blaming individuals for the causation of adverse events, rather than acknowledging the more pervasive factors which lead to them. The report’s findings are encapsulated in the following paragraph:

There are two ways of viewing human error: the person-centred approach and the system approach. The former is still the most dominant tradition within the academic literature on failure, largely because it is more suited to the agenda of management. This approach focuses on the psychological precursors of error, such as inattention, forgetfulness and carelessness. Its associated counter-measures are aimed at individuals rather than situations and these invariably fall within the ‘control’ paradigm of man- agement. Such controls include disciplinary measures, writing more procedures to guide individual behaviour, or blaming, naming and shaming. Aside from treating errors as moral issues, it isolates unsafe acts from their context, thus making it very hard to uncover and eliminate recurrent error traps within the system . . . The system approach, in contrast, takes a holistic stance on issues of failure. It recognises that many of the problems facing organisations are complex, ill-defined and result from the interaction of a number of factors. This approach starts from the premise that humans are fallible and that errors are inevitable, even in the best run organisations . . . Errors are seen as being shaped by ‘up-stream’ systemic factors, which include the organisation’s strategy, its culture and the approach of management towards risk and uncertainty. The associated counter-measures are based on the assumption that while we cannot change the human condition we can change the conditions under which people work so as to make them less error-provoking . . .123

120 A recent study by Imperial College clearly points to the problems to which inadequate funding gives rise. The study confirmed that there is a positive correlation between staff numbers and mortality rates: B. Jarman, S. Gault, B. Alves, A. Hider, S. Dolan, A. Cook, B. Hurwitz and L. Iezzoni ‘Explaining differences in English hospital death rates using routinely collected date’ (1999) 318 BMJ 1515. A one per cent fall in the number of doctors per bed is associated with a 0.119 per cent increase in standardised mortality ratios: ibid at 1518. 121 DOH, An organisation with a memory (2000). 122 These are defined as events or omissions ‘arising from clinical care and causing physical or psychological injury to [patients]’: ibid at xii. 123 Ibid at 20–1. AUTUMN 2001 National Health Service Rationing 461 In the context of the present paper, the ‘upstream’ systemic factors of relevance include funding decisions, which deprive hospitals of the skilled staff and equipment they need to function adequately. Risks of error that arise from the mere fact of the ‘human condition’ are thus added to by demands from gov- ernment for ever-greater efficiency and stretching of resources. Indeed, the report goes on to explain how funding shortfalls can create ‘error-provoking conditions in the workplace—for example, time pressure, excessive fatigue, staff shortages, lack of experience and inadequate equipment’.124 As indicated, all of these are features of the current NHS. The fact of under-funding means that neither the initial risk of errors nor the increased risks of error brought about by the dictates of efficiency can be addressed in hospital planning. In these circumstances, the singling out of hospitals and of their professional employees for ‘blame’ when failures occur may preclude the recognition of the most significant causes of damage and any proper attribution of responsibility and this may, in turn, ‘hamper effective learning’.125

B. Negligence liability The question arises, to whom should responsibility be attributed when injury is caused in cases of under-funded hospitals subject to systemic failures? High- level ministerial or governmental decisions are unlikely to be susceptible to suits in negligence—despite the obvious causal relevance of these decisions—for two reasons. First, they are likely to be of a political nature and, for that reason, are not ordinarily questioned by the courts. Even if they were open to review, the need for ‘efficiency’ is itself so well ingrained within the managerial ethos that its espousal would rarely be treated as unreasonable. Second, potential litigants are precluded from taking actions against the Secretary of State (or other governmental decision-makers) by various legislative provisions. Where a health authority has ‘exercised’ a function delegated to it, para. 15(1) of Sch 5 to the NHS Act 1977 precludes the commencement of an action against any body other than the authority itself. Similarly, hospital and primary care trusts must be sued with respect to functions delegated to them.126 In the absence of higher- level responsibility, the position in negligence of health authorities and their professional employees must be considered. Kennedy and Grubb state that: The question of the availability or otherwise of sufficient resources is a troubling one for the courts. While their obligation is to determine the legal standard which defendants must meet, they cannot close their eyes to the fact that these standards must be set in a real world where resources are finite and where there is never enough to go around.127

