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.