As is so often the case in a common law system, the legal protection conferred by one strand of law is undermined by other legal provisions. There is no blanket legal duty which compels health care professionals to undergo HIV/AIDS tests; on the other hand, appropriately drafted contracts of employment, duties imposed by courts on employees and the risk of litigation by patients with pressurise individual workers to submit to testing. Whereas in Italy the law clearly condemned any compulsory testing (...) of health care workeers, but must now be interpreted to support it, in England and Wales each individual worker's case must be examined in order to determine whether testing must be submitted to. (shrink)

One probable success (the case of Mrs Tonge) is not a great deal to set against the courts' overwhelming reluctance to play a part in challenging resource allocation decisions. Nevertheless, where such decisions are inherently unreasonable—for example, as Margaret Brazier has suggested,11 a refusal to treat patients because they are divorced, or because they are Labour Party members—a remedy would be available through the courts. Presumably gender biased rationing decisions would similarly be susceptible to judicial review, although there might be (...) evidential difficulties. Age-related denial of treatment would probably not in itself be considered to be ‘Wednesbury unreasonable’. If it could be shown that within the one health authority a particular patient or a group at a set age were denied treatment others at the same age received, there might be scope for an application to the courts. Evidence sufficient to satisfy judges ‘notoriously unwilling to overturn doctors' decisions’11 would be hard to collect.While courts cannot be expected to determine health care policy, their refusal to examine in any detail the decision-making processes of Health Service authorities has ratified ‘the opacity of current decision-making’.12 Instead of forcing authorities to take decisions in a reasoned and justified manner, the courts by their very conservative application of the Wednesbury decision have allowed them to hide from public scrutiny. (shrink)

The British National Health Service (BNHS) was founded, to quote Minister of Health Aneurin Bevan, to ‘universalise the best’. Over time, however, financial constraints forced the BNHS to turn to incrementalist budgeting, to rationalise care and to ask its practitioners to act as gatekeepers. Seeking a way to ration scarce tertiary care resources, BNHS gatekeepers began to use chronological age as a rationing criterion. Age-rationing became the ‘done thing’ without explicit policy directives and in a manner largely invisible to patients, (...) to Parliament, and to the public. The invisibility of the practice, however, violates the publicity principle that John Rawls and other philosophers believe essential to fairness. BNHS invisible age-rationing practices are thus a test case of the principle that fairness presupposes publicity; they raise the question: is it possible to preserve equitability in a system that uses non-public criteria to allocate scarce resources? To seek an answer, published data on access to end-stage renal disease (ESRD) treatment in Britain and the European Community (EC) are analysed. Among the findings are: that BNHS age-rationing acts as an excuse for denying care to those most likely to need ESRD treatment; and is, moreover, arbitrary and inequitable. It is further argued that no age-rationing policy can sustain visibility, and that, if the BNHS is to be fair to its patients, it must reform its present age-rationing practices, replacing them by a publicly visible, outcome-based rationing policy that rations either in terms of QALYs or triage categories. (shrink)