124 Ibid at 22. 125 Ibid at 24 and 34. 126 See National Health Service and Community Care Act 1990, s 8 and NHS Act 1977, Sch 5A, para. 13 respectively. 127 I. Kennedy and A. Grubb, above n 43 at 331. 462 Oxford Journal of Legal Studies VOL. 21 There are two ways in which the law can respond to inadequacies in NHS funding. The first kind of response is to apply the ordinary rules of negligence to cases of NHS malpractice. The ordinary rule is that ‘[h]e who wishes to act must act carefully or not at all’.128 Such a rule has the theoretical advantage of operating to ‘counteract the pressure for doctors to overstretch themselves and provide inadequate treatment’.129 This is the way in which the courts have applied the rules of negligence in cases like Bull v Devon Area Health Authority,130 where the Court of Appeal held that a lack of resources could not affect the duty owed by a health authority and its employees to patients. However, it will be contended that the application of negligence principles is usually predicated upon a number of factual elements including the ability of a decision-maker to decide differently and to act in a way that avoids the infliction of harm. In the NHS context, this means that it is only reasonable to impose liability upon NHS employees where they have the ability to change their practices and thereby ensure that patients are not injured by way of medical mishaps. The ability to do these things is often dependent upon the availability of funds to employ extra staff and obtain extra bed space and equipment. Where this is not possible, the response of the law to under-funding must be to alter the criteria by which determinations of negligence are made. The second response to under-funding, then, is to take this fact into account in determining the appropriate standard of care in negligence. There are strong policy reasons for choosing this alternative. The NHS is in a unique position in that health authorities, as delegates of the Secretary of State for Health, have a statutory duty to promote and provide healthcare.131 They must do this despite under-funding. While judicial review cases appear to deny the possibility of legal reproof should health authorities withdraw services, this (it is suggested) betrays the political reality. The real pressure to maintain ‘comprehensiveness’ comes from the Secretary of State for Health and his Government, who have a vital political stake in the availability of healthcare. This is a classic case where the Minister can take all care but no (direct) responsibility. The task of the health authorities, then, is likely only to be hindered by findings of liability for systemic deficiencies about which they can do little so as to prevent injuries occurring. The first indication of the attitude of the courts to under-funding in medical negligence cases was given by the Court of Appeal in Wilsher v Essex Area Health Authority.132 This case concerned the question whether the standard of care owed by an inexperienced junior houseman would be lower than that of a more experienced colleague. Mustill LJ stated that ‘[i]f he assumes to perform a task, he must bring to it the appropriate care and skill’.133 The standard of care demanded by the law would not differ according to the qualifications and/or

128 Stovin v Wise [1996] AC 923 at 933, per Lord Nicholls. 129 C. Newdick, aboven3at276. 130 [1993] 4 Med LR 117. The case was decided in 1989. 131 NHS Act 1977, s 1. 132 [1987] 1 QB 730 [reversed on other grounds [1988] 2 WLR 557]. 133 [1987] 1 QB 730 at 747. AUTUMN 2001 National Health Service Rationing 463 experience of the person in the post, but would be judged according to what was expected of a person occupying the post: ‘the standard is not just that of the averagely competent and well-informed junior houseman . . . but that of a person who fills a post in a unit offering a highly specialised service’.134 Glidewell LJ agreed.135 From this it would appear to follow that a hospital should offer healthcare services only if it were able to fund these adequately and that it cannot escape liability for inadequate care on the ground of a lack of resources. This consequence was held to follow in Bull v Devon Area Health Authority136—a case in which the impact of under-funding upon the standard of care came directly into question. The plaintiff’s mother was admitted to hospital when she was pregnant with the plaintiff, who was one of uni-ovular twins sharing a single placenta. Any delay in the delivery of the second twin was likely to give rise to a major risk of hypoxia (reduction in oxygen supply) if not anoxia (deprivation of essential oxygen supply), which would be aggravated significantly if placental bleeding occurred. The hospital was operated at two sites, one mile apart. One site housed the gynaecological ward and the other the obstetrics ward. At any point in time, the specialist who was required for abnormal deliveries might have been at either of the sites, at the GP unit, at home or in transit. Due to the delay in obtaining either the on-call or reserve specialist, there was an unreasonably long 68-minute delay in delivering the second twin. The plaintiff was born after placental bleeding. He showed signs of hypoxia and was found to be affected by severe brain damage and spastic quadriplegia. He brought a suit in negligence, arguing that the system of assembling appropriately qualified staff in cases where specialist supervision of delivery was deficient and/or that the system was negligently operated. In the Court of Appeal, Slade LJ observed that ‘it is obvious that a system such as that which was operated at the hospital in 1970 could not and would not guarantee the attendance of a registrar or consultant within 20 minutes of the birth of a first twin’.137 The system of cover at the hospital was indeed ‘precarious’.138 In cases where multiple births were involved, the system . . . was obviously operating on a knife edge. It had to be operated with maximum efficiency. Otherwise, mother and child would be at obvious risk. In the present case[,] I think that the delay of 28 minutes which elapsed between Daryl’s birth and the first calling of Mr Jefferiss was substantially too long.139 Dillon LJ stated that the ‘risks of failing to provide attendance for the patient’s foreseeable requirements was [sic] so great that the system could only rank as an acceptable system if it was operated with supreme efficiency’.140 There was,

134 Ibid at 751. 135 Ibid at 774. 136 [1993] 4 Med LR 117. 137 Ibid at 130 (emphasis in original). 138 Ibid. 139 Ibid at 131–2. 140 Ibid at 137. 464 Oxford Journal of Legal Studies VOL. 21 however, ‘no sign’ of that kind of efficiency.141 The system was ‘unreliable and essentially unsatisfactory’.142 Mustill LJ appeared to agree143 and, in obiter comments, considered the funding issue. While accepting that the public pro- vision of medical facilities was not to be equated with other kinds of public services,144 he asserted that it was not ‘completely sui generis’either.145 For this reason, it was ‘not necessarily an answer to allegations of unsafety that there were insufficient resources to enable the administrators to do everything that they would like to do’.146 No justification was offered in support of this stance. Perhaps the defendant authority in Bull should have been congratulated for operating an ostensibly ‘efficient’ system, manning two sites with only one specialist on duty. Its practices appear, after all, to have been consistent with the new managerial ethos of stretching the use of resources to breaking point. Assuming this to be an inappropriate legal response to the plaintiff’s injury, we need to assess whether the principles laid down in the above cases are cogent. It will be submitted that they are not because they do not accord with a defensible basis for determining the appropriate standard of care to be observed. In Wilsher v Essex Area Health Authority,147 Browne-Wilkinson V-C dissented from the proposition that the standard of care owed by the junior houseman to a patient should not be adapted to reflect his or her inexperience. It is submitted that His Lordship’s reasons are instructive. He pointed out that the junior houseman, who would be primarily liable if negligence were established, has no choice in the matter whether or not to undertake treatment: The houseman has to take up his post in order to gain full professional qualification: anyone who, like [the defendant junior], wishes to obtain specialist skills has to learn those skills by taking a post in a specialist unit. In my judgment, such doctors cannot in fairness be said to be at fault if, at the start of their time, they lack the very skills which they are seeking to acquire.148 The lack of choice might mean that, contrary to Mustill LJ’s suggestion,149 the doctor in question does not voluntarily assume complete responsibility for the welfare of the patient in circumstances where he or she must learn by doing. His or her autonomy has been restricted and he or she, no doubt, agrees to take part in training upon an assumption that there will be proper supervision. But it is not clear that an under-funded health authority with a limited number of senior specialists (i.e., stretched resources) should be attributed with ‘blame’ in such a case either. Secondly, it is not ‘fair’ to impose liability upon the junior

141 Ibid. 142 Ibid at 138. 143 His Lordship stated: ‘Either there was a failure in the operation of the system, or it was too sensitive to hitches which fell short of the kind of major breakdown against which no system could be invulnerable’: ibid at 142. This statement is not without ambiguity. 144 Ibid at 141. 145 Ibid. 146 Ibid. 147 [1987] 1 QB 730. 148 Ibid at 777. 149 Ibid at 747. AUTUMN 2001 National Health Service Rationing 465 in these circumstances. Indeed, it follows from what is being argued in this paper,150 that the same goes for the employer hospital. Assuming that each actor in a hospital acts in good faith and is guilty of no neglect with respect to duties within their technical competence and control, the situation is one in which no potential defendant appears to be ‘at fault’. Upon what basis can liability be imposed? What is it about the conduct of treating doctors and nurses which attracts liability? The bare need to compensate the injured is not an adequate reason. It must be possible to link that need to compensate with a causally significant deviation from proper standards of practice. The standards set by the law must be reasonable. Courts must be careful to refrain from dictating an impossible counsel of perfection in these cases. It is interesting to note that even Bull v Devon Area Health Authority151 is not an unambiguous statement in support of the proposition that resources are irrelevant in determining the proper standard of care. Slade LJ refuted the suggestion that the authority in that case should have ‘ensured’ that proper treatment was given, as exemplified by the provision of an extra specialist at all times. His Lordship said that the obligation to provide proper treatment was not ‘absolute and unqualified’.152 ‘With that limited manpower available [to the defendant], it might have been quite impossible, however diligent the attempt, to secure the attendance of’ a specialist.153 In a reactive profession such as the practice of medicine, ‘inescapable other commitments’ might arise154—especially in cases of emergency. With these points in mind, an alternative formulation of the standard of care might be considered.

5. Restatement of the Standard of Care

A. A suggested approach to the standard of care It is abundantly clear that the most important resource allocation decision which impacts upon the NHS is made by the government of the day when it determines total funding for the healthcare system.155 Successive governments have, as we have seen, chosen to restrict growth in the healthcare budget. There has, furthermore, been a shift in emphasis from secondary to primary care. With respect to the level of funding, the government has expected greater and greater ‘returns’ from existing facilities, greater and greater ‘efficiency’ in their operation. Neither the health authorities nor front-line medical staff have had any alternative other than to accept these policies, even though they have had a significant impact upon their ability to care for patients. On the contrary, as delegates of

150 Ibid at 777. 151 [1993] 4 Med LR 117. 152 Ibid at 131. 153 Ibid. 154 Ibid. 155 See M. Jones, Medical Negligence (1996) 224, discussing Wickline v State of California 228 Cal Rptr 661 (1986). 466 Oxford Journal of Legal Studies VOL. 21 the Secretary of State for Health they have continued to serve under a statutory duty to promote ‘comprehensive’ healthcare for their constituents and are subject to political pressures to keep hospitals and wards open. The impact of these cost pressures has been predictable. In Bull v Devon Area Health Authority,156 as we have seen, medical staff caring for obstetric and gynaecological patients were said to be balancing their various responsibilities on ‘a knife edge’.157 Although the Government has stressed the need to maintain standards while funding levels remain inadequate, it can hardly be blind to the difficult nature of this task. The stretching of resources and the pursuit of ever-greater efficiency gives rise to real risks of human failure through under-staffing, fatigue and so on. It can only be assumed that, despite the rhetoric, the Government has factored systemic mistakes and mishaps into the political goal of an ‘efficient’ healthcare system. This causally significant fact must, in turn, impact upon the degree to which the new National Service Frameworks and service agreements will play a role in shaping the law of negligence. The agreements are not ‘contracts’ in the conventional sense and are not enforceable in courts of law. Although they might give rise to arguments about the existence of legitimate expectations that certain standards of care will be fulfilled, courts should not accede to such arguments, based as they are upon acceptance of the concept of a legitimate expectation of a substantive benefit (as discussed earlier). As most of the judicial review cases have recognised, health authorities and their employees can promote healthcare only within the limits of their financial ability to do so. This means accepting that services will not, in all cases, be ideal and that neither health authorities nor their professional employees may be liable in particular cases of neglect. In order to ensure that tacit governmental policy is observed and that justice is done in individual cases, the standard of care in negligence must be adapted to the special position occupied by the NHS. The particular adaptation that ought to be made involves simply taking into account the fact of under-funding and its impact upon the healthcare system in determining whether health authorities and their employees have acted reasonably. The relevant standard of care may be expected to rise or fall depending on whether a particular hospital or unit is under-funded. It is unlikely, therefore, that standards of practice can be determined a priori through the new national clinical standards. This is an important point because, although NICE is required to take into account ‘the effective use of available resources’ when it determines those standards158 (meaning, so it would seem, that luxury standards of care are to be avoided), there will be undoubted political pressure upon that body to set standards which are perceived as exemplary rather than merely pragmatic. To indiscriminately apply such standards to all hospitals and their professional employees, regardless

156 [1993] 4 Med LR 117. 157 Ibid at 131. 158 National Institute for Clinical Excellence (Establishment and Constitution) Order 1999 (SI 1999/220), Art. 3. AUTUMN 2001 National Health Service Rationing 467 of how well funded the hospitals are, would be unreasonable and (if the Chief Medical Officer’s panel is to be believed) possibly counter-productive. The question to be considered in this final section of the paper is, then, whether such a variable standard of care is viable. In answer, it is submitted that the standard of care is, in many cases, relative rather than absolute in nature. It is subject to adjustment according to the context within which injury occurs— the circumstances which impact upon the decisions that are made and actions committed or omitted. Brazier and Murphy comment that ‘[t]he fundamental issue is how to strike a balance between the utility of the activities of the defendant and the threat of harm to the plaintiff which these activities engender’.159 The utility or, rather, the social importance of the activities of health authorities and their employees is such that courts must defer to the inevitability of mistakes and mishaps which, if the fault of anybody, are properly seen to be the fault of those who are themselves out of the reach of the courts.

B. The current law The ordinary rule is that standards of care in negligence are unresponsive to the idiosyncrasies of individuals. Thus, in Glasgow Corporation v Muir,160 Lord Macmillan stated that the ‘standard of foresight of the reasonable man . . . eliminates the personal equation’.161 This rule has, at times, been taken to lengths that appear harsh—in Nettleship v Weston,162 for example, where a learner driver was told that she must comply with the standards imposed upon ordinary experienced drivers during the course of her third lesson. Again, in Wilsher v Essex Area Health Authority,163 discussed above, it was held that a junior doctor was required to comply with the standards expected of an experienced professional occupying the post, or undertaking the task, in which he or she had been engaged. Mustill LJ stated that the notion of a ‘duty tailored to the actor, rather than to the act which he elects to perform, has no place in the law of tort’.164 However, in a number of cases concerning the standard of care, the courts have held that risks might be taken in order to serve important public purposes. These include risks which arise from the unavailability of adequate resources. In Daborn v Bath Tramways Motor Co Ltd,165 for example, Asquith LJ remarked that, if all trains were ‘restricted to a speed of 5 miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk’.166 The Court of Appeal approved this dictum in Watt v Hertfordshire

159 M. Brazier and J. Murphy, Street on Torts (10th edn, 1999) at 232. 160 [1943] AC 448. 161 Ibid at 457. 162 [1971] 2 QB 691. 163 [1987] 1 QB 730. 164 Ibid at 750. 165 [1946] 2 All ER 333. 166 Ibid at 336. 468 Oxford Journal of Legal Studies VOL. 21 County Council,167 in which case a fireman had been injured while the defendant authority transported a large, unsecured jack to the scene of an accident in order to rescue a person trapped under a heavy vehicle. The plaintiff argued that the defendant had not taken proper precautions in transporting the jack. The plaintiff noted that the defendant could have, in the alternative, called for a jack from another fire authority. This was, essentially, an allegation of systemic failure, it not being alleged ‘that there was negligence on the part of any particular individual’168 However, the court held that there had been no breach of the duty of care owed to the plaintiff by his employer, given that a life was at stake and that the jack had to be transported only a short distance. Denning LJ stated that the ‘saving of life or limb justifies taking considerable risk’.169 Both Singleton LJ170 and Morris LJ171 accepted that the resources available to the fire authority had to be taken into account in determining what was the appropriate standard of care. Morris LJ stated: ‘Had the station been a larger station, had there been unlimited resources, unlimited space and an unlimited number of vehicles, it might be that another fitted vehicle would have been available; but that was not reasonably practicable or possible’.172 It was not negligent either. In Goldman v Hargrave,173 the Privy Council was also willing to accept that standards of care might vary according to the circumstances—in particular, according to the resources of the defendant. This was in the context of an omission by the defendant occupier of land to take further measures to ensure that a burning tree posed no risk of damage to neighbouring properties. Lord Wilberforce stated: [T]he law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character . . . A rule which required of him in such unsought circumstances in his neighbour’s interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust.174 For this reason, the Judicial Committee was prepared to accept that a defendant ‘should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more’.175 The Committee’s opinion, which was approved in Herrington v British Railways Board176 by Lord Wilberforce and in Stovin v Wise177 by Lord Nicholls, is helpful, not only in confirming the general sentiment that resources might be taken into account in special cases,

167 [1954] 1 WLR 835. 168 Ibid at 837. 169 Ibid at 838. 170 Ibid at 837–8. 171 Ibid at 839. 172 Ibid. 173 [1967] AC 645. 174 Ibid at 663. 175 Ibid. 176 [1972] AC 877 at 920–1. 177 [1996] AC 923 at 933. AUTUMN 2001 National Health Service Rationing 469 but also in so far as it underlines the essentially reactive nature of the task of the occupier of land trying to contain a natural calamity. A court must be careful not to impose an unreasonable standard of care upon a causally insignificant party. NHS hospitals and their staff might be thought to occupy a position similar to the occupier of land who is faced with a natural calamity, reacting as they do to various healthcare needs in the context of limited resources. Generally, it appears that courts are more prepared to adapt standards of care where defendants have been hampered by the physical circumstances in which they have acted—rather than where they complain about their own inability to take care. This is implicit in Kidner’s observation that the circumstances which are, in general, relevant to the formulation of the appropriate standard of care ‘will be the physical conditions in which the act takes place, such as driving at night or on a narrow road and should exclude those factors which describe the actor rather than the act’.178 Most of the difficulties that are created by under- funding manifest themselves in the physical conditions in which healthcare professionals work. This, again, points to the suitability of a modified standard of care where systemic failures occur within the NHS. It has been accepted in at least one case that the standard of care owed by a public health service might be adapted to take account of a lack of funds. In Knight v Home Office,179 the personal representatives of the deceased brought an action alleging that the prison in which he had been incarcerated had offered inadequate care for his mental condition, which led to his suicide. Counsel for the plaintiff argued that the appropriate standard of care was that offered by mainstream psychiatric hospitals (outside the prison system). Pill J rejected this contention. His Lordship stated that it was not a ‘complete defence for a government department any more than it would be for a private individual or organisation to say that no funds are available for additional safety measures’.180 However, that was not to say that the standard of care could not be the subject of further discussion. His Lordship held that it was necessary to have regard to the ‘context’ within which a particular service (whether inside or outside prison) was being offered.181 Courts must ‘bear in mind as one factor that resources available for the public service are limited and that the allocation of funds is a matter for Parliament’.182 In the result, he noted that a prison had a function different from that of a psychiatric hospital. He was unable to agree that a prison ought to offer the same facilities as would be available in a psychiatric hospital.183 It is submitted that this is the correct mode of analysis. In the recent House of Lords decision in Arthur J Hall v AP Simons,184 Lord Hoffmann made certain remarks which appear consistent with this approach. His Lordship stated that

178 R. Kidner ‘The variable standard of care, contributory negligence and volenti’ (1991) 11 LS 1at5. 179 [1990] 3 All ER 237. 180 Ibid at 243. 181 Ibid. 182 Ibid. 183 Ibid. 184 [2000] 3 All ER 673. 470 Oxford Journal of Legal Studies VOL. 21 the ‘doctor . . . owes a duty to the individual patient. But he also owes a duty to his other patients which may prevent him from giving one patient the treatment or resources he would ideally prefer’.185 The clear inference is that this is an acceptable compromise.

C. The advantages of a variable standard of care ‘There may be circumstances when the hospital has to offer treatment which falls short of what it would acknowledge as the best available, because the alternative is to offer nothing at all and turn the patient away’.186 A good policy reason in favour of adopting the modified standard of care in cases of systemic negligence is that this will ensure that hospitals keep services open, rather than being tempted to avoid their statutory duties and close down wards because of the lack of resources. It is more advantageous to make some healthcare services available—even though that treatment is not to the ideal standard.187 This is consistent with the Government’s healthcare policy: to keep hospitals open and to treat patients at lower cost and with ever-greater efficiency. It is consistent with the Government’s tacit acceptance of the current level of accidents and mishaps in the provision of treatment in an ‘efficient’ NHS. A policy of diluted care provision is, as appears evident from the cases, more rational and certainly more politically acceptable than is the denial of treatment altogether. Given the possibility that the courts might develop a modified standard of care, which takes into account the NHS’s inadequate level of funding, it is worth pointing out that there are a number of well-known cases that might have been viewed differently if the courts had employed the modified standard. For example, in Barnett v Chelsea & Kensington Hospital Management Committee,188 the casualty officer was described as ‘a tired and unwell doctor’. The inference appears to be that the hospital in question was under-staffed. Why else would an ill doctor be on duty? In Bolitho v City & Hackney Health Authority,189 neither of the on- duty paediatric specialists attended the plaintiff prior to his respiratory collapse. There was no suggestion that these doctors were doing anything other than attending to patients in what they believed to be the correct order of priority. A well-funded hospital would not require staff constantly to prioritize amongst patients in the waiting room because there would be enough specialist staff to deal with busy periods. Finally, there is the example of Marriott v West Midlands Health Authority,190 in which the plaintiff was released from hospital too early because of the premium placed upon keeping beds free for cases in which urgent attention was required. Again, no attention was paid to what might have been

185 Ibid at 691. 186 C. Newdick, aboven3at110. 187 For assertions to the contrary, see I. Kennedy and A. Grubb, above n 43 at 332–3. 188 [1968] 1 All ER 1068. 189 [1998] AC 232. 190 [1999] Lloyd’s Rep Med 23. AUTUMN 2001 National Health Service Rationing 471 the real cause of neglect and injury. The examples can be multiplied many times over.

6. Conclusions This paper has demonstrated the need to reformulate the standard of care in negligence, in so far as it is applied to the National Health Service. Just as the courts in judicial review cases have deferred to the wisdom of hospitals and to their professional employees when determining how scarce resources should be allocated, so they must recognize the impossibility of maintaining ideal standards of care in the face of a government policy which tacitly accepts that a small proportion of NHS treatments will result in mishaps and accidents. The standard of care must be modified in cases of systemic negligence, where this is the consequence of under-funding. To attribute ‘fault’ to hospitals and front-line medical staff in these cases is to impose liability upon parties who are unlikely to have the ability to avoid the causation of harm to patients. They are causally insignificant parties. It has been argued that scope exists within current rules on the standard of care to recognize the reality of NHS under-funding. This scope is to be found in the simple requirement that those who act must act reasonably in the cir- cumstances of the particular case. The fact of under-funding, and of the inevitable systemic failures to which this gives rise, are important circumstances that the courts must take into account. Acceptance of these principles means eschewing the proposition that national clinical standards specified in NHS service agree- ments (which are not enforceable in courts) ought necessarily to be taken as setting the appropriate standards of care to be applied in negligence. The result of a reformulation of the standard of care will be that hospitals will be faced with fewer costly negligence actions. Money that would have been expended upon defending a great number of misdirected actions and upon compensating proportionately small numbers of injured patients could be channelled into the improvement of the systems which have proven to be deficient. This will benefit a far greater number of patients than does punitive negligence liability. The real difficulty, of course, lies in attempting to justify the denial of compensation to those who are injured as a result of diluted or sub-standard care brought about by under-funding. Justice would seem to demand that there be compensation for these patients. However, if the argument set out in this paper is accepted, there is little which would justify payment of such compensation by health authorities, NHS hospitals or their professional employees. The requirements of actions in negligence would not be capable of fulfilment, primarily because standards of care would be less onerous, thereby removing the juridical basis for the shifting of losses. This, however, is the inevitable consequence of funding decisions taken by successive governments and responsibility for injuries must be placed at their feet—and at the feet of those who elect them.